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  • 1.  Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    I'mLinkedIn
    Posted 18-05-2022 11:27 AM

    It's time for mediation to claim its place as a stand-alone profession freed from being just an alternative to the law and adversarial litigation.

    Let the legal profession find its own way of engaging in our modern disruptive world.  

    Let it continue alone healing its dehumanised adversarial culture that the Dean of Harvard Law School, Roscoe Pound, described in 1906 as dissatisfactory with respect to delays, expense and game playing.   

    The problem is that mediation theories have grown out of trying to prove mediation is of equivalent value to litigation.  Neutrality, balanced power, self-determination, just outcomes are reactionary theories linked to the law. They don't serve mediation well.

    They are static one-dimensional concepts that do not relate to the multidimensional environment of the mediation session. They are devoid of context which is fundamental to the practice of mediation.

    Mediation can still be a light on the hill, a beacon, for the law to find its way out its dehumanised command and control approach to dispute resolution.  But it should not define itself by such reference.

    It is time to draw a line in the sand and start mediation afresh with theories and practice that are unique unto itself.

    Let's start with a new definition of mediation. 

    "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 recognises the fundamental law of flow that guides all human activity. When the flow stops you die. It is about necessary endings and new beginnings.

    I would start by keeping the basic mediation training model with its focus on facilitative role-plays. It fits the apprentice model of learning and is a good starting point.

    The Elements of a New Theory of Mediation

    I have set out below examples of a new approach to theory that parallels mediations fluid nature.  

    Firstly, two institutes that model higher ordered 'thinking' grounded in the present over lower ordered 'understanding' grounded in the past:

    • The Santa Fe Institute which focuses on the science of complexity. Its external professors are drawn from leading academics who agree to work in multidisciplinary teams outside their field of expertise.                                                                                                                                                                    Two founding members can contribute to mediation theory. Murray Gell Mann on the importance of allowing things to emerge of their own accord and Stuart Kauffman on the value of making small incremental steps that are doable (The Adjacent Possible).

    • The Tavistock Institute based on exploring human relations (Melanie Klein rather than Anna Freud). Particularly the work of Thomas Ogden - that once we have completed formal training in a profession, we are continually in the process of learning to overcome what we have learned in order to practice it.                                                                                                                                                                                                                                                  And Wilfred Bion who warns against the attachment to our memories, desires and, most importantly for mediators, our need to understand. Both Ogden and Bion are about experiencing the experience of the moment with an uncluttered mind.

     

    • Anthropology, particularly the concept of liminality - the state of transition between one stage and the next. It is a time of opportunity and change. The mediation session is a liminal event.                                                                                                                                                                                                    And the work of Marcel Mauss - the power of gift giving is universal and requires reciprocity. A small concession can have a big impact in a mediation.

     

    • The sciences of the physical world we live in - physics, chemistry, geology and biology. Particularly the second law of thermodynamics that states that entropy, which is the concept of disorder, randomness and uncertainty always increases                                                                                                          And Adrian Bejan's Constructal Law - that when continuous flow stops things decay and die. Mediation is fundamentally about flow based on necessary endings and new beginnings.

     

    • The Cynefin Framework for thinking and sense making. How to think differently in an ordered situation (litigation) where you Sense -Analyse -Respond from that of a complex situation (mediation) where you Probe-Sense -Respond.                                                                                                                              Also, field ethnography where stories are captured in real time through phone apps which are then self-interpreted by the storyteller. Mediation is the art of managing self-interpreted stories. How to move to more stories like these and less stories like those.

     

    • Music, paintings, literature, poetry, haiku and the arts and all its forms. Humans developed art before language. The arts open you up to a higher order of thinking for complex issues as opposed to lower order tasks of describing, measuring and categorising. A mediator has to master all the subtleties of a Chekhov play.

