Open Forum

communities_1.jpg
  • 1.  Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    I'mLinkedIn
    Posted 12-06-2022 09:56 PM
    Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    This YouTube video is a recreation of a mediation I conducted with actors playing the part of the parties and their lawyers.

    It represents what happened on the day.

    It is an opportunity to observe a mediation based on real events and to critique my performance as a mediator in the context of mediator practice, theory and ethics.

    It is offered as an open source resource to the broader mediation profession

    This is the YouTube Link:
    https://lnkd.in/dS7rK_c3

    ------------------------------
    Greg Rooney
    Mediator
    Mediator
    Bridgewater SA
    61405612789
    ------------------------------


  • 2.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    Posted 13-06-2022 03:33 AM
    How generous of you Greg, I look forward to watching this which I expect to be a really valuable resource for members. What an excellent idea.
    Ngā mihi Anna Quinn

    ------------------------------
    Anna Quinn
    Mediator / ADR Consultant
    Anna Quinn & Associates Ltd
    Herne Bay
    021 360 074
    ------------------------------



  • 3.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    Posted 16-06-2022 07:06 PM

    Thanks for sharing this Greg.  It seems to me, a good starting point for a debate about how we define mediation and the range of practice that fits within the boundaries of our profession.  I have been repeating an explanation for a fair while that mediation experiences sit on a continuum that stretches between the Sunday lunch table and the High Court's bar table.

     

    I understand that what you have presented in the video is a series of snapshots taken throughout a much longer engagement so, I am sure that there was a lot that happened and isn't represented through the presentation.  What I see in what you are offering though is a model of mediation that is quite different to the one we teach through Resolution Institute as well as how I interpret the NMAS standards. 

     

    The standards and the model we teach speak about exploration of interests and the creation of options where the model you are demonstrating here seems to go straight into negotiation of the outcome.



    ------------------------------
    Peter Mathie
    Principal
    Perth Mediation Centre
    BASSENDEAN WA
    419183283
    ------------------------------



  • 4.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    I'mLinkedIn
    Posted 16-06-2022 09:35 PM
    Thanks Peter for your comments and reflections.

    You have to take the parties as you find them not where you would like them to be. You start at that point and work forward step-by-step.  It's all about the flow and the dance. 

    Most of the work was done in the two intake sessions where I found each sides story. I kept referring back to their stories as we progressed through each joint session.  The intake session is the best place to explore.  

    The problem was that both parties were stuck in positions far apart. They knew it and were looking for something they could both live with. So the mediation was about keeping the flow going as you will see from a lot of my pre-emptive  interventions.

    Putting aside the fact that both sides were playing games and that there was a lot of consensual deception they both had an interest in getting a result. I created the options by asking them both to make concessions. I just had to hold them in the room and work with the assistance of their lawyers. The solution emerged out of  all this interaction.

    This mediation will never be repeated as no two are the same.  It is therefore unrealistic to say there is a common standard or benchmark of how mediators should behave in all cases.  

    My definition of mediation is:

    "A process of a mediator creating a venue where parties get close to each other in order to move an issue forward"

    This contains the three basic elements of mediation.

    • The venue forces parties to actually do something. To turn up, to be present and to actually deal with an issue.
    • It's built on human interaction. This brings in the huge complexity of human relationships.
    • It recognizes the fundamental law of flow that guides all human activity. When the flow stops you die. It is about necessary endings and new beginnings.
    The good side of standards is that they provide guidance for practitioners in working with complex human interactions. It is a problem if they turn into dogma.

    ------------------------------
    Greg Rooney
    Mediator
    Mediator
    Bridgewater SA
    61405612789
    ------------------------------



  • 5.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    I'mLinkedIn
    Posted 17-06-2022 11:39 AM

    Two of my mediator Sifu (defined as" the title for and role of a skilful person or a master" [Wikipedia]) are Greg Rooney and Barbara Wilson. Both are great thinkers, writers, and communicators and are acknowledged experts in their craft (mediation).

    It was great to see Sifu Rooney in action. It meant more to me than reading about flow. Admittedly I got hooked on the step by step promises of Greg. On the second viewing I 'got' the flow concept. I also appreciated the push/shove to get a deal done…  opening offers of $10,000 vs $700,000 with two lawyers, one QC, a dentist and two about to ex-partners is not going to get anywhere with a invisible mediator. Eclectism in a mediator is required, not a slavish adherence to a basic/beginners facilitation model.

