The conference was attended by 25 speakers and delegates from a variety of countries and regulatory environments, which provided a rich environments for discussion and debate on many issues related to mediation, not just training. Among the delegates were not just mediators from different jurisdictions, but also from different practice areas, from the family to public law to the commercial arena. The theme of conversion training and hybrid models sought to address the diverse areas that mediation is practiced in, and raised the question of whether separate training should be offered in these different areas and, if, for example, one had trained primarily in family mediation, one should attend additional training to “convert” to commercial mediation. An alternative view, which represents the training model in some jurisdictions including Ireland, is to offer foundation training in general mediation skills and processes, with add-on training in specialised areas such as family mediation or restorative justice being taken after that.

Under the stewardship of Professor Andrew Goodman, one of the Directors of the organisation, the conference offered a variety of speakers who took different approaches to the issue of training. These included Sir Alan Ward, Chairman of the UK Civil Mediation Council, who gave the keynote address, Jane Gunn, a well known mediation trainer, Judge Avi Schneebalg from Belgium who provided an interesting insight into judicial conciliation, and Iain Christie, Secretary of the CMC who spoke on setting up public-private mediation schemes.

Of particular benefit and interest were the international panel discussions, where panellists from different jurisdictions set out the regulatory environment on mediation training in their countries. The panel and subsequent discussions raised issues such as how many training hours were “enough” in mediation training – anything from 30 to 300! – what kind of organisations can accredit and monitor mediation training and what the content of such training could include. A talk by Paul Randolph, for example, set out some aspects of psychology training that can be delivered to trainee mediators. Gerry Rooney, President of the Mediators’ Institute of Ireland gave a very valuable insight into how quality and standards can be set in training generally, without the need to design separate programmes for separate practice areas. He made the point that general standards of training and practice apply to all areas of mediation and will warrant quality practice.

One particularly vexing issue that triggered some energetic discussion was the ongoing problem of there not being enough mediation work available for all the mediators that are being trained, particularly as short training courses can bring a lot of mediators into the marketplace in a short space of time. The questions was raised as to whether mediation trainers have a responsibility to the marketplace as such not to “flood” it with mediators when the work is not available. This could possibly even raise the idea of controlling or restricting entry into training or the market, something I personally would not be in favour of but an important point for discussion nonetheless. The conference wound up with a progress report from Professor Goodman on the first year of AMATIs activities and some plans for the future.

For me the conference showed just how complex an issue the regulation of mediation in general, and training specifically, is, and what a diverse range of approaches are taken to this question throughout the world. It also showed how intertwined questions around regulation of training are with regulation of the mediation process itself, and its position in the legal systems of different jurisdictions. It also reminded me how valuable such conferences are, particularly when they involve mediators from different jurisdictions, for exchanging views, experiences and approaches. No one country or system has got it “sorted” when it comes to regulating mediation, and we can only benefit from making connection such as those made at this conference.

I will look forward to further discussion with AMATI, both in relation to the regulatory dilemmas of training and certification, and also to exchange some more practical learning with our international colleagues, in relation to training techniques, tools and approached, and training course design. I await further developments in AMATI, and further conferences and workshops with interest!!

By:  Sabine Walsh, Sabine Walsh Mediation

From: http://kluwermediationblog.com/2015/03/14/conference-report-amati-university-of-warwick-march-2015/

While the final results are still pending, Prof Strong has released some preliminary results from the study.

The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” was written by Professor S.I. Strong of the University of Missouri and collected detailed data on 34 different questions from 221 respondents from all over the world. Survey participants included private practitioners, neutrals, in-house counsel, government lawyers, academics and judges with expertise in both domestic and international proceedings.

This information was gathered to assist UNCITRAL and UNCITRAL Working Group II (Arbitration and Conciliation) as they consider a proposal from the Government of the United States regarding a possible convention in this area of law. The U.S. proposal will be considered in depth at the Working Group II meeting in February 2015.

You can download the preliminary report here. The data will be further analyzed in the coming months and published sometime next year as an article.

By Nadja Alexander (Editor), International Institute for Conflict Engagement and Resolution

FROM: http://kluwermediationblog.com/2014/11/28/empirical-study-on-international-commercial-mediation-and-conciliation/

Here’s an interesting phenomenon. When asked to play the part of an adversarial lawyer students have no difficulty. It’s as if the script for this activity is carved into our DNA and reinforced by years of TV dramas. Yet when invited to play the role of mediator they seem both daunted and stuck. A small minority might be termed ‘natural mediators’ but for most of us this is not a usual way of behaving. Our culture doesn’t provide us with a ready model.

I want to reflect on this counterintuitive activity. What, if anything, does playing the part of ‘mediator’ or ‘go-between’ teach us? I have been inspired by the work of John Forester, an American scholar of major societal conflicts (see John Forester, Dealing With Differences: Dramas of Mediating Public Disputes. Oxford: Oxford University Press, 2009). He talks about mediators’ “practical wisdom”. Borrowing from him I’ve called this talk ‘What Mediators Know’. It is not my intention to imply that we are somehow superior. A more long-winded title would read ‘What Mediators Can’t Help Noticing Because of Their Unusual Job’. We may be re-inventing the wheel (unbeknownst to us others have discovered the same things) but years of immersion in other people’s conflict probably does affect how we see the world.

