The Music of Mediation,Hazards of the Job: Good Listening and Mental

The Music of Mediation

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

‘Tis the season to be merry. And indulgent. ‘Tis also the season when favourite songs are compiled by well- meaning souls into apparently themed collections. In the UK, we have a long-running radio show called “Desert Island Discs” in which celebrities and others select their favourite pieces of music as they reminisce about their lives. The choices provide interesting insights into the featured guests. In recent years, the choices have become much more contemporary and, in some cases, quite surprising.

Knowing that whoever reads this is probably relaxing with a ﬁne wine in hand, or perhaps a favoured beer, away from the hustle and bustle of the usual diet of mediation work, this blog adopts a similarly indulgent and merry feel. Here is one mediator’s choice of mediation-themed songs (with a UK- and popular music-slant, I accept) with which I would happily be stranded on a desert island.

Silence is Golden: 1967 was the year I became aware of popular music. One of my earliest memories is of this number one song by British pop group, The Tremeloes. It is a typical ‘sixties song, originally performed by Frankie Valli’s Four Seasons. The melody and the harmonies can still send a chill down your back.

In a frenetic world, where noise seems perpetual and peace is always at a premium, the idea of silence is a precious one. Spiritually, silence is a feature of many religions, a pause to meditate, to reflect on the vast and incomprehensible, or on the immediate and present. But we abhor the vacuum of silence. We find it difficult to maintain for long. It can seem embarrassing or unnerving. We are aware not only of our own discomfort but of that of others. We need to learn to sit tight. Hold the moment. Let them think. Let them reflect. Let them speak.

I Hear You Now: This beautiful, mellow piece, with a catchy opening rhythm, was a top-ten hit for Jon and Vangelis in 1979. Who, I hear you ask? Vangelis Papathanassiou is an accomplished composer, perhaps best known for his soundtrack to the ﬁlm Chariots of Fire, for which he received an Oscar. Jon Anderson is a hero for many who follow progressive (or “prog-“) rock. His lyrics and vocals have illuminated albums for the super- group Yes for over 45 years. His spiritual and meditative lifestyle has informed his sometimes esoteric themes.

So often, the real problem in any communication is listening, or lack of it. We think we have heard what was said but, for all sorts of reasons, we haven’t. Our inability to really listen leads us into error, assumption, judgment and misperception. To listen properly to another person is to oﬀer a gift. Real listening is an attitude of mind, an expression of the heart. How much I care about, and am interested in, another person may be measured by my willingness to subordinate my own needs for a while and give precedence to those of another human being.

Sorry Seems to be the Hardest Word: Perhaps this Elton John song is the most obvious choice. Described as “a mournful ballad about a romantic relationship which is falling apart” it was a track on the 1976 LP, Blue Moves and is one of a number of Elton’s singles which didn’t enjoy the kind of top ten success which might have been expected especially when, in the US, he was an even bigger star than in the UK.

“What have I got to do to make you love me?” he sings. What does it take to make an eﬀective apology? Probably not just the words “I’m sorry”, although in some situations that may be all that is required. One of the lead news stories this year was about a travel ﬁrm which failed adequately to apologise to parents whose two children died from carbon-monoxide poisoning at a holiday apartment. What is “adequate” is of course subjective but there is now an abundance of research and practice to vouch that an authentic apology has huge value to the “victim” and as a result, to the maker of the apology.

As I write, the Scottish Parliament is considering an Apologies (Scotland) Bill which will provide statutory protection to apologies made in certain circumstances. This is to be welcomed as an attempt to shift the culture from backwards-looking blame to forward-looking learning. But there is real resistance to this proposed legislation.

Under Pressure: For me, the rock band Queen are one of the all-time greats. And, as a creative force in modern music, David Bowie is probably unmatched. This joint venture between the two in 1981 was, for each, a surprisingly rare UK number one hit. Apparently, the lyrics address the social eﬀects of the Government policies of Margaret Thatcher.

Pressure is a constant feature of life of course, for most of us, whether self-induced or externally caused. The trouble is that pressure causes a reaction, often an unconscious one, and can lead to unattractive behaviour which can be unhelpful to relationships and communication. The adrenalin pumps and we feel compelled to speak or act faster and with less thought, composure fails us, and our defensive mode may set in. We may be quick to justify and quick to accuse. Daniel Kahnemann calls this “system one”. That’s all very well in a prehistoric stand off with a wild beast, but much less useful now in conflict situations, where we can experience the same feelings of threat but in such a different context. We need to remember that our wiring can let us down!

