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CIArb Features

Achieving Trusted Mediator Status

12 October 2017 Features
By Karl Thompson

The Eleventh Symposium of the CIArb recently held in London provoked to mind a number of searching issues for mediators.

The specific issue for me as a mediator was around how personal belief or bias can affect the mediator and the service that the Civil & Commercial Mediator, in particular, provides to the disputing parties.

Also, many mediators chose this profession for altruistic reasons. In some areas of mediation the risk of compromising this noble pursuit appears less e.g. community mediation, in comparison with e.g. civil and commercial mediation where ‘mammon’ i.e. money, plays a highly significant part, increasing, in my view, these risks.

This should ring alarm bells for mediators. How can we maintain our integrity as individuals and as mediators whilst remaining true to sacred beliefs attracting interest and trust in the profession of mediator and the process of mediation?

This is obviously a huge challenge which space and time here does not make possible for an exhaustive enquiry. However, if I were to take with me on a deserted Greek Island a restricted couple of mediator things e.g. tools, skills, concepts etc.. what would those be?  

A Personal Model for Trusted Mediation 

I am assuming that I am stranded on a Greek Island and I see the signs to a place called ‘MESITES’ (1) i.e. ‘MES-I-TES’. Mesites is the Greek word for mediator.

It is used six times in the Greek New Testament (dated approximately 2000 years ago): Galatians 3:19, 3:20, Timothy 2:5, Hebrews 8:6, Hebrews 9:15 and it refers to a specific mediator who is the same person throughout i.e. Jesus Christ, the perfect mediator between God (‘Theos’) and Man i.e. ‘Anthropos’.

Mediators can never expect to achieve this lofty height of integrity, ability, character, confidence, reliance and above all what amazing sacrifice this exemplary mediator gives to all parties concerned in the ultimate mediation.

The result is many believe in a person. Mediators are all fallible, limited individuals and don’t we know it! Personally, it sets the standard and objective for my role as a mediator, clearly not to attract worship but to give the assurance that I am on the right track in dealing with people. It also tells me that mediation and mediators are called to an extremely important role and office. They have a sacred trust, and are entrusted with the intimate details of conflict and hopes for peaceful outcomes affecting the lives of others.  With great power comes great responsibility! 

Whilst familiarising myself with my new surrounds on this Greek Island I find an ancient book. It is called the Book of MESITES.  There is a note telling me to open and read it. I read and find that the book is really an acronym spelling out the essentials of the mediation process. Briefly, the acronym from MESITES is:-  

1) M – Mischief (the cause of dispute/conflict) it may be external or internal to the parties

2) E – Emotions 

3) S – Sacrifice. Indicating what must be given up in exchange for a positive settlement

4) I – Interests, interactions and interventions between mediator and the parties

5) T- Tools and techniques used by the mediator in the mediation process

6) E- Empathy and ethics shown by the mediator to the parties

7) S – Settlement and Shalom (Hebrew 'peace') The desired mutual outcome 

MESITES spells out many of the essentials involved in the mediation process. It gives me an individualised bespoke model for mediation. It is in fact my own individual model for dealing with mediations.

As Boulle & Nesic (2010) suggests, each mediator would do well to develop a conflict road map which will help address three key questions for dealing with problem solving in the mediation process (2) : 

a) Where are we now?
b) Where do we want to be ?
c) How do we get there?    

I reflect on MESITES and other models dutifully and periodically. However, they do not give me work as a mediator.  

Many schools of mediation are training and accrediting mediators but when they complete their final observations and have dealt with the minimum 40-hour training session they are still left with the conundrum of how to get work. They may also be left with a loan or invoice for settlement.    

Marketing Mediation & Trust 

One of the key factors affecting the marketing of mediators is that of TRUST. Having got on to a panel or set up a website or business as a mediator, how do you get the clients coming in?

Stephen Walker et al have given words of wisdom on setting up business as a mediator in a recently published work entitled, ‘Setting up Business as a Mediator’ 2015, published by Bloomsbury Professional.  It draws on global approaches, not just the UK. 

Walker has developed the acronym ‘PEAR’ i.e. (Price, Experience, Availability, Reputation) which he further developed into ‘PEARL’ (adding the ‘L’ for ‘Lawyers’).