     

    • The 5,000-year-old Bhagavad Gita that refers to the qualities of being free from attachments of fear and desires. To transcend the field of duality of good/bad, Right/wrong, Democrat/Republican because they are an illusion as each is made of the same element just in different arrangements. It's about non-dualistic vision a key element for the practising mediator.                                                                                                                                           Non-dualistic theories are also key. Kahneman is a serial offender in this regard. Systems One/Systems Two – Noise/no Noise- Bias/no Biases (presumably autism) are examples of dualistic theory.

     

    • The mediator as a mirror - Jacqueline Morineau - Humanistic Mediation.

     

    • Economists such as John Kay's Obliquity Theory - outcomes are achieved by iteration, adaption, experimentation and discovery and that order often emerges spontaneously. Obliquity is the science of muddling through.                                                                                                                                          And the Economist Charles Goodhart on the distorting effect of targets and measurement. Goodhart's Law- When a measure becomes a target, it ceases to be a good measure as it distorts behaviour so as to meet the target.  As an example, positional bargaining targets in litigation and mediation encourage consensual deceit and benign fabrications by the parties to try to alter the outcome. Roscoe Pounds game playing.

     

    The problem with much of current mediation theory is that describing something is not the whole story and certainly not the most meaningful part. It seems to be just about naming the problem. That's where it starts and ends.

    It satisfies our need for simple answers to complex issues. It can be a psychological defence mechanism to deal with the uncertainty and unpredictability of life.

    It is through letting go of the need to control and understand that allows us the freedom to go with the flow and experience each mediation afresh as if it is our first. It allows us to join with the parties in experiencing the experience of the moment.

    Mediation theory should therefore be about questions not answers. 'What is going on here?' (John Kay and Mervyn King) and 'Why is it so?' (Prof Julius Sumner Miller).

    It's time for a refresh.

     

     

     



    ------------------------------
    Greg Rooney
    Mediator
    Mediator
    Bridgewater SA
    61405612789
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  • 2.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    Posted 19-05-2022 03:21 AM
    Greg, thanks very much for this thoughtful "provocation" to change the mediation paradigm. In my previous postings I should have acknowledged that mediation, if it is to be a profession, needs both theory and skillful practice - "science" and "art" and that mediators should experience both in their training.

    The problem with abandoning law as a lens, as I see it, is that we would then be considering the world as a blank slate, as if we were all situated in Rawls's "original position" or behind his "veil of ignorance" and interacting as free and equal human beings in pursuit of fairness and justice. Unfortunately most (all?) people are not able to take such a dispassioned and objective view of the conflicts they encounter. Law is one answer to providing a level playing field for competing interests and is certainly flawed, but it reminds us that conflict in life is not a game that can be played safely without rules.

    Let's remember the humourous confusion between mediation and meditation. Each may contribute something to the other, but neither can ignore the messy world of love and hate, courage and inequality, honesty and power that requires more than empathy and goodwill to manage peacefully.

    Thanks for pointing out the many more theories and ideas that may contribute to improving mediation.

    ------------------------------
    Archie Zariski
    Professor, Legal Studies - Athabasca University Canada
    Athabasca University
    Edmonton AB
    15878794574
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  • 3.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    Posted 19-05-2022 04:05 AM
    PS Another possible outcome of declining to reference law in mediation is that it may give more of an opening for a mediator to rely on their own view of fairness and equity in a conflict and to subtly (or not so subtly) advocate that to the parties in place of law.

    ------------------------------
    Archie Zariski
    Professor, Legal Studies - Athabasca University Canada
    Athabasca University
    Edmonton AB
    15878794574
    ------------------------------



  • 4.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    I'mLinkedIn
    Posted 19-05-2022 02:54 PM
    HI Archie, Thank you for your comments

    The law is coming out of centuries of practicing the de-humanising approach to dispensing justice. Mediation has opened the door to a more human centered approach. Some lawyers can do it but it will take generations for real change..


    All i am suggesting is that mediation decouple from this humanising quest by the law so that it is not held back. It's better for mediation and in the long run better for the law.

