A Dent in the Universe

As we approach the August 7th 2019 United Nations Convention and signing ceremony promoting international settlement agreements resulting from mediation, it is timely that we pause to reflect on the many and significant strides that have been made around the world toward promoting the use of mediation to resolve conflict. As Steve Jobs famously said, “We are here to put a dent in the universe. Otherwise why else be here?”

What have we learned from those mediators working tirelessly to promote the institutional and cultural changes necessary to implement mediation within their home countries? More specifically, what are the most profound successes and remaining challenges confronting those individuals who each day try to put a dent in their part of the universe?

It is often observed that our global community is ever shrinking, due to the free flow of information, advances in technology, and the urgent need to address cross border issues, such as mass migration and climate change. Against this backdrop, there exists a worldwide effort to promote and implement mediation in communities, institutions and governments. What was, until recently, a nascent effort to affect change through mediation, now shows signs of achieving a firm toehold in many countries around the world.

What are some of the noteworthy successes in implementing mediation?

Weinstein JAMS International Fellows

Since its inception in 2008, the Weinstein JAMS International Fellows program has provided skills development and collaboration for students who come to the United States for several months of mediation training. So far, students have originated from over seventy-five countries, and their backgrounds include: judges, government officials, attorneys and refugee camp workers. The International Fellows program now counts upwards of 120 graduates. Those graduates have returned to their home countries to draft legislation, reform courts, develop commercial mediation practices and in a variety of other ways, promote the implementation of mediation. Some of their more successful efforts include:

  1. Rwanda – International Fellows have drafted a new mediation law and assisted with training local judiciary and bar association members in an effort to implement mediation in the Rwandan civil and criminal justice systems.

  2. India – International Fellows have worked to relieve overcrowded court dockets by assisting with community mediation centers. One Fellow has established the first commercial mediation center in India, staffed by attorney mediators.

  3. Republic of Georgia – International Fellows have worked with the Prime Minister and the Minister of Justice to lay the groundwork for a multi-pronged approach to implementing mediation and establishing their country as a regional hub for business.

The Global Pound Conference

In 2016, the Global Pound Conference took place around the world in more than 25 regional venues. The Global Pound Conference, of which I co-hosted the San Francisco event, was an ambitious attempt to take a real-time snapshot of the Alternative Dispute Resolution community by using a series of similar questions, designed to measure regional differences. While I leave the substantive outcome of that effort to more scholarly publications, it was one of the first attempts to both recognize and calibrate a deeper understanding of the global mediation community. In their collective efforts, the program directors helped give legitimacy to that community, while helping to identify the common issues and challenges confronting us all.

United Nations Convention on International Settlement Agreements Resulting From Mediation

In late 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. Individual mediators from Singapore and beyond spearheaded this effort, and on August 7, 2019 a signing ceremony will be held in Singapore to herald the adoption of the Convention. While the Convention will still require the signatures of multiple state stakeholders to become effective, it will address for the first time one of the major, often cited challenges to the use of mediation in cross border disputes: the lack of an efficient and harmonized enforcement mechanism. Perhaps as important as the Convention itself, the “Singapore Convention,” as it has become known, has elevated the profile of global mediation efforts in a manner not previously possible.

Technology and the rise of online dispute resolution

The promulgation of online dispute resolution has largely mirrored the advancement of technology in our broader society. Over the past several years, we have seen brick and mortar small claims courts replaced with online dispute resolution protocols in parts of England, Canada and the Netherlands. Emerging websites promoting ecommerce around the world now almost routinely offer access to online dispute resolution (ODR), when conflicts arise involving online transactions. What was once thought in the world of mediation to be the exclusive province of face-to-face intervention, ODR has expanded the idea of what’s possible. Perhaps, most importantly, ODR as a real time, cost effective approach to the resolution of high volume, low dollar disputes has introduced a new generation to the potential of mediation.

Technology has also allowed for the extended reach of quality education and mediation skills development. Online training and education platforms like Edwards Mediation Academy are making it possible for those who are interested in advancing their skills in mediation, mediation advocacy or career development to learn by accessing a computer. Whether the student is a Director of Human Relations from Saudi Arabia, a civil engineer from Pakistan or a judge from Rwanda, the ability of online training to provide valuable lessons in mediation can’t be underestimated.

What challenges remain?

Notwithstanding these and hundreds of other brilliant successes toward the advancement of mediation around the world, in the words of the famous poet, Robert Frost, we still “have miles to go before we sleep.” What are the most commonly recurring challenges, as reported by those at the tip of the spear? What do mediators in emerging markets report are the most daunting obstacles they confront in their home countries? Equally important, what advice can we offer each other to assist in overcoming these sources of resistance?

Institutional challenges

Time honored institutions, and the individuals who comprise them, are often resistant to change. Large institutions, career public servants and vested professionals typically have a strong interest, often financial, in preserving the status quo. While it is beyond the scope of this article to address the multi-faceted and nuanced approaches necessary to overcome deep-seated resistance to mediation, suffice it to say, it can be done. Any meaningful change begins with understanding the needs and interests of all the stakeholders and finding thoughtful ways of addressing those needs. Often, institutional resistance reflects a range of fear-based concerns: what will happen to my company, job, income, etc. Only by understanding and addressing these concerns can those hoping to implement a new culture of mediation obtain their highest trajectory.

Political challenges

In all countries, the administration of justice lies at the foundation of government. How a government provides access to and administers justice will prove the ultimate measure of that government’s success. Therefore, it is imperative to learn to work with government leaders in a so called “top down” approach to implementing mediation in all aspects of government, including the administration of justice. Unfortunately, too many countries around the world are plagued by inefficiencies, longstanding corruption or lengthy court backlogs, which impact access to and the fair administration of justice. Introducing mediation in these environments requires a deft touch and a degree of patience that tests most people’s talents.