Misunderstanding: Genesis were my favourite band in the 70s and 80s. In this 1980 track written about the break up of his marriage, Phil Collins’ plaintive vocals record the angst and confusion when communication has gone wrong. It’s a simple song, but then misunderstanding is often simple and common as an impediment to communication and a cause of conﬂict.

“There must be some misunderstanding, there must be some kind of mistake” goes the song. “80% of business disputes are down to poor communication”, said a senior oilman addressing a conference. Easy to say but think of the consequences. “I know you believe you understand what you think I said but I am not sure you realise that what you heard is not what I meant.” (attributed both to the writer Robert McCloskey and the economist Alan Greenspan). This sums up the matter nicely. It is easy to default to blaming the audience when we don’t get our message across: “They weren’t listening…..”. Well perhaps not, but it’s also our responsibility to engage them in such a way that they hear us and that there is no room for doubt about our message. Otherwise, we really do have communication breakdown (a prize for the ﬁrst reader to specify the group and year with that title).

Us and Them: a stand-out track on The Dark Side of the Moon, Pink Floyd’s tour de force, and one of the longest-running chart albums of all time. I am sure that, if it was released today, it would be a classic. It seems to have stood the test of time perhaps better than any other record of that extraordinary late-sixties to mid-seventies era.

The idea of the other, whom we vilify because they are different to us, is a strong undercurrent in human history. Whether based on differences of culture, tribe, religion, nationality, gender, sexuality, education, or possessions, we tend to build walls around ourselves and project our fears onto those who are different. We adopt masks and poses, make claims and accusations and perpetuate the notion of difference as a threat, rather than celebrating diversity as a virtue.

One of the greats in the field of conflict resolution, Ken Cloke, addressed the General Assembly of the Church of Scotland in May 2012. The meeting took place on the eve of difficult discussions about the place of gay ministers in the church. In a moving contribution, Ken finished with the words: “There is no us and them, only us”. This is such a profound statement. We have so much more in common than ever separates us. An essential part of the mediator’s job is to remind people of this.

Fix You: Coldplay are one of today’s top stadium acts. They ﬁrst came to my notice during a summer holiday in Provence in 2000 when we listened as a family to their ﬁrst album. Fix You is on their third, 2005, album, X and Y. A charity rendering of the song is currently number one in the UK music charts, sung by the choir of the Lewisham and Greenwich NHS Trust, in a “mashup” with Bridge over Troubled Water. Fix You has a moving, timeless quality.

The impulse to fix others’ problems is very real in most of us. We are “fixers” by nature, wired to try to find a solution, to tell others how to sort out their issues. Lawyers are trained that way of course but most of us, when presented with a friend’s concerns, will think that we must try to offer our solution. It seems like this is how we can help. Anything else feels like a cop-out. Perhaps this is an indication of a basic human need to provide assistance, to be seen to be valuable, to gain approval. Sometimes, it may be necessary. But, ironically, we can do more if we do less. Paradoxically, perhaps, other people will achieve much more if they work out for themselves what the answer is. A mediator’s job then, is not to Fix You, but to help you to fix yourselves. Which takes us nicely to…..

We Can Work It Out: The Beatles can’t be omitted from this list and the only question is which song to choose. They are such a rich source of helpful titles: Let it Be. The Long and Winding Road. Please Please Me. Help. Hello Goodbye. All You Need is Love. What a back catalogue.

Mediation, like many negotiations, can seem like a long and winding road. And at the end of course, it is necessary to let it be. Nearly always, however, we can work it out. The “we” are primarily those with the issues to resolve. The mediator is only “we” in so far as he or she can help the parties to do so. That is a crucial diﬀerence from other, more adjudicative processes and represents mediation’s greatest strength. In the powerlessness to decide the way forward lies the mediator’s real power. He or she has no stake in the outcome. He or she cannot ask the parties to “please, please me”. And, while we may think that all they need is love, few hard-boiled business leaders will respond well to such a call. We are, after all, simply there to help them – and, as we know so well, that experience will often appear to be a Magical Mystery Tour.

