“No area of understanding is more relevant and important to mediation competency than a basic understanding of how the human brain functions, perceives events, processes emotional notions, cognitive response and formulates decisions. The awareness of cognitive neuroscience and psychology are at the heart of our work in managing conflict and problem solving.”
Robert Benjamin, 2009
This session is fundamentally about helping mediators look at different approaches (grounded in neuroscience) to making progress in conflict-driven mediations.
The presenters note they average 7-8 mediation cases per week, each; so they’re up to 5,000 hours or more a year, spent in mediation sessions. They work with couples all the way through the separation and divorce process, as well as on court-referrals and education. In addition, they do conflict coaching.
“We live within the practice of working with people in conflict.”
The session begins with an overview of brain science and its impact on the mediation dynamic, and then looks at ways to enhance mediator training by considering the role of practice and “intent” on the evolution of competence.
The Quest for Answers
I see clients go into a trance-like dance of conflict. They would have tension with each other. It’s a drama—and I was the audience. And I’d think, I have all these questions I have to ask you. They would pay attention to me for a small amount of time. Then they’d go back to their dance.
So I’d ask every mediator I met, can you please help me understand this? What’s going on here?
I didn’t grasp fully the effect emotions have on people in conflict.
And I didn’t know how the brain worked and I didn’t realize that when the brain works and learns in a particular way through association and repetition. This creates a track of learning, which gets ‘bedded down’ over time.
So people come in with their stories intact, fully embedded.
Neuroscience as a Key to Understanding
Then I came to realize, I needed to look at the brain and how it deals with conflict. So I come at this as a practitioner, not a neuroscientist.
Neuroscience, the study of the nervous system, advances the understanding of human thought, emotion, and behavior.
All cognitive decisions are made in an emotional context, says Robert Benjamin. There is no separating the people from the problem.
‘There is no such thing as the cool-headed reasoner.’ (Neuroscientist Antonio Damaseo).
In mediation, we should get people to turn towards each other, rather than away from each other.
This is our framework—what we’re always trying to maximize as mediators.
The speaker makes the point that mediators tend to think the ‘neo-mamallian’ portion of the brain that governs planning and thought is at the heart of the mediation process—that drives mediation forward. Whereas in reality, it’s the more ancient brain stem which rules the most basic human drives (fight, flight, food, and fornication) that’s at the heart of mediation interactions.
It helps to understand that apart from our needs to ensure primary survival, we also experience other needs—social needs that can be defined by the acronym, SCARF:
Recognizing this dichotomy (between primal and social needs) can assist mediators in helping people to transition from “protect” mode (among the primary needs) to “connect” mode (among the social needs).
In chemical terms, it’s about moving from adrenalin (tied to fight/flight) to oxytocin production, which triggers a more relaxed, supported, state – a “humanized” state.
“It all boils down to this: Feelings are stronger than thoughts.
“As a mediator, I watch for the fear response, and for people’s ability to process information. When they’re looking scared or closed, I don’t ask them what they think about something—or what options they would come up with. Instead, I slow things down, create calmness and I listen for what is the key thing for the client.
“This is the bedrock on which everything else is built. If we don’t get past here, we don’t make progress.”
Put another way, if you “ask to the wrong bit of the brain,” you’re not heard as a mediator and you’re not connecting in the way you need to.
“This is why mediators need to be skilled empathic listeners.”
Returning to neuroscience, it’s the prefrontal cortex that grounds us in relationship with each other—from attuning to those around you, and experiencing empathy, through to creating a capacity for insight and moral thinking.
“This is what we do as mediators. We connect with. We synthesize it all, put our own positive spin on it, and then send it back. In other words, we shepherd our clients through the prefrontal cortex.”
Scientist Geoffrey Schwartz says:
“When a person changes their interpretation of the information or situation and changes the way they focus attention in adaptive ways, this will change their brain [sic].”
This is what the mediator seeks to accomplish with clients.
Think of it as brain plasticity—the ability of the brain to change through learning.
“I stopped giving myself hell when clients were saying the same thing for the 15 millionth time. They’ve been telling them this story for the last 5 years. Me asking one wonderful question isn’t going to change that.
“So I try to get inside that story, create a little crack, and give them time to reflect. Or help them check out the accuracy of their assumptions.