More often than not, overcoming political challenges to mediation begins with finding and convincing the right leaders of its value proposition. Learning to speak their language is essential and starts by addressing the most basic questions: why use mediation, what does it offer me politically, and how will it improve the lives of my constituents? In those countries where successful strides in mediation have been made, including: England, Canada, India and Rwanda, to name only a few, these questions have been sufficiently answered for those in leadership positions. Real change was able to take root only after first enlisting the support and collaboration of key government officials, such as Prime Ministers, Ministers of Justice and Justices of the Supreme Court.

Cultural challenges

While the language of conflict is universal, the value proposition of mediation is not. The message of mediation, including its many benefits, must be tailored to the unique cultural environment where the conflict occurs. One of the key cultural challenges to the introduction of mediation worldwide is the exportation of mediation as developed and defined in the United States. For example, our western based thinking and language defines mediation as “an interest based process” requiring the parties in conflict to focus on individual needs and interests. Yet this approach is anathema to collectivist cultures, where the needs of the individual pale in comparison to the needs of the many.

In many cultures that are based on interdependence, such as: India, Latin America and large parts of the Middle East, relationship issues can be as significant, if not more so, than substantive issues. Those who are committed to advancing the potential of mediation need to use language that better articulates and more broadly defines concepts like “interests” in order to overcome cultural resistance to mediation. Only when potential stakeholders come to recognize “interests” as including, if not prioritizing, the relational needs of the many, can we truly speak the language of our audience.

Additionally, how different cultures approach communication (high context versus low context), approach negotiation and view the need for written settlement outcomes, are but a few of the many nuanced differences that vary from culture to culture. Those differences can give rise to significant mediation challenges, if not properly considered in advance.

Conclusion

The past few years have given us reason to be proud in our collective efforts to promote the use of mediation in our global community. Just as the weary mountain climber gains strength by pausing along her journey to admire the view from whence she came, so too must we as a mediation community pause to reflect on our past achievements. From the hundreds of individuals working to implement mediation within their own countries, to the higher profile moments of the Global Pound Conference or the upcoming Singapore Convention, change is happening.

While at times change can be frustratingly slow, we should all take pride in our collective achievements, while redoubling our efforts to quicken the pace. In the words of former President Barack Obama, “Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we have been waiting for. We are the change that we seek.”

We have accomplished so much. So much more remains to be done.

Bruce A. Edwards

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world

Developing Your Career in Mediation Course Has Launched

Developing Your Career in Mediation Edwards Mediation Academy has recently launched a new online course, Developing Your Career in Mediation. This course is for everyone who is considering a career in dispute resolution, as well as individuals who are seeking to enhance their existing career. Like all Edwards Mediation Academy Courses, the Developing Your Career in Mediation is taught by acknowledged experts and pioneers in the mediation field. Developing Your Career in Mediation is geared toward an international audience of legal professionals, human relations managers, business and nonprofit professionals, community leaders, and ombuds. It encourages a “macro” perspective, challenging students to think broadly about the mediation field and their desired focus, whether commercial, community, corporate, government or public policy. At the same time, the course offers a “micro” perspective, providing specific, proven steps that will lead to successful career development or enhancement. The course begins with an overview of the skills and personality characteristics necessary to become a successful mediator. It continues with a discussion of effective training and educational opportunities that will assist students in defining and differentiating their careers. Developing Your Career in Mediation is designed to be interactive and draws on rich commentary by experts who have developed successful mediation careers. By listening to theirs and others’ stories, drawn from examples around the world, participants hear about common challenges and strategies for developing their career, while finding personal fulfillment. After the course is complete, the workbook becomes a strategic action plan that students can use as they move forward. Developing Your Career in Mediation is designed for online learning, taken on students’ own schedule and in their own space. It typically takes eight to ten hours to complete. The Developing Your Career in Mediation course is an addition to three Edwards Mediation Academy courses: Advanced Mediation, Mediation Skills, and Mediation Skills for the Indian Audience. “You have created a wonderful course. The insights are easy to remember, the expert commentary is insightful and by watching, one can only benefit from the wealth of experience.” – Pirita Virtanen, mediator.

Bruce’s interview with mediate.com

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Bruce was interviewed by Clare Fowler of Mediate.com earlier this Spring.  

She asked him a variety of questions ranging from the state of mediation today to mediation & arbitration in India. We’ve segmented the video by topic for your convenience. If you’re on the go, you can click audio to listen.

 

 

Mediation, Where Are We Headed?

Bruce shares his insights on the commercial field of mediation, where we are today and where we are headed.  Can the practice of mediation stay true to the core concepts of interest based dialogue and the right of self determination, if co-opted by lawyers looking only to get a deal done?  How can we expand these lessons into broader society?

Video:  Where Headed?

Audio: Where Headed?

 

Neurobiological Approach to Conflict

Conflict and the language of conflict resolution is universal. In this video, Bruce shares his thinking about neurobiological development and how this allows him to develop thoughtful ways to address conflict.

Video: Neurobiological Approach

Audio: Neurobiological Approach

 

The State of Mediation in India

In India, with over 60 million cases in the court system, access to justice is hard to achieve.  Bruce illustrates the power of mediation to help unclog the court system for all disputes throughout India.

Video: Mediation in India

Audio: Mediation in India

 

 

Challenges to building a culture of commercial mediation in India

Bruce describes the challenges and the opportunities for building a culture of mediation in India.

Video: Challenges in India

Audio: Challenges in India

 

 

Arbitration in cross border disputes (and the Singapore Convention)

While Bruce’s standard practice and vision is the empowerment and facilitation of decision making processes among parties, arbitration in many parts of the world is the standard, if not the preferred legal route. With the large number of cross border disputes going to arbitration, can mediation become the first stop on the stair step of dispute resolution forums?

