Lockdown Dispute Resolution 101 #14: Learning from the art of mediation – what do mediators do with conflict that can help us in lockdown?

As we’ve seen in this series of posts about learning from the art of mediation, there is so much we can discover about the prevention, management and resolution of disputes in lockdown from the theory and practice of the mediation process.

Mediator functions relating to conflict

Nationally accredited mediators in Australia have to have knowledge and skills in relation to conflict. How mediators manage conflict will vary in practice depending on their particular model of mediation. Generally speaking, however, mediators aim to:

  • legitimise the common realities of conflict (see posts #12 and #13),
  • normalise the presence of conflict in the dynamics between the parties,
  • and validate the emotions that accompany a relationship where conflict is present.

Normalising conflict 1

It can be said of mediators that they should be the equivalent of medical specialists in all matters of conflict management, prevention and resolution. It is one of their key functions in the mediation process to manage the expression of conflict and the acknowledgement of emotions. These things are important because they are often pre-conditions for reaching resolution.

Conflict resolution image 1

In lockdown we can adopt some of a mediator’s practices. For example, following the general principles above, we can acknowledge with the person we are communicating with that conflict is normal and that it doesn’t have to be a negative thing; that we can use conflict constructively to learn from each other, or to deepen the relationship, or to adopt new and better practices. We can acknowledge that conflict doesn’t feel pleasant and that it can cause angst and anxiety, but this is experienced mutually and not just by one person. And we can expressly commit to giving our best efforts to communicate effectively in order to prevent, manage or resolve a conflict.

Taking from the mediator’s toolkit we can:

  • Allow ourselves to express conflict but ensure that we remain controlled about how we do that. When we don’t have a mediator to pull us up on respectful and appropriate conduct, or to remind us of the ground rules for communication, we need to enact our dispute resolution agency (see post #2) and do this for ourselves. We need to be mindful of the impact that both our verbal and body-language have on the person we are communicating with (see posts #4 and 5).
  • Avoid using phrases like ‘get to the point’ or ‘let me finish’. It’s important to be aware of, and acknowledge, that a natural conversation involves ebbs and flows of interaction and speaking and a certain amount of respectful interruption. A mediator usually manages this exchange but when they’re not present, we need to intentionally do it for ourselves.
  • Analyse the conflict and the dispute it may have led to (see post #13) and adopt a clear structure for discussions (using an agenda). Conflict can seem overwhelming sometimes but if we break it down into its elements and manage each of those elements individually, we are more likely to achieve some progress. Even if we don’t arrive at a complete resolution, we may achieve partial progress – a step at a time – which then can build into a positive outcome of more comprehensively managing or resolving a dispute or conflict. This is how mediators approach conflict.
  • Go back to common ground, or recognize elements of partial agreement, as positive indicators of progress and an ability to cooperate and be on the same page. Common ground is a good foundation on which to build a commitment to managing or resolving the dispute or conflict. Common ground might involve, for example, matters that are already agreed on, shared values, or shared commitments (such as a love for children, or a commitment to keeping the business viable). Mediators often revert to common ground when the parties’ communications are stuck or hit an impasse.

Toolbox image 1

In post #12 we noted that sometimes conflict has moved to a more complex level known as ‘high conflict’. The management of high conflict requires a significant skill level and expertise. If in lockdown we find ourselves in a situation of high conflict it is probably a good idea to bring in the help of an external third-party mediator, so that their sophisticated understanding of the nature and challenges of high conflict can allow it to be managed effectively. A list of nationally accredited mediators is available through the Mediator Standards Board.

In summary, if we are open to giving ‘permission’ for conflict’s expression, subject to our judgment as to its impact and consequences, and if communications in conflict are managed constructively, we can do some of a mediator’s work and achieve real relief of tension, better attention to achieving resolution and the possibility of an enhanced future relationship. Whilst these things are usually managed by a mediator in the mediation process, it’s necessary for us to manage them ourselves if we are to successfully prevent, manage and resolve disputes in lockdown.

From tomorrow we start a sequence of posts on specific skills for effective communication, which is so important to preventing, managing and resolving disputes. In mediation training contexts we commonly use the acronym LARSQ to denote these skills. LARSQ stands for listening, acknowledging, reframing, summarising and questioning.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #15: Effective communication strategies – listening.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) Chapter 6.

Image 1: Harvard Business Review

Conflict resolution image: Charles Stone

Toolbox image: 123RF

 

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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