Foreword by Paul Kirkwood Commercial Mediator, Litigation Solicitor, Mediation Lecturer and Tutor.
It was a great honour for me to be appointed as the Course Organiser and Lecturer (as well as one of four tutors) of the Mediation Elective on the Diploma in Legal Practice at the University of Edinburgh, Law Faculty in 2022/23, having been a tutor for the previous four years.
The course lasts for two months and combines formal lectures (which include demonstrations of mediation by the tutors) on the theory of conflict, with tutorials allowing students to themselves mediate by applying taught techniques – learning by doing.
The students are assessed on (a) their conduct of a live mediation; (b) the preparation of a post mediation contract agreement and (c) most importantly through a reflective essay of up to 3000 words in which they are asked reflect on their learning both in theory and from practice. They are given carte blanche on the approach to be taken. Many write a chronological journal, but the more imaginative pick their own themes.
By far the most imaginative, thoughtful, and original essay I have read in the last five years was written this year by Alice McCreadie who is now a trainee solicitor. Her essay, entitled “The Five Rs of Mediation” picked up on five themes she identified from her learning on the course, both in relation to theory and practice. The five themes are: Recognition, Relationships versus Resolution, Resilience and Resourcefulness. In her essay, Alice identified the multiple (and sometimes competing) issues that arise for both parties and mediators in mediation as it happens. She particularly identifies how theory works in practice from the point of view of the mediator. This is not an unqualified homage to mediation-it is also critical and pointed.
Alice has kindly agreed that I may publish her article, which will give you an insight into the world of the mediator and mediation, and I commend it to you.
Reflective Journal – The Five “Rs” of Mediation-by Alice McCreadie
When choosing my elective courses on the Diploma, mediation was one that I was instantly drawn to. I had never studied it before and, if I’m being honest, I didn’t really know very much about it. All I knew was that it is one of several forms of alternative dispute resolution (“ADR”) which can be used to help clients settle matters out of court. I had decided fairly early on in my undergraduate degree that I wanted to be A court lawyer but methods of ADR had nevertheless always intrigued me, particularly in a time where the flaws of the modern day court system have never been more apparent. I felt that methods of ADR (such as mediation) encouraged us as lawyers to think outside of the box at ways of resolving matters in a less adversarial, more conversational way. Despite several critiques of the lawyer’s involvement in mediation (from Len Riskin’s “Mediation and Lawyers” to the later work by Bryan Clark in his chapter “Mediation and Lawyers – Does the Cap Fit”), I felt that not only could lawyers bring valuable skills to mediation but, actually, training in mediation could offer valuable skills to lawyers. This course has helped me to learn and develop those skills which I will undoubtedly take forward into my traineeship and future legal career. When considering how best to structure this reflective journal, I asked myself the question: “What is mediation all about?”. As I began to note down several themes – recognition, relationships, resolution, resilience, resourcefulness – I noticed a pattern. Most of the key themes that stood out to me began with the letter “R”. And from there, I decided to reflect on what I called “The Five Rs of Mediation”.
At the beginning of the course, we learned about the importance of recognition. It is important for a mediator to recognise, firstly, how human beings generally tend to respond to conflict and, secondly, how different individuals respond to conflict in different ways. Throughout the teaching on this course, I learned that this two-part process of recognition is a crucial first step towards becoming a good mediator and also a better listener.
(a) Recognising General Responses to Conflict
In Workshop One, we discussed the importance of a mediator’s ability to recognise general responses to conflict and the emotions that stem from this. I found Friedrich Glasl’s Nine-Stage Model of Conflict Escalation (as helpfully summarised by Thomas Jordan) particularly interesting. Glasl notes how a “win-win” situation beginning in simple disagreement can quickly escalate to a “lose-lose” situation whereby parties lose focus of the matter at hand and instead resort to an attempt to “destroy the enemy”, with all instincts of self-preservation largely neglected. This is something which resonated with a few of us when sharing our own personal experiences of conflict in the first workshop. This led into a discussion where we considered how mediators can serve to not only recognise this pattern, but also attempt to use their knowledge of it to de-escalate conflict.
