Accepting the need to draw a line in the sand and move forward is a key component of mediation. Arthur Ashe, a great athlete and activist shared these thoughts.
Start where you are. Use what you have. Do what you can.
In the Chinese zodiac the Rooster is known for being confident.
In mediation, I often see parties who struggle with their confidence to find their voice. Being confident that you have a right to be heard and that you have the ability to represent yourself is important. One of the criticisms of modern mediation is that the process is based on being able to speak up for yourself. The criticism is that this is not easy or possible for everyone.
I can acknowledge the truth of this and think of parties who did struggle to speak confidently. However, I also think about how each of those people through the mediation process, grew in confidence.
Mediation is a very structured process. The mediator is there to enforce ground rules which require respectful communication. The mediation process itself is based on the idea that each party should have the opportunity to express themselves. This may be the first time that some parties have had this opportunity. In my experience, people do gain in confidence.
Confidence is an important strength in mediation.
In the Chinese zodiac, each animal has been blessed with specific strengths and skills. What does each animal have to teach about how to manage conflict? This week the Rat. Rats are quick-witted and curious.
The first casualty in war may be the truth, but in conflict, one of the first casualties is curiosity. This may occur long before raised voices or awkward silences. At some point we cease being curious about why the other person says or does something. We begin to feel that we “know” the motivations and intentions driving other people's behaviour. Suddenly, the meaning and intention behind another person’s word, tone, or look is revealed to us. We cease to be curious about what the other person’s intentions or beliefs may be, as we feel that we already know.
I remember being in a commercial mediation where the business partners had started working together in a positive and productive manner. A few years in, one of the partners moved away from Hong Kong and communication which had been in-person became limited to emails. As a result of time-zones and distance, communication became increasingly difficult.
Over time, each partner began to interpret emails in a negative manner and miscommunication became the norm. By the time I met the partners, each person told me that the behaviour of the 'other' was deeply suspicious and was prompted by bad intentions. Rather than be curious about what interests might underlie behaviour, each party “knew” exactly what was going on in the other person’s mind.
During the mediation, each partner was able to describe from their perspective what had prompted some of the more controversial emails. It became increasingly clear to each partner that they had made incorrect assumptions about the motivations and intentions of the other person. As they were able to communicate directly with each other during the mediation, they began to become more curious. They started to ask questions rather than make assumptions. They became curious.
The business relationship was over; however, they were able to work together to end their relationship amicably and discreetly. By re-igniting their curiosity each party was able to put to one side their pre-conceived judgments and be curious. Their curiosity allowed the parties to ask questions, learn new information and work collaboratively to resolve their issues.
Last night I attended a seminar on med-arb, a relatively esoteric topic unless you are in the ADR field. Although unusual in HK and Western ADR jurisdictions, the combined use of mediation and arbitration with the same neutrals is not unusual across the border in China. In med-arb, the neutral will commence the arbitration and then break to conduct mediation with the parties seeking a settlement. If this does not result in full settlement, then the remaining issues will be resolved through the determinations of the arbitral panel.
The resistance in HK and Western jurisdictions relates to concerns about how one person can conduct dual processes. If the neutral learns information during the mediation which would not be produced or discoverable in the arbitration how can the neutral ignore this information and make a determination based only on the evidence / arguments made during the arbitral proceedings?
One of the reasons to move to this hybrid is an apparent interest from parties and the Government in supporting mediation where the mediator will advise parties of their "view" on what the outcome would be if the dispute was arbitrated / adjudicated. There may be some issues of semantics as even the most facilitative mediator will create doubt and reality test. However, modern mediators do not typically make a determination. There are reasons for this - the most important of which is the philosophical basis for modern mediation i.e. party self-determination.
From my perspective there are other issues which need to be considered:
President Trump has expressed a wish to act as a 'mediator, arbitrator or facilitator' in negotiations to resolve the Israel-Palestine conflict. Leaving aside for one moment whether this is a good idea, what does it mean to act as a mediator, arbitrator or facilitator? Despite their usage by President Trump as synonymous, these terms relate to separate and distinct processes.
Facilitation - requires a facilitator to 'make easy'. This could be a discussion or a negotiation but the role is limited to facilitating communication in accordance with the rules which have been agreed by the participants. The result of a good facilitation could be a memo, a good talk or decisions on an issue.
Mediation - requires a mediator to provide a structured process to facilitate negotiation. Although there are different forms of mediation (narrative / therapeutic / settlement / etc.) the difference between facilitation and mediation is that in mediation there will be an issue, dispute or problem that needs to be resolved. As a voluntary process committed to party self-determination, a mediator will work with the parties to provide them with a structure and process to enable them to find solutions within themselves. The result of a mediation will be a mediated settlement agreement and more importantly resolution in respect of the outcome. Mediators aim to achieve 'durable solutions', solutions that will endure and which parties can abide by. No party will achieve 100% of what they want, but enough of their priority needs will be met and the process will be conducted with attention and respect to their concerns.
Arbitration - requires an arbitrator to make decisions on fact and law and to render an arbitral award. The arbitrator is not there to facilitate negotiations between the parties but to act as a decision maker. This process is not about party self-determination but about finding certainty and finality. An arbitration will result in an arbitral award which is a binding decision. Arbitral awards are viewed as very enforceable as they are generally supported by Courts and the NY Convention 1958.
What process President Trump intends to use I am unable to say. However, some time understanding the differences would be a good first step.