The Failed Mediation

I want to challenge the notion of a failed mediation.

First, though, let me say there are some mediations that do fail.  These are mediations that don't and were never going to result in agreement, resolution, or even a better understanding by the parties of their dispute.  This might be for several reasons, but the commonest are that the mediator wasn't skilled and didn't do the job properly, and that the parties just weren't playing.

But there's another outcome that is referred to as "failed" that is no such thing.  This is the mediation that is set down for a day, and simply hasn't finished.  Compare this situation with a tribunal or a trial.  If all the witnesses haven't been examined, all the evidence scrutinised, does the judge say, well, we've got through some of this, but now we've run out of time, so we'll just call it a day and say it's failed.  Of course not.  They judge adjourns the remainder for a mutually convenient time.

Not so with a mediation.  Not only are they commonly set down for a much shorter period than a trial - a half day or a full day are common, but once you get to 6 o'clock, and one of the parties or their representatives can't stay, then that's the end.  No automatic talk of adjournment to another day, no common agreement that we got two thirds of the way through so let's make sure we finish - no, that's it.  If the parties haven't signed the agreement by the time the first one has to leave, the mediation has failed.

This is perverse.  Mediation takes time.  It takes as long as it takes.  Sometimes the parties get to resolution quickly, after a misunderstanding is clarified, or some other insight.  Sometimes they have to work through a lot of material first.  Three, four, five years of dispute - and somehow, if it's not resolved within the 6 hours, that's just too bad.

It is too bad.  It's a criminal waste of all that time, effort, skill and potential for resolution.  Users of mediation, and mediators, I urge you to adopt the same approach to time as for a trial and when the time is up and one of the parties has to go, ask yourself and the parties these questions:

Is this mediation completely exhausted?
Is there anything else that might be said, asked, suggested?
Is there anything else at all one party might want to say to or ask the other, and could there be anything at all they might want to say to or ask you?
Is there in your mind the tiniest glimmer that you might be able to shift one more inch?
If it was 10 am, would you keep going?

If the answer to any of these is yes, then you should get out your diaries and continue at the next possible opportunity.

Apology - have you been offered a pearl or sold a pup?

Mediators new to the skill often make a big deal of apology. Usually, it’s been part of the training - a whole session on apology and how important it is to acknowledge it and make sure the other party has heard it.  Indeed, it’s not usual for one or both parties to enter a mediation insisting on an apology, so when the inexperienced mediator hears that, they think – bingo – my job’s done!

I’ve always been uncomfortable with this, and occasionally criticized for failing to make enough of an apology.  I’ve been trying to work out why.  And I think I've got it.  It's because we can do an awful lot with sorry, some of it regrettable but not always regretful.  Here are some examples:

The apology as barrier:

One party kicks off the mediation by announcing he’s sorry, okay?  Sorry for throwing the fridge over the fence, or whatever it happens to be.  This apology is delivered before any discussion of the subject.  It might indicate regret and shame, but it's more likely an attempt to forestall a detailed conversation about it.  “I’ve already apologized about that – what are we talking about it for?”

I’m sorry, but...:

You know how when someone says it's not about money, it's about money; and when they say, with the greatest of respect, they mean let me tell you something, dumbo; and when they say it's not about winning, it's about winning.  Well, this is the same.  I’m sorry but means anything but I’m sorry.

I’m sorry - isn’t that what you wanted to hear?

This is sorry as magic word – a word that works all by itself, and doesn't even require meaning.  It’s the kind of sorry that a parent might extract from a recalcitrant kid for hitting his sister – tedious, time consuming and totally missing the point.  There aren’t any magic words in mediation; words mean what the speaker intends them to mean.  Occasonally there are magical moments, though. 

