Many mediators have their own strategies in conflict resolution and these may depend on their personality, style and personal mediator philosophy. How mediators practice can include known communication skills, such as open questions, summarizing and reframing. Increasingly researchers are interested in the many other mediator strategies such as use of humour, improvisation and intuition. Such mediation strategies can be controversial as they don’t usually appear in mediation standards or training programs. However, these kinds of strategies may be just as effective as the traditional communication interventions. For example, whether a mediator can use humour to lighten the mood, improve rapport and open participants to new ideas. Improvisation can be used by mediator to move away from the set steps of mediation in order to be flexible and fluid to meet parties’ needs. Intuition operates in a mediation to assist the mediator to make strategic choices informed by years of experiences. All of these kinds of strategies could be said to be part of “artistry” in mediation practice… where some mediators show a more sophisticated approach to how they mediate.
As research in the mediation field matures I think researchers will increasingly be interested in unpacking how mediators with experience practice to inform both mediator education and to share skills in our community of practice.
There is now a groundswell call for increased adoption of ADR in legal education to develop non-adversarial practice in law students.
For example, in 2014 the Productivity Commission has recommended the inclusion of ADR in legal education (see chapter 7).
Whilst acknowledging that legal education must meet the needs of both students and a diverse array of stakeholders the productivity commission has also recognised the need for improved provision of ADR education in a law degree.The future of legal education arguably requires that ADR teachers are recognised and valued for the unique contribution that they provide to legal education. ADR teachers provide a combination of theory and practice in dispute resolution that enriches legal pedagogy.
Many universities now include ADR as a mandatory course. We all need to support the mandatory inclusion of ADR in legal education to ensure the development of non-adversarial practice in law
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.
As we approach the end of 2014 (and look to welcome in 2015) it is a good time to reflect on the success of the ADR Research Network.
We have had a great year, posting to our blog, researching and writing together and planning for the future.
An exciting part of the ADR Research Network year has been meeting up at RMIT in late November. At the research forum we talked through our ideas over two days. Highlights of this time were the collaborative discussions around members’ research initiatives and our planning for the future. Becky Batagol has posted of our next meeting in September 2015 and I would like to echo her enthusiasm for our first research roundtable (details to follow).
I know that 2015 will be a great year for ADR research with many researchers completing and publishing articles. I predict that cutting edge ideas will be published that will push forward theory and practice.
Happy New Year to all.
It can sometimes be hard to teach about mediation without an exemplar. Video has been used in teaching negotiation and mediation for some time in tertiary education and also short course training. Video has the benefit of providing students with the opportunity to watch and reflect on skills based content and these reflections can later be put in practice in face to face role-plays.
RMIT and the Victorian Bar Dispute Resolution committee have made a useful video to assist student learning about mediation.
You can find it at:
Many of us advocate the inclusion of ADR as a mandatory course in the legal curriculum both in Australia and internationally.
The current crisis in the United States legal education context makes me reflect on the fact that as students ask more of legal educators and their programs it is more important than ever that theory/skills course such as ADR are included in the curriculum.
ADR can prepare students for legal practice but also for careers that are not in the law but in associated areas. ADR is a course that opens up possibilities.
For a discussion of the crisis in United States legal education see