Mediation

October 4, 2007 at 7:09 am (community response)

Mediation

 

Some things I looked at when I was writing this are: Peter Coleman, ‘Power and Conflict’, Simon Young, ‘Cross-Cultural Negotiation in Australia: Power, Perspectives and Comparative Lessons’

 

What is it?

Mediation is basically facilitated discussion and negotiation between two or more people. It might be necessary because people want to talk about conflicts that are happening between them in order to resolve them, and think that maybe they can be resolved, but maybe without a mediator it could just become an argument, they might not be able to communicate properly together, their emotions are really intense and it is difficult for them to move forwards in discussions, they disagree about the most important issues, they think that their interests are incompatible, there might be significant differences between the people, and so on. A mediation involves a third person, not to make decisions on behalf of the people involved, but to help to structure and order communication and dialogue so that they can reach an agreement themselves.

 

The role of the person mediating should be determined by the people who want to have a mediated discussion. While usually their role will be neutral, sometimes you might want someone to offer advice, to help people to reach a solution, to give their opinion, or so on. It really depends on the specific situation and issues with communication and so on. Sometimes it might be someone not directly involved in the conflict, or someone known equally by both parties, or not really close to either party, but other times it may be a friend who is closer to one of the parties, or someone who is really familiar with the conflict that has been going on, or etc. This has to be up to the particular people involved and what they want. No matter what the role of the mediator is, it is important that the people between whom the conflict is retain ownership of the process – it has to be their process.

 

Part of the idea around mediation is that, rather than seeing a conflict as two opposing sides, conflict can be seen as a mutual problem for everyone involved to solve together. Power relations can be converted into a ‘power with’ relation – people working together to solve issues. Part of the role of the mediator would be to help all those involved to identify the common problems that they need solving. From here, you can try to work together around how to solve it. This involves identifying similarities, and underlying interests of the people, which are more complex and usually easier to reconcile than the positions of each person – for example, a position might be that I don’t want to do the dishes every day. But my underlying interest might be that I do want the house to be clean but I don’t want to spend all my time doing the cleaning because I’m really busy and have heaps of other stuff going on. If I just say I don’t want to do the dishes every day, but my housemate says that he wants me to do the dishes every day, we have a conflict that is hard to resolve because we have opposing interests. But if we look at our underlying interests – we probably both want the house clean, but also probably don’t want to spend all our time doing it. There are more similarities, and we might be able to work out a solution that is good for both of us. Obviously that’s a really easy and simplistic example, but the basic idea is the same: trying to turn a conflict into a mutual problem you can solve together.

 

This means changing the ways we look at conflicts, and turning them into cooperative situations where people want others to perform effectively and use their resources and ideas together for similar purposes. This needs constructive communication. Sometimes its easier to see conflicts differently if you have someone – a mediator – helping you to do so.

 

Mediation is a strong element in Indigenous dispute resolution processes, usually managed by elders. There may be a strong focus on expressing emotion in a controlled environment, drawing out the deep-rooted causes for problems and issues that come out in anger, violence and so on. The mediator might contribute towards the healing process by teaching, offering advice and guidance, helping individuals find and think about solutions. In many descriptions of the Aboriginal dispute resolution process, the ultimate goal is transformation and healing.

 

Power relations

Power dynamics and inequalities or imbalances can be really present in mediation. Part of the role of the mediator is to try to counter these power imbalances so that it is a more equal conversation, without manipulation or pressure. (Sometimes, depending on the situation, it might be important to the process that the mediation is a part of that one party has more power – maybe a survivor in a mediation needs to have more power, and so the mediator’s role would partly be making sure this was maintained)

 

Various things contribute to power imbalances in mediations. It can be because of the situation – survivor-perpetrator power dynamics, for example; because of race, gender, age, social standing/popularity, religious beliefs and cultural backgrounds, family dynamics, mental health, sexuality, and so on. One person may have more power in a mediation and be more dominating, pushing the other person into particular agreements and outcomes. These various dimensions of power and privilege can also create norms, roles, cultures and so on that drive people to stick to limited ideas of what solutions could be, what can be done about situations, and so on. It can be important to think about the reason why particular ideas or solutions seem appealing, or seem to be the only options.

