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Review of The Practitioner’s Certificate in Mediation Course Handbook by David Spencer

The Practitioner’s Certificate in Mediation Course Handbook (IAMA)

Review: Australasian Dispute Resolution Journal (2006)

By David Spencer BA(Macq).,LLB(Syd).,GDLP(UTS).,LLM(UTS)
Senior Lecturer-in-Law, Division of Law, Macquarie University.

One of the nice things about working in an area of the law that is still developing at a fast pace is the chance to read books that make a real and valuable contribution to the area - Alysoun Boyle’s book “The Practitioners Certificate in Mediation Course Handbook” is such a book. The significant contribution that it makes is that it is a book that has its audience in mind. It is targeted to a specific group of people - although let me begin by contradicting myself. The target audience for this valuable text is novice mediators. However, in addition to this important target market, I see the book as being a good “reality check” for the more experienced mediator who may at times need to revisit the classical model of mediation in order to revive its philosophical tenets.

The book is the result of the author’s experience in teaching mediation for many years to a wide variety of professional groups but more specifically teaching The Practitioner’s Certificate in Mediation for the Institute of Arbitrators & Mediators Australia (IAMA). This course is taught to an eclectic group of professionals dominated by those in the building and construction industry, the legal profession and others in management and human resources. The first thing that the author correctly did when crafting the contents of this book was to understand her audience. The book is written in plain English with the occasional diagram to illustrate the various points about the form and substance of mediation. In short, this book is easy to understand and concise enough not to be a burden on the professional who is working full-time, managing a family life and learning the gentle art of mediation.

The introductory pages deal with course content issues and recount the philosophical approaches to dispute resolution in an “active versus passive” matrix that sets up the various processes with which to deal with disputation. There is a short section on selecting the type of process for any given dispute and a very valuable section on the three types of negotiation strategies that may be employed by people in dispute. This author would perhaps take issue with only listing three types – but that is an argument for another day! There is a brilliant concise description of the seven elements of principled negotiation that Fisher and Ury would be proud of, particularly given the lack of such a description in “Getting to Yes” that includes simple one sentence goals based on those elements. A vivid illustration of the principled negotiation model is the commentary on the difference between rights-based negotiation and interest-based (or principled) negotiation – good stuff for those seeking to get a handle on the difference between the two approaches!

The definitions of mediation are understandable for novices of the process and include arguments in favour of the use of mediation. In the name of balance, it may have been nice to identify some of the reasons why mediation should not be used (although this is addressed on page 33 of the book), but given the fact that the audience have signed up for a mediation course, perhaps the laissez-faire argument of the parties willingness to participate outweighs the need for any such contrary arguments.

The author makes it very clear (on page 20) that the IAMA model of mediation is a facilitative one which concentrates on a model “most effective for managing people and process [and leaves mediators] … less open to liability for their actions”. As the text suggests, facilitative mediation does place the mediator in a role that is less interventionist and directive but whether that leads to the conclusion that it is most effective for managing people and process and exposes mediators to less liability is an arguable proposition. Often parties, particularly in commercial disputes, desire a more interventionist or evaluative mediator because of the nature of the people and the problem – in such cases evaluative mediation could be argued to be a better hybrid of the classical mediation model as it better serves the desires of the parties - again, an interesting argument for another day. At least the author is “up-front” about the model being endorsed and taught by IAMA and the direction the book seeks to take.

Before addressing the steps in the model there is a very useful section on communication skills that not only novice mediators should read but all those involved in the business of communicating should read. The author’s background in linguistics comes to the fore in this part of the book and readers should take note of the sections on listening and ineffective listening which are common problems in the communication process when people are in dispute. This author would like to have seen a little more on different questioning techniques and where they are predominantly used in the various stages of mediation – but it is nice to leave some improvements on the table for the second and subsequent editions.

The section on influencing power is a teaser that could have been developed a little more. This author is conscious of publishing imperatives as to the number of pages in books, but the extremely useful checklist on page 28 suffered from a lack of examples. For example, point number 2 is managing the physical settings to influence power – but how? The novice mediator will need some help on this issue.