End Come Too Soon: If you have actually read this far, you may not agree with the sentiment in this title…! Others of you will, by now, be concerned about the maturity of many of my selections. So, here is a recent song. Wild Beasts are “an indie rock band from Kendal, England”, and one of the contemporary groups whose music has gripped many. This haunting track, on 2011’s album, Smother, is well worth a listen. “Break some bread / The night’s been blessed / With an never-endingness / But nonetheless / End come too soon”.

Can the end come too soon? Yes. People often wish to pull out of a negotiation when they feel that there is no point in continuing, or when it all seems to be going nowhere. Of course, theirs is usually a partial picture. Tiredness dulls the senses. The role of the mediator is often to encourage and cajole. To go the extra mile.… Persistence, perseverance, patience, these are all virtues. That said, mediating (or negotiating) into the wee small hours is unlikely, in most cases, to be sensible. It was once a mark of some sort of macho performance to keep going into the middle of the night. I don’t favour that approach. There is a moment to stop. Like now. Happy new year to one and all!

Hazards of the Job: good listening and mental health

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

Please refer to this post as: John Sturrock, ‘The Music of Mediation’, Kluwer Mediation Blog, December 29 2015, http://mediationblog.kluwerarbitration.com/2015/12/29/the-music-of-mediation-john-sturrock/ To the extent that a mediator’s job involves listening to people complain and engage in negative behaviour, mediators face a serious mental health hazard.

Research shows that listening to ongoing negativity impairs the brain function of the listener. Yes! Listening can be bad for you if you have a whinging party in the room, and it’s even worse if you have two or more.

Trevor Blake writes about this phenomenon in his book, Three Simple Steps: A Map to Success in Business and Life. While Blake is not speciﬁcally thinking about mediators, the potential implications for the mental health of mediation professionals is alarming.

Apparently being exposed to too much complaining can have a dumbing down eﬀect. Exposure to 30 minutes or more of complaining destroys neurons in the brain’s hippocampus – a part of the brain that is used in problem-solving and decision-making. In other words, our capacity for problem-solving decreases the more we are exposed to complaining and conﬂict. Yet, as mediators, our job is to listen to exactly this type of non- productive negative blah blah in order to support parties to make a shift towards positive problem-solving. Could it be that while we are enhancing their capacity for problem-solving, we are decreasing ours? What sort of impact could this potentially have on our mediation style and even our professional abilities over time?

You may laugh. Yes, perhaps it’s seems an unlikely scenario now. But science is moving much faster than most of us realize. As neuro-scientific findings become more accessible, there will be implications for all aspects of our professional and personal lives. Scientific findings such as these may even affect our professional indemnity insurance premiums.

So what can we as mediators do to inhibit the depletion of neurons by complaining parties and in doing so protect our problem-solving capacity? For it’s not exposure to conﬂict that is potentially detrimental to our brains but the lack of constructive engagement with it.

Here are three thoughts: 1. Introducing some distance between the mediator and the parties can be helpful. For example, factoring in breaks for our own mental health is important. Often we are so focussed on the parties that we forget about ourselves and our own ability to be inﬂuenced, especially on an unconscious level. So breaks, food, water, and fresh air – not just for the parties and their lawyers but also for mediators – are an essential component of designing the structure of mediation processes.

2. Move from ADR to ODR. Now some of you might be cleverly thinking that you can create some distance by introducing online aspects into your practice and placing the parties at the other end of a cyberlink. Yes, an interesting idea. Does it make a diﬀerence? Possibly … but probably not. The research shows that exposure to negativity via TV is just as bad.

3. Charge more money for whinging clients. So even if your brain is the worse for wear, your wallet will be better oﬀ.

Now, that made you smile, right?

On that note, let me say thank you for staying tuned in 2015. Stay posted for exciting things in 2016 at the Kluwer Mediation Blog.

Conversations about Christmas

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

“Yes we speak of things that matter With words that must be said” [Paul Simon, “Dangling Conversation”]

I’m posting this a litle earlier than usual, but we all know of the distractions that will only be compounded in the coming week.

For about ten years, before we moved to Singapore, our Thursday morning breakfast conversations were rather more focussed than on other days. Every Thursday, at around 11.00am, my wife Suzanne had a radio slot on New Zealand’s National Radio programme, with a focus on ‘relationships’ – so our breakfast conversations tended to be spent exploring current issues in family, social and community relations, primarily with a view then to suggest ways in which listeners (or at least those for whom theissue du jour had resonance) might engage with and have useful conversations on those questions. That the programme ran for that length of time is testimony not only to the wisdom of the speaker (I’m biased) but also to the perennial dilemmas of how to talk about the things that matter.