Sorry as PR Opportunity

We're all familiar with this one.  It usually relates to an atrocity that happened years before, sometimes hundreds of years; it usually follows an tireless struggle by an oppressed minority to be heard; it’s usually offered by someone who was not around, often not even alive, at the time of the wrongdoing.  It is delivered by someone whose words have been combed through by an army of communication experts and it will receive prime time coverage

Sorry ... sorry
Used like this, the word means I interrupted you, or I touched your arm by mistake as I passed by, or I'm genuinely embarrassed about my existence to which I'm drawing attention by apologising, and even for that I'm sorry.  Harmless usually, except to the user.

Take That
Whatever I said, whatever I did, I didn't mean it, I just want you back for good.  Or, in other words, I can't be bothered to find out what upset you, which means that I'm probably going to do it again but hey, come back anyway.   Arguably the most annoying lyrics in the history of British pop music.

Genuine apology

I’m not saying there isn’t a place for genuine expressions of regret in mediation.  A genuine apology can be the most profound and transformative moment in the process.  Nor am I saying that when they are offered, the mediator shouldn't acknowledge them.  Sometimes that's absolutely the appropriate thing to do.  But it would be unusual for a genuine apology to come before the issues have been fully discussed.  And that’s likely to be pretty near the end.

So let’s get back to the person that’s come into the mediation wanting an apology.  Do they really want the word, or do they really want to have their story and situation, perceptions, feelings and needs, heard and accepted?  And the price for that in mediation is that they are also willing to hear and accept the story and situation, perceptions, feelings and needs of the other party.  Sorry or not, that’s what mediation is all about. 

How not to deal with the man who pushes in at a Jonathan Richman gig Or: What I learned at the Centre for Peaceful Solutions

I'm not a big fan of festivals.

A ticket holder at Green Man
having a kip in the shit

I don't like spending three days in a shit hole, even if the shit has been fairly traded and is largely organic. I'm not even that keen on listening to live music when it's raining.

Notwithstanding this, and for reasons irrelevant to this story, I bought a ticket to the Green Man Festival this year, in part because I wanted to see Jonathan Richman. He's lovely.  I love him.

Jonathan Richman at Green Man
 with his drummer, Tommy

I made sure I got to the venue early - 30 minutes early.  I placed myself close to the stage, my Wellingtons vacuum-packed into 10 inches of mud, and waited.  Five minutes before the show a family arrived beside me, having pushed their way through the now considerable crowd.  The father told his two children, early teens, to wriggle in front of me, while he stood so close to me, I was obliged to budge backwards.

Except I didn't, because I was infuriated.  Infuriated beyond all proportion and beyond all sense.  I was infuriated because I'd been waiting in the mud, and now my view was obscured (one of the kids was taller than me) and I was squashed up against pushers-in.  I was infuriated because I'd been standing close to a spectacularly dressed transvestite whose aura I was enjoying, and this interloper was now between us.  I was infuriated because I don't much like festivals anyway, and this guy had just reminded me of another reason why.

Now, I've been doing dispute resolution in various contexts for years, so I should have had the means, the vocabulary, the insight and the confidence to move this situation on, but I didn't.  Whether it was the crowd around us or the trauma of the mud, or plain unadulterated fear, all my professional training abandoned me and the only exchange I could imagine having was this one:


Me:  "Get out of my face you impertinent wanker"
Him:  "Who the hell do you think you are, you ignorant stuck-up twat" -

which might be an appropriate way to kick off a Sex Pistols gig, but isn't really in keeping with how Jonathan Richman would like his audience to behave - I mean - look at him...

I didn't say anything, and instead I decided to make this man's life a misery by standing my ground, not budging an inch, which I knew would have all the more impact due to the substantial backpack over my shoulder and the folding chair that had poles poking out of its ripped bag.  See how he likes that, I thought.

He nudged and budged me the whole way through the session.  I pretended not to mind, or even notice, occasionally barging back in his direction, awkward jutting movements disguised as a bit of a boogie.  Jonathan Richman gig - can't remember much about it?

