The Second European Mediation Congress Mediator Audit. Karl Mackie, Chief Executive, CEDR:

Transcription

1 Karl Mackie, Chief Executive, CEDR: When you re thinking about the next leap forward sometimes that s a great occasion to actually take a couple of steps back and look at the assumptions you bring to the field of conflict resolution. Look at the values we place on the mediation process and the significance it has in our society and for our profession. So we have no better speaker to take us into that wider arena than Bernie Mayer. Bernie has been in the dispute resolution field in a much bigger market in the US for over 25 years as a partner in CDR Associates in Boulder, Colorado, which many of you will know by repute as a major training and international consultancy body in the field of conflict resolution. A couple of years ago Bernie wrote a book called beyond neutrality where he challenged the assumptions of the conflict resolution field and said we should all step back, perhaps look at the satisfaction we feel about the progress we ve made and reconsider whether there is another way of approaching this field. So we wanted to give you the opportunity to hear Bernie s considerations and reflections on that length of experience and also to think about, perhaps, new directions for the market for providers for mediators, for lawyers even, in terms of opportunities that the conflict resolution field offers. What we ll do now is Bernie s going to give you an outline of his views on the field of conflict resolution and then we ll probably go straight into coffee after that, but later this afternoon we have an opportunity, Bernie and I will discuss some of these ideas and where it might relate to the UK and there will be an opportunity then for comments and questions, so please keep note of any comments or questions you have and we can revisit them later. So ladies and gentlemen, can I ask you to welcome Bernie Mayer. Bernard Mayer, Mediator and Author: Thank you very much. I was going to put my watch out here but there already is one. I ll take that home, it looks nicer. And thank you. The way you 1

2 introduced that it made me think that after my remarks you may very well need some coffee because I often ask people to take a few steps back and face some and look at some of the hard messages. I think we deserve at this point in our growth, and I think that the audit you just had presented to you shows that, to feel good about what we ve accomplished in the conflict resolution field, about the increasing use of it, about the great satisfaction that clients have expressed with the use of mediation and by the fact that we are not so much the completely unknown and new kids on the block the way we were a number of years ago. So that when people talk about mediation, if you present yourself as a mediator, people aren t likely to think that you re asking for some sort of introspective meditative experience. We really did once have at CDR, in our early years, somebody come to our mediation training thinking they were coming to a five day meditation training. And that person became a mediator afterwards. I ve always wondered what the mediation practice of that person was like, I suspect it was very slow and didn t move anybody very quickly but I don t know. So I just think we can take a lot of pride in what we have accomplished, both in terms of the satisfaction and the broad use of mediation across many different kinds of conflicts. However, I ask us to, if we really want to grow, I think we have to do a lot more than look at just what we ve accomplished, we have to do the opposite, to ask ourselves, well what have we not accomplished? And what are the warning signs in our field, that if we want to grow, like all good organisations, we need to face? We re not going to grow by just congratulating ourselves, we re only going to really grow and expand our social usefulness if it s some of the harder messages as well. So that s why I wrote this book. And I wrote it because I was concerned about certain trends that I saw and certain plateaux that I thought we had reached, but since I ve written it and I ve gone around to many different places talking about it, I think it reflects what many people are concerned about as well. And a couple of caveats before I go any further. One is that I can t claim to know what the situation is here in the United Kingdom or in Europe. I 2

3 definitely based my writing on my primary experience in North America, although since then I have presented this in other parts of the world, I just got back from Australia and New Zealand and I think my comments were at least very relevant there. But I m not going to claim that I ve really done a survey of what s happening here, so take that for what you will. A second caveat is I m not just talking specifically about mediation and certainly not just about commercial mediation. I am talking about the whole conflict resolution field which is how I identify myself, CDR identifies itself and how many of my colleagues also identify themselves. And that is, I am concerned about the broad way in which we have approached conflict and whether there are not ways in which we can t grow a whole pie of conflict resolution work, not just the mediation pie, not just the commercial mediation pie. So those are two things I want to make sure people understand that is my presentation comes from that. Now, what I would like to do is talk briefly, really, about what I think some of the concerning signs that I see out there are. And then what I think some of the ways in which we have limited ourselves by our own self definition by concepts that underlie what we do that we need to take a few steps backwards from and challenge somewhat. Because I think if we did do that, the underlying message that is in my book and is certainly how I personally view it, is a very hopeful one, is a very optimistic one that we can in fact make a far broader impact than we have made. But only if we re willing to take a couple of steps back and look at it. Now, I think it s interesting to look at the audit and obviously I ve had no more time to digest it than any of you did, but a couple of conclusions I would make from looking at it that I think are very relevant to my own way of thinking and are consistent with what we ve seen in studies in the United States and in Canada as well. One is that people are very satisfied with mediation. You could get similar kinds of responses, we ve gotten similar kinds of responses in many different studies that have looked at consumer 3

