I reviewed Tony Whatling’s first book – which provides a great introduction to mediation Mediation skills and strategies – A practical guide by Tony Whatling (kimtasso.com) in October 2020 – before I qualified as a mediator . This book seems to be aimed at more at experienced mediators who become aware of more complex issues in practice. So here is a book review: Mediation and dispute resolution – Contemporary issues and developments by Tony Whatling. As someone who is trained in mediation, coaching and counselling the book offers some interesting comparisons across those disciplines on common issues – especially ethics, supervision and diversity and culture.
The author of the foreword (Professor Michal J E Palmer, Emeritus Professor of Law, University of London) explains that the role of the mediator is to:
- Secure a mutually agreeable outcome
- Facilitate parties’ communications
- Handle negative emotions
- Distinguish between positions and interests
- Change the parties’ attention from the past to the future
- Bridge the differences between the parties
- Devise answers that address the parties’ key interests
Becoming a mediator
This chapter looks at some of the challenges faced by professionals from other areas – legal, social work, probation, law enforcement, therapy, counselling – as they transition to mediation. It provides some insights into the differences (e.g. being non-directive, client empowerment, non-advisory) between the role of the mediator compared to other professions involved in conflict and emotions. The use of different types of questions is explored.
As a counsellor, the following statement resonated: “Mediation is to a very large extent an ‘on your toes’ state of ‘not knowingness’”. As with counselling, mediators should avoid taking notes (in order to give clients their full attention) and the author explores the discomfort this generates. I liked his exploration of the origins of the word listen – from the Anglo-Saxon words meaning hearing and to wait in suspense.
The author talks here – and elsewhere in the book – about the use of reframing to see conflict as potentially positive and creative. He remarks that unresolved emotion frequently inhibits the mediation process and progress and observes that sometimes lawyers working in conflict resolution would use counselling to prepare clients to behave well in joint sessions.
He restates the transition debate into a theory of the learning stages (Noel Burch’s: unconscious incompetence, conscious incompetence, conscious competence and unconscious competence).
Supervising mediation practice
This chapter starts with a review of how professional codes of conduct on supervision have developed to cover three areas: accountability, development and support. And there is an exploration of the need for observed practice (helpful templates and checklists are included). The concept of the reflective practitioner is also explored.
Cultural awareness and multicultural practice
This section is one of the great strengths of the book. It starts with a wonderful definition of culture (by LeBaron and Pillay) which starts: “the shared, often unspoken, understandings in a group. It is the underground rivers of meaning-making, the places where we make choices about what matters and how, that connect us to others in the groupings to which we belong. It is a series of lenses that shape what we see and don’t see, how we perceive and interpret, and where we draw boundaries. Operating largely below the surface, cultures are a shifting, dynamic set of starting points that orient us in particular ways, pointing towards some things and away from others”.
Contemporary constructs on cultural intelligence, cultural competence and cultural fluency are explored with the advice that “mediators need to develop an ability to watch, listen and think outside of our own familiar cultural boxes and begin to challenge our cultural assumptions”.
The author focuses on the cultural differences of context and individualist vs collectivist. See How can I improve my cross cultural communication (kimtasso.com) for further information). And explores face, honour and shame issues and the implications for mediation practice, offering some useful questions for mediators to ask to develop their understanding.
He tackles this potentially controversial topic with aplomb (e.g observed communication differences from right brain “female” lateral and big picture thinking compared to left brain “male” logical and linear, one-issue-at-a-time thinking) and the differences between generalisations and stereotypes.
There’s a helpful case study considering a young Muslim woman and her line manager – and the involvement of her brother instead of shuttle mediation. The author explores theoretical examples and scientific evidence of gender differences including those from neuroscience before offering some practical guidance (e.g. treat every client as unique, be professionally curious, consider gender balance in mediation meetings, comment on what you observe).
Apology and reconciliation
The author remarks that traditional mediation models tend to move away from the past (and the need for apologies) to focus on the future. But another insightful case study demonstrates the power of “listening with understanding”, mutualising, reframing and apologising.
He explores codes of professional conduct (particularly the need for impartiality and neutrality) and the implications for “repair work” and “closure”. And he references the work of Naomi Eisenberger on social pain being experienced in the brain the same way as physical pain (see Leadership: Lessons from Star Trek and Neuroscience – Kim Tasso).
