Peeking Over the Fence: Peeking Over the Fence learning from other mediation traditions 1

‘Everywhere in the Ancient Greek World... arbitration was normal and in arbitration the mediation element was primary’ (Roebuck, 2007, p.106)

Industrial RelationsCommunity MediationFamily MediationCommercial MediationSmall claims/court annexed Mediation Traditions

Additional Support Needs (SEN)EnvironmentalProfessional ComplaintsDispute System Design (more) Mediation Traditions

Law Labor- Management Relations Dialogue Group Facilitation Systems TheoryLearning TheoryMyth and Ritual Mindfulness Meditation Communication Theory NeurophysiologyEconomicsGame Theory Coaching and Mentoring Neuro-Linguistic Programming Evaluation and Assessment Management Theory Team BuildingSociology Theories of Justice Psychology Collaborative Negotiation ArbitrationNon-violence Prejudice Reduction Race and Gender Studies Buddhist Philosophy Spiritual Traditions Art and Aesthetics Anthropology Community Organizing Physics and Mathematics Creative Problem Solving Feedback Techniques Quality Improvement Organizational Culture Collaborative Processes Political Theory International Relations Influences (Kenneth Cloke)

Mediation Polarities One hour All day Single session Multiple sessions No table Coffee table Business table 6

Mediation Polarities (ii) Conference (joint) Caucus (separate) FacilitativeEvaluative Problem-solving Transformative 7

One more Norm generating – norm educating – norm-advocating 8

‘the only relevant norms are those the parties identify and agree on’ Norm generating ‘the mediator is active in ensuring that negotiations are informed by relevant legal and social norms’ Norm educating ‘the mediator not only educated the parties about the relevant ethical and legal norms, but also insisted on their incorporation into the agreement’ Norm advocating Waldman’s typology Ellen Waldman, 1997, 48 Hastings Law Journal,

Riskin’s Grid Leonard Riskin (1996) ‘Understanding Mediators’ Orientations, Techniques and Strategies: A Grid for the Perplexed’ 1 Harvard Negotiation Law Review 7-51 Broad v Narrow problem definitionFacilitative v Evaluative mediators 10

Broad – narrow continuum 1) Litigation issues 2) Business interests 3) Personal/professional/relational issues 4) Community interests (those not in the room) 11 (shadow of the law)

Evaluative – Facilitative Mediators Evaluative - assumptions Clients want guidance on appropriate grounds for settlement She is qualified to give this on grounds of training, experience and objectivity Facilitative – assumptions Parties are intelligent, capable of working with each other, and know their situation best They can design the best solutions Mediator’s principal role is to ‘clarify and enhance communication between the parties’ (p.24) 12

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Justice? Substantive justice What you get Procedural justice How you’re treated More consensus on procedural than distributive outcomes Fair treatment had a positive impact on people’s assessment, not only of the particular process they were involved in, but of the entire justice system

Procedural Justice opportunity to present views, concerns and evidence to third party. Voice perception that ‘third party considered their views, concerns and evidence’. Being heard Even-handed Dignified Treatment

16 The 5- stage model of mediation

‘changing conflict interaction’ Empowerment (move from weakness to strength) Recognition (move from self- absorption to responsiveness) 17 ‘human beings have inherent capacities for strength (agency or autonomy)...’ ‘ and responsiveness (connection or understanding) ‘ AND an inherent social or moral impulse’

Dana Mediation Model Keep the participants involved in the essential process Support conciliatory gestures Wait 18

19 Facilitation Creating motivation for settlement Overcoming barriers Kendall Reed Model “All are relevant all of the time.”

20 Mediation Design A Joint mediatio n session Pre-mediation Process design & suitability Pre-mediation

21 Mediation Design B Pre-mediation with both solicitors Joint mediation meeting

Peeking Over the Fence: Peeking Over the Fence learning from other mediation traditions Charlie Irvine 22