This month my article on the Singapore Convention on Mediation is published in the Australian Dispute Resolution Journal. The article is based on my conference paper from NMC2019. Does the Singapore Convention provide mediators with an opportunity to reclaim international commercial disputes? If so what do mediators need to do to challenge the hegemony of arbitration? I argue we need to pay attention to the challenges and difficulties of arbitration and consider how mediation can respond to these? Importantly we need to ensure that we hold fast to the values and philosophical underpinnings of mediation which make it a totally different process to arbitration. In chasing new markets and customers, we need to ensure our ethics remain strong.
What do dogs know about negotiation? I would argue that dogs understand a lot about negotiation. On a daily basis, I enjoy watching my dogs negotiate with me to achieve their goals. They are stealth negotiators, clothed in fur. On an instinctual basis, dogs can teach humans some great lessons about negotiation.
The question is - are we clever enough to learn from them?
Last week I shared with you an article written about canine assisted mediation written by David Paul. Today, I am sharing a link to a news article where his theory has become his reality.
David Paul and his dog, Charlie Paul have started working as a canine and human mediation team for family mediations. David and Charlie are pioneers.
In the last few years I have seen the expression of pain experienced by parties in family mediation increase. I have also seen some parties struggle with their ability to self-regulate during the mediation process. Sadly, I have seen parties derail the negotiation due to their inability to manage their pain. The negotiation may go away but the reality of separation does not. The derailment leads to a more protracted and even more difficult path.
I am excited to see what David and Charlie discover as they start this important work. I would love to have my dogs with me in the room providing some furry balance to everyone. As David notes, this needs to be done cautiously and professionally. Dogs need to be trained and mediators need to be trained. Hopefully in future, I will be able to experience co-mediation with a dog as my co-mediator.
What is canine assisted mediation? the question may be more easily answered by asking why canine assisted mediation? David A. Paul wrote a fascinating article about Canine Assisted Mediation which highlights the research around the benefits of dogs.
Paul considers the well-documented psychological and physiological impacts of dogs on humans. These include:
Paul suggests the use of therapy dogs who are trained to work with people in pain and who are monitored to ensure that the dogs are not experiencing stress themselves. Rather than being responsible for the technical aspects of the process, the canine assistant would be present in the mediation to help parties to self-regulate and to improve the atmosphere in the mediation.
The presence of the canine assistant would allow parties the opportunity to increase their ability to regulate and self-soothe. In mediation, parties are sometimes so focused on their emotional reaction to the other party that they are unable to negotiate effectively. They may continue to argue about the past / blame rather than trying to problem solve the future. If dogs can help to calm parties this would be a significant benefit to the overall negotiation process.
He does caution that mediators and dogs need to be specially trained to participate in canine assisted mediation. Without doubt bringing any living creature into a conflict situation needs to be done sensitively and ethically. As a dog lover, I can see the promise of canine assisted mediation. Dogs have many lessons to teach us about negotiation and conflict.
Next week what can dogs teach us about negotiation?
Every day my dogs have taught me something about life or myself. In the next few weeks, I will share some thoughts about the gurus in our homes and what they can teach us about conflict and negotiation.
Back at mediator school, we would brave the small claims court and attempt "guerrilla mediation". It was a challenging space to work in and often we were in the corridor outside the court room. One day I turned up at Santa Monica's court house to be told that the generator was down and therefore court was cancelled. The clerk for Court Room 4, Dwight was outside on the grass with the parties and was explaining that they would need to reschedule for court or they could mediate right away.
Within a few minutes I was mediating an employment dispute about termination. As the former employee started explaining her position, a golden retriever walked a few feet away from us heading for the trees. A few steps further on and the dog rolled over as his delighted dog walker exclaimed "tummy tickle time". It was distracting to say the least. We all gazed over and smiled at the happy dog and owner. A shift came over the conversation. I think that everyone had realised that maybe life held other possibilities. We continued to mediate and they were able to reach agreement.
In mediation, it can be a struggle to shift parties from their positions to a negotiating posture. The golden retriever was able to assist the parties to shift just by rolling over.
Without realising it, I had just seen the benefits of canine assisted mediation. There is a a lot of research to suggest that just seeing a dog can help to lower cortisol levels and lower blood pressure. Next week, what is canine assisted mediation?