Each year, at around this time, those breakfast table conversations were more focussed as the time came round again for Suzanne to do her “Christmas version”- a annual expectation that she say something to tide people over this happy, fraught, family-based, state of siege and sentiment that we’re now obliged to start looking forward to some time in early October, to ensure that we don’t miss the [commercial] point of the event.

I’d take just two points from those reflections on Christmas – and on the special demands that this often places on us – and then apply those points to a different and challenging conversation about Christmas and other festive events, a conversation that we’re confronted with but not really having. Those two points or insights are, first, expectations, and second, engagement. On the first point, seasons such as this can often be a time of heightened expectations – not merely the commercially-induced ones, such that the kids are crestfallen when they don’t get that latest, hideously expensive smart device, or the toy thinly disguised as a branding exercise; but rather the expectations that we have of each other. And the greater the expectations, the more we’re at risk of disappointment – and of course of seeing that it’s others who have disappointed us. The simplest lesson for me (and like most lessons, one that I seem to keep needing to re-learn) is to think of others acting on their best intentions, even if whatever is going on (the corny jokes, the overloud singing, the bravado at the BBQ . . .) drives us nuts at the time. On the second point – engagement – I think at least the seasonal insight in that this involves a choice; that is, a decision whether or not whatever is going on needs to be dealt with at the time. While conversation matters, what matters just as much is timing.

But that’s about Christmas as the family and social event just a few shopping days away. It’s a diﬀerent aspect of “Christmas” that really prompted this blog. Some weeks ago,the New Zealand Race Relations Commissioner called on us to ensure that we use more “inclusive language” at this time of the year, preferably avoiding reference to Christmas, as this might appear to exclude those in our increasingly multicultural population who don’t celebrate Christmas. Better, it was thought, to refer to “festive dinners” rather than Christmas. This was not an argument for banning Christmas as some of the more shrill media commentators suggested – and indeed the Commissioner was quick to attempt to reassure us that this was not her intention; but it was an observation about the impact of both the event and the language of the event in a diverse population.

New Zealand is not alone in this: there will be many who can report from ethnically diverse jurisdictions that there is a caution about terminology that is more likely to provoke a negative reaction than the one sought – i.e. a more inclusive reﬂection on this and any other seasonal event. The risk is, especially in the unruly world of the Internet, that conversation about and recognition of diversity are precisely what will not happen, and will be displaced by the heat and indignation of those who probably care less about Christmas in any sacramental sense than about the symbolism and cultural freight of the word. What is being defended against the alleged assaults on Christmas was more likely to be a vague sense of “cultural property” than a clearly articulated defence of festive pluralism.

The conversational point created by this Christmas caution seems to me to be in the same vein as the discussions by some of the more sensible commentators on multiculturalism, such as Lord Bhikhu Parekh or Rabbi Lord Jonathan Sacks (especially in his 2002 book,The Dignity of Difference) or philosopher Kwame Anthony Appiah [especially his Cosmopolitanism: Ethics in a World of Strangers]. The points I’d take from their work – and which we can apply to those instances when, in the presumed protection of diversity, we actually shut down the very conversation that such difference require – is that our differences are the start of the conversation, not the end; they are the invitation, not the conclusive argument. As Appiah notes, difference is a fact, but it’s not in itself a reason for a policy decision; it requires respect for the moral value of the individual and a commitment to engage with that other. I can’t put it any better than Bhikhu Parekh himself, in noting that what difference invites is ‘such essential political virtues as mutual respect and concern, tolerance, self-restraint, willingness to enter into unfamiliar worlds of thought, love of diversity, a mind open to new ideas and a heart open to others’ needs, and the ability to persuade and live with unresolved differences’ [Rethinking Multiculturalism, London: Macmillan 2000: 340]

Civil Justice, 1906 – 2016. Time for an update?

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

The last day of the year is referred to, in Scotland, as Hogmanay. Hogmanay has for centuries, been a cause for celebration. Many traditions are associated with it, though the ubiquitous singing of ‘Auld Lang Syne’, is fairly recent, having been written by Robert Burns in 1788. One of the more important customs is the visiting of friends and neighbours, whilst of course raising a glass of whisky to toast the year’s successes and to anticipate what the forthcoming year might bring.

