Mediation — Seven Fundamental Questions

Professor JOHN WADE1

Medling är ett alternativt sätt att lösa en konflikt och har många förtjänster. I Sverige är emellertid medling inte vanligt förekommande utanför de rättsområden där lagen föreskriver att medling skall äga rum. Den tvekan som kan förekomma beträffande medling som konfliktlösningsmetod bottnar nog främst i bristande kunskaper om medling. Den följande uppsatsen, författad av professor John Wade, behandlar sju grundläggande frågor om medling och beskriver kort och koncist vad medling är.

In parts of many countries, mediation is a commonly used process for managing and resolving conflict. In many other places, mediation is virtually unknown in both practice and theory. People confuse mediation with meditation or medication. Why do these interesting anthropological variations exist? Why are the various forms of mediation relatively uncommon in Sweden? A vast and growing literature is available on conflict management and mediation.2 This short comment will outline seven fundamental and recurring questions about mediation.3 Similar questions can be asked helpfully about every profession, including lawyering, plumbing and judging. Every lawyer should be able to answer these seven basic questions from enquiring clients, or from other lawyers.

What is mediation?
Mediation is a process whereby a skilled helper assists people to communicate, negotiate and make decisions. There are many different forms and processes being used by successful mediators around the world. There are ongoing research attempts to categorise the different ”types” of mediation — for example, ”settlement”, ”problem-

1 Professor John Wade, Director, Dispute Resolution Center, Bond University, Gold Coast, Queensland, Australia. Thanks to Amber Howard and to Alan Chan, who patiently taught me computing skills at Bond University, while I wrote this note during their classes.2 For introductory reading see R. Fisher and W. Ury, Getting to Yes (Houghton Mifflin: Boston, 1981); C. Moore, The Mediation Process (San Francisco: Jossey-Bass, 1996); L. Boulle, Mediation (Sydney: Butterworths, 1996); The Mediation Quarterly (San Francisco: Jossey-Bass); K. Kovach, Mediation (St Paul: West, 1994); M. Deutsch and P.T. Coleman The Handbook of Conflict Resolution-Theory and Practice (San Francisco: Jossey-Bass, 2000); G.Tillett, Resolving Conflict: A Practical Approach (Melbourne: Oxford University Press, 2000); Z. Rubin, D. Pruitt and S. Kim, Social
Conflict: Escalation, Stalemate and Settlement (New York: McGraw-Hill, 1994).3 These questions are foreshadowed particularly in J.Kelly, ”A Decade of Divorce Mediation Research: Some Answers and Questions” (1996) 34 Family and Conciliation Courts Review 373.

solving”, ”evaluative”, and ”therapeutic” mediation. Predictably, as with any labelling process, rarely does any mediator fit neatly into one particular type or category. However, it is essential that lawyers be familiar with the different types of mediation practice. Otherwise they will inevitably refer clients to the wrong service.

Which disputes are suitable for mediation?
There are many diagnostic lists which have been drawn up in an attempt to predict which conflicts are suitable in content and timing for negotiation, doing nothing, mediation, yielding, filing in a court, judicial decision,4 arbitration, violence, or therapy. The medical profession is accustomed to using such checklists when trying to decide upon surgery, exercise, drugs etc. Mediation is particularly worth considering if the disputants have an ongoing relationship, or fear publicity; have reasonable communication skills; have access to skilled mediators; have used mediation successfully in the past; have several issues in dispute (rather than one only); are experiencing strong emotions and yet are still able to weigh up the costs of ongoing conflict in a rational manner.
    Many courts take the view that all conflicts are suitable for mediation and therefore send every litigant to mandatory mediation. Even cases of violence are then mediated via separate rooms or buildings or over the telephone.
    The writer works with a number of lawyers who say that some progress in decision-making is made at every well-prepared mediation they have ever attended, and therefore skilled mediation is always ”appropriate”. These lawyers, like diplomats in Israel, the Balkans and Northern Ireland have wisely expanded their definitions of ”success”.
    Nevertheless, diagnostic criteria will continue to be a much-debated topic.

What value can mediation add to ordinary negotiation?
If a dispute is suitable for negotiation, why waste money on employing someone to ”assist” the negotiation process? This is an important question, as mediation, like any new profession, can become a conspiracy against the laity, and aim to promote expensive client-dependence on another class of ”experts”.
    However, it is clear that there are many situations where the disputants have not been able to help themselves and need someone to do what they are not able to do. For example, the conflict has escalated and the disputants cannot effectively arrange a comfortable meeting room; or speak clearly; or exchange information; or redefine the problems in mutually acceptable language, organize well-expressed offers; or listen carefully; or increase the number of methods, beyond

4 E.g. J. H. Wade, ”Don’t Waste Your Time on Negotiation or Mediation: This Case Needs a Judge” (2000) Mediation Quarterly (forthcoming).

money, to address problems; or prepare a documented risk analysis on the costs of future conflict;5 or listen to their lawyers; or use highly confidential information in order to make a wise decision.6 Obviously, almost all mediations take place after unassisted negotiations have failed, and necessarily the disputants are saying ”we need some skilled help”. In Australia, so many lawyers, accountants and business managers have been to mediation training that there has been a cultural change over the last 15 years. Many lawyers and business people have dramatically improved their communication and problem solving skills, and now are able to prevent and settle more conflicts without the assistance of mediators.