“Neurons that wire together, fire together. Repeating a behavior strengthens it.”
“As mediators, the instinctive brain also rules. We all know that should be peacemakers. That we should listen. But what happens is we have these moments where that goes out the window and anxiety (a primal state) takes over.
“We need to bring our training to a point where mediators have the capacity to come through that.
“Let’s look at it this way.
“We begin as novices, turn into apprentices, and then go from master to artist, or some combination. We go into a place where we have a ‘flow.’
“So when we create a training program, we bring people through these stages. If we see this from a performance perspective—that they’re doing mediation in critical stages, like a violinist on stage—it’s a helpful outlook on the training process.
“You can help somebody learn how to be nervous and still perform.
“There are people on my client list I struggle with as a mediator because I don’t get them. That’s a crisis of performance. So in training, we need to look at that perspective.
“An elite performer understands what they’re trying to move towards. So when we’re training mediators, what we’re seeing is people who may have good skills, like interviewing, but his or her intent isn’t on-task.
“It’s important to ask, what is it you want to understand about conflict as a mediator—why are you in the room? That’s critical to move from the apprentice stage to the master or artist stage.
“Skills are the ‘engine room’ of training. As golfer Arnold Palmer said, ‘The more I practice, the luckier I get.’
This is what we need to start thinking about, as we break down the training process.
The key is to break skills into components. Move away from the role play. Instead, help your mediators build a capacity to listen, to use language differently, and to reframe.
(Reframing is the process of taking statements, questions, etc., and using different language to reflect the core beliefs expressed in a new way, using new language – and in a way that strips away the conflict, negative, or “toxic” aspects of the original statement.)
You’re aiming, through skill-building, to get to unconscious competence.
What we’re really training people to do is to work in the room with their people as themselves, rather than holding onto their process at all costs.
And remember: Once is not enough. You need to repeat the exercises, like learning to reframe. That’s the road to developing competence and eventually, mastery.
When you’re looking at integrating intention into skills, we must attend to the hours of real practice.
The presenter for this session, a mediator and instructor from Ireland, provided a useful “topology” and review of the questions mediators use to suit various situations and clientele. She reminded us, at the outset, how far we’ve come from the mechanistic view of the world held by Descartes, where the mind and body were seen as entirely separate, to the contemporary “systems” view we all know today, predicated on a holistic, integrated, and relationship-based construct.
It’s this systemic outlook, of course, which gives rise to mediation as an interrogatory artform.
“In systemic mediation, the mediator’s expertise is a catalyst for change in the parties’ thinking and behavior. The mediator creates an atmosphere for changes through questioning.
“Questions are important only in light of the answers they evoke.
“When the mediator asks a question, the party is responsible for the answer. This keeps power with the party and prepares them for making decisions.”
As Albert Einstein once said, “The specific problems we face cannot be solved using the same patterns of thought that were used to create them.”
Here’s a quick run-down of the question types so useful in mediation:
- Triggers a cause-and-effect reply and is asked for clarification (who, what, when, where why, how). Straightforward about facts and causes.
- Be careful about not being judgmental when asking a lineal question.
- Approach with curiosity, rather than as a detective.
- Ex: “How long have you known each other?”
- The desired answer determines the form of question.
- Often implicitly proposes options for changing the situation.
- The answer may be obvious, but it needs to be said so people can grapple with it.
- Ex: “What will happen in the long run if you continue to spend at your current rate of spending?”
- Jolts clients into new ways of looking at their predicaments by examining them in an unexpected light.
- Allows alternative meanings that are healing or enhance self-understanding.
- Allows clients to mobilize their own knowledge.
- Forces client to ‘slow down’ and reflect on circumstances.
- Ex: “What was happening for you as you walked in the door that day?”
- Invites people to think about themselves not as mere passive objectives but as participants in a dynamic dance of human interactions.
- Concerns how people deal with the fact they’re not alone in the world; has them think about the wider sense and meaning of what they’re doing, and the people around them.
- Difference is the central tenant of circular questioning—questions, for instance, that mark differences over time.
- Can challenge assumptions that keep clients in the conflict-saturated story.
- Creates new thinking that gives a different perspective on the conflict by asking questions that focus on the purpose and consequences of staying in conflict.