Video: Stair Step Process

Audio: Stair Step Process

 

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world..

 

 

 

Heroes and Capes

On March 18, 1997, 3 years after the Rwandan genocide officially ended, the Interahamwe militia from the Democratic Republic of Congo entered the Nyange Secondary School in western Rwanda as part of their murderous rampage and ordered the students to separate, Tutsi on the left and Hutu on the right. The students replied that there were no Hutu or Tutsi, they were all Rwandans. The Interahamwe, angered by the response, left the building but not before killing six students and injuring many others. In refusing to separate by ethnic divisions, the students became iconic heroes and a symbol for future generations seeking a unified Rwanda.

On February 1st we were in Kigali, Rwanda, the Land of a Thousand Hills. The country was celebrating “Heroes’ Day,” an annual event that pays tribute to all those who exemplified the highest values of patriotism and sacrifice for the well-being of the country.
We were sponsored by the newly formed Weinstein International Foundation, a nonprofit organization dedicated in part to supporting the advancement of mediation throughout the world. It was our third teaching journey to Rwanda on behalf of Edwards Mediation Academy, as we continued our efforts to assist the Rwandan government in implementing mediation in their civil justice system.

A new generation of heroes

As we spent the week teaching mediation skills to attorneys and judges, we witnessed first hand the importance and meaning of Heroes’ Day. While nothing can compare to those who paid the ultimate sacrifice through heroic acts during the genocide, it was impossible on that day of celebration to not draw some comparisons with a new generation of “heroes” – individuals who are committed to making great personal sacrifices while taking on new challenges for the betterment of their country. Like most heroes, they would scoff at the designation, yet such humility does not cheapen their contribution, nor make their sacrifices any less noble.

We sat down on Heroes’ Day with Michel Muhirwa, who works in the refugee camps for Congolese nationals in Rwanda. He described his job of teaching dispute resolution skills to community mediators, who could then help resolve conflicts within the camps. He also shared an example of organizing and facilitating monthly meetings between the refugees and surrounding community leaders, focused on reducing conflict around sharing the scarce resources of fresh water and firewood. We concluded the conversation by discussing how to implement peer mediation training in the refugee schools to bring these important skills to the very young.

Rwandan Weinstein JAMS International Fellows

Our hosts for the week were three ADR-trained Weinstein JAMS International Fellows, Anastase Nabahire, Harrison Mutabazi and Bernadette Uwicyeza. These heroic individuals have become the center of the mediation universe within their country, working with the Ministry of Justice, the judiciary and the Rwandan Bar Association to promote public policy, increase awareness, and organize training around mediation skills. During our week in Rwanda, Bernadette, in collaboration with our American colleague, Emily Gould, a mediator and professor at Columbia Law School, undertook the ambitious task of drafting legislation seeking to implement mediation in both the Rwandan civil and criminal justice systems. If successful, this new law will draw on principles of restorative justice and a pre-colonial dispute resolution heritage that may set a model for all of Africa, if not beyond.

Mediation has changed the judicial system

A discussion of modern day heroes would not be complete without mentioning His Lordship, the Chief Justice of the Rwandan Supreme Court, Prof. Sam Rugege, a man whose exalted title stands in stark contrast to his humble demeanor and gentle spirit. If there is an example of the power of one person to effect change, it is Sam. His firm conviction that the role of mediation and its ability to preserve relationships while inspiring peaceful resolution of conflict, is central to the success of the Rwandan judicial system and has created a seismic shift in perspective. Lawyers who once viewed their role as confined to litigation are now being taught the value of “softer,” but equally important, dispute resolution skills.
Finally, not all of the heroes we came across were high profile judges or government officials. One afternoon we visited a local courthouse and shared mediation stories with court registrars. These civil servants are tasked with meeting potential litigants in austere court facilities. With little formal training, they steer litigants toward resolution rather than litigation, using equal parts common sense and mediation skills.

Changing peoples’ lives for the better

While few of us in life can ever compare ourselves to the students who lost their lives in the genocide or Rwanda’s new generation of heroes, their courageous acts should remind us that we each have within us the ability to change peoples’ lives for the better. Once, after going out of my way to assist one of my children’s friends in need, my son looked at me and said appreciatively, “Dad, not all superheroes wear capes.”
As mediators and trainers, we need to remind ourselves of that every day. Mediators have the unique opportunity to reduce suffering and help bring about profound changes in peoples’ lives. Whether these efforts occur in distant countries or local communities, it’s the same lesson: In our passionate pursuit of service to others, we can all be truly heroic.

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Mediation Skills Course in Ohio

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EMA is pleased to announce that our Mediation Skills Course https://edwardsmediationacademy.com/mediation-skills-course/ has been approved as self study for 31 continuing legal education (CLE) hours with the Supreme Court of Ohio.

This is in addition to approval by the California Bar Association for 31 hours of CLE, including 2.25 Ethics hours and 2.5 Bias hours. Our Mediation Skills course is also approved for 31 CME in the State of Arkansas and 31 CLE of self-study for the State of Utah. 

Many states share reciprocity with California and/or Ohio.  If you are interested in CLEs from another state, please reach out to us at admin@edwardsmediationacademy.com or to your state bar association with questions about reciprocity. 

We will continue to announce new CLE credits as they become available for our courses.

Full details are listed on our FAQ page here:  https://edwardsmediationacademy.com/about/faqs/

 

 

Susan Franson Edwards is responsible for the day-to-day operations of Edwards Mediation Academy, including the production of online mediation education and training courses, product marketing and customer relations. She co-founded Edwards Mediation Academy with Bruce Edwards in 2014 in an effort to deliver the highest quality mediation training to a worldwide audience.

