What is Mediation?
Mediation is a form of Alternative Dispute Resolution in which an independent and neutral third party (the mediator) acts as a facilitator to resolve conflict between two or more disputing parties. The parties themselves are the negotiators and architects of any agreement that results, thus ensuring mutually acceptable solutions which are more likely to be adhered to. Inasmuch as communication is often the first casualty of conflict, it is not uncommon for the parties involved to struggle to re-establish the ability to talk to each other. There is also the risk that, even if this is achieved, the chances of the dialogue descending into the arena of argument, is quite great. The mediator acts as a facilitator of the process, enabling the parties to navigate the terrain of dialogue with the help of an independent and neutral third party who is able to allow the ventilation of emotional content, while at the same time ensuring that the process remains intact by bringing the parties back to the issues at hand.
How is Mediation different from Counselling or Therapy?
Counselling or Therapy is generally focussed on the venting and exploration of thoughts and feelings and is intrapsychic, i.e. the party (ies) examine his/her (their) internal thoughts, feelings attitudes etc with a view to learning more about themselves and making changes if necessary. Behaviour patterns are discussed and analysed and diagnoses may be made or acknowledged and treated specifically. The aim is not necessarily arriving at a solution to a problem as such, but rather allowing the person(s) the opportunity to examine and explore their inner selves within the confines of a safe space created by the presence of a counsellor or therapist. Should they make discoveries that enable them to make changes in thoughts, feelings, behaviour etc, which results in solutions for particular difficulties, then this is welcomed, but it is not the stated aim to be achieved at all costs, as any enlightenment or movement achieved is welcomed as part of the therapeutic process.
Mediation is interactive, involving as it does issues in dispute between two or more parties. Although thoughts and feelings are allowed to be vented and expressed, these are not explored or examined in any greater depth. Behaviour patterns are not discussed or analysed and no diagnoses are made or discussed. The focus is the source(s) of conflict between the parties and is task oriented and directed towards finding ways in which these can be addressed to the mutual satisfaction of the parties. This is particularly useful in addressing conflict between parties who are obliged to have a continuing relationship, such as post-divorce or within a working environment, inasmuch as the process may be transformative as the parties learn ways of communication and problem-solving which enables them to approach conflict and dispute in a healthier way.
The Mediator, whether having a legal and/or mental health background is neither a lawyer nor therapist/counsellor in the mediation process.
Types of Mediation
There are different types of mediation that can be used, depending on the circumstances and the needs of the parties. The five models generally used are:
- Settlement Mediation-the mediator manages the process in such a way as to guide the parties towards settlement of the matters in dispute by means of persuasion, reality testing and encouraging compromise without any undue pressure being exerted.
- Evaluative Mediation- The mediator provides guidance and advice as necessary to the parties based on his/her expertise thus enabling the parties to reach a settlement in accordance with their legal rights and obligations.
- Facilitative mediation-The process is controlled and conducted by the mediator quite strictly, defining the issues, needs and interests of the parties as well as exploring viable options available to the parties as avenues towards settlement.
- Therapeutic mediation-The parties are assisted therapeutically inasmuch as the underlying causes of the problem are explored and the aim is to improve the relationship between the parties as a means to resolving the dispute(s) between them.
Transformative mediation-the aim here is not necessarily on reaching settlement, but rather improving communication between the disputants. Empowering the parties with the necessary tools to hear each other, respond in non-confrontational ways and promote understanding and acceptance are key components. The idea is to enable a shift from destructive interactions to constructive dialogue and action, such that the parties can reach areas of settlement themselves. The mediator in this process is an observer, reflector and active listener who is supportive. In modelling hearing, active listening, reflecting, checking out summarising etc, the mediator models appropriate responses and approaches that will facilitate settlement without confrontation and aggression.
Lawyers often regard themselves as mediators by virtue of their use of negotiation and solutions driven focus on behalf of their clients. The mediation process however requires the mediator to be independent and objective, acting in the interests of both parties in a neutral fashion. In addition lawyers are focussed on facts, advising and solutions as well as controlling and driving the process towards settlement. They are generally not trained or equipped to deal with the ventilation of emotions, handling/holding emotions and working in a transformative way. They may have particular difficulty in being impartial, refraining from being directive and controlling as well as reverting to questioning and cross- examining as part of the process. Soft skills such as being able to be empathic, approachable and genuine are necessary in the mediation environment, but are not generally a part of the lawyers skills set.
Role of Lifeline Johannesburg
Lifeline JHB is particularly well-placed to impart these soft skills and techniques to mediators with a legal background. This training can be offered to mediators generally through their Professional Body the South African Association of Mediators (SAAM).
To this end it is suggested that Lifeline JHB develop specific training for legal mediators encompassing inter alia the following:
- Active listening
- Observation techniques
- Avoiding advice giving, being directive and dictatorial
- Tone of voice
- Handling/holding emotional content
- Dealing with emotional outbursts
- Being impartial and objective
- Speaking and hearing(particularly what is not being said)
- Self-reflection and being self-aware
- The role of assumptions, judgements, prejudice and emotions (my stuff/your stuff)
- Use of questions(open/closed)
- Reframing, paraphrasing and reflecting
- Conflict management
- Dealing with power-plays and levelling the playing fields
- Use of language and body language
- Effective means of communication, dealing with gaps in communication and modelling non-confrontational communication
- Dealing with impasses
- Self-care and debriefing.
It should also be borne in mind that any training should lean towards the more practical and avoid too much of the warm and fuzzy stuff which may not go down too well for some.