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CIArb News

The power of participation and the value of voice

1 February 2016 Features
By Jane Gunn FCIArb

“ Whatever is unspoken is hardest to change”

PSA_1155

How can we as mediators encourage and enable everyone involved in mediation to participate and have a voice?

The Question

Last summer, at the Association of Northern Mediators Summer School, I ran (with the help of Voice Coach Mark De Lisser) a workshop to explore the role of party participation and voice in mediation. We asked:

  • How often do parties involved in mediation feel that despite our best efforts as mediators, they do not get the opportunity to speak out or to say what was really on their minds?
  • What difference might it make to the mediation process and indeed the outcome if everyone involved felt fully able to participate and to share their thoughts and feelings?

In an article entitled “Party Participation and Voice in Mediation” Roselle L. Wissler, Research Director of Lodestar Dispute Resolution Program, Arizona, wrote –

Direct party participation in the resolution of disputes is a key distinguishing feature of mediation. Party participation in mediation is thought to facilitate the discussion of underlying interests, which in turn can increase parties’ understanding and the likelihood that their concerns will be addressed. Party participation is also thought to enhance “voice”, parties’ sense that they have had an opportunity to express their views. Voice, in turn, is associated with parties feeling that the mediation process and outcome are fair and legitimate.

 In essence, party participation in mediation is thought to facilitate

  • Discussion of underlying interests
  • Increase parties’ understanding
  • Increase the likelihood that concerns will be addressed

Party participation is thought to enhance VOICE – the parties’ sense that they have an opportunity to express their views

VOICE is associated with the parties’ FEELING that the mediation process is fair and legitimate.

 
Blocks to Participation

In her article, Roselle Wissler explores the extent to which lawyer representation might enhance or detract from a party’s experience and sense of being heard and understood.

  • Talking a lot in mediation seemed to guarantee that parties felt they had a voice
  • Not talking reduced the parties’ sense of voice but did not preclude them from feeling they had a voice
  • Some parties seemed to feel they had a voice through their lawyers

Parties’ sense of voice might also depend on how well the lawyer understands and communicates the parties’ interests, objectives and views.

In general civil cases parties who thought they had more voice and felt they had more chance to tell their views

  • Rated the mediator and the mediation process more favourably than parties who felt they had less chance to tell their views
  • Thought the mediation process was more fair – that they had more input into the outcome and they were less pressured to settle
  • Felt the mediator understood their views better, was more impartial and treated more respectfully

 Tips for Mediators

In the workshop we explored – the power of participation and the value of voice - through singing as part of a group. The aim was to put ourselves in the shoes of the parties who come to mediation, some excited and optimistic and willing to join in the process, others reticent, negative and even resistant to the process. What can we, as mediators, do to encourage someone who feels a bit or even a long way out of their comfort zone to tell their story and share their thoughts and feelings, hopes and dreams?

In an uncomfortable and unfamiliar situation – singing and performing as part of a group – some workshop participants found themselves focusing on their desire to deliver a perfect performance rather than telling the story of the song with feeling. This raised parallels with the common desire in mediations to focus on the facts and data and on the legal rights and wrongs (often the role adopted by representing lawyers), rather than enabling the party to have a voice.

As mediators, our job is to enable participants in mediation to “Say what needs to be heard and to hear what needs to be said”. To do this we need to be aware what facets of environment and behaviour either enhance or block people’s ability and willingness to participate fully in the process.

Here are just some of things we as mediators might do to encourage parties to participate and have a voice in mediation.

  • Think about how people’s voices are restricted when there is tension and consider how we can create more comfort and relaxation for them.
  • Show some of our own humanity and “story” by sharing some personal information
  • Be authentic – be yourself and let others be themselves
  • Invest yourself in the mediation and truly engage at a personal level – encouraging others to do the same


Final Thought

There is a sense that a New Revolution is sweeping the Globe. Following on from the Information Technology Revolution, with the focus on data, facts and information – we are now entering The Conceptual Age. In this new era the abilities that will matter most are the fundamentally human attributes of connection, values and story.

The person who can tell the best story and who can attach meaning, belief and emotion to that story is the person who will succeed in this new age.


Jane Gunn FCIArb is an International Mediator, Author and Speaker. She is a member of the Board of Management at CIArb and is a director and board member of the Civil Mediation Council of England and Wales (CMC). She is a director and a past president of the Professional Speaking Association of the UK and Ireland (PSA UKI). She is also a member of the Advisory Committee to QUADRA in Italy. She is also the author of a popular book on conflict management “How to Beat Bedlam in the Boardroom and Boredom in the Bedroom”.