4 satisfaction. The percentages might go up, might go down a little bit, but they re not too far off. People like mediation, people like the mediators, people think it saves them time, people think it saves them money. Guess what, somewhat implied by the interpretation that I just heard as well, that doesn t mean people are more likely to use it the next time they have a dispute. You can study people who have been through mediation and who have rated that highly and then you can study, are they likely to say, oh the next time I get into a dispute will I go to mediation, the answer is not necessarily, not necessarily significantly more so than the general population. We need to understand what that s about. In a more general sense, and I also heard this in this presentation, we have to look at the fact that mediation and conflict resolution more generally, and I think this was implied in here too, is a very supply driven field. It is not a demand driven field. What does that mean? It means there s a lot more people out there who want to do mediation than there are people asking for it to be done. That s the significance of, how many percentage of people want to be full time mediators versus how many percentage want to represent people in mediation, that you just heard? Well we, again, in the United States we are churning out people that want to be mediators. There are many training programmes, my own organisation has trained for many years, there are many masters programmes, there are many certificate programmes and there are a lot of people who would like to do full time conflict resolution work, full time mediation work. And it s not out there to be done. There isn t the demand for it and, you know, it s alright to have somewhat more training than there is, somewhat more people wanting to do it than there is a demand for it, but if you get too out of sync with that, it breeds cynicism, it reflects the fact that people like the idea of doing that kind of work, but not necessarily like the idea of using those kind of services to that extent and it is something that I think we need to look at and we need to be very concerned about. So I don t know if this is in your experience, but I must have at least once a week, and it s only limited to once a week because I have become surlier about responding to it. I 4

5 have people call me up and say, can you tell me what I have to do to become a mediator. I ve been through a training, can you tell me how to market myself? Is that an experience that many of you have? And the concern I have about that is that I don t know what to tell them. Don t quit your day job, is usually what I tell people. You know, you re not going to be able to just become a full time mediator because you ve been through a programme or a certificate programme, or even a masters degree. And it s a concern. I think there s a danger that we re not like nurses where you can t train enough to fulfil a demand. So that s one general kind of concern I have and the demand supply out of sync-ness would even be greater, would be much greater actually, if it weren t for mandatory mediation programmes. If there weren t mandatory mediation programmes, the amount of demand would be much decreased I think in the commercial area, certainly in the family area and in many small claims kind of arenas as well. Now I m not personally against mandatory mediation by any means, but if you set up a system, if you set up a programme, if you set up a service that is overly dependent upon mandatory referrals, you re vulnerable. As a profession we re vulnerable to policy changes and we ve just seen an interesting example of that in North America in Ontario and Toronto in particular where Ontario passed a mandatory commercial mediation programme, after much work, much research, much effort, and then in one judicial district, but it s Toronto, it s the biggest one, they decided to change the law slightly to basically completely undercut that with a result in incredible decrease in the amount of mandatory mediation, of mediation in general. So we have to look at that and we have to ask ourselves what s going on here about this demand supply out of sync-ness. I do think it s nice that people want to do this kind of work and I understand it, it s very rewarding and gratifying work. Why isn t the demand greater? Let me mention a couple of other warning signs and then maybe try to address some of those questions. Another warning sign for me, or a concern for me, is the fact that, and again I m not a lawyer and I have nothing against the legal profession although I do know some lawyer jokes, is the increasing legal 5