I've just completed a two day course at the Centre for Peaceful Solutions, run by Maria Arpa who took us through her Dialogue Road Map.  It's based on Marshall Rosenberg's Nonviolent Communication model which I've been aware of for years, but there's nothing like these skills coming back to you in a slightly different form, through a different mouthpiece.  I've reflected on that moment in the Far Out Tent (sic).

This is what I might have said, with the benefit of what I've learned this week:

Me:  "I'm guessing that you are pretty excited to see this gig, and you really want your children to have a good view."
Him:  (probably a bit taken aback) "Yep, I am"
Me: "And perhaps you're concerned for your kids' safety and want to stay close by them?"
Him:  "Yes, of course I have to keep an eye on them - is there a problem here?"
Me:  "Well, I really want to enjoy this concert too, and I'm feeling pretty frustrated right now that you've moved your kids in front of me."
Him:  "Hummph, well, there's no such thing as a reserved place."
Me:  "I'm hearing that you don't think people should be able to hold onto a place."
Him:  "Not exactly, I mean, up to a point."
Me: "I'm feeling irritated, and quite tired, because I've been waiting here for half an hour and now you've arrived, just five minutes before the gig, and I can't see the stage as well as I could before."
Him:  "It's never going to be the Albert Hall.  Get over it."
Me:  "Now what I'm hearing is that you think I should just put up with it.  It's uncomfortable for everyone."
Him:  "Yep."
Me:  "I was feeling comfortable before, and now I'm not.  Now I feel squashed and uncomfortable because four new people are squeezing in where there isn't room.  There isn't room unless I move back, which is what I'm guessing you want me to do because you are nudging me that way."

Getting a very good view of
somebody's shirt

Him:  "Look, it's a free-for-all here, I've got my kids and I want them to see - do you think they'd be able to see if they were at the back?"
Me:  "What I'm hearing now is that it's really important that your children can see well, and that you all enjoy yourselves."
Him:  "Doh."
Me: "I'm happy that your children should be able to see well, and it's also important for me that I can see well."
Him:  "If it's that much of a hassle for you ..."
Me:  "I'm sure we can sort this out (and hopefully before Jonathan Richman comes on). How about you and your partner stand behind us, and your children stay where they are, in front?"
Him:  "That's not going to work.  I can't talk to them if you are between us and the kids."
Me:  "So it's important for you to communicate with the kids during the gig?"
Him:  "Up to a point."
Me:  "I don't mind that, but if it means I have to stand back to make way for you, after I've been waiting here all this time, then I do mind.  Do you have any suggestions?"
Him:  "I think there might be more space over there - we'll move along?"
Me:  "Great, that'd suit me well."
Him:  "Second thoughts, leave them where they are. They won't want to talk to me."
Me:  "Ok, great, you can get in behind us then - not sure what the people behind you will think but that's their issue."
Him:  Could you do something about your backpack, it's right in my face?"
Me:  "Sure.  What did you have in mind?"

I don't pretend that this is perfect (or even a particularly good) way to handle this conversation - the dialogue is fairly new to me and I know it improves with practice and experience - and Maria, if you read this, any feedback or criticism would be most welcome.

If this interests you I suggest you look at this website: http://www.centreforpeacefulsolutions.org/ and read this book.

Who would win a fight between a suitcase and a macaroon?

The spat happened like this.  I was about to board the train at Gare du Nord.  As my luggage emerged from the scanner, I nudged a brown suitcase out the way because it was squashing my much flimsier bag.  The owner of the suitcase shouted at me: “Madam, wait your turn!”  

I returned, equally sharply: “Your bag was squashing mine!”

“You should  be patient!” she snapped back.

"My bag was getting squashed under yours - what was I supposed to do?" I said, and both of us separated, justifying our indignation to ourselves and our travelling companions.   Adrenalin was high; it was an emotional exchange, upsetting as these unexpected rows  are.

So why did it happen like that, this angry response springing apparently from nowhere?