- Takes into account a number of perspectives.
- Ex. “How did you feel about this yesterday? What about five years ago?” “What brings you here?” How are you feeling about yourself? About the others?”
As the presenter notes, “A powerful question challenges assumptions, stimulates reflective thinking; is thought-provoking; generates energy and a vector to explore; channels inquiry; promises insight; is broad and enduring; touches a deeper meaning; and evokes more questions.
Of course, this is easier said than done. Mediation settings are rife with conflict, with one or both parties often in a state of conflict—and therefore in fight-or-flight mode.
“The mediator changes the nature of the instinctive reaction to conflict through the use of questions that get them to engage in contact. This is done by softening and changing the escalation and hardening of conflict, and asking questions that connect people to others.
“For example, ‘Are you saying that you are extremely frustrated and hurt that no matter what you do or say Joe does not take on board your concerns?’”
“Language in general, and questions in particular, are central to a mediator’s ability to enable conflicts to become constructive and new possibilities to emerge.
“Challenging ourselves and finding new ways to ask questions is central to our work as mediators.”
An informal Q&A session for mediators interested in learning about Mediators Beyond Borders, facilitated by MBB board members.
For additional information, and to join, go to:
MBB invites all those involved in conflict resolution, not just officially designated “mediators,” to join.
MBB’s major purpose is capacity-building in troubled places with grassroots groups that want to build capacity for conflict resolution and peace-building. “We’re invited to go where there are no resources for mediators.”
There are now MBB projects in Israel, Colombia, Liberia, Sierra Leone, the Lower Ninth Ward of New Orleans, and many other areas.
MBB is not the “hero” parachuting in to be the big mediators. Instead, MBB does research on the culture, assembles a travel team with appropriate skills and comes into situations with humility, listening, trying to understand what’s going on – and determine if MBB is the right group to help.
MBB makes a 3- to 5-year commitment as volunteers to work collaboratively to help build appropriate conflict resolution capacity. MBB does not assume that western styles of mediation translate to other cultures.
“This is a very, very exciting opportunity to spread a culture of conflict resolution and peace-building around the world.”
MBB is neutral, in terms of position, but it does advocate for use of the mediation process. That’s the limit of advocacy; MBB advocates for including the mediation process, where it’s appropriate to do so.
With 300-plus members, it’s important to note that even those who cannot travel to regions where projects are under way, there is ample opportunity to contribute from home, providing background research, committee service, and other forms of assisstance. One project that’s benefiting from this kind of support is the United Nations Conference on Climate Change, where MBB volunteers have been engaged.
The purpose there is to get the use of mediation into the UN’s climate change protocol documents. (At no point would MBB engage in direct negotiation on climate change issues—despite the reality of real-time disputes in this area.)
As one board member noted, this is a great opportunity to collaborate with some of the finest mediators in the world, and meet new challenges.
MBB hopes to grow and in fact, the UK is launching a chapter drawing from England, Scotland, and Wales. They’re contemplating hosting an MBB conference in the UK and developing a local project as a starting point. “This is an exciting group and we’re looking to move ahead.”
Italy also has an MBB chapter, and Brazil is developing one as well.
So wherever you’re from—you can join an existing chapter, form one in your home country, and plug in at any level. Or simply become a member.
The goal is for MBB to become a truly representational international organization. And MBB hopes one day to have funds to sponsor the travel that enables mediators to engage directly in in-country projects.
A beautiful country of “meager financial wealth.” “So the challenge we’re meeting is producing quality ADR systems in the free market” (i.e., not subsidized by government). Disputes Resolution Services Ltd. (DRSL) is the ADR entity in the country, with 100 employees, 6 in-house mediators, and a separate board of directors. A separate institute monitors all the arbitrators and mediators in NZ, including those who work for DRSL.
NZ legislation requires many organizations to provide ADR systems for their customer disputes—no money, just a directive. So DRSL works collaboratively with organizations to develop different processes to fit various disputes—at no cost to end users (“customers don’t pay”).
Interestingly, the mediation process used in NZ is conducted entirely in joint session.
It’s also worth noting that in NZ, legal representation is a separate cost from mediated issues.
