Options
“Hmmm, maybe we could mediate?“
Mediation is not just for resolving disputes that have already happened, it is a process that can be used to negotiate in a unifying way; bringing all experts and authorities together democratically to create robust directions and working agreements. Use mediation for survey and consultation, brokerage, pitching, collaborative negotiation and for prevention of disputes. This is true for Business, Family, Community, Intercultural or Government environments.
Moreover, applied mediation philosophy and practices can be used to unite, and build self and community power and resilience for healing. See Process Advocacy, Conflict Coaching and Mediation Therapy below.
The mediation process is based on voluntary, confidential and good faith participation by all the parties and the mediator. The mediator acts as a facilitator and bi-partisan overseer of the process to enable parties to arrive at common ground and/or an agreement together. The parties use the process to talk and hear about issues or things they need to discuss, discover common interest and needs, negotiate terms (based on interests and needs) and ultimately make their own agreement. By the parties’ mutual agreement, parties might also have support people to help them through the process.
The mediator is always measuring factors like balance of power between parties to ensure everyone has a voice, parties’ authority to decide over the issues or things being discussed so that agreements are viable in action, if parties are reality testing options being considered so there is robust and solid agreements, safety of participants before during and after mediation, and generally keeping a mind to parties having an improved circumstance after mediation compared to before.
For me, the primary ethos that drives mediation is all party empowerment.
Keep in mind there are several forms of mediation. It is worth asking your mediator which model they will use. Typically mediation uses facilitative mediation, but there are several other types like narrative mediation, transformative mediation or evaluative mediation. My default mode is facilitative mediation.
“Hmmm, maybe we could conciliate?“
Conciliation and Restorative Conferencing is like mediation in many ways: democratic, focused on parties owning their decisions, favouring holistic peace-making. The major difference however, is that one or some in the conference circle have power to give advice. This might include the facilitator, but it might also include experts, lawyers, family or “clan” elders, church leaders, officials etc. In any case those able to advise are pre-identified in the design aspect of the conference. Having an advice function is useful for many reasons including; if deadlocks are foreseeable, decisions require an uncommon expertise, or if the cultural context is more amiable to this mode.
Like mediation, at the outset of conciliation all the parties are viewed as equal actors and subjects. Restorative Conferencing however requires one party to be pre-identified as a perpetrator / offender / actor and the other as a victim / survivor / subject etc. This identification might be achieved by the parties accepting a decision of a court, police, teacher, organisational leader, or community elders etc. It is by this means that restorative conferencing has an account of parties rights imbedded in the process, whereas mediation and conciliation tends to leave the protection of parties’ rights to the parties themselves.
It is up to the parties and the facilitator to determine which of these processes best suits their needs. Sometimes a blend any of mediation, conciliation and restorative conferencing can be useful too.
“Hmmm, maybe mediation would help things for the better?”
Family Mediation is mediation for family and intimate relationships. It is help when people need it most. The biggest difference to other mediation is that non-tangible / relational outcomes are higher considerations. If couples have kids, “child’s best interests” are prioritised by the mediator.
This mediation type normally follows the pattern of facilitative mediation; however aspects of narrative and transformative mediation might be used too. Parties can also choose to transition to a conciliation model of conference also.
Unlike government funded services, I can apply Family Mediation to help couples experiencing difficulties before they are separated (see also Mediation Therapy).
Couples often hold the capacity to respond to their own crisis but have not had the space or help to communicate freely. Sometimes partners find break-through by being empowered to talk through their issues and by having the experience of resolving disputes themselves. Just getting understanding can be healing too. With a good mediator, Family Mediation can help achieve these outcomes.
Family Mediation can also interface with the Family Law Act and the Family Court for matters relevant to care of children or for property settlement. I am Family Dispute Resolution Practitioner (FDRP) accredited which means all communication with me, or overseen by me, is inadmissible in Family Court (protecting your confidentiality). I can also supply 60i certificates (see Sect. 60i of Family Law Act (1975)).
Parenting Coordination is available to help smooth out the transition to parenting with a plan.
A Note on Confidentiality and Mandatory Reporting
Confidentiality alleviates the pressure of ‘testing’ that comes about in unprotected dispute or negotiation, or other forums like court and lawyer negotiations; – where the potential exists that the other party is taking things we have said to another person, authority or process to gain an advantage over us. Moreover, confidentiality is key to maintaining or redeveloping trust: preventing gossip which creates disputes or bigger disputes, helping parties participate freely – in transparency and good faith, limiting the threat of defamation in parties’ dispute, and generally helping parties feel in control and empowered.