After having set up the important preliminary issues the author jumps into an easy to follow 10 step process of mediation that includes as its first and last steps, preparation and debriefing & finishing respectively. An inverted diamond has been chosen as the diagrammatic expression of the steps in the model which works quite nicely (this coming from a commentator that uses the egg shaped diagram!). The author subliminally suggests through the use of the inverted diamond that the most important part of the steps in mediation are the exploration of issues in joint session, the private meetings and the option generation sessions. This is an accurate representation of the importance of those steps in mediation - about two-thirds of the time spent in mediation should be spent in those phases.

Step 1 sets out, amongst other things, a preparation checklist that is split into three sections being: objectives; process; and key tools. This is a very handy checklist that can be used both as an intake procedure as well as in a preliminary conference. There are very good explanations for each of the steps in the preparation process that make the aims and objectives and their intent and execution quite clear. An important but often forgotten section in the intake/preparation stage is whether the mediator is suitable for the dispute and this book addresses that sticky issue quite elegantly by suggesting certain trigger mechanisms for the withdrawal of the mediator. Another important area addressed is the use of experts, documents and technical questions that could assist the mediation process (page 35). How to deal with those issues is sometimes quite difficult. However, the necessity to properly deal with them is important as they can shed important light on the issues and interests of parties to mediation. In the same vein is the issue of the use of and need for support personnel which can actually assist the process to move forward if that support person complements the stakeholder in such as a way as to assist them to articulate their interests.

Step 2 of the author’s model deals with the introductory phase/opening statement of mediation and discusses the usual array of issues such as the roles of the players and explaining confidentiality which is dealt with in the preparation phase and provides some guidance on the sorts of issues to be raised. There is a good section on the style of delivery of the mediator’s opening statement that will ensure parties have confidence in the mediator and the process.

Step 3 deals with statement taking and again a checklist style approach helps novice mediators to consider the objectives and implementation steps in this phase of mediation. This section discusses overcoming that awkward moment in mediation of determining who goes first in presenting their side of the dispute and how to deal with parties who use the tactic of interruption to exert power over the other person. It also provides a strategy for engaging with people who are reluctant to advocate their own cause – a tricky situation that attacks the effectiveness of mediation. The section on “reported speech” (page 46) is a good reminder of the mediator’s impartial role in the process and a must read section for mediators just before commencing mediation. The final part of step 3 prohibits mediators from accepting early offers. Such a prohibition is somewhat draconian in the scheme of things but as you read the book keep reminding yourself that this is a facilitative model!

Step 4 discusses listing the issues as topics for discussion and crafting an agenda. The author notes that should arguments ensue about an agenda item that the mediator should take on a more directive role by asserting that an issue for one party is an issue for all parties! Given the author’s experience it is a pity there is not more on the language of listing topics – but the central albeit brief message is “take the negative out of the language used”. This is an important skill and one that needs to be practised by novice mediators.

Step 5 is the exploration of issues and the book takes the reader through some basic methods of resolving who chooses the topics for discussion. This is followed by an elegant list of 13 tips on techniques for engaging the parties in discussion over the agenda topics. The main feature of this section in the book is the examples given of specific techniques to facilitate discussion. There are examples of the sorts of phrases that will help the mediator keep the discussion moving forward in a constructive and non-threatening fashion. Special mention must be made of the author’s establishment of “transitional phrases” that “fill the gap” in the discussions – a very useful technique. There are some useful tips on handling emotion that involve more than just handing the upset party a box of tissues! There is also a good discussion on “language cues” which reinforces the need for mediators to listen and be able to react to language signposts – this author would add the essential skill of language cues that disclose a concession to which mediators should act appropriately on. After a very useful table on confronting and non-confronting language there is a marvellous section on “the big picture –v- the minutiae” which sets up the idea of mediators sorting and helping the parties to understand the issues more fully by challenging generalisations and seeking relevant detail where appropriate. This step/chapter in the book is a very useful section that draws together the aims and objectives of mediation with the practical execution of it – that is, engage the parties in constructive conversation. Who knows, they may just resolve the dispute themselves - wouldn’t that make mediation a useful process!