The starting point for me to think about Hope was listening to a podcast on the BBC. For those not familiar with "In Our Time" hosted by Melvyn Bragg, you are in store for a treasury of information. Each podcast is on a different topic, historical, philosophical, psychological, religious or scientific. Melvyn guides his expert guests through a conversation. The podcast on Hope considered the historical and philosophical conception of hope. There is also additional reading for those who are extra keen!
Jean-Paul Sartre is not often associated with positivity or hope. However, you may be surprised by the quote below which is from his play, Bariona. In an article looking at Sartre through the lens of positive psychology, Quackenbush, Lockwood and Cyr argue that Sartre's philosophy may be summed up as: I have dispositions towards future action, but this can be altered.
You are suffering, and yet your duty is to hope
This can provide the bridge to hope from what has happened in the past (and gone wrong) and what can happen in the future (and could go right). In order to allow our 'disposition' (our nature) to change we need to be ready to let go of what has happened and allow ourselves to accept that we may even surprise ourselves with what comes next.
In family separation, people need containment for the chaos that may be unfolding for them and, hope to see a path forward. For many people, separation exposes them to a range of negative emotions which can strip them of a sense of agency and of their future. As a family mediator, it is typical to meet with people for whom trust, faith and shared futures are gone. People can remain mired in the past and blame, and this can lead to a sense of cynicism and a strong sense of disempowerment.
If there are children then it is in their best interests that their parents find a way to function effectively as co-parents. This can be extremely challenging at a time when parents wish to separate their lives, their duties as parents compel them to communicate and interact.
One way to help parents is through the concept of hope. Hope can provide the motivation for parties to try and choose a different path forward. Used appropriately hope can provide people with the ability to make an effort, to choose to move forward and to allow themselves to reimagine the future.
Some have seen hope as a negative as it can be deceptive and may encourage delusional expectations. This can be a risk in some cases, where co-operation is interpreted as providing hope for reconciliation. In family mediation, we need to ensure that hope is not creating ‘false’ hope.
Instead a family mediator can work with the parents to use hope as a transformative tool to enable them to move forward. J.R.R. Tolkein compared hope to a fairy-tale, however he also saw that hope has the virtue of allowing us to change and adapt. Without the hope of change and a better path forward many families would remain mired in conflict and negative intimacy. Hope remains a powerful tool in the mediator’s toolbox.
Are hope and despair two sides of the same coin? Michael Schreiner commented that they are two sides of the expectations coin. Both hope and despair are focused on a set of future and unknown circumstances. Schreiner describes them as an educated guess about what will happen. He argues that hope is despair in disguise as if it is not supported by circumstances then the coin will flip and it will be replaced with despair.
Hope can also be seen as delusional. It can be seen as a form of self-deception. Rather than facing up to the realities of a situation, hope may make someone ‘hope’ for the best. This line of thought argues that hope may prolong suffering as rather than take responsibility for making changes, someone may hope for the solution to appear. In addition, rather than accepting a negative reality they may deceive themselves.
Hope may be seen as preventing us from preparing for the worst. If we cling to hope rather than prepare and take action we may be overwhelmed when positive expectations are not met and negative realities occur. This is a special type of magical thinking. A belief that we do not need to anticipate or prepare for negative consequences as can just cling to hope that things will be better.
Hope can be seen as an abdication of our personal responsibility to solve problems for ourselves. If we hope that the ‘deus ex machina’ will arrive and save the day we may cease our own efforts. if we maintain a false hope that a solution will come we may cease to work on our own solutions.
Whilst I acknowledge these challenges, I reject these characterisations. From my perspective, hope is an attempt to navigate an unknown future. I applaud the parties in mediation who have the courage to hope that they can make a better reality than the one they have inhabited. Without doubt it takes courage to choose hope when bitterness and disillusionment beckon from the present and the past. As a problem solver I am interested in what works. Does it help for parties to despair? Does it help for them to remain mired in blame?
In mediation, I see people who have no reason to trust, deciding to make that leap so that they can motivate themselves to move forward. Choosing hope is an acknowledgement that the alternative to hope is a never-ending battle. It is a defiant statement that empowers people to create structures and plans for tomorrow.