Did you ever receive a timely reminder of a “good practices” point in an area seemingly unrelated to the day job? Developing studies in neuroscience using active CAT scans and EEG’s appear to provide insights in to brain activity in people under varying degrees of stress. With emerging understanding of how certain areas of the brain “map” for certain activities, scientific observation is aiding in conflict resolution.

A high point of the New Year’s holidays is the increased frequency of English Premier League soccer games on TV. Watching with my 16 year old son as his favorite team Arsenal, unable to hold a 2-1 lead [a constant worry for Arsenal fans] loses 3-2 to their London rivals Fulham, I observed with clinical detachment the failure of the Gunners’ midfield to protect the wavering Arsenal back four. James and I discussed this fact in clipped tones as the Cottagers players mobbed the winning goal scorer in the closing seconds of injury time.

I was at first surprised when James, generally a calm young man [he gets that from his Mother’s side]reacted rather negatively to a suggestion by his mother…”Now that the game is over, could you put this laundry away please?”…a reaction which, let’s say was somewhat disproportionate to the proposal.

As the thunder of unhappy size 12’s receded to the back of the house [cue SLAM of door]…I mentioned that the collapse of what looked like a comfortable win MIGHT have been all that his mind could process at that moment…”But I waited until the game was over”.

So here’s the thing…and thank you if you have stuck with my tenuous thread thus far…in the properly structured process of mediation (pre-mediation conference, mediation statements, meaningful inquiry and observation by mediator) we often enjoy the advantage of forewarning of issues and questions that are likely to fire the emotional, non-rational areas of the brain.

And those CAT scans indicate that when the emotional centers go red hot…the analytical centers go stone cold… and remain that way for quite some time AFTER the hot spot of the initial outburst has calmed down. Is science confirming what we often have done via intuition? Change the subject, redirect, reframe, acknowledge a person’s reaction by reflecting their pain at the failure of the wing midfielders to track back, exposing the centre backs to overlapping attacks and crosses…and WAIT a few minutes before asking them to pair socks.

Further discussion of the intricacies of effective defense in depth, and its application to real life is happily discussed over a Pint at the requestor’s pleasure.

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

This one is pretty clear, I submit, on its face.  In my experience, pretty much all of the mediators I have worked with, or retained when I represent a litigant, have come to be mediators out of a desire to assist in the resolution of conflicts, and as such recognize the benefit, and indeed requirement of impartiality as defined.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Here those oh so difficult to define words “…avoid…the appearance of partiality…” arise.  It occurred to me early in my experience with mediation that looking for actual, or the appearance of bias in the mediator takes up a considerable amount of time of the parties and their counsel, particularly if the mediator spends any degree of time in caucus with the other side. In my experience, it is more often the perception, right or wrong, that the mediator “took sides” that either scuttles a mediation, or of the dispute/case does settle, results in an imperfect outcome…”The case settled, but the mediation was a failure”. This is getting too heavy for “Summer Cruising”, and will appear in a specific article later this fall.

1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

2. A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.

I have combined these three sub-sections, because for the legal user, they are best addressed by noting that the Model Standards of Conduct for Mediators apply also to mediation processes outside the court or litigation context. If any of these standards appear foreign to you, write in with your questions, your identity will not be disclosed in my response.

C.      If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

Again, these Standards also address conflict resolution outside the court process, but it can also happen that a mediator has forced parties or just one to address hard truths, and continuation might prejudice progress made.

 

Mediation has been for some time an accepted process for seeking solutions to ongoing conflict. Various standards exist as useful guidelines, and I’d like, through several posts, to address a widely recognized standard,  The Model Standards of Conduct for Mediators  [September 2005] This is a Joint Publication endorsed by the American Arbitration Association [AAA]. American Bar Association [ABA], and the Association for Conflict Resolution [ACR].  AAA’s various Rules for Mediation and Arbitration in substantive areas of law are often specified in conflict resolution clauses. I will assume the reader is familiar with the ABA. The Association for Conflict Resolution is a merged organization of three previous organizations of Family Law and other dispute resolution professionals.  The next and following articles will address the salient guidance of the Standards.

The preamble to these standards sets out the intent of the adopting agencies:

Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes. [emphasis added]

While the drafters also counsel that the order of the Standards, [there are 10] does not add “priority sequence”, the first Standard is titled

1.         SELF DETERMINATION:

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

So a mediator, serving as an impartial third party can guide the parties to a dispute through the use of Fisher and Ury’s “principled negotiation”…let’s look at how that can happen, through the magic of “cut and paste” …

The Problem

Don’t bargain over positions. Arguing over positions produces unwise agreements, is inefficient and endangers ongoing relationships

The Method

Separate the People from the Problem. This can be accomplished by asking each party to walk the mediator through the history of the conflict—observing this discussion, rather than participating [battling] in give and take, may have profound effects. Even an apology, in the right context and setting, can be most effective.

Focus on Interests, Not Positions. More often than not, almost always, in fact, there are common threads or desires which each side can accomplish without any cost to their opponent. The simplest, end the fight and the legal bills; or allow refocus on productive activities that the dispute has diverted each side away from.

Invent Options for Mutual Gain. As I mentioned in March, this often requires thinking beyond the legally proscribed Remedies that we all learn in Law School and legal practice…often in caucus but sometimes in joint session, one party, in discussion with or through the mediator brings up a beneficial element for the other party that has been masked, if you will, by the fight. This is NOT just telling the other guy what he/she did wrong but moving towards mutual problem-solving on a positive environment.

Insist on Using Objective Criteria. Mediators can [re]introduce objective criteria as a basis for negotiation [Market Value, Precedent, Scientific Judgment, Costs etc.] Often these are NOT new to the parties…sometimes they and  counsel are too long in the fight; and sometimes the client is no longer hearing the good advice counsel has been offering all along.