For the above reasons and more, confidentiality is an important aspect of Family Mediation, and a priority for me. However, mediation is overall about arriving at a better circumstance so confidentiality will not protect coercion or violence. Confidentiality is not secrecy. In this context, parties must be made aware that there are various mandatory reporting laws in the Northern Territory to help prevent, protect and stop things like domestic violence, child harm, and criminal behaviour generally.
Unfortunately, a few in the mediation profession have taken a ‘save your own skin’ attitude to mandatory reporting. Those working this way (and sometimes organisationally trained in this manner) are often reporting suspicion and hear-say to authorities to cover the potential that they or their organisation are found to be at fault later for not reporting etc. Such a sarcastic approach breaks confidentiality without higher outcomes, creating distrust in the mediation process. Moreover, this behaviour also clogs up the system meant for help, preventing assessment and action on real cases of criminality or child neglect etc. Others are reporting using gender-bias and ethno-bias, adding experiences of structural violence to people’s lives.
In contrast, it is readily possible to balance the high need for confidentiality with the high need to protect peoples’ lives. This is possible by ensuring a report to authorities is justified upon reasonable grounds.
“Hmmm, maybe I need support?”
Process Advocacy is an option when power ratios between parties are strongly disproportionate or a party strongly lacks a voice, making regular mediation unfair or nonviable. The mediator, called a facilitator in this instance, can help the disadvantaged party participate in other institutional processes to address the issues they face.
Power imbalances can occur along regular grounds of structural disadvantage based in culture and/ or language, but also by discrimination, coercion by another party, or it can happen because of incompetence or corruption etc.
In Process Advocacy the mediator / facilitator uses their negotiation, conflict resolution, and procedural skills alongside a select party. I can also add strong assessment, governance and ethnographic skills to the equation. This has the effect of enabling the assisted party to get fairly ‘to the table’ and participate equally with those others around them.
The facilitator will also bring all their communication and conflict coaching skills to enable the client to navigate personal and structural barriers themselves. In the process the party will learn how to navigate the relevant structure and gain skills in negotiation and dispute resolution to use otherwise in the future.
Mediation confidentiality applies between the facilitator and the party they are working with.
Conflict and Soft Power coaching is an option when other parties will not participate in a process to resolve issues, dispute or conflict. Here the Mediator / facilitator will work with one party to help them to manage, constructively navigate dispute, and be appropriately assertive in conflict or a stressful situation themselves. Improved personal and community safety can also be an outcome.
Like mediation, the aim is to travel from past issues or experience to future constructive action. Replacing reaction with response. To achieve this, the facilitator will work confidentially and in a dialectical way with the party, contributing their expertise from applied mediation and alternatives to violence philosophy. Moreover, I can add the lessons of lived experience, living and working in highly contested, politicised and sometimes violent spaces.
Ongoing coaching will enable praxis testing to responses, improving outcomes.
“Maybe we need to heal together?”
Mediation Therapy combines the benefits of all mediation philosophy and models to enable parties, in their own power, to heal broken or breaking relationships; by releasing the issues, hearing perspectives and gaining understanding around those issues, and if required, deciding on truth and how it might be addressed collaboratively. In the meantime, the process is learning for parties to transition from positional and transactional bases of strife to relational resilience, by co-existing in process and coming to know how to harmonise together. This is especially relevant for families having difficulties, but could be applied to colleagues or friends too.
To take a Mawul Rom analogy, Mediation Therapy is like the process for healing a boil on your body. First one needs to squeeze that boil until all the puss is out and clear blood starts to flow, then if needed, medicine and bandaging can be applied to prevent an ongoing infection. The puss is the issues or things of conflict or distress, and the blood is understanding. The medicine is mutual recognition of common ground and truth, and if needed the means to collaborate in ways to address needs and desires found within the issues; and ultimately having the skill to live in process and harmonise future differences and even conflict together. In this way, future conflict can become an identifier of something relationally important – a red flag identifying a need to talk and resolve; not a resounding bell heralding fear and hopelessness.
The main practical difference, compared to regular mediation, is that Mediation Therapy will assign extra time in preparation- empowerment time. Here parties will spend more one on one time with the mediator, utilising conflict coaching, communication expertise, individual and social cultural insight, and making use of the parties strengths, to enable parties the opportunity to clearly identify the issues disrupting the relationship and the means to communicate those issues from their own perspective to the other party. More time is then spent in the “squeeze”, where parties methodically and dialectically break down the issues together, into mutual understanding and associated core needs and interests.
Another difference to regular mediation is that the mediator exerts greater protection over the process, applying some conciliatory advice from time to time and conflict and peace-making coaching through all stages.
Development of mutual empowerment, equality, forgiveness, tolerance and trust are all objectives sort.