Editor's Note: In this article series, seven leading mediators and conflict resolution practitioners share their unique voices on three pressing issues: the impact of COVID-19 on their practices, workarounds being attempted, and their visions for the future in a post-COVID (or on-going COVID) world. These contributors are speaking for themselves with their own original thoughts. Their compelling words come from both their heads and their hearts. Each essay is unique, yet each essay also confirms universal experiences and travails. Oddly, collective challenges and painful experiences may stimulate progression within the conflict resolution community. They may also lead to mediators taking action to familiarize the general community with the benefits of mediation. Sharing personal experiences and truths, it is hoped, will inspire fellow practitioners to consider the new world and to re-invent their conflict resolution practices and services.
The COVID-19 pandemic has resulted in widespread court closures and limited operations, promoting ADR suddenly and squarely into the forefront as the primary method of conflict resolution. Perhaps the modern "conflict revolution,"[i] beginning in 1976 with community dispute resolution programs in the 1960's to address civil rights issues and continuing with the 1976 Pound Conference,[ii] is about to undergo another phase. If conflict resolution practitioners step up to the challenges, ADR may well come to the fore in the minds of the general public and not only with lawyers, insurance companies and commercial enterprises. This may require re-thinking of old paradigms and becoming unstuck from old notions. Mediators and conflict resolution professionals are being asked to adapt--and quickly--to the issues and circumstances of the day. The seven contributors bravely take a giant step forward by providing a chronicle of current conditions and by offering visions of the future.
~ Articles Assembled and Edited by Gregg Relyea
Three People Sitting Under a Tree to Resolve Their Differences
David Bogan -- Australia (and New Zealand)
I was mediating in Melbourne when the news of the severity of COVID-19 began to circulate on Australian news. Its potential to be seriously disruptive to my ongoing practice dawned on me. Shortly thereafter, both New Zealand and Australia restricted access across their borders to their own citizens, which required a two-week isolation period on each side of the Tasman Sea and, while I was contemplating the effects of that, both countries closed their borders! The sudden awareness of what was happening was stunning--I realized that, even though there still were requests for mediation coming in, my practice as I had known it for thirty years was at an end.
In the quiet space of the total lock-down that COVID-19 provided for us in New Zealand, I found myself going back to the basic principles of mediation that initially inspired me: connecting with parties and their interests, emotions, and individuality, enabling their voices to be heard directly and in their own words, respecting the parties' right to self-determination and honoring the informality of mediation that encourages creativity and individual, mutually beneficial solutions to issues that may otherwise have been narrowly framed only as legal issues.
After assessing the potential impact of COVID-19 on my professional practice, I was reminded of how mediation has grown and changed and of the basic premises that have never changed and will always be central to the mediation process.
What was needed, and immediately, was a way to continue in my work as a mediator that would survive fewer physical interactions and presence and more time spent either on the telephone or online. My first step in this new direction was to enroll in the mediate.com course entitled "Online Mediating--Mediation Express Training," which I recommend to my fellow mediators. (www.mediate.com/products/pg1357.cfm) Like any form of hope, this training course was like the sun coming out of the gloom, making the future look brighter.
After taking the online training offered by mediate.com, I realized that one fundamental practice change might involve mediating from a primary central location without needing to live my life in transit anymore. That single difference will have an enormous impact on my professional--and personal--life. Another principal challenge is going to be how to ‘be present’ with parties while ensuring both confidentiality and security in any remote process. The course taught that pre-mediation communications regarding the online process might have to be in writing and very specific to each case. "Ground rules," which never played a prominent role in commercial mediation, may have to be delivered in writing and with specificity to protect all participants. Still, questions abound: Will a central location detract from the connection with the parties and, if so, how and to what extent? Is it possible that mediating from a central location actually will free up time to productively review documents, analyze issues in a reflective way in an emotionally quiet environment and manage the business of mediation?
In the course of my reflections, I also thought of the many models of mediation and came back to the most memorable one for me, to which I have tried to remain faithful. In 1994, the Rt Hon. Richard S. Amery, Shadow Minister for Water Resources and Co-operative Societies,[i] reduced the mediation process to its essence:
Mediation is about three people,
Sitting under a tree to resolve their differences.
The Shadow Minister's prescient remarks reflect that, for years to come, in more remote communities of Australia it became common for Farm Debt mediations to take place outdoors and under a tree.
Over the years, I have continued to follow the development of mediation as it has moved from being a ‘hunter-gatherer’ process, i.e., individually crafted occupation, to a new form. Mediation has become more of a collective and highly regulated "farming process" with ‘gates’ and ‘fences’ that both limit and direct how mediators should be ‘qualified,’ ‘trained’ and, in some cases, ‘licensed’ in the ‘fields’ in which they work.
