Professionals Who Mediate – Part 4

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A Different Development Model for Professionals Who Mediate

Link to Part 1 , Part 2 , Part 3

In a series of three previous articles, I have drawn contrasts in the needs, goals, and development approaches between “professional mediators” and “professionals who mediate.” I have contributed to developing and facilitating mediation skills training for both. The former group includes lawyers and law students seeking to serve as mediators in the legal system. It also includes graduate and undergraduate students in a public affairs program who may formally mediate disputes in the public arena. The latter group includes HR, institutional equity, management, and other professionals who seek to address everyday workplace and interpersonal conflicts in their work, personal and professional lives. With feet in both worlds, I have a unique perspective on the similarities and differences and how one group receives attention, and the other doesn’t. 

The efforts of the latter group are no less valuable simply because the settings in which they serve do not receive the same level of attention, resources, and support as mediators in more traditional settings. Their passion and commitment to learning and mediating are every bit as earnest. In my training, I honor this passion and commitment and seek to support their efforts based on their frame of reference rather than frames more suited for “professional mediators.” I share these considerations in this article.

The Context and Environment for Professionals Who Mediate

The process for developing “professionals who mediate” should be fundamentally different than and not simply a recast of traditional mediation education. While the model and tools I present in my training are common and transferable, the context, environment, and circumstances in which they work makes all the difference in arguing for a different development path. 

Professional mediator development is often premised on the expectation that the mediator will function in a context of formality, regulation, and structure where adjudication is imminent, whether in a legal framework where parties must settle or go to court, or in regulatory and government schemes to avoid the next steps of arbitration, administrative hearings, or labor and employee grievance panels. “Professionals who mediate” seek to help parties increase their understanding of the other, acknowledge and address barriers to communication, and identify a workable and, if possible, healing path forward. A rigid rights-based approach to their development fosters an exaggerated sense that they must push to settlement when they are more often called to address murky unresolved conflicts where parties must continue to navigate their awkward relationship on their own if matters don’t resolve through mediation. They require skill development for mediating “in the moment,” informal processes that meets them where they will most likely use the skills learned – in everyday settings where they live, work, and serve. 

Accordingly, mediators in the two groups will experience their role and functions differently. Both require grounding in neutrality and impartiality, and how they are honored in the mediator role. A “pure” form of neutrality where the mediator is unquestionably independent, distant and removed from the parties or knowledge of the issues in dispute, and absent internal filters that prejudice the mediator one way or the other, is difficult to achieve by any measure. Professional mediators are guided by the Model Standards of Conduct for Mediators, or its variants based on the jurisdiction or specific specialty in which they practice, that help them efficiently address ethics concerns. “Professionals who mediate” should understand these standards, but the context by which the standards are managed is quite different. As they often serve in an internal organizational context, they are not as independent, distant, or removed from the parties or in their knowledge of the issues, or free from the potential for bias as their professional counterparts. They are often not “above” but very much “in the fray” and experience the same organizational muck, dysfunction, and chaos as the parties. This distinction requires a different calculus for maintaining neutrality and impartiality that is suitable to the context in which they function. 

These distinctions lead to considerations about how “distant from” or “present with” the mediator is to the parties. The mediator’s commitment to neutrality is commonly expressed through introductory statements like, “I don’t take sides.” Mediators worry that engaging in deep empathic practices with one party compromises neutrality, leaving the impression that the mediator is, indeed, “taking sides.” We can flip this frame to an affirmative statement that the mediator is capable of “taking both sides” without compromising neutrality. The mediator then facilitates practices by which parties fully hear one another and feel fully supported and heard. Such practices are accessible to mediators in any context, but the question is whether professional mediators feel comfortable being “present” and connected this way rather than compelled to maintain distance through more common understandings of neutrality. Being present, empathetic, authentic, and genuine are hallmarks of effectiveness in supporting parties in the organizational settings of which professionals who mediate are also members. 

The Workplace Mediation Process

While the work of “professionals who mediate” may encompass many contexts, the most common context and the one in which I train most is the workplace. From the path described above unfolds a practical set of skills, strategies, and tools for facilitating mediation in this context. 