What makes a competent mediator?
Many judges and arbitrators aspire to be mediators of some kind — often as a post-retirement job. However, few succeed in the reskilling and marketing required. Most are disappointed and discover that noone wants to hire them. In Australia, only three retired judges have successfully made the transition from judge to respected and regularly employed mediator. In the USA, a larger number of retired judges have successfully made careers as evaluative mediators. That is, they are employed to give a clear opinion, or to raise doubts about the range of possible outcomes of a conflict if it escalates to a court hearing. However, the vast majority of judges, even in the USA, do not make a successful transition to evaluative mediation (which often resembles a familiar form or arbitration), let alone to the less familiar and more difficult forms of problem-solving mediation.
    Surveys of, and one-way mirrors observing, commercially successful mediators suggest that the skills, processes and attributes which they have developed include: patience, a strong emphasis on an easily understandable process, a reluctance to give advice until trust has developed, persistence, emphasis on visuals and whiteboards, reframing and summarizing, listening, preparation, and expanding the presenting ”monetary” problems to include a wider range of interests and emotions.7 To repeat, so counter-intuitive are these vital measures of competency, that many lawyers struggle to reskill, while some engineers, managers and counsellors are able to make the transition more readily.

5 J. H. Wade, ”Systematic Risk Analysis for Negotiators and Litigators: But you never told me it would be like this!” Bond University Dispute Resolution Newsletter, October, 2000, website http:www.bond.edu.au/law/centers/index.6 For a categorization of how mediators can ”add value” to the negotiation process, see J. H. Wade, Representing Clients in Negotiation and Mediation, (Bond University Dispute Resolution Center, 2000).7 Ibid, Wade at pp 90–101.

How successful is mediation compared to …?
This is a very important question for both clients and policy-makers. Clients ask this question every day to their lawyers. ”Is it worth spending time and money on mediation? Would we be more successful to file in court? Or to do nothing? Or to organize a meeting between just the lawyers? Or to employ a therapist or management consultant or police officer? etc”. (Diplomats in the Middle East ask analogous questions every day).
    Clients are very interested in comparative costs, risks and ”success” rates. At mediation training courses, participants practise how to answer these standard client questions with a degree of honesty and clarity — no easy task! Apart from individual clients, governments and policy makers in every country are focused on this ”comparative success” question. This is because all governments only have limited funds to spend on conflict management services. There is no bottomless pit of money. Which services should receive the majority of government conflict management budgets? — therapists, arbitration?, educational workshops?, judges?, evaluative mediation?, problem-solving mediation? Should the emphasis change according to the substantive field of conflict — for example, injuries in the workplace, disputes over rental properties, conflict in families, motor traffic injuries, disagreements about commercial contracts, retrenchments and loss of jobs. The competition for limited money leads to constant claims that ”I can prove that my service is better than yours” and the preparation of less than reliable statistics about ”success”. All measurements of success will be unreliable to some extent, as: (1) it is impossible to assemble say 10 large control groups, send them to 10 different conflict management services over several years, and to observe details of process and outcome; and (2) it is very difficult to measure all the different criteria of ”success” which are important to different clients — for example low cost, speed, signed agreements, durable agreements, sense of control, preserving relationships, being listened to. There are over 20 measures of success which clients and governments say are important in any mediation or conflict management service.8 For example, an arbitrator may impose a quick and enforceable ”resolution” and claim ”success” on those two criteria. However, the clients may decide that the outcome was a complete failure as the arbitrator did not understand the complexity of their businesses, and the attribution of fault has imposed an expensive strain on all future business relationships between the parties.

