As we start 2015 (with bush fires and floods in Australia) I would like to post about a topic that I think is of real importance to mediation. We all know that ADR and in particular mediation, is commonplace in our justice system, mainly due to the positive affect mediation has on lowering matters reaching court. What I believe gets less attention is how mediation is practised. Too readily the rhetoric of mediation is accepted by courts and policy makers without a critical examination of how parties are treated in mediation. The experience of mediation for parties is just as crucial as the lowering of the matters listed for hearing in courts. One issue of importance is whether parties have the opportunity to express emotion in mediation. How do mediator’s respond to emotion? Do they see emotion as having a place in mediation? What interventions do they practice to engage with emotion?
As part of a research project we asked 16 mediators about emotion and found many open to engaging with emotion in mediation, but having a rather unsophisticated approach to the theory and practice of emotion in this context. Well meaning but largely uninformed they did have a number of strategies that they used including using the ground rules, private sessions and summarising and rephrasing. If you are interested check out this article for more details of our research:
Douglas K and Coburn C, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111
I’d be interested to hear other peoples’ views of the place of emotion in mediation.