Well, firstly, it didn’t come from nowhere - not at all.  Working backwards, from my point of view, several things had contributed. 

First, the bag that was getting caught under the suitcase contained a box of macaroons.  A controversial box.  Over priced, and from a shop we'd walked too far to find.   

Second, the woman under whose suitcase they were getting caught had annoyed me already by pushing in to the queue for the scanner.  She hadn’t acknowledged the push-in, as pusher-inners tend not to do.  

Third, when I say nudged what I actually did was give her suitcase a fairly strenuous push.  It didn’t do it harm, it was a hard cased thing, securely fastened, but my act might have seemed aggressive.   

These were my reflections; there were, no doubt, reasons behind the sharpness of her response; things I can only guess at.  

The point for me, as a conflict resolver and mediator, is that these scraps, uncomfortable and embarrassing, don’t spring from thin air, but are built on a whole series of influences and events, perceptions and chance happenings, much of which may even be unconscious in the mind of the disputant him or herself, and is almost certainly invisible to the other party. 

It’s okay that this happens.  It’s how we are, as human beings, as members of society, as animals.  But it’s a good idea to identify these influences, be aware of them and use them to explain your behaviour to yourself, and at the same time justify or at least rationalise the behaviour of the other.

This little spat didn’t matter.  It was over and forgotten by the time we’d boarded the train and I’ll never see the woman again.  But sometimes these flashpoints happen not with strangers, but with friends, colleagues, family members, where looking underneath the frothy top of the argument in a non judgemental, unprejudiced way, is critical to the future of the relationship.  An analysis of this sort can often have the added advantage of transforming something that’s uncomfortable and negative into a vehicle for greater understanding both of yourself and the other person. 

Next time you find yourself rising to the quarrel, have a think about what’s gone on before it, for you, for them.  Then see if you feel as cross. 

Mediation and the Media

Yesterday I listened to a radio programme during which a mediator (a colleague of mine, actually) was called upon to persuade a woman who was in dispute with her neighbour, to mediate. 

The mediator did a sterling job, but it raised for me practical and ethical problems which perhaps in part explain why so few people understand what mediation is all about. 

The programme was set up for the presenter to ask the distressed woman to recount the difficulties she’d had with her neighbour.  Obviously, being a journalist, his instinct was to delve into the salacious and extract facts that would make good listening.  In all fairness, he did a good job, even from a mediator’s point of view.  He didn’t get caught up on irrelevances, he didn’t ask random, or intrustive questions (or not too many of them), most of his questions were open and his tone was sympathetic if not empathetic. 

However, when it came to the mediator’s turn to have, as it were, the first party meeting, in which normally he’d he helping the woman explore the issues and investigate the needs and interests that weren’t being met by her neighbour’s actions, he was stymied.  There were several reasons – there wasn’t time to establish rapport; there wasn’t time or space to discuss the problem at the pace required; and on top of that he was doing it for an audience.  And this was the real problem, and the reason why real time mediations on TV, radio or any other medium will never show mediation at its best.  There was no confidentiality and therefore the entire process was unsafe.

Not surprisingly, the woman seemed fairly skeptical about the merits of mediation by the end, though as I say, the mediator spoke well for the cause, and I can’t help thinking that this type of demonstration can do more harm than good.  Mock-up mediations are an excellent idea for demonstrating this wonderful and most effective form of conflict resolution.  But let them always be mock ups – role plays by people acting the part.  Otherwise the lack of confidentiality will either compromise the party or compromise the demonstration of the process.  Mediators asked by broadcasters to do this sort of thing should refuse on ethical grounds.   

National "Make No Assumptions About People Who Drop Litter" Week

I was in central London on Saturday and a woman walking along in front of me dropped the cellophane wrapping of her cigarette pack to the pavement.  It’s not an unusual act but it revolted and incensed me.  I knew exactly what I should do, which was to pick it up and give it to her, innocently suggesting that the piece of rubbish belonged to her and she must want it back.