Given the timing of my YMI guest blog post, I ﬁnd myself being in the fortunate position to reﬂect on what has been, but more importantly what lies ahead for Appropriate Dispute Resolution (ADR).

As I type, I’m in Edinburgh, the capital of Scotland and part of the UK. Here I can enjoy the freedom of expression, the right to roam and the right to remain silent. I also enjoy the beneﬁts of a government which is working to build a civil and just society. While the weather can be a challenge, I’ve never been concerned for my health, safety or security. For the most part, life is good.

Unfortunately this can’t be said for many hundreds of thousands or rather millions of people in other places across the world. Happiness is of course subjective, so the right to a fair trial or access to justice might not be of upmost importance for everyone, when you consider that food, shelter, and basic health care are denied to so many. In my opinion, the access to justice, both criminal and civil, is another fundamental right.

In 1906, Roscoe Pound spoke at an annual American Bar Association meeting to voice the need for the implementation of comprehensive reforms to the American justice system. Some seventy years later, the Pound conference was held in his name, honouring his drive for pioneering justice, based on reforms to reduce the reliance upon traditional litigation. This conference started the concept and development of Alternative Dispute Resolution, as we know it today.

In 1919, shortly after the ending of World War 1, a group of traders, financiers and industrialists met and collectively initiated the beginnings of the International Chamber of Commerce (ICC) – forging rules, standards and dispute resolution mechanisms relevant to the commercial world. These merchants of peace believed in the values and power of commercial trade; in linking countries of the world, in a hope this would reduce conflict. Without initial government intervention, the ICC began improving national and international relations, effectively building a better world through business.

Today, the ICC now represents many thousands of companies across more than 120 countries. The shared interests of economic growth, health and happiness, are aspirations shared by the vast proportion of the world as well as the United Nations. Nevertheless, conﬂict, war, death and destruction are to be found on almost every continent.

To understand fully how we’ve managed to facilitate war, destruction and multi billion pound disputes to the extent which now exist today is a formidable undertaking. I see a clear parallel between litigation, ADR and the relationship between war, truce and how this is achieved. War is the most severe and destructive form of adversarial dispute. The conclusion of war is often only achieved after the mass destruction of resources and population, followed by a truce or settlement, agreed after months, or years of discussion.

So, what is the relevance and where does modern day dispute resolution come into this? Beliefs, thoughts and opinions are based upon and shaped by peer group thinking, situational bias, media inﬂuence and learnt behaviour, subject to education and life experiences. As individuals, we all have diﬀerent motivations and aspirations.

If your personal aims are to gather as much power and financial capital that you can muster in your lifetime, then you and I differ in outlook. We will however still be able to agree on certain matters and it shouldn’t necessarily prevent us from agreeing on others. Sometimes regrettably, opinions, beliefs and behaviours do of course prevent dialogue in the first instance prior to escalation.

Today, living in the information age – it is all too easy to observe mobile footage of armed conﬂict, hear of mass kidnapping on another continent whilst simultaneously learn about the most recent venture capital backed, multi-billion pound company valuation in another. Marshall McLuhan’s postulation of The Global Village is with us. A discussion concerning the reasons for the unbalanced access to capital and continuation of conﬂict is however, a discussion for another day and another forum.

A simplistic extrapolation from the above, I think, shows that most individuals act and take decisions based on their beliefs, environments and information available to them. As a result, conﬂicts can occur between those who hold diﬀerent perspectives, blinded by their own understanding of the facts known to them. In turn, this opens the door for ADR and enabling technology as a means of accessing justice and improving the potential to resolve disputes prior to drastic escalation.

Generation Y or the Millennial generation – born between 1980’s – early 2000’s are recognised as having certain character traits. In particular they have an affinity for the use of technology and its continual evolvement. They can grasp and understand future possibilities which they want to develop. This ‘new breed’ has created an industry in itself to train, amongst others, senior partners of law firms and other professional service companies on how to best work and gain results from this type of employee. This demographic has also been noted to possess a pragmatic idealism towards concepts of social change, innovation, flexibility and a strong work – life balance.