At the end of the workshop during my reflections, I thought about how the adversarial and often accusatory nature of a court setting (when contrasted with mediation) might act to facilitate an escalation of conflict, as discussed by Austin Sarat and Joel B. Grossman in “Courts and Conflict Resolution: Problems in the Mobilization of Adjudication”. I then considered, if the court setting does indeed facilitate conflict, how does it respond when conflict is escalated? The short answer is that it doesn’t respond well. When clients do become visibly angry in court, this is usually not received well by decision-makers, no matter how personal the context. Further, there is usually little attempt to de-escalate the conflict in constructive ways. Instead, there seems to be a tendency for the party displaying anger to be asked to “be quiet” or, in some cases, asked to leave the court. After considering the reading on this topic, I concluded that this may be due to a fundamental misunderstanding surrounding the emotion of anger, a concept more generally discussed by Jane Boucher in “Dealing with Anger, the Misunderstood Emotion” and Carol Tarvis in “Anger: The Misunderstood Emotion”. By recognising anger as a natural reaction to conflict as well as the wider associated psychological effects (including defensiveness and contempt for the other party as noted by William Wilmot and Joyce Hocker in “The Four Horsemen of the Apocalypse”), we can not only better understand conflict but we are also better placed to be able to de-escalate it and to do so productively. In this way, we should encourage parties to refrain from the reactive form of thinking from the reptilian, limbic and amygdala parts of the brain and instead focus on more rational thinking using the neocortex. To better understand the biology of this, I considered Robert Naumann et al.’s “The Reptilian Brain”. Overall, I found learning about the ability to recognise general responses to and patterns of conflict a useful tool not only for the mediations that we would later conduct in the workshops but also one which could be transferred to the court setting. Recognition of this therefore allows us to not only be better mediators, but also better lawyers.
(b) Recognising Individual Conflict Styles
In Week Two, we learned about different conflict styles. After completing the online questionnaire on the Kraybill Adult Conflict Styles Inventory, I learned that my preferred conflict style is cooperating. My report also noted that my storm shift is very low, meaning that my conflict style does not really change even where the conflict and associated emotions are escalated. This made me consider whether my results would have been different if I had approached the questions in a different way, focusing on a more personal experience of conflict, for example, rather than a professional one. I wondered if, in that case, my storm shift would have been more significant.
In Workshop Two, we also conducted a short mediation surrounding Danny, Simone and their dog, Buster. The conflict centred around who should keep the dog following the couples’ break-up. It was interesting to note my peers’ conflict styles and how these played out during the mediation. I noticed that some members of the class were more directing whereas others appeared as if they wanted to avoid the problem entirely. When acting as mediator, I tried my best to firstly recognise each of the party’s conflict styles and, from there, adapt what I was saying accordingly. For example, where one party was very directing, I had to take extra time to ensure that the second party had an equal opportunity to speak and that they hadn’t felt forced into the resolution that they ended up agreeing on. Recognising and reacting to conflict styles in this way is a skill which I have begun to use in my personal life. I have also become more conscious of my own conflict style and how this might be perceived by others.
Overall, I found recognition (in each of the senses discussed) to be one of the most valuable skills that I learned from the mediation elective. As a result, I hope that I will be less prone to judgement and attributional biases (as discussed by Keith Allred in “Anger & Retaliation in Conflict” and John Ng in “Attribution Biases and their Impact on Mediation”) going forward.
3. Relationships vs Resolution
A second important theme I learned from the course is the importance of balancing relationships with resolutions as they do not always go hand in hand. In Week Six of the course, we considered different models of mediation, noting that we had been focusing on facilitative mediation up until this point. During the lecture, we considered the work of Robert Bush and Joseph Folger in “The Promise of Mediation: The Transformative Approach to Conflict”. I learned that transformative mediation has a different goal from facilitative mediation as its focus is less on reaching resolution but instead on helping to mend the broken relationships between the parties. As someone with a keen interest in family law, I considered how this might be a more appropriate model of mediation in family disputes, drawing on Robert Bush et al.’s “Family Court Review: Supporting Family Strength: The Use of Transformative Mediation in a PINS Mediation Clinic”. I wondered if the goal of the welfare of the child would be better met in a context focused more on repairing relationships than reaching resolution.
However, I think there are limits to the usefulness of transformative mediation. For example, one criticism of this approach is that the authors do not believe that power imbalances should be addressed during transformative mediations (as discussed by Paul Kirkwood in “Strategic versus Facilitative and Transformative Mediation – a Critical Analysis”). I think that it is essential that power imbalances are addressed. As a result, in the mediation conducted in Workshop Five between Fiona and her former employer, Bodgett and Sons, I addressed the power imbalance early on when acting as co-mediator. This is something which I think both parties benefited from and it allowed us to reach a fairer resolution in line with the parties’ respective power positions. I believe that by not addressing power imbalances, this leaves the weaker party susceptible to abuse of power from the stronger party.
Although there should be a strong focus on relationships in mediation, transformative mediation is severely limited in its approach. This is because it also largely ignores the wider power imbalances that much of society is predicated upon, for example, in terms of gender, as discussed by Carol Gilligan in “In a Different Voice: Psychological Theory and Women’s Development”. Overall, although transformative mediation has its limits, I think it can nevertheless be a valuable tool in “bringing peace into the room”, as stated by Daniel Bowling and David Hoffman. To be best utilised, however, I think, contrary to Bush and Folger’s ideas, some of its principles ought to fit alongside those from other models of mediation (such as facilitative and strategic (a model discussed generally in the work of Kenneth Kressell)). In this way the mediator can “cherry-pick” the best parts of each model to create an environment which still has a central focus on relationships without this being the primary factor to the detriment of all other goals, most notably, reaching resolution.