He provides guidance on how to watch for needs-indicators and facilitate constructive emotion, apology and reconciliation discussions (including amongst extended family members in separation and divorce – “the Greek chorus”).
There are further case studies exploring other cultures’ use of apology by proxy and hospital trusts’ complaints management processes (with an interesting statistic that 70% of complaints were due to doctor-patient communication such as rudeness or rushing as opposed to clinical treatment matters).
Mediation process options
This chapter considers processes including co-mediation (Thelma Fisher’s “substantive content manager” and “underlying process observer”), shuttle mediation (used by ACAS) – which is noted as less successful than joint sessions – and involving significant others in mediation.
Key process principles are listed (and exceptions with examples of very young single parents, new partners and grandparent being involved) and there’s a discussion of conjoint mediation and therapy (CoMet – an Australian development with co-worker mediators and therapists).
Emotion, high conflict and safe practice
There’s a return to some of the themes in the earlier chapters on cultural differences (with examples from the Chinese community). There’s a short section on human emotions – focusing on the fight or flight response – with five emotion-eliciting strategies to bring emotions to the surface. He reflects that those from a legal background are more likely to try to avoid or shut down emotions. The author considers emotions a source of “change energy”.
The concept of ”First, do no harm” is explored. And the author offers useful questions for screening and to ensure safe practice.
Mediating high conflict
There’s a mention of the impact of developments in social media and electronic communication (e.g. emails and texting) and the observation of many workplace conflicts are initiated or fuelled by these methods of interaction.
I liked the quote “Once one accepts that emotion is the foundation of all conflict, the issue of how emotion influences the management of conflict becomes central”.
The author suggests assessing the conflict styles of the parties – ideally before the mediation begins. There’s also an exploration of neurolinguistics and personal constructs (to understand how participants view the world). And the observation that “People with high-conflict personalities (HCP) tend to be preoccupied with the past” with techniques to shifting to future problem-solving.
Pre-mediation assessments and the use of Humanistic principles (empathy, universal positive regard and congruence) make an appearance. There are 15 helpful principles to make mediation a constructive process.
I was interested to see the advice for dealing with inflammatory electronic communications. He suggests you do not respond, but if you must to use the BIFF principles (Be Brief, Informative, Friendly and Firm). There’s discussion of mentoring and informed consent.
Practising what we preach
This section explores the extent to which mediators apply their professional craft to managing conflict in their daily lives with a reminder of PIN (Position, Interests and Needs),. There are helpful recommendations which include some negotiation tactics.
The Coronavirus pandemic and its potential effects on the behaviour of people in dispute
In this section the focus is on family mediation although the observations about online video sessions as opposed to face-to-face meetings will apply to all. There’s a timely exploration of issues caused by the Coronavirus “paradigm shift” – including increased domestic violence and arguments over lockdown custody.
The key issues are summarised:
- Best practice
- Reflective practice
- Professional self-doubt
- Professional curiosity
- Fundamental principles
- Acceptance and non-judgementality
- Client transitions
- Mentoring by informed consent
My conclusion is that this 228-page book is a long read but provides a helpful update for experienced mediators. Whilst the author (and many of the examples) is from a family mediation background the insights apply to other areas such as commercial and interpersonal mediation. The book describes how to navigate some common and new challenges which are not tackled in introductory mediation texts. It will also prove useful to qualified coaches, counsellors and psychotherapists who grapple with some of the same issues. It feels a little disjointed in parts, but that doesn’t distract from its overall value.
Table of contents
- Transitions: Becoming a mediator
- Supervising mediation practice
- Difference matters: Developing cultural awareness, sensitivity, fluency and competence in multi-cultural mediation practice
- Gender difference in thinking and communicating and implications for mediation practice: Mediating Mars and Venus
- Apology and reconciliation in mediation
- How mediators do what they do: Exploring a range of process options for practitioners in mediation practice
- The significance of emotion and high conflict in dispute resolution and the management of safe practice
- Mediating high conflict matters
- Practicing what we preach matters: To what extent do mediators apply the expertise of their professional craft in managing conflict in their daily lives
- The Coronavirus pandemic and its potential effects on the behaviour of people in dispute