These are factors mediators can use to control the development of their mediation practices. He also rightly identifies that the available literature in the UK on this issue is sparse.  

Ultimately, what a mediator needs to attract disputants and mediations is trust. The recent CIarb Mediation Symposium held on 27 September 2017, in London, dealt with the important issue of ‘adding real value and understanding the impact of bias’.

This symposium was timely and thought-provoking because these are issues affected by and affecting trust.

Trust goes to the root of who the mediator is as an individual and what s/he believes about self, the parties and the world.

The fact is mediation is always happening in a changing world. The world is always changing but sometimes it seems to be changing more than at other times.

We have Brexit in the UK, Trump in the USA, EU clamouring for closer union, China, N&S Korea, Russia, the dynamics of emerging economies in India and Africa. Globalisation and the increasing need to grapple with diverse customs and cultures brought closer by the information technology phenomenon and revolution (9), no longer a phenomenon but now a reality and of course anticipation of how the field of AI will impact employment and human psychology.  

Citing but one example - the existing conflict around the Spanish and Catalan Governments and independence - begs for mediation, but when the invitation to mediate came it was rejected by the parties. An analysis is likely to reveal that there isn’t sufficient trust. 

Etymologically speaking, we are faced with a further obstacle, i.e. ‘Post-truth’.

The Oxford Dictionary defines and describes it as:- 
Relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief’. 
‘...in this era of post-truth politics, it's easy to cherry-pick data and come to whatever conclusion you desire’ 
‘...some commentators have observed that we are living in a post-truth age’ 

And there is the problem for mediators - maintaining or gaining trust which must be achieved throughout the whole process of a mediation including and engaging all parties involved.  

What is paradoxical is that when we look at the changing world scenario and the post-truth dilemma faced in our ever-changing world, it is evident that this is giving rise to conflict, dispute, war, distrust, suspicion, divisiveness, enmity and many other aspects of ‘mischief’.

The scale of conflict cuts across all global, national, social, organisational - down to personal boundaries.

Given these factors and circumstances you would think it a ‘field day’ for mediations and mediators. Most mediators ought to be busier than undertakers in a war zone but they are sitting idle on panels or in the conceptual spheres of sooth-sayings; peace-thinkers rather than peace doers.

This suggests that the mediation profession is poorly marketed, poorly served but a brilliant concept!  

Selling with Dignity & Integrity– What’s on Offer? 

Selling mediation and inspiring trust is a critical success factor for mediators.

Unlike selling some products, mediators as agents of trust should be selling ethically and transparently. The confidential nature of the mediation process risks many manipulative dangers as well as opportunities. So what factors or behaviours can increase trust and mediator integrity for the mediator and the process?

A few years ago, a leading international mediator asked me in Geneva, ‘What is the greatest weapon in the mediator’s arsenal?’  I anxiously ruminated trying very hard not to look a fool before this esteemed giant who sat next to me at a lunch table of esteemed experts…but before I could answer he retorted, "You took too long! The best weapon a mediator has in his arsenal is lie. A mediator must be able to lie effectively", was his answer!

I left Geneva deeply disturbed, feeling there must be a more honourable way. His idea was that if it gets you the settlement and the parties are happy, the end justifies the means.

What if it stopped two countries nuking each other, think of the lives it would save? That was a lot of pressure on a rookie mediator. My own internal beliefs are that I ought to get the results with truth, not post-truth. If mediation and mediators sell out to post-truth what will the end be?

That led me to questioning whether I could ever be a successful mediator. Then I thought I don’t want to be a ‘successful mediator’, I would like to be a ‘trusted’ mediator of integrity. I don’t have to rush it. It will come with patience and mediation will be kept not only a brilliant concept but a trusted means to getting ethical settlements and genuine ‘shalom’ i.e. peace for all concerned.  

Reminding ourselves of some key reasons why mediation is such a brilliant ADR concept & process, it is:

1) Flexible and creative

2) Confidential

3) Facilitative

4) Non-judgmental

5) Globally and historically tried and tested

6) Multi-disciplinary

7) Often Cheaper

8) Provides opportunity for a holistic solution for disputants and can add value

9) Mediators say they trained because of its altruism and job satisfaction

10) It is challenging, demanding but entirely worth it

11)  The most influential, respected world shakers and movers ascribed to it

12) Some of the best people are mediators!  