     I agree with Peter Mathie that the current teaching model is woefully inadequate

    Thank you, Greg, for this posting and for your explanatory reply to Peter Mathie. Your pauses for explanation were an  excellent teaching tool and has some similarities to Barbara Wilson's Mediator Expertise Live Interview (MELI) where an expert mediator is interviewed by a peer and questioned by a small group of mediators wanting to increase their own skills, expertise and competence. Barbara's premise which matches that of Peter Mathie and myself, is that basic training to achieve NMAS or similar certification, is totally inadequate:
    "Trained mediators subsequently claiming expertise ay not distinguish clearly - if at all - between their experience as a mediator and their achievements in their discipline of origin (typically law, psychology, mental health, social science and so forth). As a result, their mediation skills may be viewed simply as adjuncts to their primary professions. It is therefore probable that at least some practitioners promoting themselves as expert mediators do not actually possess mediator expertise".

    (Ref: Barbara Wilson 2012. Mediator Expertise Live Interviews
    SSRN Electronic Journal · November 2012 DOI: 10.2139/ssrn.2179587)

    Ongoing  training is required for mediators to maintain expertise AND competence. Supervision, peer supervision, online sharing of tacit and implicit knowledge via Communities of Practice/Interest are more productive than a sleep session/power nap at a compulsory CPD.

    Mediation is a professionally lonely existence.

    Reading mediation books and  articles can never be enough.

    Self reporting by mediators is notoriously skewed/biased/inaccurate.

    Comparing oneself with live recordings of current expert mediators conducting a mediation (Greg Rooney's video) or live interviewing such an expert about his/her on- the- spot thinking/reacting/interacting  (Wilson's MELI) are excellent examples of the future for training competent mediators.
        David Mitchell



    ------------------------------
    David Mitchell
    Director
    Mitchell Mediate
    Clarence Park SA
    418898039
    ------------------------------



  • 6.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    Posted 17-06-2022 01:42 PM
    Hi David
    Just to add clarity to what I have previously said about mediator training.  

    I do believe that the five day program and process of accreditation is a start, an excellent start but in order to support a profession we need more.  What I might not have made clear before is that, for me, developing expertise as a mediator is about developing our capacity to work within the frameworks and standards.

    And, to be very clear I am not promoting the slavish adherence to a beginners model but a more refined set of skills in how we embrace that model to promote participant self determination.

    Anybody can engage in a positional bargain, assisting participants to explore interests and create options is a challenge and my reading of the standards suggests it is what we are called upon to do.

    If I am wrong about that then maybe we should be asking there MSB to change the standards.


    ------------------------------
    Peter Mathie
    Principal
    Perth Mediation Centre
    BASSENDEAN WA
    419183283
    ------------------------------



  • 7.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    I'mLinkedIn
    Posted 17-06-2022 11:17 PM

    Thanks to Greg, Peter and David for your insights and discussion. I am enjoying seeing the varying perspectives that comes from this community.

     

    You all make interesting points and there are some important ones raised here which I want to elaborate on;

    1. I agree that the mediation demonstrated in the video this is not aligned to the current model taught, nor to the assessment standards. From your comments it seems there are various views on the adequacy of such training. My personal view is that that there is a need for the 'beginners model' – as otherwise where will new practitioners begin or start their mediation journey? I'm aware that as mediators get more practiced and experienced, they bring their own style to a mediation and become more accustomed to reacting to the curve balls thrown as seen in the video by not having all parties present, not having separate legal representation for both parties etc.
    2. As this thread rightly shows, there are differences between a shuttle negotiation/conciliation/mediation and a facilitative mediation approach to meet the mediator standards.
    3. Accordingly, many of our members do take the beginners model, and then appropriately as they become more experienced, do use those principles to enhance their own style skills and practice of mediation.  My question is however, if not for the 'beginners' model, and the NMAS standards set by MSB, where do you start as a beginner?  I would be interested, as would MSB I'm sure given the current review, in peoples thoughts on how else this can be achieved in a way that gives the required learning and skills to start out as a competent mediator? There are other mediation models of course, such as transformative, narrative etc – and all have a time and a place, but everyone has to start somewhere.
    4. I wholeheartedly agree that supervision / peer supervision / case discussion / mentoring is an extremely effective way to increase competence -  and hence why networks and mentors over ones career (and I think this applies regardless of profession, whether it be a mediator or dispute resolver  to any other unrelated profession) is imperative to success. This is especially true for sole practitioners and when confidentiality is critical to the process.
    5. Video demonstrations such as this, the Sir Laurence Street one that we use in training and others are fantastic as an reflective tool  re what worked well and what could have been done differently. I love the discussion that they generate. We are also developing another video for training purposes due to the impact that they have and the importance of an observational teaching tool.

     Once again, thanks for the discussion, I follow with interest and welcome comments re the above points from you and/or others.