6 dominance of the mediation field and of the conflict resolution field. I think it s fine for there to be a very full and active presence of lawyers in mediation, but if the field of conflict resolution, if the field of mediation also becomes subservient to the legal field, we will lose something important. I think there s a real richness to have the multiple inputs of different professions of origin and the increasing use of people who are specifically trained in conflict resolution, but over the years, more and more, certainly in the family area, it s almost in the United States, almost all private family mediators are now from a legal background, when I started doing it the balance was much more towards mental health professionals, I don t think it should be dominated by mental health professionals either but I think there needs to be multiple input in the field if we re going to be a rich free-standing field which I think we need to be. The other concern I have about increasing dominance of the legal profession is that mediation becomes increasingly a rights based approach and that s too narrow an approach upon which to make a really big impact upon how conflicts are handled. So that is a concern I have as well. But the biggest concern, bigger than any of those, for me, is how we don t seem to be players in the major disputes of our times in the same way, in a way that I think we could be and should be. For me this lesson was driven home after 9/11 in which in the United States anyhow, we had a series of nonstop discussions on TV from experts and non-experts, everybody seemed to have an opinion, about what was going on with this conflict that led to this, what was going on that led to this, how could we understand how people could do this, how could we understand how we should respond to it. And I was pretty impressed by the fact that there wasn t a conflict resolution expert in the dialogue there. It s not that I think we had the answers to things like 9/11 but I felt we should have been more part of the discussion, we should have been more part of the dialogue, we did have some important tools of being able to understand the nature of conflict, of being able to analyse it in a number of ways, and being able to think of at least a variety of different approaches that ought to be considered to understanding the larger problem. 6

7 And we weren t there. I think Bill Uri who was the co-author of Getting to Yes, who lives up the street from me in Boulder, Colorado, leading me to say that I m the second most famous conflict resolution author on my block, you know, he was my wife s writing a book which I think is going to be very important, called The New Lawyer which makes me think I m going to become the second most famous conflict resolution author in my bedroom, but it s not out yet, so and he was interviewed once by CNN and the spirit in which he was interviewed was, he s a negotiator, I wonder what he has to say about terrorism. In other words, there wasn t a sense that we didn t really, maybe if people with a background in conflict have something to say about that, and there are a couple others of us who have had minor exposure, but we weren t really major players in it. But we don t have to look at 9/11. We don t have to look at the biggest, most politicised, most difficult disputes that we have to ask this question, I think most of us could look at any organisation that we re really part of, or our own communities and ask what is the biggest dispute going on in that organisation? What is the biggest dispute going on in our community? And ask ourselves where are conflict resolution professionals in those disputes? And the answer won t be nowhere, it won t be zero, but the answer that s remarkably high a lot of the time will be people won t see us as resources there. Now, in my town, in one of the towns I live in is Boulder, Colorado, we ve had major disputes at the university around our football team which received national publicity in the US, around a professor who compared the victims of 9/11 to Adolf Eichmann and therefore got the whole community roiled about it, and I work with the university a lot and many of my colleagues do and it occurred to me that we could have really helped them with some of this, but they didn t really see us as offering resources to them. So these are signs that I think we need to look at, and we need to look at them in the following way, not to say, what s wrong with all of these people for not using us, and also not to say we just need to market better, unless we mean by 7

8 marketing going deeply into what people really need so that we can offer the services that they really need. But we do need to go into it in the spirit of saying, there s a message here and we need to learn that message. We need to do what we ask our clients to do all the time, which is look at the hard news and see what s going on. And so I would suggest there s several things that we might want to look at. One thing we might want to look at, in most conflicts, and I want to emphasise again I m not just talking about mediation, I m certainly not just talking about commercial mediation. In most conflicts, do people want what we have to offer? So let me suggest several things that I think people want, mostly, in conflict. And we have to ask ourselves how well do we offer it? I m going to suggest six things that I think people want. One of them, one thing I think people almost always want in a conflict is a sense of voice. They want a sense that they can be heard. They want a sense that they can be heard powerfully. Now, what do we say, for the most part, about our work to people, about what kind of voice they will get? Well, they will get a voice at the table directly with the other person. To many people in many significant conflicts, that seems like a very quiet place to have a voice. Now I think I personally believe it s sometimes the most effective place to have a voice, but in major conflict situations, it often feels like a very quiet place to have a voice and people often want a voice that feels more powerful than that. Secondly, people want to have a sense of validation, that they are understood and acknowledged for the concerns they have, for the issues they have, for the reason they ve raised the conflict and I think what we often offer in mediation is what I would call validation-lite. It looks like something like this, I understand the way you re feeling, now can we move on and try and solve this problem. Or, you seem to be feeling very angry, now will you stop feeling very angry so we can talk more rationally. I think you know what I m talking about even if I m maybe being stereotypical. I think we ve all done something like that at times. And I think we often tell people, I think the other thing people want in conflict is they want vindication. They want somebody in a position of power who s 8