 

 

Vivien B. Williamson, Mediating with Empathy

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edwards mediation vivien williamson

Attorney Vivien Williamson has been a mediator since 1987. She has helped resolve thousands of disputes, from employment to civil rights; earth movement to personal injury. In her employment law practice, she has mediated hundreds of claims of sexual harassment; disability, gender and age discrimination, among others. Vivien is known for her ability to take on and mediate highly emotional cases.

Vivien is also a teacher and mentor. She has taught mediation and negotiation at Hastings College of the Law, as well as other law schools and universities. She has made numerous presentations on ADR to bar associations, law firms, professional societies and other organizations across the country. She is often retained by organizations to consult on the design and implementation of conflict management systems.

What I most admire about Vivien is her intuitive, empathic approach to mediation. Even as a young child, she always knew that she wanted to be a mediator. She is one of the few attorneys I know who went to law school expressly to study mediation. Vivien is one of our Edwards Mediation Academy expert instructors.

Following are some of Vivien’s nuggets of mediation wisdom:

On emotion in mediation

The mediator needs to focus on the participants’ emotions throughout the mediation. Vivien can recall situations, for example, where a lawyer doesn’t think emotion is quite appropriate in the process, while she sees that the party is suppressing his or her emotions.
Whenever that happens, Vivien finds a way to make it safe for the party to come to a place where they can talk about what they are feeling. For the party to feel safe, sometimes Vivian has directed a lawyer to leave the room in a non-confrontational way. At other times, she has used humor to allow the party to open up in front of their counsel. Vivien instinctively understands different peoples’ bandwidth for dealing with emotion.

On providing a safe environment

Because Vivien is so comfortable with emotion, she provides an atmosphere where others (both parties and counsel) feel at ease. She once had a lawyer (after a particularly difficult mediation) tell her, “You remind me of my Aunt Susan… you’re kind of a frumpy dresser…I just feel really safe around you.”

On paying attention to non-verbal communication

Vivien notes that lawyers are wordsmiths, and most have huge vocabularies. Over the years, she has started paying attention to what she is hearing behind the words by watching peoples’ body language very carefully. She especially notices clinched jaws and lack of eye contact. The biggest mistakes she has made, however, were presuming that she knew what that nonverbal communication meant.

She used to see someone rolling their eyes, for example, and assume that they were lying, when instead they might be thinking that someone else in the room was being an idiot. Now, rather than assuming what is behind the nonverbal cues, she bluntly asks for clarification in a non-threatening, often humorous way.

To me, these nuggets of mediation wisdom will be Vivien’s legacy.

Susan Franson Edwards is responsible for the day-to-day operations of Edwards Mediation Academy, including the production of online mediation education and training courses, product marketing and customer relations. She co-founded Edwards Mediation Academy with Bruce Edwards in 2014 in an effort to deliver the highest quality mediation training to a worldwide audience.

Mediation Certification: The Sparrow and the Peacock

Mediation Certification

Having taught mediation skills for over twenty-five years and, more recently, having developed an online mediation training curriculum, it’s only natural that I stand as a zealous proponent of mediation training. It follows then, that I am increasingly alarmed by the number of mediators entering the profession who have little or no training, and even less practical experience. For many of these aspiring mediators, a successful career in law or a certificate from a forty hour introductory course in mediation is held up to the world as documentary proof of their requisite skills.

How did we arrive at this moment in our nascent profession? And, more importantly, how do we build credibility as a profession by emphasizing the importance of high quality education and skills development? As mediators, we operate in a unique professional environment. We come from a variety of different backgrounds, and we apply our skills in a variety of different settings.

We begin with a look back

In the beginning of our profession, we necessarily focused our initial efforts on developing a sustainable career path. The conversation about training requirements, model standards of conduct, and conduct enforcement lagged behind. Despite most mediators agreeing that some degree of training and education was essential as a prerequisite to market entry, there was little consensus around specific requirements. Consequently, we found ourselves in a profession with no national standards for mediators.

Even today, we are left with a patchwork approach to ensuring mediation competency. Few states have training requirements, and those that do, require a minimal number of hours of training. In most states, you need significantly more training to be a licensed barber than a professional mediator. Court annexed programs and some industry associations do slightly better, requiring forty hours of training, plus some mentoring or supervised practice, to be on their approved panel of mediators.

A proliferation of mediation training courses

In this void, we’ve seen the development of a proliferation of mediation training courses. In those states and thinking globally, countries, where the mediation profession has been slower to develop, there is a cottage industry of training programs and certificates. Incredibly, some courses even profess to “certify” students as mediators upon completion, conveniently overlooking that this word has no official meaning in the broader profession.

It’s not my intention to criticize forty hour mediation training programs or downplay the significance for many individuals of having received a certificate upon completion. Indeed, I actively participate in many face-to-face and online programs that promote this same approach to learning. I believe that credentialing oneself is an important first step in career development.

My criticism is with those individuals who seem to think that a forty hour training course, or less in some cases, is all that is required to commence a career in mediation. Because there is limited opportunity for peer review, many untrained mediators look to the final outcome, meaning was the dispute resolved, as the sole litmus test of their performance. To these mediators, the means and methods of how that result was achieved take a distant back seat, and self-reflection is an afterthought, at best.

The need for deeper education and training in mediation

I often look to other industries for examples of where our mediation profession should aspire. For example, many professionals equate the skills required in mediation as similar to those required by practitioners of the therapeutic sciences. It’s interesting, for instance, that to be a licensed clinical therapist, one needs several years of formal education, as well as a year of mentoring under the guidance of a licensed professional, before being allowed to consult with their first patient.

In thinking about the need for deeper education and training in our profession, I am reminded of a statement by Malcomb Gladwell in his book Outliers: “It takes roughly 10,000 hours of practice to achieve mastery in a field.” To illustrate the absurdity of minimal training to be proficient in mediation, I often ask my mediation students to envision themselves seated on an airplane and ready to pull back from the gate, when the pilot comes on the public address system and announces, “Ladies and gentlemen, welcome to flight 123 to Washington D.C. You’ll be happy to know that I just completed the forty hour course on piloting this new aircraft, and I’m looking forward to our first flight together.” Not exactly confidence inspiring!