    Many thanks
    Amber



    ------------------------------
    Amber Williams
    CEO
    Resolution Institute
    ------------------------------



  • 8.  RE: Observing a Mediation, Greg Rooney Mediator. The Tennis Club Lease

    I'mLinkedIn
    Posted 20-06-2022 03:40 PM
    Edited by David Mitchell 20-06-2022 03:43 PM
    Hi to Greg, Peter & Amber

    Each of us has raised great thoughts, ideas and futures.We do appear to be at the same uniquely shaped table The following are my further thoughts on this topic:
      1. Facilitative mediation can no longer the primary model for mediation and to treat it as the model of choice is outdated and potentially restrictive in future learning.
      • The use of Riskin's 1996 division of mediation into Facilitatative vs Evaluative mediation was OK for 1996 but not anymore . There are currently 100 differing models of mediation
      • In 2000, Stempel posited that the best mediators used an eclectic blend of mediator styles to provide the best approach in any given mediation.
      • Every mediation and every mediatee is different; thus one model-suits-all is inappropriate (and unfair to the mediatees).
      • Research shows that mediators calling themselves purely Facilitative or transformative or evaluative, narrative , are telling 'porkies' …they use varied models within the mediation, depending on the mediation discourses.
      • A mediator needs to be informed of at least some of the commonly used models, at the beginning, not at some distant time in their learning cycle.
      • There is no formal incremental learning for mediators beyond a narrow view of mediation provided by accredited trainers

      A quick read of my article on the Eclectic Mediator will provide some background and some references  e.g., " increasingly strident call for more autonomy (especially group or party self-determination ….this addition inserted by author)) for everyone and the belief that a person's perception and interpretation of their place in a constructed worldview is real and accurate, place greater demands on a mediator who can no longer use the same learnt style/ideology/process for every mediation. A wide range of emotions, beliefs and convictions can and do happen suddenly within a mediation and the mediator must have the learnt experience, tacit knowledge, and communicative skills to react and respond. Peleg-Baker found that the more complex a mediation the more the mediator needed a heightened understanding and cognition of people and of himself/herself; greater flexibility in discourse; and greater reflection-in-action and reflection-after." (Peleg-Baker, Tzofnat, The Cognitive Characteristics of Mediator's Decision Making: Beyond the Dichotomy of Styles - The Devil Is in the Details (August 1, 2012). Available at SSRN: https://ssrn.com/abstract=1640558 or http://dx.doi.org/10.2139/ssrn.1640558 )

       

       Solution 1

      That RI takes a brave stance that moves beyond basic training required by NMAS and adds further elements into its accreditation requirements. I was part of a similar move within the Australian Medical Acupuncture College wherein  a minimal training program  (called Pt 1) gave the medico a basic registration ( and lower fee from Medicare) and a Part 2 requiring greater knowledge (and teaching) , higher status and higher fee. Money can help learning! This submission was accepted in full by the Health Department, Medicare and the Royal Australian College od General Practitioners as the Australian standard.

      I would this tail wagging the dog approach would work equally successfully for RI.

       

      1. There is a schism facing RI. A lawyer-based evaluative, adversarial and muscular paradigm/practice(EAMP) (see Barbara Wilson on this), with/without shuttle negotiation processes/patterns is getting further and further away from the "spirit of mediation" embodied in non-lawyer mediators using softer person to person centered approaches using techniques from Facilitative, Narrative, Transformative and other schools of thought. A lawyer may use techniques/ideas/approaches from this second category but a non-lawyer cannot use the EAMP tools.

       

      Solution 2. That Ri formally splits these two approaches and renames the EAMPs "Conflict Resolution" or something similar and the non-EAMPs reclaim the word "mediation". A common introductory (Beginners) course)followed by more specific training/streaming would economise on training .

      1. Solution 3. A. The beginners course gives attendees an overview of other forms of mediation and conflict resolution/EAMPs. Handouts, references and articles/webinars are provided for post course work with reflective questionnaires required before the compulsory "exam mediation"
                       3.B.Do the exam weeks after and use the time that was usually allocated in the 40 hours for this added learning.
      2. Solution 4.A. RI acts now in formally requiring initial mentoring for novices followed by career-long professional supervision.
                        4. B. There be competency assessment if mediators call themselves as a specialist in (say) Narrative or Transformation or any other type of mediation
      3. "One video does not a mediator make".

                  Solution 5.  RI needs to make/find a great number of appropriate, current Aust.
                  specific, culturally and socially appropriate videos and webinars
                  for novices and its membership at large (costed appropiately). Attaching a reflective questionnaire for
                  return can improve chances of viewing, learning and justifying CPD points

      Lastly my hope that the Mediator's Toolkit/Toolbox will fill in some of the gaps we four have so far identified.
      David Mitchell




      ------------------------------
      David Mitchell
      Director
      Mitchell Mediate
      Clarence Park SA
      418898039
      ------------------------------