 

Things that can play out in mediations according to unequal power relations include: one person not really paying attention to the other, talking not to the person directly but only to the mediator, interrupting and talking over the other person, being dismissive or condescending of or about things the other person says, making threats or being manipulative, trying to discredit the other person to the mediator, revealing information in the mediation the other person wouldn’t be comfortable with having revealed, using pressure tactics, not compromising or moving away from the position they want to be the outcome…what other things?

 

All these things obviously mean that the outcome is more likely to be good for the person with more power in the situation, and potentially bad for the other person – this is not a step towards dealing with the issue, but more like a perpetuation of the conflict. The mediation process and the role of the mediator needs to try to minimise the impact of power imbalances on the mediation and its outcome. This might mean increasing the power of the person who has less, or decreasing the power of the more powerful person, setting boundaries for behaviours, making the power dynamic visible and talking with parties about how to minimise it or with the more powerful party, or sometimes maybe being quite directive in making sure people have equal space to speak and things like that…what else?

 

Sometimes cultural or language differences, and so on, mean that a mediator might also have to facilitate communication in a way that involves some element of interpretation – making sure all people understand what is going on and what is being said. If there are cultural differences, it is important to try to work out how these will impact on the entire process. Some people might be used to certain forms of dispute resolution, and it could be important to use some parts of that process.

 

Confidentiality

Confidentiality is really important. It might be a condition of people participating in the mediation that what is said in the mediation stays in the mediation. This might help people to be more honest, more open, and so on. However, it might be an outcome of the mediation that the participants want a record or description of the mediation and the outcomes made public, for whatever reason. Confidentiality should be talked about with the parties before the mediation starts.

 

How does it work?

There are different models of mediation and different roles of the mediator in each. The following information is not from any one particular model of mediation but just some ideas and strategies and etc that I thought were interesting or useful to think about.

 

Mediation is often between only two people, but might be between many more people, depending on the issue, what stage of the resolution process mediation is occurring at, what the purpose of the mediation is, and all that stuff. It is important that people involved make the process their own – determine how they want the mediation to go, what processes they want to follow, what they want a mediator to do, and so on. It should reflect the issue, the people, and what they want to get out of it.

 

There also might be many issues in a particular conflict. The people involved might want to cover all the issues in the mediation, or just some. Part of the mediation is working out which issues people think are the most important, and which order to do them in. There might be conflicts around this.

 

Some models of mediation focus on separating the people from the problem (the problem is not an unresolvable difference between people), focusing on interests and not positions (see above), thinking of lots of possibilities before deciding what to do. Some focus on having an objective standard to measure the result against, but I would disagree – I think that results of mediation can only be measured by the personal satisfaction of the people involved, and whether their needs and etc are met. To me also, separating the person from the problem doesn’t mean speaking calmly and leaving your emotions out of the mediation. I think expressing emotions is really important. And sometimes this can include anger, and anger is expressed against people. But sometimes this can mean that mediation is not going to work at all. It might also depend on who is expressing the anger towards the other, and how they are doing this – in a survivor-perpetrator type dynamic, anger might be really positive for a survivor to express, but completely fucked if it is a perpetrator expressing anger and attacking the survivor. I guess mediation is about, in part, channelling these emotions – not a lot, not so as to not allow space for emotions – but to try to make sure the mediation doesn’t collapse or something, and I guess also in relation to power dynamics and protecting people.

 

Some pre-conditions and things to think or ask about before a mediation:

· venue and physical arrangement – is there a particular place where people might feel most comfortable? safety? no interruptions? how will the thing be set up – sometimes, having two people sit opposite each other with the mediator in the middle might be too much like a fight or argument. other times it might be necessary. will you need to have food and drink if it will take a long time? is it going to be warm, and lit well? etc

· things not to be talked about – are there some things that people/person in the mediation definitely do not want to be mentioned by you or the other person? or some things might only be able to be talked about in a certain way – so other people remain anonymous, particular details are left out, or etc.

· language – will there be difficulties in communication due to language barriers?

· how do people like to tell their stories? question and answer, or in a more straightforward story telling way?