Pre-mediation Activities. Before a conflict or communication challenge finds its way to mediation, there must be awareness of it’s need and availability. Would-be mediators must be cognizant of opportunities around them that are ripe for mediation or a facilitated conversation in some form. They must embrace the role and develop an expansive view of what they can accomplish in helping parties and the organization achieve success. Unlike traditional mediation settings, opportunities to mediate won’t always simply “arrive,” such as through referral. Rather, they are cultivated, implicitly or explicitly, as conflicts and tensions naturally evolve within the organization. Through the “eyes and ears” of its mediators and other organizational members, the organization then identifies these conflicts as candidates for mediation. Even then, mediation doesn’t simply “happen.” The mediator must engage in practices such as shuttling between parties to encourage mediation, negotiating the process by which parties will “come to the table,” and conducting preliminary meetings to gain initial perspectives regarding the parties’ concerns. 

The Mediation. Like mediation in other contexts, professionals who mediate workplace conflicts will engage in a series of standard actions to guide parties through the process. In training, I break these down into five general processes: (1) getting started; (2) uncovering stories and interests; (3) framing issues for deliberation and problem-solving; (4) exploring options and alternatives for resolution; and (5) reaching agreement (or moving forward without one). These processes aren’t necessarily unique compared to training for “professional mediators.” What often differs is “how” these professionals work with parties through these processes. As noted, the unique circumstances and environments in which they serve and characteristics and behaviors they exhibit to be “present with” the parties often contrast with how professional mediators manage the process. Like any mediator, they must develop behaviors, skills, and practices for responding when unforeseen issues arise, such as anger and high emotion, shutting down, refusal to negotiate further, manipulative behaviors, microaggressions, and so forth. Yet, in contrast to some models, they must manage the process while staying together in the room for the most part (compared to caucusing) and talking face-to-face (compared to assistance from attorneys and other agents speaking for them).

Post-mediation Activities. Professionals who mediate have obligations for ensuring follow-through on agreements and arranging “check in” meetings to assist in renegotiation if initial implementation didn’t go as planned. Professional mediators are also active post-mediation, but there is a more direct, hands-on feel and approach for professionals who mediate in an organizational context. It involves a partnership between mediator and parties. The mediator ensures the parties make and follow through on agreements reached and asks the parties what commitments he or she must make to help with implementation. Does the mediator have authority to “check in” individually to see how each party is progressing? To what extent can the mediator communicate on the parties’ behalf with involved third parties outside the room such as their supervisor? What consent is given to communicate in this fashion? Conversely, if an agreement is not reached, or not reached in full, how, or will, the mediator be called to assist in the future, and when and in what fashion? 

Using Mediation Skills in Other Contexts 

The mediation session is typically presented as a formal, carefully planned process occurring within the four walls of a room. This is so for many workplace and organizational disputes, but not all. There are other contexts in which professionals who mediate can and often must use their skills. For example, professionals who mediate will not always have the luxury of pre-planning, organizing, and creating environments for structured mediation. Some conflicts require more immediacy to have parties sit down amidst a quickly evolving conflict to address their concerns without benefit of pre-meetings and other planning associated with formal mediation. Further, some processes may involve shuttling between parties over the course of days or weeks to address concerns before being able to sit down. 

In my training, I also reinforce the adaptability and transferability of mediation skills to other situations that professionals may encounter. For example, mediating as a leader or supervisor for employees they manage presents special considerations regarding neutrality, impartiality, self-determination, and confidentiality. In addition, individuals who are not in roles or who do not hold titles under which duties of organizational mediator fall will nonetheless want to use mediation skills. Call them what you will – team leaders, colleagues, co-workers, peers, suite mates, or simply friends – I believe they should be encouraged to develop and utilize mediation skills, and I facilitate training to tap into these interests. I further expand training to help individuals apply mediation skills and use a “mediative perspective” in addressing their own interpersonal conflicts, as though a neutral were in the room. 

Lastly, in the process of helping others and assessing possibilities for mediation, professionals who mediate may determine that mediation isn’t appropriate now. However, the need for support remains. In my training, I also address circumstances by which training participants can support others through coaching processes to walk them through and role-play conflict scenarios, help them assess their conflict capability and confidence in address their conflicts, and provide basic coaching and one-on-one training on conflict resolution skills.  