Finally, DRSL says the rights of parties to make informed choices is “paramount in the pursuit of justice.” And that the mediation process support this through exploration, extended joint sessions, and “productive handling of emotions.” DRSL believes this leads to better, and more just, outcomes.
Case Study: How Maryland Used a Large-Scale Collaborative Process to Come From Behind the 8-ball to Become One of the Leaders in the Use of Alternate Dispute Resolution
Note: Many readers of this blog may know of the USA moderator and presenter for this session, Rachel Wohl. She’s the Executive Director of Maryland’s Mediation and Conflict Resolution Office (MACRO), and a founding Board member of Mediators Beyond Borders (about which we blog separately).
For more information about MACRO and the work referred to here, please visit MACRO’s website, www.marylandmacro.org.
I’m a great believer in the power of collaboration. In Maryland, we were at the bottom of the heap among the states, in terms of little going on in conflict resolution and mediation about 12 years ago. We started a statewide collaborative process that has greatly advanced the use of ADR in Maryland in criminal and juvenile justice programs, schools, courts, government agencies, and neighborhoods.
Without the collaborative process, this wouldn’t have happened.
Collaboration is fun. It usually starts out that people are suspicious. But when people really get it—that they don’t have to agree on anything, but that it really is a search to figure out what can we agree to do that is actually doable, and feasible, and which will make a significant difference in moving things forward—that’s where we start.
When people really understand the lack of constraints, then they get inspired. They drop the suspicion and start looking at each other as people (and collaborators). The judge, the lawyer, the mediator—these labels fall away.
And importantly, we get better outcomes.
A caveat: Collaboration takes time and effort—so it’s not the process if you need quick results. But if there’s time for you to collaborate, you get a rich outcome because you obtain everybody’s perspective.
When you come up with solutions that meet the interests of the greatest number of people, you get very rich outcomes.
In time, when people work together collaboratively, it builds a huge base of support to see things become a reality; people own it.
Maryland’s ADR commission process took a year and a half and involved roughly 700 people. And by the end, there was tremendous support to see the action plan the commission developed become a reality. (You can find a map illustrating the collaborative process here.)
Our office of 9 gives out $2 million a year in ADR grants to support neighborhood, court, school, community, juvenile justice and other ADR programs.
As far as I know, there are no comparably funded ADR offices that deal with such a broad scope.
The reason we do, is due to the collaborative process.
I proposed to Maryland’s Chief Judge Robert M. Bell that we bring high-level people together to advance ADR across the state.
We put together a 40-member ADR committee (perhaps a better term is “Appropriate” Dispute Resolution), comprising state and local government and community leaders, lawyer-mediators, non-law mediators, business, state and local officials, and others.
The Commission’s first job: Fact-finding—at home and around the country.
We formed 6 committees, which in turn recruited their own people. We also put together a national advisory board of experts in the field, plus 4 regional advisory boards throughout Maryland.
The committees reported out to the Commission about what they found happening, locally and nationwide.
Then we moved into the collaborative consensus-building part of the process, beginning with brainstorming within each of the 6 committees. We prioritized the wish-list to ensure the proposals were based on broad general consensus; were feasible; and would make a significant difference.
Our resulting report, Join the Resolution, contained our action plan.
MACRO was created to implement this action plan. This office is in the Maryland judicial branch of government, and is supported by the judiciary (and funded through our state legislature), even though MACRO’s grants are made both within and outside the court system.
Having Chief Judge Bell as a champion was a critical component and key to making this a successful process.
Another factor is that Maryland’s court system was burdened with cases. The Chief Judge was persuaded that this approach would reduce that backlog. In time, he came to realize that ADR can prevent cases from reaching the courts, and that people can achieve better outcomes in some cases because they can make better decisions themselves, and obtain relief the courts cannot offer.
Mediation in Maryland generally is not required. The court may order you, but you can opt out. But once our judges started understanding that mediation was not ‘second-class justice,’ and did not diminish their role, then we started getting more cases referred to mediation.
MACRO has collaborated with the mediation community in Maryland to continue advancing the appropriate use of mediation, restorative justice processes, consensus-building, and other forms of conflict resolution.
A large-scale collaborative process that may be of interest is the Maryland Program for Mediator Excellence, a quality assistance program that now has over 800 members in Maryland.