    It might be worth the legal profession reappraising 13th century English justice where legal rights could be addressed by the Lord Chancellor on a case-by-case basis with with no standard rules or enshrined principles that had to be followed.

    Relief could be granted on the grounds of justice, fairness and conscience to people with difficult cases. This was a far more human centric approach to justice.

    You could argue that dehumanising process started from Sir Thomas Moore and lawyer chancellors. It moved away from the individual conscience of the Chancellor to common rules and precedents.

    Fairness and justice became procedural fairness based on common standards and common justice. Justice became a form of measurement. This is where the law lost its humanity.

    Mediation offers an opportunity to return humanity to the law.

    ------------------------------
    Greg Rooney
    Mediator
    Mediator
    Bridgewater SA
    61405612789
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  • 5.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    Posted 20-05-2022 01:38 AM
    Greg, I certainly agree that legal systems can be dehumanising. This is something that the therapeutic jurisprudence movement (https://intltj.com/) seeks to address, and is one of the themes of the book The Responsive Judge (https://link.springer.com/book/10.1007/978-981-13-1023-2) which Tania Sourdin and I edited.

    ------------------------------
    Archie Zariski
    Professor, Legal Studies - Athabasca University Canada
    Athabasca University
    Edmonton AB
    15878794574
    ------------------------------



  • 6.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    Posted 23-05-2022 10:56 AM
    Despite having Mediation available for many years, it never ceases to amaze me how little understanding within the legal fraternity about what  Mediation is about and how it can be used. Practitioners who want to engage in 'mediation' to effectively horse trade on a singular issue (usually financial) do so to tick the box with the court to say they have attempted to mediate. Maybe you suggestion of complete separation would address this particular issue?

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    David Toll
    Director
    Professional Mediation Pty Ltd
    Bulli NSW
    411250120
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  • 7.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    I'mLinkedIn
    Posted 23-05-2022 11:35 AM

    Hi David

    I am not suggesting that the legal profession stop pursuing mediation as a legitimate part of legal practice.

    I would encourage the legal community to still persist with mediation. But I sense what is really happening is that the profession is trying to colonise it rather than embrace it.

    In other words it wants to mold it into an image of itself by continuing to persist with a dehumanised command and control approach. Keep the parties separate and remain that parental role of advice and decision maker. They find it hard to stop standing in the party shoes and handing those shoes back to the parties to put back on

    Good luck to them and best wishes for the future. It will take a couple of generations to let go of centuries of adversarial practice even though some lawyers can make the switch to a more humanistic approach.

    It is about looking at the evolution of mediation theory and practice mediation in its own right rather than being just alternative to the law. It's just holding back mediations development.

    By separating its theory and practice from the law it will encourage the legal profession to make the jump into a more humanistic approach to dispute resolution.

    It will take a couple of generations of lawyers to do this. But I sense the world is changing so fast that they will have to make the jump much quicker than they want to.



    ------------------------------
    Greg Rooney
    Mediator
    Mediator
    Bridgewater SA
    61405612789
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  • 8.  RE: Recreating Mediation Practice and Theory Afresh - Saying Goodbye to Roscoe Pound and the Legal Profession.

    Posted 20-05-2022 10:41 AM
    As a lawyer - a Judge in Family Law jurisdiction in Australia - and as a mediator and Family Dispute Resolution Practitioner for many years before my appointment, I have regarded Mediators as a separate profession for many years - including the necessity for acceptance and registration with a professional organisation and the need for professional indemnity insurance.

    As a Judge, I BEG the litigants to consider mediation, to make their own decisions about their children - I tell them that they have the 24 Volume encyclopaedia on their children in their heads, whilst I have information in a bubble (the admitted evidence); to make their own decisions about their property and financial settlements - even the statistics show a settlement is far easier to live with long term than a judge's determination.

    Long live the profession of mediation!! More of them, more of them…..!!

    Dillon Morley
    Judge

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    Dillon Morley
    Judge
    Judge Dillon Morley FCFC of Aust
    SYDNEY NSW
    497069061
    ------------------------------