One thing which I didn’t realise when I started this course was that mediations can often take several hours, or sometimes even multiple days, due to their complexity. As a result, mediators must be resilient and adaptable in their approaches. In Week Four, we considered the pros and cons of private sessions, a technique which I think is crucial in building the mediator’s (and parties’) resilience. On the one hand, as stated by Jennifer Beer et al. in “The Mediator’s Handbook” at page 51, separate conversations can be “a place for strategizing and coaching” that can help parties decide how to speak about difficult subject. Beer et al. also note that it can provide the space for parties to be able to talk through all of the available options openly without having to think about how they appear to the other party or being tactical.
However, private sessions can also have their drawbacks. For example, during Workshop Four, we discussed the possibility of an issue arising where one party spends longer in a private session with the mediator than the other. We noted that this can lead to further tension and may also raise a question of bias on the part of the mediator if it is felt that they are not being fair. I experienced this during Workshop Four when acting as Annie Macleod’s solicitor in the dispute with Andrew Murray. The mediators asked me to leave the room for some time whilst they spoke with Andrew and my private session was comparatively shorter. This made me understand how one party might feel discouraged by this. To address this, I think it is important for mediators to convey to parties at the outset that, due to the nature of private sessions, it may be that some are longer than others and that this is perfectly normal.
As discussed by Allan Barsky in “Conflict Resolution for the Helping Professions”, private sessions can also present problems for the mediator in terms of confidentiality. For example, what happens where one party shares crucial information with the mediator but refuses to allow the mediator to inform the other party of this? These are issues which Barsky notes it can be difficult to pre-empt. However, overall, I think that most of the issues surrounding private sessions can be avoided if the mediator makes clear the purpose of private sessions and the way that they will work during their introduction. By following the same pattern of “SCRAPITT” (as set out by John Sturrock of “Core Mediation”), the mediator can ensure that private sessions are conducted fairly and equally. In this way, they can be a valuable tool in building resilience not only on the part of the mediator but also on the part of the parties by allowing them a moment to step back from the direct conflict and regather their thoughts before proceeding.
Although perhaps not to the same extent as in evaluative mediation, facilitative mediation still requires a degree of mediator input in the option generating phase. Throughout the mediations conducted in the workshops, I attempted to be as resourceful as possible and think outside of the box wherever appropriate. For example, in Workshop Five during the mediation between Fiona and Bodgett and Sons, one of the issues at hand was the language used by Rodney when he stated that they needed a “man who could be tougher with suppliers”. This led into a further discussion where wider concerns surrounding Rodney’s sexism within the workplace were revealed. Rodney acknowledged those and, in the option generating phase of the negotiation, I canvassed the idea of Rodney perhaps taking part in a workshop to address his sexism. This was something which he was quite open to which seemed to surprise Fiona, creating a positive turning point in the mediation. This ended up resulting in a spontaneous verbal apology from Rodney, one of the most valuable tools in mediation. From there, we were shortly able to work our way towards a full resolution, highlighting the importance of the mediator’s ability to be resourceful when generating options for resolution.
In Workshop Six, I had the opportunity to further display my resourcefulness when acting as co-mediator between Louise and Karen. Louise had explained that she had felt hurt by Karen’s refusal to engage with her colleagues on nights out. Karen then explained that this had been misinterpreted and that she wanted to socialise with her colleagues but, due to her family circumstances and dislike for alcohol, she did not feel comfortable joining them on these occasions. I then suggested the possibility of organised non-alcoholic social events during lunchtime which would allow for Karen and Louise to bond in a way that suited everyone. This suggestion, again, appeared to create a turning point in the mediation as both parties were keen to take part in this. This overcame barriers, facilitated the first major point of agreement, and ultimately created motivation to reach a settlement (in line with Kendall Reed’s model of “The Mediator’s Triangle”). These two practical examples demonstrated to me the importance of being resourceful as a mediator.
I have thoroughly enjoyed the mediation elective course. It has allowed me to build my knowledge of the theoretical accounts of conflict resolution and also given me the space and confidence to develop these skills in practice during the workshops. I like to think that, as a result, I have become more open-minded and less adversarial in my approach to conflict. Not only was I able to bring my existing legal skills to the mediations we conducted, but I have also gained an invaluable set of skills which I look forward to taking forward into my future legal career. I would encourage any Diploma student, particularly those looking to build a career in court work, to choose this course and to be open-minded. After all, they might discover that there are better ways of dealing with conflict than in the courtroom.
Posted by Paul Kirkwood, Law Society of Scotland Specialist Accredited Commercial Mediator and director of www.MNCRS.co.uk – Mediation, Negotiation and Conflict Resolution Services.