Tutoring the Mediation Elective-Learning by Doing, at the University of Edinburgh on the Diploma of Legal Practice 2018/19, by Paul Kirkwood.

As a Law Society of Scotland Accredited Commercial Mediator and Solicitor I was chuffed, and honoured, to be invited by Pam Lyall- trailblazing Commercial Mediator and Solicitor, to assist in tutoring the Mediation Elective on the Diploma of Professional Legal Practice at the University of Edinburgh earlier this year. It meant returning as a Dominie to my Alma Mater-an interesting and rewarding experience. Also tutoring were Alun Thomas- Commercial Mediator and Solicitor, the Chair of Scottish Mediation and Alison Ebbitt- a very senior Family Mediator who taught me on the Legal Masters Degree (LLM) in Mediation, Negotiation and Conflict Resolution at the University of Strathclyde. I was in seriously august company! This is a fantastic course, teaching the next generation of solicitors and advocates about mediation both from a theoretical point of view and from a practical point of view. The course focuses on theory in its one-hour lectures and on learning by doing in its two-hour workshops. It is taught over a period of two months and is intensive both in terms of the breadth of material taught and covered and in terms of actually practising mediation. The course is formally assessed and failure to reach a high level of pass means a resit-so the students are under pressure from the get-go.

The course covers the psychological impact of conflict, including a look at the brain’s neurobiology-the driver of human behaviour and how that commonly manifests itself through socially expressed cognitive biases. It helps students to identify their own conflict styles (directors, co-operators, compromisers, avoiders or harmonizers)-oh yes, we all have these even though most of us don’t realise. Doing so shows them how they might adapt these to include other styles of conflict resolution that they may naturally shy away from.

We look closely at understanding and analysing conflict and its stages (or spirals)-what is this dispute about and what stage is it at. We look at effective communication styles, focusing particularly on the skill of ‘active listening’-something good mediators do well and manage to get antagonistic parties in mediation to do too (this is something many people are often not good at). We look at the active use of open questions in joint sessions to elicit information and the use of closed questions, or focused questions, in private sessions where confidentiality can be maintained. We also consider the mediator practice of summarising parties’ statements in a way that assists in identifying common ground- which often leads to breaking impasse. We study Principled Negotiation-a methodology popularised by Fisher, Ury and Patton in their seminal work “Getting to Yes”-and used by many mediators in their practice of encouraging disputees in mediation into a genuine and constructive dialogue with each other.

Students are introduced to different models of mediation-from mainstream Facilitative Mediation and it’s ‘stages’; Transformative Mediation-where mediators are more hands off and much less interventionist; through to looking at Commercial Mediation in legal disputes (sometimes referred to as a form of Evaluative Mediation) involving clients, lawyers and mediators. With regard to the latter the course looks at the role of lawyers in mediation and what they can do positively to maximise client best interest, both in terms of how they conduct themselves as lawyers at mediation, and in how they prepare their clients to engage in mediation. The latter aspect teaches potential solicitors the practical art of taking their clients through a risk analysis of their own case pre-mediation-SWOT (strengths, weaknesses, opportunities and threats)and looking at Batna’s and Watna’s-if you can’t resolve this case in mediation-what is your best alternative to a negotiated outcome and what is your worst? In this regard the course is highly practical.

Throughout the course the students take part in role-playing genuine disputes which have been anonymized. They take turns in playing parties and mediators (they are also introduced to the practice of co-mediation-a skill in itself) and they have to take disputes in mediation through from start to finish. They benefit from seeing live, unscripted and unrehearsed demonstrations of commercial mediation in legal disputes in the lectures, which replicate real cases using mediators, solicitors and parties. The emphasis is on learning by watching and then learning by doing.

It was a real joy to see students develop as they soaked up the theory and made hard efforts to turn what they’d learned into practical reality in the role-play mediations. Most really ‘got’ the connection between how people behave naturally in conflict and how mediators in practice, using skills they have developed, try to counteract the normal ‘away reflex’ of most humans engaged in conflict, into a ‘going towards’ engagement in dialogue. The quality of the students’ written work at the end of the course was excellent and demonstrated that they had really engaged and learned. One student had given a great deal of thought to her concern, that despite the power of self-determination parties undoubtedly have in mediation, it is also the case that mediators have significant power too-and she was concerned about the inappropriate use of that power and the possibility of mediator manipulation. I had to write my own essay in response, when providing critical feedback!

I don’t mind saying that these three-hour sessions are tiring- our ‘c-system’, reflective, thinking brains are switched on all the time during this process-there is nowhere for anyone to hide, students or tutors-and it is mentally taxing. So are real commercial mediations – for all the participants- that’s what it’s really like! But it is a very rewarding way of learning about mediation and negotiation, both theoretically and in practice. It will undoubtedly stand these young lawyers in good stead for their nascent legal careers at the same time as actively promoting mediation as a highly practical and desirable form of normal conflict resolution and negotiation. I wish they’d taught it when I was first a student all those years ago!

Posted by Paul Kirkwood, director of www.MNCRS.co.uk – Mediation, Negotiation and Conflict Resolution Services.