And truth be told, there is so much more to be gained from experiential learning than is available through certificate programs alone. I was recently “shadowed” or observed in mediation by a visiting mediator from Columbia, South America. After a long day of mediation, we sat privately to debrief, and I asked what he had learned that day. He responded by saying that he appreciated my use of stories to build a strong connection with the parties. What was even more instructive, he continued, was how seamlessly the stories occurred in conversation and how strategically they were used to help manage difficult moments. He concluded by saying that it was this nuanced use of storytelling that he could never have learned from a book or an introductory course.

Criteria for selecting a mediation course

Since training standards for mediators are not yet in place, what are the important criteria an aspiring mediator should look for in selecting a mediation course or curriculum? I strongly suggest the following focus:

1) Experienced Instructors

Look for programs taught by those instructors with “real world” experience. In a market place of professional trainers, few have the type of practical experience that Malcomb Gladwell would describe as “mastery in the field.” Yet, it is an instructor’s ability to blend theory and practice, while using their rich experience, which bring learning to life.

2) Interactive Learning

Whether face-to-face or online, look for those programs that are interactive and afford opportunities for experiential learning. We know from neurobiology that true learning comes from experience, including failure. All too often, introductory courses are long on lectures with limited opportunities to incorporate practical skills.

3) Variety

Mediation skills are consistent across a variety of disciplines. Therefore, training in one area of skill development may be easily transferable to a different application. That’s why a student of mine once took a job in a nursing home to improve his listening skills, since he knew he would need to listen carefully to his patients. Don’t overlook any quality program that will expand your thinking and skill development, whether in communication, neurobiology, body language, or online mediation.

4) Approval by a state bar association or other credible institution

Look for mediation courses that have been approved by a state bar association or other credible institution, or that are offered through a credible institution. That is a practical means of guaranteeing their quality.

Learning is an ongoing endeavor

Once you have immersed yourself in mediation coursework and have gained an appropriate number of certificates for your office wall, let the education continue. Look for opportunities to “shadow” experienced mediators and debrief with them afterwards to learn why they made specific decisions in a given moment. Practice skills in a “role play” environment because your brain can’t distinguish between “real life” scenarios and authentic practice using “role plays.” Volunteer for dispute resolution experiences.

Once your career is underway, never stop learning. Form groups of local mediators and share experiences. Keep notes of your own experiences and debrief yourself following every mediation. Ask experienced mediators to periodically peer review your efforts.
Only through high quality mediation training can we continue to build credibility as a profession. Only by acknowledging that certificate programs are an important first step, but only a first step, can we help our mediation clients distinguish between those in our profession who are “certified” from those that are truly competent. As one of my colleagues at JAMS was fond of saying, “The sparrow may tell himself he is a peacock, but the peacock knows the difference.”

The exalted goal of mediation training was perhaps best captured on the television program 60 Minutes during an interview with Misty Copeland, the first African American ballerina to dance for a premier dance company. When the interviewer observed that Misty’s dancing appeared “effortless,” she quickly replied, “I’ve spent a lifetime of effort making this look effortless.”

Before you ever set foot in a mediation room, commit to that same level of preparation. Then, when the stage lights are on, you will possess the necessary skills to competently assist those in conflict. And in so doing, you will represent the best of our profession.

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Building a Golden Bridge and other lessons from Dr. William Ury

 

Dr. William Ury

The hills above Edinburgh, Scotland were bursting in the monochromatic splendor of bright yellow flowers, announcing the arrival of spring. In their shadow sat the Scottish Parliament building, where we were assembled for the spring conference of the International Academy of Mediators.

Dr. William Ury, noted author, speaker, and mediator of international conflicts, gave the keynote address, “A New Enlightenment: Looking Outward.” Dr. Ury had recently returned from the Korean peninsula. In his presentation, he posed the all-too relevant question, “In a world rife with conflict, how do we deal with our differences in more respectful and productive ways?”

Dr. Ury’s presentation appropriately began by quoting the famous Scottish poet, Robert Burns, in his ode “To a Mouse.” “The best laid plans of mice and men often go awry.” He observed that Robert Burns wrote this poem while plowing his field and inadvertently destroying the nesting home of a field mouse. In that moment, Mr. Burns felt compelled to write about his empathy for the little creature.

Dr. Ury compared Robert Burns’ poem to modern day conflict, where we seek to win at the expense of our adversary. In doing so, we invariably ensure mutual loss. “Instead,” he said, “The aim of modern day conflict resolution must focus on finding mutual gains.”

Conflict impacts the entire community

For millions of years, human beings were part of hunting and gathering tribes, where the entire community dealt with conflict between individuals or families. There was a sense that a conflict was the responsibility of everyone, not just the conflicted parties. So, village elders, often seated around the campfire, led a discussion about how the conflict was impacting the community at large and what should be done to resolve it.

From an anthropological perspective, Dr. Ury observed that the intervention of third parties acting as peacemakers is part of our human heritage. Unfortunately, what has transpired in more recent times is that the needs of the broader community have been largely left out of the conflict resolution conversation. For example, when an estimated five to six million people may perish in the first hour of armed conflict on the Korean peninsula, who is protecting their interests?

Recreating this sense of communal responsibility in our modern world

Dr. Ury posed this challenge to all of us: How can we as mediators generate this same tribal sense of communal responsibility for conflict in our modern world? How can we recreate the campfires, where all voices can be heard and respected, and where third party intervenors can find ways to address not just the interests of the disputing parties, but also the interests of the community as a whole?