Step 6 deals with the all important private meetings and firstly emphasises the need to carefully execute the transition into private meetings with the usual attention to issues like confidentiality and selection of who goes first. Again, the author’s expertise in language provides us with some useful phrases to get around the problem of overly directive language when seeking to discover BATNA’s and commencing the option generation phase.

Step 7 deals directly with option generation, selection and detail. There are two very useful lists of criteria for option generation (brainstorming) and selection of options for settlement There is a handy reality check list (page 73) that discusses the proposed settlement in the global sense a la’ “Do these options cover everything for you”. The section headed “reality checking” is a must read that addresses the important issue of the payment of money in terms of availability of funds and whether the money will actually solve the problem. Issues over quantum are notorious for the subsequent failure to implement a mediated settlement and must be addressed at this crucial stage of mediation. There is a section at the back of this part of the book that deals with external constituencies and perhaps the author missed the opportunity to link external objective criteria as a solid methodology for satisfying external constituencies (we wait with baited breath for the second edition!).

Step 8 deals with crafting the agreement and thereby addresses an always difficult phase of the process for novice mediators. The first sentence is somewhat contentious when it states, “Usually the agreed terms are not legally binding on the parties until a signed agreement is entered into at the end of the mediation session”. This ignores the principles set out in Masters v Cameron (1954) 91 CLR 353, however, perhaps any foray into common law precedent is inappropriate for novice mediators. Overall, this author felt a sense of frustration reading this short (but sweet) step in the process because I feel novice mediators need more guidance on writing up agreements – particularly with the number of mediated agreements coming before the courts where disgruntled parties are seeking to have them declared void for duress, unconscionability and other creative reasons. However, I am not in favour of templates that really provide little more than deed form for the drafting of these documents. Perhaps a worked example of a plain English heads of agreement is called for – there has to be an answer out there somewhere that does not subject novice mediators to an undergraduate course in contract law!

Step 9 is simply entitled “closure” and sounds more like an episode of Dr Phil than a discussion on the rituals of closing mediation. However, this part of mediation should not be ignored and there are some lovely moments in the book like, “Sometimes a hug, a lift home or attending a function, which one or both parties regard as important, is also necessary” (page 80). This step acts as a capstone to what has hopefully been a successful process for all involved. Thankfully, this section of the book does not assume that the parties always walk off hand-in-hand into the sunset (like a Dr Phil episode) and therefore, addresses what to do if no agreement has been reached.

Step 10 discusses implementing and debriefing mediation. I think this is the first book I have read that deals with the vital issue of implementing the settlement. I would like to have read more on this issue consistent with any litigation lawyer’s concerns that “getting the judgment is sometimes only half the battle” – fully implementing a settlement can be as challenging as getting the settlement. The idea of a review meeting is well grounded in keeping the lines of communication open until all matters have been finalised as between the parties. The debriefing session is important from the perspective of the mediator’s health. The author suggests a skilled person who has experience in both mediation and debriefing should be employed to conduct this important session. But where is the community of mediators that look after the welfare of “their own”. Which of the professional organisations are providing debriefing and counselling for mediators that address the welfare and continuing educational benefits that flow from expert debriefing? (sorry, I will get off my soapbox)

Alysoun Boyle’s book is an important addition to the body of literature on the practise of mediation. It is written for the novice mediator and does not assume knowledge in any profession that at times seems to preclude people from learning the skills of mediation. It not only takes the reader though the steps of mediation, but it tells the reader what to do at any given point in the process. The bonus in this book is the linguistic approaches to the implementation of the process that allow novice mediators to develop a repertoire of dialogue that benefits the process as well as the parties. The use of dot points, tables and checklists and the overall production values of the book make it extremely easy to read and understand (bravo Alysoun and IAMA!). As this author stated at the beginning of this review, this is a book not only for the novice but for those that need the occasional reality check of what the classical model of mediation has to offer parties in dispute. In this respect it is an essential addition to every mediator’s library.

David Spencer BA(Macq).,LLB(Syd).,GDLP(UTS).,LLM(UTS)
Senior Lecturer-in-Law, Division of Law, Macquarie University.