8 Ibid, Wade note 6 at pp 58–61.

How to market mediation services?
Marketing any new product is a challenge. Mediation is particularly difficult because:

Competition for customers or clients in the conflict management area is vigorous — between lawyers, courts, counsellors, management consultants. The vast majority of the public do not know anything about ”mediation” except for occasional media references to peacemaking initiatives in Northern Ireland or the Middle East. The popular media rarely depicts mediation meetings in detail. Such meetings are relatively boring compared to the Hollywood mythology of drama in the courtroom. Initially, lawyers and other go-betweens tend to fear new processes, especially when they have not learned how to behave, and fear loss of face in front of a client. Children usually acquire no routine experience of mediation as compared to regular childhood visits to doctors, dentists, counsellors and even lawyers. (In parts of Australia and the USA, school mediation services have been growing for the last ten years, so there is now a generation of young adults who have both been trained as mediators, and have seen student-led mediation used to resolve conflicts at school).9 Some lawyers are reluctant to use mediation as they prefer to “hang-on” to clients and make money from servicing (and sometimes overservicing) clients with traditional lawyer behaviours. The reputation of mediation can readily be tarnished by lawyers who only refer clients to one monochrome evaluative model of mediation; by clients who have unrealistic expectations of quick fixes for their complex conflicts; and by lawyers, arbitrators, retired judges and counsellors who try to practise as mediators without sufficient training and supervision.

Successful mediators market their skills by:

Speaking regularly at conferences and to the media Writing about conflict management Conscientious and skilled practice as mediators Encouraging referral agents, such as lawyers, to attend with their clients and observe the process and level of client satisfaction Observance of high ethical standards Keeping their daytime jobs! until their mediation practices have become commercially viable Openly reflecting upon their skills and process with other professionals and attempting to improve.¹⁰

How can the standard of mediation practice be improved?
This is a much-debated topic in many countries at present.1 1 However the debates should be placed in the perspective that every working

9 See R. J. Bodine, D.K. Crawford, and F. Schrumpf, Creating the Peaceable School —
A Comprehensive Program for Teaching Conflict Resolution (Illinois: Research Press, 1994). ¹⁰ See F. Mosten, The Complete Guide to Mediation (Chicago: American Bar Association, 1997) chapter 21 ”Marketing”.

group faces this question — doctors, lawyers, salespeople, builders etc. There is sometimes an unnecessary moral panic that mediators should instantly have higher competencies than other working groups. This panic is sometimes strategically encouraged by competitors in the conflict management market.
    It is very difficult to regulate a new profession when the practice of mediation has so many different and ”successful” (on some definition of ”success”) forms. Nevertheless, predictable methods used in other industries in an attempt to improve standards of practice are gradually being applied in the many different parts of the mediation industry. These include:

Multiple mediation organizations which exchange information. Constant training and advanced training courses. Drafting of many codes of ethics. National conferences between different parts of the mediation and conflict management industries. Particular organizations (e.g. workers compensation, family counselling), which develop vigorous and mandatory education and supervision programs for their own mediators. Gradual connection of training to more disciplined, systematic and crossdisciplinary university courses.^1 2 Occasional comments from judges, or even legal decisions suggesting appropriate standards of conduct for mediators. Gradual emergence of mandatory minimum legislated standards for certain areas of mediation practice — particularly the politically sensitive area of family mediation.^1 3 Some minimum standards of behaviour required by insurance companies which offer insurance to mediators against liability for negligence. Disciplinary and ethical panels associated with mediation organizations which issue rulings and reprimands for members. Competency training which certifies that a mediator has achieved a certain level which can then be advertised as ”specialist grade x”. Emergence of ”reflective practitioners” who are respected for both their practical competency and for their ability to develop evolving theories emerging out of practice.1 4

¹¹ E.g. In Australia see, National Alternative Dispute Resolution Advisory Council, (NADRAC) The Development of Standards or ADR (Canberra: Commonwealth of Australia, 2000).
¹² E.g. The growing number of dispute resolution centers at Universities. See Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system, (Report no. 89, 2000), ch 2, ”Education, training and accountability”. For example, Bond University in Queensland in Australia offers 19 postgraduate subjects in a conflict management program in the schools of law, business and psychology. Analogous programs are offered in several universities in the USA, including Pepperdine, Ohio State, Southern Methodist University, and Harvard, to name a few. Where dispute resolution courses become fashionable and nominal additions to already overcrowded curricula, there is the predictable risk that scholarship and teaching will be shallow — how to preserve standards once again!
¹³ For example, in Australia, practising as a family mediator was legislatively and prematurely prohibited in 1996 unless certain minimum training, supervision and procedural steps are followed. See J. H. Wade, ”Family Mediation — A Premature Monopoly in Australia” (1997) 11 Aust. Journal of Family Law 286. Predictably, these prohibitions will be modified by legislative amendments proposed in 2001.

Conclusion
These seven fundamental questions about mediation are being asked regularly by clients, lawyers and policy makers in every country. Problem-solving mediators and managers are reknowned for trying to ask the right questions rather than finding premature solutions. The writer has found that reflecting upon these seven questions has provided a helpful antidote for the many clients, lawyers and policymakers who prematurely suggest quick solutions to complex conflicts ”To every complex social problem there is a simple answer, and it is wrong”.

¹⁴ See D. Schon, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983). See also Deutsch and Coleman, ante note 2; and the work of Christopher Honeyman in the USA which encourages theory and practice to inform each other, www.convenor.com.