Three fundamental practices for all mediators

Dr. Ury described three practices that mediators should cultivate, as we contribute our conflict resolution skills toward developing the solutions our world so badly needs. These practices are fundamental to all successful negotiations, regardless of whether the intervention is nuclear disarmament, or something more mundane.

First, “tuning your own instrument”

The single biggest obstacle to achieving results in any facilitated negotiation is not the person seated across the table, but our selves. It’s our own human nature to react in ways that are often counter-productive to the broader objective. How do we resist this gravitational pull into the conflict itself, so that we can maintain focus on the broader objective?

Dr. Ury suggested that it begins by creating a place of calm for yourself and “tuning your own instrument,” in advance of assisting others. He metaphorically described a negotiation as a play. Above the stage sits a balcony, from which everything can be observed. Once negotiations are underway, regardless of how stressful the moment, he mentally places himself on the balcony, so as not to lose sight of the larger objective. In one illustrative moment, he talked about his experience with a world leader, who literally screamed at him for close to an hour. During the tirade, Dr. Ury literally pinched his palm to remind himself to stay focused, from the balcony perspective, rather than get drawn into the moment.

Second, “listening for interests”

We are in the midst of a technological revolution, and opportunities for communication have never been greater. Yet, we are simultaneously failing in our efforts to teach effective listening skills. In mediation, it’s never been more imperative that we learn to listen for the other side’s unmet needs and interests, often by focusing on what’s not being said. We must find ways, by developing more sophisticated listening techniques, to put ourselves in someone else’s shoes long enough to gain perspective.

In a hostage negotiation, for example, there is typically one officer who communicates directly with the hostage taker, while numerous others are designated listeners. Those listeners strain to hear the underlying interests of the person on the other end of the phone line.

Dr. Ury again provided an important example from his own work. He was once part of an international negotiating team attempting to bring an end to the fifty-plus year conflict between the government of Colombia and armed rebels. During one critical moment in the negotiation, a general refused to agree to the suggested language of a proposed truce. This impasse lasted for days and threatened to unravel months of productive negotiations.

Dr. Ury met privately with the general, and in thirty minutes of focusing on the general’s underlying reasons for objecting to a specific phrase, he suggested alternative language that broke the impasse.

Third, “building a golden bridge”

Sun Tzu, the Chinese military strategist, in his fifth century B.C. work, The Art of War, famously observed that the best general is the one who never goes to battle. The book wisely suggests considering allowing your adversary an avenue of retreat, a so-called “golden bridge” away from battle.

Dr. Ury uses this metaphor in light of modern day negotiations by asking himself these questions at the beginning of every mediation, “How do I make it easier for the other side to reach the decision that I want them to get to? How do I effectively build a “golden bridge” that will allow them to achieve their negotiation objectives?” The answers to these important questions begin by focusing on the desired end of a negotiation and working backwards.

Early in a negotiation, Dr. Ury will pointedly ask each party to imagine themselves at the end of a successful negotiation. What will the other side’s victory speech to their constituents need to address? What will they have to have in order to claim victory?

Again, referring to his experience working with the government of Columbia, he invited its leaders to envision a victory speech by the rebel leaders who would agree to lay down their arms after decades of conflict. What would they need to be able to say to their followers? That there had been improvements in social justice, land reform, and reintegration into the political process? This reflective exercise essentially created a list of core interests that shaped the negotiations.

Is peace possible in North and South Korea? If so, what will need to be included in the victory speeches given by the leaders of North and South Korea, as they begin to heal old wounds? What interests must be identified and addressed, as we explore ways to build this golden bridge to agreement?

Life is about conflict

Conflict is a naturally occurring part of the human condition. It’s the endless friction between different points of view that creates synergies and generates new ideas. How we manage this conflict, how we allow for differences of culture, religion and political perspectives will define our success moving forward.

On this beautiful morning in Edinburgh, the city of enlightenment, it’s only fitting that words like compassion, empathy and respect guide our thoughts, as we consider how to address conflict in the world around us.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Turning Ideas into Action; Thoughts from Edinburgh

EdinburghSupport courage where there is fear, foster agreement where there is conflict and inspire hope where there is despair” Nelson Mandela

During a recent conference of the International Academy of Mediators in Edinburgh, Scotland, I was asked to lead a discussion aimed at inspiring some of the world’s most successful commercial mediators to redirect their skills toward a broader range of societal disputes. I began with an onstage interview with Dr. Scilla Elworthy, a three-time Nobel Peace Prize finalist, regarding her life’s work as an activist and peace builder.

Throughout her life, Dr. Elworthy has observed that ordinary people can do extraordinary things. She believes that many of us feel a compulsion to do something to make a difference in the world, but we don’t know how to get started.

The focus of this article is what we as mediators can do to translate our good idea or noble intention into action, beyond our daily practices. Or, as some might say, begin “to move the teacup to our lips.”

The Mediator’s Mind®

What is unique about those who possess a willingness to walk toward conflict? Clearly, there are elements of courage and optimism that help define them as conflict resolution “first responders”, but there is more. They possess a mental model or Mediator’s Mind® that first instills them with a sense of purpose, as well as an extraordinary capacity for self-awareness and empathy.

As commercial mediators, we understand the critical importance of our role, beginning with the mental model we bring to the conflict resolution effort. As we set out to identify and intervene in broader societal conflicts, it’s even more important to convey the sense of optimism and bold thinking that comes from sometimes being the only person in the room to believe that success is possible. That means we can’t be deterred by reports of historical failures or negative statements that “it’s just not possible”. Who better to truly appreciate the difference one person can make than someone who has seen hundreds of examples of “impossible conflicts” successfully resolved? This begins with the Mediator’s Mind® or what Dr. Elworthy describes as your personal capacity.