9 going to tell, or a position of authority, who s going to tell them, you re right, the other person s a jerk. Now, you know, Kerry Mankell Merrill has written about litigation romanticism and that is the idea that, people have this romantic image of what s going to happen if you go to court, and you well know, that isn t what happens, but it s what people think is going to happen, it s people s fantasy of what is going to happen and pretty much what we say to people is leave that fantasy at the door, when you come to talk to us, which I think to some extent you have to do often, but we have to help them understand vindication in a very different way. But it makes it hard for people sometimes to want to use our services. I think people also want the sense of safety, which we sometimes provide, sometimes cannot provide, the sense of making a real powerful impact, and a sense of procedural justice which we can talk more about what that means, and a lot of interesting research has been done. So all of this, I think, is underneath the understanding of why people often don t choose usually to come to mediators or to third parties. And I challenge all of you to think about this for yourself. If you are embroiled in a big dispute, personal dispute, professional dispute, community dispute, you re really steamed, you re really angry, you re really upset, it s important to you, I ask you to think about who do you go to first, who do you want to talk to first. And who do you want to talk to second and who do you want to talk to third? And I bet you we haven t yet reached a third party. I suspect the first person you want to talk to is somebody who s going to listen to you and basically say, yeah, you re right and not say the other person s right, maybe not, some people want somebody who s going to give them perspective, but a lot of us want somebody who we know is going to be on our side, who s going to be our friend. And I think who we tend to go to next are people who are going to help us be more powerful in our view. And this is us and I ve asked a lot of mediators in a lot of circumstances where I ve actually really spent some time having people think about this, and I ve asked it to mediators and mediators don t necessarily right away think that they need the services of a third party. 9

10 That s why that challenge is so important of one more referral. And it s not so easy. So what does this say? What does this say about where we go as a field and how we can understand it, how we can expand, how we can be more powerful in the future, how we can have a bigger impact on conflict. I don t for one moment think that we should stop being really effective mediators, and when we re mediators we have to act in the way that we say we re going to act and if we say we re going to be neutral, we need to be neutral, whatever that means. If we say we re going to be impartial we need to be impartial. But I think that we have to see our business, our business of conflict resolution, which I m going to call something else in just a moment, as more than just mediation. I think we have to see it as more than just third party work. I think we have to understand that there is just one approach to helping people with conflict and if we want to be a very strong, broad and powerful field in helping deal with the conflicts of our time, we cannot just be a field of third parties. Any individuals among us can choose to be third parties if they want. But people don t necessarily see third parties as who they will initially or at all go to in their own conflicts and we need to think about how we position ourselves that way. So the other way we need to start thinking, anytime we see a conflict the answer isn t necessarily mediation, it might be but it s not necessarily that. We have to have a different question. Any time we see a different conflict we have to ask ourselves what do these people need to help them move forward through this conflict effectively, whether it s a divorce, whether it is a major labour management issue, whether it s a major community issue, whether it s a major international conflict, if it s an ethnic dispute, whatever it is, if I present a dispute to you, your response ought not to simply be, I wonder how I can mediate it, it ought to be, what is needed here? And I think as a field we ve lost a little of that, as a field we ve been like the proverbial people who have a hammer and everything looks like a nail. You know, we ve been a field where 10

11 we have the skill of mediation and every conflict looks like it needs mediation. We need to think in terms of three very broadly different kinds of roles. One is the third party roles that most of us here talk about and which we need to continue to play well. Another is we need to pay much more attention to the system roles, to the people who actually manage the system by which conflicts are dealt with and it depends in what setting we re talking about, but for example, in a corporate setting we need to spend much more time understanding the role of the corporate counsel in determining how disputes are handled. I think that some of the most interesting work that I see done and that I d like to see as continuing to do, is helping corporate counsel understand the broad ways in which they can manage the way conflicts are handled in their organisations more creatively and more effectively. I think in the US anyhow, in almost all federal agencies, there are offices of dispute resolution or offices, or ADR specialists. And these are people who are trying to think about how to manage broadly the conflicts that are in their organisations. But because they are subject just like the rest of us to they have a hammer everything looks like a nail, their work has gotten more and more gravitated to just those disputes that are open to mediation which are often personnel disputes or equal employment opportunity disputes. But in fact they re the only people, the agencies that are dealing with broad based public disputes such as, in my part of the world, the allocation of limited water among over demanding competitive users. And again sometimes it s fine to think about that particular kind of dispute in terms of bringing people together for a dialogue, but not always. So these are systems where people play a very important role that we need to look at them developing a broader array of tools for dealing with conflict. And the third set of roles we really need to think about are what I would call ally roles. And ally roles are the roles of all the different people who will work with people on one side of a conflict. They certainly include traditional 11