A final note: Maryland has begun sharing its model and its experiences with other states and nations, including, for instance, Scotland.
As David Semple of Scotland’s Mediation Network reported at this session, “Our relationship with MACRO has fostered a collaboration culture. We set up the Scottish Mediation Network and created a Scottish Mediation Register. This is a self-regulating profile, where mediators post their own qualifications, training, and the types of mediation they do. This was truly a collaborative exercise that enabled us to achieve the achievable. It’s not a perfect accreditation system, but it’s a ‘cheap and cheerful way’ to encourage self-regulating.”
He noted that Scotland’s ongoing collaborative relationship with Maryland has been enriching to both parties.
This thoughtful panel-mediated discussion raised many questions (and perhaps a few answers) about the evolution of the profession and how to create, maintain, replicate, and publicize the kinds of quality assurance practices and standards that inspire confidence in mediation—and in turn, help these skills to be applied as widely as possible in any given country.
It was clear from this frank discussion that mediators around the world hold different views on the depth, breadth, and continuity that’s appropriate for men and women to become qualified mediators. And no wonder: Within each country, the laws promoting or requiring mediation in certain types of cases vary widely; and there are significant cultural, social, political, and economic considerations that drive and define the profession.
A big point of interest: One of the main presenters represents the International Mediation Institute (IMI), which offers an international certification program. As part of the program, IMI qualifies other countries’ or states’ assessment programs as qualified assessment programs (QAPs). If you meet those standards, the QAP can certify mediators and count as IMI mediator certification.
We need programs in the states to become QAPs—just as France has done.
Says the Director of IMI: “It’s just amazing how many people are passionate about mediation and want to be involved in bringing this to a state of excellence.
“Assessment is the key.
“So, qualify them by the assessment program to become IMI-certified. You need to see the person in action and give them feedback. That will protect the profession.”
The top-line issues that emerged from this session included:
- What does it mean to certify mediators—and is certification even necessary?
- Are there recognizable common standards that give the profession a clear and trustworthy profile to potential clients and others who might refer business to mediators?
- How do you balance the need to structure mediation as a recognizable and accepted profession without alienating mediators who fear the flexibility they prize may be sacrificed to rigid regulations or training requirements?
- How should mediators be assessed? And what about the assessors themselves?
- And do we risk setting the bar so high for mediators to qualify as mediators, that mediation-type skills aren’t spread or used as widely as they might be in many different situations?
The following summary—reflecting individual contributors from different countries—captures some of the flavor of the discussion. Note that while many important and valid issues were raised, this session was not intended to provide hard-and-fast answers to every question raised.
The Romanian government has embraced mediation, codified in law, as a viable tool for the courts, domestic violence cases, business disputes, and in other spheres. At least 80 hours of training are required to certify as a mediator.
This 80-hour certification is the first step in a long-term commitment. “There’s resistance from other professions, like lawyers and psychologists. Not to mention public officials perceiving themselves as mediators in certain situations. We also impose at least 40 hours for year in additional training. This is how we pursue the quality of mediation in our system. Even so, there is strong professional resistance from other professions.”
“What comes after certification? What’s the ongoing requirement? What is it and what should it be?
“We require mediators to go through annual program to maintain certification. It’s for everyone’s benefit, because it gives them recognition that within the last year they have been qualified or requalified. But there’s no way we could afford to put many people through a rigorous mediation certification program because we don’t have the resources.”
“What’s the role of those who refer mediators as providers?
“In the Netherlands, there’s a nice certification scheme. On the other hand, to get there, it’s made mediation less flexible—there’s less access to mediation. There is tension between making mediation certification too rigid, too regulated. That’s contradictory to what mediators do, which is to be flexible. So what I’ve seen is, mediators saying, I have to do too much paperwork for too little in return.”
“We are conflict resolvers. That’s what we’re here for. There must be many levels of conflict resolution that don’t require a high powered qualified mediator. They require mediation skills and techniques, and the spreading of them. My concern is, to have a mediation profession, others say they’re not qualified to do this. It’s not always necessary to have members of the mediation profession. By spreading basic mediation skills, we spread the use of mediation in more situations.”