In 20 – 30 years’ time, this generation of value orientated leaders will be the CEO’s of multinational corporations; they will be the managing partners of tax and accounting practices and globally dominant law ﬁrms. Therefore, in theory, in 20 years’ time, the ideals of ADR will perhaps become the norm, stabilising the world, as new political leaders will be advised and involved in the new thinking and ideology.

However, there is much to do now, to help shape the future of dispute resolution. Primarily, what does the end user need, want or require from this process? Do they want instantaneous access to experts, with secure and convenient processes to handle matters with applicable costs? Perhaps they would rather send letters and wish to have face-to-face meetings?

Capturing data, developing appropriate systems to handle commercial disputes and understanding what users require, should be a prime concern for today’s decision makers and indeed mediators, arbitrators, litigators and judiciaries. Failure to understand the end user’s needs, wants, or interests means we can’t conceivably deliver a solution or process which provides value or purpose. This is quite a thought, given the ideals of mediation.

Luckily for us all, in 2016 and 2017 The Global Pound Conference Series will gather essential data and provide an opportunity for a reboot of the commercial and civil dispute resolution landscape. Opinions matter, and of course vary by jurisdiction; the series (at present) is scheduled to be held in 26 countries and 36 cities to allow for a broad representation of views and opinions.

I would urge all who play a part in commercial dispute resolution to attend. Make your voice heard, whether in-house counsel, full time mediator, arbitrator, litigator, university professor, undergraduate student, Judge, political advisor, or most importantly of course, a business owner or end user of commercial dispute resolution processes.

Here’s to many successful resolutions, in the coming New Year.

Callum Murray

Co-chair Young Mediators Group – www.youngmediators.com Trustee & board member – Scottish Mediation www.scottishmediation.org.uk Founder & CEO – Amiqus Resolution – www.amiqus.co

Another Letter to Santa Claus

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

Writers Note: Despite its whimsical title, I’m afraid this blog entry is not. Do not read if you are not in a good mental or emotional place.

Dear Santa,

It’s been a few years since I last wrote. Many things have happened in between; some good, some bad. But November 2015 was hard. The Paris attacks were both heart-breaking and disheartening. That a group of people would be so willing to cause harm to large numbers of innocents with whom they have no personal ﬁght but a symbolic and ideological one. This is not to say that symbol and ideology are not important but has it really come to this? Where in order to make whatever point one seeks to make, one must resort to violence? To be fair, it may well have been the last resort. It may have been that this group had exhausted all other ways and means to be heard and to have their grievances addressed.

From a mediation perspective, it is perhaps important to reﬂect upon two questions. First is whether all the ways and means to address this conﬂict have really been exhausted. Or is the option of violence being too quickly resorted to? Perhaps even by default? Second is if this group had engaged in non-violent ways to be heard, were we listening? And what was our response? And was that response so unsatisfactory that it called for the extreme measure of violence?

Then there is the aftermath. I am not talking about countries talking about going to war after the Paris attacks. While sad, the response is expected and understandable. Political leaders must take, and be seen to take, decisive action.

The aftermath to which I refer is the increasing polarization of the world. It is heart-breaking to see that in some places in the world, there is a backlash against certain groups for no other reason than their religion or the color of their skin or the clothes that they wear.

Again, from a mediation perspective, we can understand this. Some people are motivated by ignorance, fear and in some cases, hatred. These then form the ﬁlters of their bias which then manifest in exclusionary behaviors. As mediators, we know that this is part of the human condition and that eﬀort must be made to recognize and address these biases. This reminds of the Cherokee story about the two wolves. One telling of it is:

An old Cherokee is teaching his grandson about life. “A ﬁght is going on inside me,” he said to the boy.

“It is a terrible ﬁght and it is between two wolves. One is evil – he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.” He continued, “The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same ﬁght is going on inside you – and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather, “Which wolf will win?”

The old Cherokee simply replied, “The one you feed.”

I guess what is scary for me is how eager and quickly some are feeding the wolf of ignorance, fear and hatred.

I’m sorry for rambling but maybe this is why I am writing. As mediators, we are expected to maintain neutrality, empathy and compassion in the face of conﬂict. We are expected to be the cheerleaders to our parties even in the darkest of their moments. But what do mediators do in the darkest of our moments? What do we do when we ﬁnd it hard to be neutral or to empathize or to be compassionate? What do we do when we are so sorely tempted to feed the other wolf? Who cheerleads the cheerleaders?