Building Trust  

“How important is trust in mediation? Experienced mediators who have addressed the issue tend to speak with a single voice. Canadian mediator Alan Gold put it succinctly when he said, 'The key word is 'trust.' Without it, you're dead. Without it, stay home!' Gold was referring specifically to collective bargaining, but for all types of mediation, no single attribute is more important in most sectors of mediation than the ability to build trust”. Salem R, 2003

Factors that build trust for the mediator were explored in the ‘Beyond Intractability knowledge base’ of some leading mediators interviewed by audio on the matter of Trust in 2003 (4). These observations provide some useful insights as to how mediators can earn, develop, and build trust in mediations. The interviews were conducted by Jullian Portilla, 2003. A sample of these are reproduced below.

Stephen Thom, ‘I always insist on meeting the parties face to face at the initial contact’ 
Frank Dukes Put parties at ease and help them to make fair and informed decisions’
Campbell M C, Hansen S ‘It is critical to learn how to listen and when to shut up’ 
Warfield W ‘If you don’t understand what’s going on, ask’ 
Warfield W ‘Sharing the occasional personal details can help humanise the mediator and gain the parties’ trust’   
Woodrow P ‘Personal interactions, more than technical expertise, is key to intervenor trust and hence effectiveness’
Hansen S ‘I also try to be very clear about what I can and can't do so that people don't have false expectations’ 
Hansen S ‘The other thing that I have found is that in many cases and particularly in some of these grassroots communities people just appreciate you returning their calls, not dismissing them, just acknowledging and validating their concerns. Even if I can't change the racism that prevails in a particular area, it doesn't take terribly long to have that common human denominator and get past the "Well you are white and I am not" or "You're Indian or you're black or your Hispanic or whatever, and I am not’ 

William Ury, tells how he managed to build trust with the leaders in Venezuela through shuttle diplomacy and focus on the parties’ interests which got them working together to prevent violence. 

Trust is also required in Online Mediations, (ODR), fresh creative approaches to trust can be a challenge for such mediations. Rachel Botsman has recently published a book entitled, ‘Who can you trust? How Technology Brought Us Together- and Why it Could Drive Us Apart. (5) 

Trust increases the likelihood of the parties remaining at the negotiating table to settlement (6)  

Dealing effectively with unrealistic expectations from the outset (7) 

Dealing effectively with the parties’ ‘selective perceptions’ i.e. their visionary bias and tendency to focus only on their own positions - This can be managed by the mediator’s strategic use of information, appropriate questioning, reframing, paraphrasing and reality testing (8).

Finally 

Achieving trusted mediator status is a noble pursuit for the truly genuine mediator, who values mediation, values the process and the parties s/he serves. Good mediators are the ‘go-betweeners’, intervenors, intercessors, restorers, mediums of constructive communication, - all these ideas are within the old Greek mediator word of ‘MESITES’ and they are entirely trustworthy.      

References 
Ref (1) ‘MESITES’ Acronym and concept © Karl E. Thompson 2013 ™  
Ref (2) Mediator Skills and Techniques: Triangle of Influence, Boule L & Nesic M, Bloomsbury, 2010  
Ref (3): IT Information Technology-IBA Journal Thompson (1994?). 
Ref (4)  ( See www.beyondintractability.org/audiodisplay) 
Ref (5) Who Can You Trust? How Technology Brought Us Together-and Why it could Drive Us Apart, awaiting Publication, Waterstones, 336 pages publ. 5/10/2017. £14.99. She is also delivering a Lecture to the RSA on 6 Oct 2017, at 1pm. 
Ref (6)  p55 Boulle & Nesic Mediator Skills and Techniques: Triangle of Influence, 2010 
Ref (7) ibid. 
Ref (8) Hall L (ed) Negotiating strategies for Mutual Gain, Sage, 1993, cited by Boulle L & Nesic M, (ibid). p57 Boulle & Nesic, Mediator Skills and Techniques: Triangle of Influence, 2010 
Ref (9) Thompson, K E, IBA (Institute Business Administration) 1994, Information Technology, Phenomenon or Reality.   
Achieving Trusted Mediator Status ( MES-I-TES) © Karl Thompson 2017