It falls naturally into three sections: what mediators can’t help noticing about our clients; what we can’t help noticing about conflict; and what we can’t help noticing about ourselves.

What mediators can’t help noticing about our clients:

1. Everybody’s story makes sense to them

2. Our clients care deeply about fairness and justice

3. What you see is as important as what you hear

1) Everybody’s story makes sense to them

I was employed for several years as ‘intake worker’ for a family mediation service. This meant I was the first person to whom a client told their story. I once calculated that I heard at least two thousand stories of divorce and separation over a ten-year period.

Initially it was mind-blowing. A client would tell me a tale of pain, betrayal and sometimes sheer badness. Naturally I would form a view of the other person through the eyes of the teller. It might make me nervous, as I thought “Oh no, I’ve got to meet this monster!” Then I would meet the other. They would often turn out to be charming and reasonable, describing a surprisingly plausible mirror image of the same conflict.

After a while this worked a profound change in my thinking. Developmental psychologists might term it tolerance for ambiguity. Philosophers might speak of the social construction of reality. But to me it was simply that the concept of truth stopped being particularly useful. I had to think in terms of perspectives rather than facts; stories rather than evidence. This stance can be seen as both ethical and practical; ethical because we assume the best of people and don’t position ourselves as judges of right and wrong in their lives; practical because it allows us genuinely to join people in figuring out why they believe what they do. Once brought to the surface stories (unlike facts) can be challenged, revised, modified and re-worked.

2) Our clients care deeply about fairness and justice

There is a persistent mythology surrounding mediation: that mediators care more about relationships than justice (For a more detailed discussion see Charlie Irvine, ‘Mediation and Social Norms: a Response to Dame Hazel Genn’ 2009, Family Law, 351). To expand a little, it would include the idea that mediators are nice but ineffectual and that mediation works best with reasonable people.

My learning has been the opposite. In almost every conflict one or both people will see something as unfair. Until that unfairness is remedied, the other person becomes the source of their difficulties; in other words, the enemy. Once we view someone as the enemy we have to defend ourselves against them, whatever it takes. They stop being human and we stop being humane.

Conversely, once our sense of fairness starts to return we can drop our guard. Back come qualities like reciprocity, kindness and even generosity. If I’m getting what I need you should as well. Fair’s fair. So the direction of travel is from fairness and justice to restored relationships as much as the other way round.

One important mediation secret comes from a field of study known as ‘procedural justice’ (see Tom R Tyler, Why People Obey the Law.Princeton: Princeton University Press, 2006). In a nutshell, people care as much about how decisions are made as they do about what the decisions are. If we believe we have been fairly treated, we are more likely to regard the outcome as fair. Over thirty years of research has told us what is important to those in who come into contact with the justice system: voice (believing that they got the chance to state their views and concerns), being heard (believing that the ‘3rd party’ took their views and concerns seriously) and respectful treatment (believing that the way they were treated was even-handed and dignified). This confirms another thing mediators can’t help but noticing: that a person has to say their piece, even if it seems foolish or mistaken; that we need to demonstrate that we have understood that story; and that a person deserves to be treated well, no matter who, no matter what.

3) What you see is as important as what you hear

The way I was taught mediation tended to focus on words and meaning. I have characterised it as ‘mediating from the neck up’ (seehttp://kluwermediationblog.com/2013/12/13/mediating-from-the-neck-up/). And yet when I am sitting in the mediation chair I feel as if I am watching a play. The expressions on people’s faces; the way they sit; the way they move their hands; whether or when they smile; whether they look at each other; how far apart they are: all of these matter as much as the content of the words.

I once worked with two colleagues who were not getting on. Each described the other as unreasonable. They had had fierce arguments in front of the team. Their own words sounded innocuous; the other’s an astonishing overreaction. But in our mediation I noticed a funny thing. When each was relating the other’s words their face changed dramatically. When telling me their own views they were open, animated and friendly, using hands, eyes and smiles to convey meaning and secure my understanding. Yet when conveying what the other had said they looked disdainful, accusatory and dismissive, with pointing fingers and flashing eyes. It was as if the words themselves were insufficient; the full visual display was needed to ensure that I understood.

Of course we all know this. One famous experiment found that the content of what is said is less significant in people’s recollection than the speaker’s tone of voice or appearance (Seehttp://en.wikipedia.org/wiki/Albert_Mehrabian for an explanation). Mediators can do something about this. We’re in the business of interpretation, providing a forum for discussion (what were you trying to convey?) and feedback (you looked angry/anxious/defensive). By bringing the whole body to the table we have a more accurate conversation and correct what is sometimes known as the “empathy gap” : the tendency to underestimate the influence or strength of emotions either in oneself or others.

By Charlie Irvine, Charlie Irvine Mediation

FROM: http://kluwermediationblog.com/2014/12/13/what-mediators-know-or-cant-help-noticing-because-of-their-unusual-job/