I wish I had an easy answer to these questions. If I thought about it, I might say that we need to take some time for ourselves to introspect or to interact with other mediators for support or generally to expose ourselves to others who are in a better frame of mind. But when one is heartsick, it is hard to believe that these might work. I suppose the point is that to do these is better than doing nothing at all.

And Santa, maybe that’s what I want to ask for Christmas. Not for myself. You reading this is already your gift to me. And it has helped. But for all the cheerleaders of the world, whether they are mediators, or peacemakers, or doctors, or nurses, or security forces, or leaders, or citizens who have to deal with the other wolf, whether their own or others. Give them the ways and means to keep their faith in themselves and their mission. Help them take care of themselves so that they can continue creating the good in the world.

I know you have lots of letters to read and much work to do before Christmas so I’ll end here.

Take care Santa and Merry Christmas!

Cheers

Joel P.S. I’ll be putting out some milk and cookies for you as usual. I’m afraid my wife has gone organic so I don’t have the usual cookies but I think you will like these ones.

Strong Reactions in Edinburgh

Kluwer Mediation Blog December 29, 2015

John Sturrock (Core Solutions Group)

“Patients don’t expect doctors to be perfect. They do expect them to strive for perfection by opening up their work to scrutiny” Atul Gawande, Desert Island Discs, BBC Radio 4, 6/12/15.

A bit of a treat for me last week, when four of my favourite academics came to Edinburgh. They were keynotes at Mediate Scotland 2015, a two-day conference hosted by Queen Margaret University and the Scottish Mediation Network. All had a great deal to teach us.

From Tamara Relis we heard about the ‘parallel worlds’ of lawyers and their clients in Canadian medical negligence mediation, with lawyers focusing on monetary negotiation and case evaluation while parties sought communication, explanation, apology and the other side’s perspective (see Relis,Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiﬀs, and Gendered Parties. Cambridge: Cambridge University Press, 2009).

From Liz Stokoe we learned a crucial lesson: mediators don’t know what they do right (and sometimes wrong). Potential clients have little interest in mediation ‘philosophy’ (we are neutral, independent, conﬁdential, etc) but respond enthusiastically to an invitation to meet real people. And yet mediators keep talking about the former. Why is this? Liz raised the challenging possibility that role-play based learning could reinforce unhelpful practices (see Stokoe, ‘Overcoming Barriers to Mediation in Intake Calls to Services: Research-Based Strategies for Mediators’ (2013) 29 Negotiation Journal (3) 289-314).

Ellen Waldman outlined her insightful taxonomy of mediators according to their approach to social norms, giving us ‘norm-generating’, ‘norm-educating’ and ‘norm-advocating’ styles (see Waldman, 1997. ‘Identifying the role of social norms in mediation: a multiple model approach’ 48Hastings Law Journal 703–769; and http://kluwermediationblog.com/2013/08/12/has-the-evaluative-label-outlived-its-usefulness/ .

All were great and I encourage readers to investigate their work. For me, however, the conference’s most arresting moment occurred during Ken Kressel’s presentation on the ‘strategic style’ (see Kressel, 2007. ‘The Strategic Style in Mediation’ 24Conflict Resolution Quarterly (3) 251-283). In both a keynote and workshop Ken showed us an example of an expert mediator. As this research has been in the public domain for decades, I can name her: Fran Butler was filmed conducting a 12-minute simulation of court-annexed divorce mediation in New Jersey. Ken asked us to analyse her work using the ‘Reflective Observer Role’ he has developed over 40 years of mediation research.*

I scribbled away, noting both verbal and physical moves. I honestly thought she was really good. Of course everyone is diﬀerent and I might not have done everything she did. But having mediated separation and divorce for over twenty years I recognised most it and appreciated what I didn’t.

The way I saw it Fran had worked out within 5 or 10 seconds that the parties were poor at problem-solving (they shouted each other down and didn’t listen); she therefore adopted the role of problem-solver, leading the conversation along a path I assume she had hypothesised was useful. She spent 7 of the 12 minutes asking the mum to wait while she pursued a conversation with the dad regarding his lack of information about his children. She used probing questions and summarised what she was hearing. She then focused intently on the mum’s perspective for about a minute before returning to the dad. She made a few highly directive moves: a leading question (‘could you maybe ask the children?’); predicting the court’s lack of interest in providing a judgement on the issue of what one parent tells the other; and making a proposal on telephone contact. I also saw ‘classic’ mediator skill following the description of a rather nasty handover exchange. Instead of ignoring it, investigating it or seeking to establish fault she simply asked ‘how could that be done better?’ The clip ended with parents undertaking to try a modiﬁed pattern of contact in the coming weeks.