Looking Inward: Developing Your Mediators Mind®

Ironically, the ability to help others begins with self-help. The ability to look inward with honesty, clarity and self-reflection, and thereby confront our own fears and limitations, is what provides us the strength to help others in conflict. The personal skills and capacities described below allow us as mediators to intervene in even the most deeply rooted conflict, with empathy, compassion and equanimity.

Self-Awareness

Our ability to reflect and confront our own individual issues including fear, trauma and bias uniquely prepares us for the challenges that lie ahead. Only by expanding our own capacity for self-awareness are we capable of confronting the extraordinary demands presented by those embroiled in conflict.

• Perceiving Your Own Emotions

The best mediators understand the role of emotions in conflict; there can be no cognitive experience or decision without an attendant emotional component. They appreciate that at the heart of most disputes lies an unmet need wrapped in a powerful emotion. Those seeking to intervene in conflicts, which will necessarily involve the presence of strong emotions, are best served by first developing their own capacity. By understanding one’s emotional competency, including the role of individual life experiences in shaping that competency, a mediator will be best prepared to work in an environment of strong emotions.

• Empathy

Humans are uniquely capable of building empathy and attending to the feelings of others. Research in neurobiology has revealed the powerful role of mirror neurons in our brains that provides the opportunity to identify and experience the emotions of others around us. The capacity to build our empathetic selves is another critical step toward positioning ourselves for conflict intervention.

• Listening with Your Whole Being

Those looking to assist others in conflict can best start by refining their own listening skills. Long known to be the centerpiece of mediation skill, this highest quality of listening still lies outside of the grasp of many. We used to describe the targeted skill as “listening without judgment” although we now know from neurobiology that it’s impossible to withhold judgment entirely. Instead, we now use phrases like, “listening while refraining from judgment” or “listening with curiosity.” The best listeners are those that listen with intuition, for both what is stated and that which is unstated, and to be attentive to the congruity between words and body language. In essence, they’ve learned to listen with their whole being.

• Mindfulness

Mindfulness requires focused attention. Many mediators already train themselves in meditation, yoga or martial arts, reflecting the wisdom of learning to quiet the mind. Unless you aim to become a Buddhist monk, there is little chance to eliminate entirely the constant monologue within ourselves. However, what we can aspire to is to learn how to quiet our internal distractions as we become centered and mindful about the moment we are in. In that effort, we can become truly present and able to assist those in need.

• Checking your ego at the door

While strength of ego will be essential to persevere in the face of deep seated conflict, that strong ego must be balanced by an appropriate lack of ego reflecting an appreciation that you are intervening in someone else’s dispute. As a famous coach once said, “it’s amazing how much can be accomplished when no one requires the credit”. Develop the capacity for true collaboration and learn to leave your ego at the door.

Looking Outward: Identifying Your Intervention

The opportunities for intervention in societal conflicts are limitless, defined only by people’s inability to get along. Conflict is a naturally occurring part of the human condition. Therefore, possibilities for constructive intervention by commercial mediators abound. The question is simply where does one begin?

• Find Your Passion

Every day we are bombarded by news media accounts of conflict and its repercussions. Some suggest that news ratings correlate directly to the amount of human suffering captured on camera as a result of conflict. Begin the process of identifying an intervention by asking the simple question, “what breaks my heart”. If the answer is the homeless person you literally have to step over on your way into work, you may have your answer. Perhaps the neighboring offshore reef that more resembles a marine desert due to overfishing draws your passion. Or maybe the dispute is more regional, such as the myriad of problems posted by migrant, ethnic populations forced to flee their homes and families. Whatever the conflict that draws you to the flame, make sure it resonates an emotional chord.

• Reflect on your skill set

Begin by asking yourself, what am I really good at? Be honest with yourself in this reflective exercise. If you come to the table possessing extraordinary mediation skills you are well on your way. Perhaps you have other, equally important skills; you are a successful organizer, fundraiser or adept at social media. The process of intervening in conflict begins with knowing what you have to offer, and what additional talents and resources you will need to support your efforts.

• Bridge Your Passion with Your Talents

It sounds simple, yet many good intentions fail from the beginning. Perhaps the mediator overshoots the appropriate conflict intervention opportunity. Perhaps they are viewed as an outsider to the conflict or someone with a personal agenda. Whatever the reason, if one has not properly aligned their passion with their skill set from the beginning, they may be setting sail with a hole in the side of their ship.

• Organize to Achieve Sustainability

There are two key parts to this simple directive; organization and sustainability. Organization shouldn’t necessarily imply an unwieldy business structure. Simply put, it means finding like-minded partners or as one colleague described the process, “gathering a tribe”. The goal is to connect with others, including those who may already be working in the same space, and develop an organization that is sufficient to support implementation of your plan.

Any organization, regardless of size, needs to be sustainable to be effective. This means developing a business plan and attention to funding. Most successful interventions require long term effort and economic stamina. Conflict partners need assurance that you are there for the duration.

Six Practical Steps Toward Successful Intervention

Once you’ve identified your passion and become more reflective about the skills you have to offer, the real work can begin. Here are several practical steps to putting ideas into action.

1. Define your focus/be realistic

There are a multitude of local, regional and international issues and conflicts in desperate need of thoughtful intervention and mediation. Issues such as allocation of natural resources, climate change, return of “stolen” national artifacts, gender inequality, financial inequities, religious disputes, and mass migration are all issues that impact millions of lives. And, they are potentially ripe for intervention. As a skilled mediator, you can make a significant difference by identifying a conflict that is “big enough” to be worthy of your efforts, but not so large as to present an insurmountable challenge. In short, your passion must be tempered by a healthy dose of realism.

2. Identify and cultivate key relationships

If you have been involved in developing commercial mediation markets, you have probably sought access to and developed relationships with key decision makers in government and industry. Now, seek out those who are tasked with finding a solution to challenging societal conflicts and offer to assist their efforts with mediation. It was just this type of relationship that led to Judge Weinstein’s appointment as a Special Envoy by then President Bill Clinton to assess economic redevelopment opportunities in war torn Bosnia.