But I didn’t, and then the moment passed and I thought about why I hadn’t.  She was a well dressed woman, quite posh looking, so I wasn’t worried about being punched in the face; perhaps I was a little afraid of getting into a row, though the right was on my side.  It was convention that stopped me, and knowing that she’d think I was being sarcastic and rude if I suggested the scrap of sellophane belonged to her. 

Thinking about this deeper, I’m not sure this is right.  If I drop things, even things I don’t need, I make quite a lot of effort to pick them up – even in the road, so it doesn’t follow that other people who drop things do it intentionally.  So I wondered, if everyone made the assumption that sweet wrappings, cigarette butts, sandwich packets, crisps and cans, all that junk that you see smudging around the streets, had been dropped by mistake, perhaps that would help.

So this is what I propose: 

1   if people drop things, assume they have done it by mistake;

2   if you notice someone doing something by mistake, it’s courteous to point it out, pick it up for them, and give it back, non-judgementally, not in a patronising way, but just being helpful;

3   if this was the norm, and everyone did it, the few people that chuck stuff down deliberately would start to feel embarrassed;

4   if everyone was offering litter back to droppers, we wouldn’t be scared or embarrassed.

I think we should try this.  For one week to start with, perhaps at the end of March, and then we could try another week of it, so by the time the Olympics arrive, we’d have had loads of practice.   Does anyone want to join me?

      If you are wondering why this is on the mediation blog it's because making no assumptions, and not judging people, and not confronting them with what they've done wrong, is the bread and butter of conflict resolution, and the sooner the government start understanding that rather than carrying on in the old style - criticism, judgement, penalty and all that, offering mediation as a bolt-on - nothing will change - at least nothing will change for the better. 

Definition of Mediation

This is the nicest definition I've come across, nicked from the Australian Mediation Association's website:

Mediation is a process in which an impartial third party - a mediator –facilitates the resolution of a dispute by promoting uncoerced agreement by the parties to the dispute. A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement.

Mediations and How to Get Them

Up until a short time ago, litigants in the county court who either decided or were advised to try mediation, were directed to the National Mediation Helpline which in turn directed the case to a mediation provider.

The system has changed now, and a website points potential mediatees to a list of providers from which they pick one, probably the one at the top.  Individual mediators on these providers' panels, are also invited to sit in a spare corner of the court all day, ready to talk to litigants who drift their way, or more proactively to invite conversations with unwary individuals who might be at court for a variety of matters, some suitable for mediation, some possibly not.

I spent a day as the duty mediator a few weeks ago, at the London's Civil Justice Centre in Regent’s Park.  The good thing about this system is that mediation is manifestly being brought under the justice system’s umbrella.  The court staff were well informed and enthusiastic.  It is not regarded as a fluffy add on, but as something all litigants should at least consider.  The down side of the arrangement, is that many people turning up at the court are arriving for their trials, which in most cases is too late to consider mediation, or are coming to issue proceedings, which is often too early.  It is also expecting a lot from the mediators that we sit in the court from 9.30 to 5, unpaid, and with no guarantee of getting work from it.  Many of the people I encouraged to consider mediation, qualified for the free small claim mediation in any case.  

There are many things about the way the mediation profession is monitored, scrutinised, regulated and governed, that seem to me to be less than perfect at the moment, and I am hopeful that this unfair and cumbersome system for distributing work will be fine tuned one day, along with the other wrinkles.  It is difficult for newly qualified mediators to break in and get experience, and it is difficult for more experienced mediators to find work except through joining overcrowded panels.  

However, cumbersome as the present system is, there is one invaluable by-product which is that individuals, people in conflict, who up till now have had no real options put before them other than the expensive lottery of litigation, can now have a one to one conversation with a professional who can explain an effective and economical alternative.  At this stage in the game, these conversations are possibly the most useful driver to changing the mind set from litigation to mediation.