Ken invited comments. I assumed others would highlight skills, or perhaps question the intention behind some of the moves. Instead the ﬁrst questioner said (something like) ‘I train mediators all over the UK. If I had been watching that mediation I would have stopped it and said “You are doing it wrong.”’ Looking around I could see others nodding in agreement. I was astonished.

Of course I can’t claim that my view is correct and others’ erroneous. Maybe Fran was doing it wrong. But an outside observer might wonder how people in the same profession could see things so diﬀerently. What exactly is mediation, if a veteran researcher can present an example of expertise and a veteran trainer can see it as worse than inept: wrong-headed, something to be stopped?

Ken did respond. First he pointed out that Fran had consistently achieved the best results in the project where he had studied her work over four years. So whatever Fran was doing appeared to work. Second he acknowledged that the ‘strategic style’ is by no means mainstream. He associates it with professions that have a strong tradition of seeking root causes, such as healthcare and counselling. And ﬁnally he made for me the most signiﬁcant assertion: mediation is ‘highly context dependent’.

That rings bells. The first time I moved from family to workplace mediation it was as if I were ‘crashing the gears’. Nothing worked smoothly. I had to work extra hard for the first half dozen cases while I found my way, by trial and error, towards what was effective. The same happened with commercial mediation (for another day: in that context I have come to believe that mediators’ status and persona are as significant as their ‘moves’), within education, healthcare, professional complaints and so on. So to say that mediation is any one thing, or any one set of practices, is misleading. Mediators appear to vary quite a lot (for more on the differences between them, and between what they do and what they say they do, see Wall and Dunne, ‘State of the Art Mediation Research: A Current Review’ (2012) 28 Negotiation Journal, 217–244).

However, the idea of ownership is troubling. Who owns mediation? Who says something is right or wrong? Mediation pre-dated attempts to describe it; it is a living, evolving practice that Peter Adler has eloquently described as ‘protean’. It is supremely pragmatic. If what I have been taught doesn’t work, and I ditch it or modify it in favour of something that does, who am I betraying? My trainers or my clients? Who matters more?

It is also easy to confuse description and prescription. Mediation scholars and practitioners have been describing what they see and what they do for many years. Models have emerged. Some practice appears to work; some not. But prescribing is the teacher’s art, concerned with what should be done and what should not. I believe Ken and our other keynotes were concerned with the former, while some of the questioners were thinking of the latter. Ken showed us what occurred; the questioner said that it should not have occurred. Nearly three centuries earlier (in the same city) David Hume ﬁrst identiﬁed the logical jolt in moving from ‘is’ to ‘ought’ statements.

One of the joys of this conference was that it gave us glimpse inside the black box that is the mediation room. Expert researchers, from disciplines including psychology, anthropology and law, shared what they have observed. Some of us didn’t like it; some did. My plea is for more of this. Other professions have learned the hard lesson that when scrutiny is imposed from outside the public doesn’t always like what it sees. We need to take every opportunity to open up our practice to discussion, to critique and to improvement. We need to listen to what others are telling us.

So I take my hat oﬀ to theVirtual Mediation Lab, where mediators conduct online simulations for all to see; and to all the mediators who permit serious researchers like Ken Kressel, Tamara Relis, Liz Stokoe and Ellen Waldman to observe and analyse their work. Let’s approach other people’s practice with wonder, marvelling that someone can get to the same destination by a diﬀerent route.

* The Reﬂective Observer Role, Ken Kressel, PhD, Dept of Psychology, Rutgers-Newark

• Focus on understanding NOT evaluating or correcting

• Focus on “critical moments”: Mediator interventions that: o were surprising or puzzling o seemed eﬀective o seemed ineﬀective o interested you in any other way

• Use the appreciative inquiry “3-step”: o Ask a question: (e.g. what were you thinking when you did that?) o Summarise the response o Probe for more info (e.g. why did you decide to do that then, rather than this?

• Use “supportive confrontation” when indicated.