Lockdown Dispute Resolution 101 #6: Learning from the art of mediation – intentionally establishing a procedural framework for effective communications and negotiations

Mediation

There is much we can learn from the theory and practice of mediation. As a professor of law, a nationally accredited mediator, registered family dispute resolution practitioner and co-director of the Bond University Dispute Resolution Centre, I am very passionate about mediation and its positive value in society and in law. I really believe that aspects of how mediators practice their art can help all of us to enact our dispute resolution agency for effective lockdown communication and negotiation.

Mediators are third parties who use the mediation process to assist people in dispute to communicate effectively about their positions, needs and interests. Mediators add value when they put the mediation process into action by creating favourable conditions for people to talk, problem-solve and make decisions together. As experts in negotiation and communication, mediators provide structures, procedures and interventions which parties and partisan advisers are unable to achieve on their own. The art of mediation can teach us how to create favourable conditions for our own interactions with friends, family, work colleagues and others during lockdown.

Mediation 3

In this blog we explore how mediators establish a constructive procedural and structural framework to support parties in dispute to communicate and negotiate effectively. We consider what we can do as individuals in lockdown to replicate these approaches in our own efforts to negotiate matters and also as we work to prevent, manage and resolve disputes.

Mediators provide a procedural framework for parties to communicate with each other by managing and supervising the stages of the mediation process. As ‘chair’ of proceedings, mediators establish conduct rules, provide order, sequence and continuity, ensure adequate air-time for all parties, call and oversee adjournments and manage procedural snags. In doing so, they establish an environment of impartiality, security and control designed to support effective communication and negotiation.

Mediation 2

In our own lockdown communications – particularly when we need to have difficult conversations or if we are attempting to manage or resolve a dispute – we usually don’t have an impartial, expert third-party assisting with a process and structure for the discussions. But we can improve our chances of things going well if we enact our agency to ensure that we do that for ourselves.

One important aspect of creating a supportive procedural framework that we can adopt from mediation practice is the establishment of ground-rules, or in other words, guidelines for each person’s conduct in the discussions. A second important aspect of the mediation process is the identification of common ground, or areas of established agreement. And a third aspect that can inform effective communication between individuals in lockdown is the use of an agenda, that is, the identification of a list of issues for discussion.

Establishing ground-rules: At the start of a mediation, mediators ask the parties to commit to certain ground-rules and these ground-rules become a critical rule of engagement in the process. Two of the most commonly used ground-rules are, first, that everyone in the process will behave respectfully towards each other, and, second, that only one person will speak at a time. These conduct guidelines help keep discussions constructive and on-track.

Ground rules 1In our lockdown communications we can also establish ground-rules like these. We can say out loud at the start of a discussion or negotiation that we are committing to speak and engage respectfully with each other and that only one person will speak at a time. We won’t always succeed in adhering to the ground-rules. But having established them gives each person in the conversation the authority to remind others of them and if, for example, one person starts over-talking another, they can be respectfully reminded that their earlier commitment was not to do that. Something as simple as this can bring a sense of order and structure to communications.

Identifying agreement the common ground’: When we are communicating in lockdown in order to negotiate, and particularly when we are aiming to prevent, manage or resolve a dispute, there are often issues about which there is some disagreement. However, there are also often areas of agreement – or what mediators might call ‘common ground’. It is positive communication practice, and part of the role of a mediator, to identify and acknowledge existing areas of agreement between the parties and recognize that they represent an element of success in the communications that has already been achieved. Identifying agreement provides common ground on which decisions are not necessary and on which a constructive conversation can build. The practice of identifying common ground can promote an optimistic frame of mind and provide an effective foundation for the negotiations that follow. For this reason, it’s an important element of the procedural framework of mediation that we can adopt.Common ground 1

Issues on which there is agreement, the common ground, might involve matters substantive to the discussion. For example, if a couple are negotiating about who will get to use the home office for the morning it might be acknowledged and agreed that getting work done effectively at home is important to each person. Common ground can also exist on procedural matters, for example, each person might agree that they will set aside the time necessary for the discussion to achieve an outcome. Sometimes it is only possible to identify common ground at general levels, for example if parents are in disagreement about how much screen-time the children should have in a day, it might be agreed and acknowledged that both parents love their children and that each parent is concerned about the children’s best interests.

Defining and ordering the issues for discussion – setting an agenda: An agenda is a list of issues on which decisions are required. Issues can be defined in terms of positions – what people want – and also in terms of needs and interests – or in other words, why people want what they want. In a mediation, it’s the mediator’s role to present issues neutrally, in plain language and, as far as possible, in mutualised terms. This involves high-level skills of listening, synthesis and reframing. Mediators usually display issues visually to provide a source of reference for the remainder of a mediation – they commonly use a whiteboard to document the agenda so that everyone in the mediation can see and refer back to the identified issues. Parties in mediation are invited to prioritise the issues to provide a clear sequence for their discussion. The list of issues provides an important structural framework for discussions – establishing with clarity the matters requiring negotiation and decision- making; ordering the discussion of problems and issues; disaggregating overall problems into discrete elements; and suggesting a sense of finiteness to a negotiation or dispute.

Agenda 1

In our lockdown communications we can borrow from mediation practice to assist with the effectiveness of discussions by setting an agreed list of issues for discussion and decision-making, making the list visible for all (on a whiteboard or even just on a piece of paper), determining an order of priority for the discussion of the issues and then keeping discussions on track by using the list to keep focused and on point.

Mediation is a principled and positive approach to facilitating constructive discussions about often difficult issues. If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre.  You can see the schedule for courses coming up here – during the COVID-19 lockdown all courses will be conducted online.

Next Blog Monday 13th April: Learning from the art of mediation – intentionally managing the emotional and physical environment of communications.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 77-78, and 99-100. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Mediation figures: Shutterstock

Mediation scrabble image: Adamson, Bernays, Kyle and Jones Lawyers

Mediation post-it notes: Gard

Ground-rules: Shutterstock

Common ground: Professionally Speaking

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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