Representatives from TURKEY and POLAND also noted that their mediation efforts are not as far along as many of the other nations present. For instance, in Turkey, “mediation is not yet a profession. But the government is working on this. Now it’s under discussion as to who will do this job. Some say it will be lawyers only. Others say others can do it.”
In Poland, the federation of NGOs is in the process of creating a mediation academy.
At the third annual European Mediation Conference in Paris, more than 400 professional mediators from roughly 29 countries gathered to take stock of the profession, compare practices, and address the cross-cutting challenges that all nations share in the quest to mitigate conflicts and resolve disputes peacefully and productively.
Our local French hosts set the tone by showing great appreciation for the value of mediation in France and around the world. It is, one speaker noted, “a way of fostering access to justice, law, and a very efficient and quick way for resolving disputes between citizens.” Others talked about the importance of mediation coming from the “heart.”
Indeed, on the first day of this conference, a transport workers’ strike illustrates the overwhelming need for mediation. As one French director of a research and mediation education center noted, in France, “We love disruptions. We love conflict. And faced with conflict, we have the support of a strong tradition in dispute resolution.”
To drive home the point, this speaker shows us a photograph of a seated protester, his back to us, with a sign that says “negotiation kills.” Clearly, while France has recently embraced mediation (as the enthusiastic local attendance at this conference shows), much of the conflict and dispute resolution work done here is still highly adversarial.
Next, the president of the European Mediation Network Initiative (who hails from the Netherlands) noted that in that country, both the Ministry of Justice and the Ministry of Internal Affairs are actively using mediation processes. Approximately 40,000 cases involving mediation are undertaken there each year, including 10,000 cases referred by the courts. These primarily involve family law and workplace mediation.
This speaker noted that over the next 2 years, the focus for the European mediation community should be on (1) developing the profession and supporting its diversity; (2) ensuring quality assurance (e.g., distinguish a qualified mediator from someone with little training); (3) implementing Europe’s new mediation directive; and (4) encouraging research and information exchange.
All this set the stage for the most striking points of all, provided by the keynote speaker, Diana Wallis, Vice President of the European Parliament (from the UK) and an experienced litigator.
Her message, in a nutshell: “I truly believe that we do stand at a crossroads, at a threshold. We need new tools, new approaches, mediation should and could have a huge role to play.”
She cites, for example, the devastation suffered by Iceland resulting from the complete collapse of its banking system. This enormous failure opens the door to opportunity—allowing this nation (and perhaps others) to reflect on new ways to better organize society in the future. And there is ample room for mediation to play an important role.
Her comments certainly resonate with our state of affairs in the U.S.:
“The Iceland Prime Minister said, the banks failed us, the regulators failed us, politics failed us, the media failed us, and the free market failed us.
“All those failures. What do you do? Engage in a legal process to find the perpetrators and punish them? It won’t do much good. The money’s gone. So what do you do?
“Search for the reason why things happen, so they don’t happen again—but then learn to work together to move forward.”
At this moment in history, she notes, “Europe and mediation go hand in hand in the sense that Europe is this bundle of people, cultures, diversity, somehow we try to bring this together. Therefore, there should be synergy between Europe and mediation.
“We know that just using black letter law and black letter rules is perhaps a very blunt set of instruments to deal with the problems we face today.”
And she adds that the drive to “harmonize” differences within and between cultures and countries is not always the best way forward, as it tends to paper over important differences and diversity itself. Therefore, she notes, mediation is essential for helping “to admit difference and try to provide answers to difficult questions that individual citizens face in a different way.”
Mediation offers a framework to move nations forward, Wallis says. And she points to a ray of hope—the new coalition government in Great Britain, bringing liberal and conservative forces together for the first time in generations.
Suddenly, Britain has a new 5-year plan, a way of “working together in a consensual way that nobody could ever have believed.
“That’s an incredible change of mindset in my country,” Wallis says.
And she hopes (as do many of us) that it’s something that can be spread elsewhere.
Coming Up Next:
“Mediation as a Profession.”
The theme of this year’s conference is timely indeed: “Mediation and Civil Society in Europe, Toward a New Mindset.” Sessions cover a wide range of topics where mediation is making a critical difference–from environmental issues to health care. We’ll share highlights from some of the most interesting sessions. Check back on May 27th and May 28th.