3. Understand the issues at hand

As commercial mediators, most days we don’t need to be subject matter experts in every dispute that we are called upon to assist. Yet, in seeking to intervene in broader societal conflicts, I believe it is imperative to possess a deeper knowledge of the issues in dispute. David Carden described this as “understanding the forces beneath our feet that influence the conflict and its potential solution.” Your greater understanding of the complex issues at hand will help establish credibility with the parties, while allowing for more meaningful participation in the discussions that follow. There are a variety of information partners available to assist the pre-mediation education process, ranging from governmental officials, universities, internet articles, and individual experts, such as economists. Only by developing this deeper knowledge can we hope to be welcomed to the table and best serve the parties involved.

4. Identify all potential stakeholders/ avoid failure by exclusion

Any credible dispute resolution process begins by casting a wide net to identify all stakeholders who may have been impacted by a dispute. The gold standard in the United States for how to conduct this convening process is Convergence Center for Policy Resolution, a non-partisan organization dedicated to resolving issues of national importance across the political divide. Once an issue has been identified, such as health care, education reform, or improving relations with Pakistan, the organization seeks to identify every possible stakeholder whose participation will be essential to a meaningful discussion and credible outcome. In some instances, hundreds of interviews are conducted over many months, just to ensure that all appropriate stakeholders have been identified and invited to the table.

There are many mistakes that can lead one to trip out of the starting block on the track toward resolution. Perhaps the easiest one to avoid is not to overlook an essential stakeholder.

5. Develop a roadmap to success

Strategic thinking and a specific action plan lie at the intersection of a good idea and its implementation. Once a “conflict target” or issue has been identified, the hard work begins. Developing a specific action plan to present to decision makers is essential for any credible offer of assistance. The plan must include details regarding who will serve as the individual or panel of mediation experts, what is the cost and time frame projected for the intervention, and who will participate in the process design. Demonstrating a detailed understanding of the process involved is an important first step in convincing others that you possess the mediation skillset essential for the task.

6. Have Confidence in Applying Proven Mediation Skills

You already know the importance of building connections with stakeholders. You’ve no doubt taught others about the importance of critical listening and feedback techniques. Now you need to trust your skills, and instincts, as you help stakeholders move beyond positions to identify common interests, using understanding and empathy. Seek to move people beyond the idea of right and wrong to a deeper level of connection. And trust that the same skills that served you and others successfully in the world of commercial mediation can be applied, with equal success, to a broader range of conflicts.

Summary

In Dr. Elworthy’s recent book, A Business Plan for Peace, she points to research by Barrett Values Center on the hierarchy of qualities of the 21st-century leader, where it was found that the highest level of consciousness is service. Barrett describes this as “selfless service in pursuit of your passion, purpose or vision”. In her book, Dr. Elworthy, describes this potent combination of developing inner power and applying it toward selfless service:

In this way you will become robust as well as empathetic, courageous as well as sensitive, resilient at the same time as being full of grace. In short, you will become a noble person, in service to your community and the world“.

Let your journey begin.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Dana Curtis, Mediation as a Way of Rebuilding Relationships

Dana CurtisAnother one of our exceptional Edwards Mediation Academy instructors is Dana Curtis. Dana was among the first attorneys in the U.S. to devote her career exclusively to mediation, and she began her full-time mediation practice in 1991. She has been a teacher of mediation, negotiation and other conflict management programs for over 25 years, including at Stanford and Harvard.

What I especially admire about Dana is her exceptional skill with difficult and highly emotional situations. She is particularly adept at helping individuals involved in a dispute understand how they may be contributing to the conflict so that they can begin to rebuild a positive relationship with one another.

On becoming a mediator

Dana had been a teacher for 13 years and then decided to go to law school. In her second year of law school, she took a course that had mediation as a component.  She immediately knew, “This is what I want to do.” Mediation made sense to Dana because it includes the personal component of a conflict: all of the personalities, all of the emotions. Dana believes it’s been a huge help to her as a mediator to have a teaching background because, many times, what a mediator is doing is helping people learn a different way of thinking – a new way of relating to each other and having conversations that they haven’t had before.

For Dana, every mediation is analytical as well as emotional, and she brings an intense curiosity to each situation. She asks probing questions, and listens deeply with empathy and compassion. Dana believes that the highest potential of mediation is to help people find closure and, where they can, connection.

Addressing the relationship first

One of the techniques Dana employees in highly emotional situations is to address the relationship issues first, before the mediation begins. For example, in a mediation with a brother and sister involving real estate holdings, Dana spoke separately with each of them, before the mediation, about the quality of their relationship. The brother and sister hadn’t really connected since they were young. Dana helped them sort through some of the difficult situations in the past that had left bad feelings. Through her questions, she learned that both would like to have a better relationship going forward. She convened the mediation with their commitment to work toward that goal.

During the mediation, it was all about solving the problem, rather than about how badly they felt and how mad they were. They were able to talk through their issues and really connect on a personal level. The brother and sister ended up being amazingly generous with each other and achieved a level of resolution that was much greater than figuring out who received which apartment.

There was a point where the brother said to his sister, “You know, I’ve grown a lot. Let me tell you what’s going on in my life.” The sister said to Dana at the end of the day, “I have never felt so close to my brother in my whole life.”

Helping people connect

This is what inspires Dana most: she deeply wants to help people connect rather than pursue lawsuits. Dana Curtis believes that if people can truly understand each other and develop a respectful attitude toward each other again, a lot can happen.

Susan Franson Edwards co-founded Edwards Mediation Academy with Bruce Edwards in 2014 in an effort to deliver the highest quality mediation training to a worldwide audience.