12 solicitors or advocates. There s a lot of other kinds of allies that I think I feel can, and some of the most interesting new developments in our field have taken an interesting look at how to be in an ally role with a conflict resolver s sensitivity skills and analytical tools. So, for example, in the US and Canada, the whole field of conflict coaching is growing tremendously. Those are people who help others work their way through conflict. Another very interesting development in the United States is the Collaborative Law Movement and I know there s some of that over here too, the Collaborative Practice Movement. I think it maybe it s just beginning here although you ll have to tell me. But this is happening mostly in the area of divorce and child custody although some in some commercial areas as well where lawyers form a large group of practitioners who say, if you re going to work with us, if one side is going to work with one of us in a divorce, the other side is going to have to choose someone else from this group of practitioners and sign a disqualification agreement that says that if this goes on to litigation we will withdraw from this case, we re only here for purposes of settlement. Now, it s a very interesting movement, there s a lot that s being studied about it and being written about it and it s controversial, but I will tell you this, it s growing by leaps and bounds, they ve just had a huge conference of collaborative practitioners in Atlanta a couple of weeks ago at which there were I think probably around 1,000 people or close to it, it s something that s just exploded in the last five years. So I think that s one, one thing is to think broadly about how we can embrace and participate as allies to people in conflict and to groups and systems in conflict and see that as a conflict resolution role as well. Finally, the other thing that I, the two other things that I think we need to do, one is we need to get beyond thinking our role is always to help people resolve conflict. I believe, or a lot of the reasons people often shy away from us is because they feel that if you come to a mediator, if you come to somebody in our field, you will be coming to somebody who s going to tell you, resolve your conflict and you re not necessarily going to feel ready for a conflict. I think 12

13 that we need to think of ourselves as conflict engagement specialists, there is a whole life cycle to conflict and a lot of the work that people need in serious conflict isn t necessarily right away to resolve it, it might be to raise it, it might be to escalate it, it might be to manage it, it might be to de-escalate it, it might be to prevent it, it might be to heal from it, and it might to be to resolve conflict as well. But we have been so associated with simply the resolution part of it that we have ruled ourselves out in many cases from being helpful to people in conflict when they re not really ready to resolve it. And in fact there are a lot of ways we can be very helpful to people throughout the life cycle of a conflict. So an example of that that I think will right now, but what does need to happen? People who are interested in the labour movement need to find ways of working with each of these different groups so they can figure out ways of carrying on this conflict, carrying on this struggle, but in a way that it s not so destructive that all the energy s going in to fighting each other and not into helping them provide for the needs of workers in the United States which is a real danger. So it s an example of what I mean by helping people in the conflict engagement role and helping people in the ally role and I think we are going to be looking at some of the ways that that can be done on a local level. The national level is very politicised. The final thing I want to say, and then you can recover from this by having some coffee, is that I think we need to examine a lot of the concepts that underlie what we do. And these range in everything from the ways in which we see the difference between positions and interests to the idea that we re always looking for a win-win outcome, to the fact that some of the norms we have about the, of what it means to be respectful in conflict. I think a lot of our concepts are useful but need to be built on and need to grow further and that in fact, when we say to people, for example, in our approach we use an interspaced approach not a positional approach, that seems incredibly naïve to people that are dealing with very large conflicts and I think there s ways of you, and I think actually people in commercial mediation tend to understand this often a lot better than people in family mediation, that there are ways of 13

14 using positional approaches much more effectively and it s fine to say to people, well if you can come up with a win-win outcome, that s great, but people in many conflict situations realise that that isn t really very likely, or at least not purely so. So we need to be able to put ourselves out there in ways that can help people carry on a conflict where we know the end might not be that nice but it can be carried on more destructively or less destructively. Now if we do these things, if we re-examine our concepts, if we broaden our sense of what our role is, and if we broaden our sense of what our purpose is in conflict, I do think the future is going to be a very rich one. It will be well beyond mediation, although I think this will help mediation grow more too, and we will find ourselves as players in a whole different way, ten years from now, in a much broader range of disputes. So I m actually very optimistic, but I do think we have to take a few steps back and look at some hard messages and I hope that we can talk about this as the day goes on and thank you very much. 14