· and so on

· this kind of thing means that a mediator should meet with all people who will be in the mediation and talk with them before hand. What about might depend on the role of the mediator in the mediation – a neutral mediator might not want to know the details of the conflict and people’s opinions before hand. However, it could be useful sometimes to find out what the conflict is, people’s positions, and try to work out their underlying interests, if the mediator is going to help identify those interests or offer some suggestions. Other things to talk about would be physical and venue-related needs during the mediation, confidentiality, people’s triggers and how to deal with them, sometimes a safe word that means the mediation needs to stop or that it should move to the next issue, or a time out word meaning that a person needs to pause the mediation and talk confidentially with the mediator.

 

The actual mediation process…some ideas or things to think about:

· clear explanation of what the process of the mediation will be, that people can stop at any time, confidentiality, and so on.

· setting down of some basic rules for the mediation – no interruptions, respect for the other person, not to attack the person but their behaviour (with qualifications maybe…), etc. Talking about this might not necessarily stop it from happening, but it does give you something to refer to when this behaviour happens – you can say, remember when we said this at the start….

· the rest of the process will depend on the process worked out before hand, but the following points are just some ideas:

· having time for either one or both/all of the peopl to tell their entire story, uninterrupted. Through this, getting people to try to work out why they did or felt certain things.

· having people each identify what they think the main issues are

· then trying to talk about which is the most important, what order they should be gone through in – that is, if they can separated. Basically trying to structure the way the rest of the discussion will go.

· Once issues are identified, you can start talking about possible outcomes. There are different ways of doing this – maybe getting each person to talk about what they want out of the mediation in turn, perhaps having the mediator suggest some outcomes. Here it would be good to focus not on particular solutions – as in, not on how the conflict can be practically resolved in terms of what each person would do, but what kinds of things each person cares about in terms of resolving or dealing with the conflict. This means their underlying interests – their desires, their fears, their needs, what they definitely don’t want to happen.

· Throughout these processes, a good way of trying to re-frame the conflict into a mutual situation that needs to be dealt with is by re-framing things the people say. So if one person says I need… and another says I need…, trying to identify similarities and saying things like, well from this I get that you (meaning both/all) want or need something that…. and turning it into a common thing that all those involved might want. This might not always be possible, but trying to do it as much as possible, even having what one person wants as a qualification on what the other needs/wants, can be useful. Re-framing can also be useful in trying to make things people say specific to a person’s behaviour, not the person – saying, so, you felt xxxx when xxxx did or said xxxx, as opposed to the person saying, xxxxx is xxxxxx.

· If you can identify common interests, you can then talk about practical ways of satisfying those interests. This could be done in different ways – getting each person to write a list of things they want from the other person and things they are willing to do themselves, then seeing if anything crosses over and talking about it; having a mediator suggest something and then people talk about it; having the mediator only read what the people wrote then identifying similarities and talking about what they are; having people individually talk to the mediator in private about things they want/need, ideas they have and so on, and then the mediator to relay that to the other party in a different room, and going back and forth; or having private meetings then coming back together with discussion led and defined by the mediator; or a combination of any or all of these methods…there are heaps of ways. This applies not just to this part of the mediation but to any kind of identifying issues or wants/interests, or etc. Sometimes people might not want to come face-to-face at all in mediation. There could be two separate rooms with a mediator going back and forth between. It could occur over a long period of time. And so on.

· Some other things that could be useful in a mediation, for identifying similarities and re-framing stuff, as well as having a structure to go through, is writing things that come up and are agreed on down on a big piece of paper as you go, writing the main issues up in a way that makes them a common problem in the order you want to talk about them in (could be good to have a whiteboard or something sometimes), etc. But remember that these kinds of things can be more formal – make sure that the techniques you use and things you do and say, including the kind of language you use (formal, informal, intimate or kind of back from the people, etc) is suited to what kind of mediation and process the people involved wanted, and what they want out of it.

· I guess that there are heaps of ways a mediation could go, heaps of other things you could include, and etc. And also heaps of different ways you might want it to end. It might be that the discussion is the important part, rather than getting something out of it. It might be a small step towards other things. There might be a series of mediations, or just one. It might want to finish with each party having a list of things to go away and do, each with a support person to help them to actually stick to it. There might be follow up mediations. There might be something written down, or not at all…

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