I much prefer the simple hunter-gatherer process, where the mediator is quintessentially the third person under the tree, listening to each person, acknowledging their positions, and then working together with both parties to promote ‘their’ way forward. Perhaps mediation will return, in some part, to these roots in a post-COVID world. Alternatively, mediation may take the shape of a process that is increasingly technology-based, with layers of physical distance separating parties. Regulation of mediation may increase. Online mediation might explode in popularity or, over time, it might experience limited usage as a secondary choice to face-to-face mediation, due to the two-dimensional screen-to-screen experience, with limited messaging from body language. The dynamic and energetic exchange of face-to-face interactions might be lost to a degree in the online mediation process.
DURING THE COVID-19 ERA AND BEYOND
Mediation offers numerous principles that can benefit the world. By continuing to practice them in our daily lives, we can add to that benefit. A few of these principles are well-summarized in the following quotes:
“There is no existence without co-existence and there is no co-existence without confrontation.” The late Professor Luis Diaz explains that conflict is a normal part of our existence, having our boundaries approached and breached. It is in how we manage those interactions for ourselves and others that makes the difference.
"People cannot ‘move’ until their positions are acknowledged, which doesn’t mean either approved or denied." This is my mediator's paraphrasing of the book “The Life-Giving Gift of Acknowledgment,” by Michael J. Hyde (Purdue University Press, 2005).
“The reason people fight is because they’re both right.” (Anonymous) It follows that if the parties are ‘both right’, then they each have the base needed to move forward. A lawyer friend of mine has taken issue with this and said it should be, “The reason people fight is because they’re both wrong and that’s why they need lawyers!"
“I would spend 55 minutes defining the problem and then the answer becomes self-evident.” (Albert Einstein) When asked what he would do if he were faced with the greatest problem in the world to solve and only one hour to do so, Professor Einstein is reported to have offered this seemingly simple, but genius approach. This easily understood concept is something I use daily, both personally and professionally. Data-based decision-making is valuable in general, in mediation, and in determining public health policies and practices, including those related to COVID-19.
I have mused in this quiet and reflective time about the past, present and future. Despite all the changes brought on by COVID-19, there seem to be enduring principles that promote some degree of continuity and context. People have to tell the unique stories that frame their lives. It has always been this way and it always will be. Our role as mediators will continue as the third person under the tree, in person or to the extent possible, on the phone or otherwise. We will listen attentively, without favor to one party or another. We will help them weave their individual stories into a single, successful, joint and ongoing narrative. One of the principal goals of a mediator, while listening attentively, is to inspire the parties to listen to each other. Mediators should remain curious and communicate by asking carefully sculpted questions.
In any age, with the inevitable crises of the day or in routine circumstances, mediators should refrain from judging the parties or people. Instead, they should encourage the careful examination of all the surrounding circumstances and context of a dispute. In The Biology of Belief (2005), Professor Bruce H. Lipton wrote, "If the cells you are studying are ailing, you look first to the cell's environment, not the cell itself, for the cause."[i]
To survive in a radically changing environment, whether due to COVID-19 or anything else, mediators (and others) must change in our actions and in ourselves.
[i]The Biology of Belief (Hay House, Revised Edition 2008) Chapter 2, "It's the Environment Stupid."
Gregg Relyea, Esq. is a full-time private mediator in San Diego, California. In addition to teaching mediation at the University of San Diego School of Law and the University of California, San Diego (UCSD), Mr. Relyea has written a comprehensive negotiation and mediation practice guide, Negotiation, Mediation, and Dispute Resolution--Core Skills and Practices" (Resolution Press, 2020). Also, he has co-authored with Joshua Weiss three children's illustrated storybooks that teach young children, ages 3 - 12-years-old, the basic skills of conflict resolution: Trouble at the Watering Hole (endorsed by His Holiness the Dalai Lama and William Ury, co-author of Getting to Yes," among others), Bullied No More!, and a book about social media conflict, "Phony Friends, Besties Again."
David Bogan is an international mediator who mediates in several countries and across several jurisdictions. He does public presentations, usually on Health, Banking, Risk & Complaint Management and recently took part in an international panel with mediation experts and Law Professors Eric Galton and Kim Kovach of the USA discussing mediating in the health sector and cross border disputes. He is a global citizen who enjoys the multi level challenges of mediation and has found that his practice is not constrained by either local or international boundaries. More details can be found on his website.
David has worked full time as a mediator for twenty years over a broad spectrum of issues including major civil fraud and civil murder claims, with an emphasis on health and financial matters. Have also written two books, co-author of “Avoid Retirement and Stay Alive” ( published by Harper Collins 2007 NZ and Aust, McGraw Hill for other English speaking countries and Nexus Press Limited in South Korea, and sole author of “What’s Keeping You Awake at Night?” Harper Collins 2010