Organizational Context for Professionals Who Mediate

Professional mediators receive training on standards and guidelines for functioning within the rules and parameters of the court jurisdiction, professional practice, or mediation specialty for which they seek certification. “Professionals who mediate” are not subject to standards in a similar fashion, which does not mean there aren’t expectations for their conduct. Professionals in HR, institutional equity, managerial and administrative roles, among other professionals, must understand the full range of conflicts they may and may not mediate and with whom and what organizational offices they should coordinate to facilitate mediation processes without implicating organizational policy concerns. For example, they typically should not mediate sexual misconduct issues or clear ethical violations that overlap responsibilities of legal counsel, compliance, risk management or similar offices. These professionals do not mediate “willy-nilly” in a vacuum and have standards guiding their actions, even if this understanding is expressed differently from how professional mediators understand their obligations. 

Professional mediators also have professional associations to support them and with whom they can receive additional training and form relationships to receive ongoing coaching and mentoring. There are no defined associations per se for “professionals who mediate” as I’ve defined them. When I can in my training and consultation, I provide guidance and ideas for continuing the journey. For example, I’ve trained groups of employees within a few large organizations. This naturally lends itself to forming cohorts of in-house mediators who can continue to support one another and build community. I seek to advise leaders as they incorporate mediation training, peer development, and community building within their organization. I also advise individuals to advocate for such approaches when their organizations aren’t yet so inclined. 

Mediation is not esoteric. It is not rocket science, brain surgery, hacking computer code or any other metaphor typically used to describe a sophisticated process thought to be untouchable by all but a few. It’s time to talk about mediation in common, practical terms and to practice it as a process that is accessible for individuals in all walks of work, life, and service. People from an endless variety of backgrounds and experiences can tap into their innate skills, hone them through guided, practical instruction, and apply them to help others in the world around them work through their differences. As professional mediators, we can play a role in revisioning what mediation can be and guiding dedicated “professionals who mediate” to mediate in their unique work, interpersonal, and organizational contexts.

References

Andersson, Lynne M., and Christine M. Pearson. “Tit for Tat? The Spiraling Effect of Incivility in the Workplace.” The Academy of Management Review 24, no. 3 (1999): 452–71. https://doi.org/10.2307/259136.

“Arbitrators, Mediators, and Conciliators : Occupational Outlook Handbook.” U.S. Bureau of Labor Statistics. U.S. Bureau of Labor Statistics, September 8, 2022. https://www.bls.gov/ooh/legal/arbitrators-mediators-and-conciliators.htm#tab-6. 

Beer, Jennifer E., and Caroline C. Packard. The Mediator’s Handbook (4^th ed.). Canada: New Society Publishers, 2012.

Bingham, Lisa B. “Transformative Mediation at the United States Postal Service.” Negotiation and Conflict Management Research 5, no. 4 (2012): 354–66. https://doi.org/10.1111/(issn)1750-4716. 

Cheng, Fung Kei. “Mediation skills for conflict resolution in nursing education.” Nurse Education in Practice 15 (2015): 310-313. https://doi.org/10.1016/j.nepr.2015.02.005.

Cloke, Kenneth. “What Are the Personal Qualities of the Mediator?“ In D. Bowling and D.A. Hoffman (eds.), Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution.  San Francisco: Jossey-Bass, 2003.

Cochran, Nan., Paul Charlton, Virginia Reed, Peter Thurber, and Elliott Fisher. “Beyond fight or flight: The need for conflict management training in medical education.” Conflict Resolution Quarterly 35, no. 1 (2018): 393-402. http://dx.doi.org/10.1002/crq.21218

Cortina, Lilia. M., et. al. “Selective Incivility as Modern Discrimination in Organizations: Evidence and Impact.” Journal of Management 39, no. 6 (2013): 1579–1605. https://doi.org/10.1177/0149206311418835

“Court-Certified Mediator Requirements by State [Updated 2021].” Online Master of Legal Studies, June 2, 2021. https://onlinemasteroflegalstudies.com/career-guides/become-a-mediator/court-certified-mediation-requirements-by-state/. 

Covey, Stephen R. The 3^rd Alternative: Solving Life’s Most Difficult Problems. New York: Free Press, 2011.

Dana, Danial. Conflict Resolution: Mediation Tools for Everyday Worklife. New York: McGraw-Hill, 2001.

Devinatz, Victor G. “What Makes a Good Mediator? Insights from a Mediation Training Program Participant.” Employee Responsibilities and Rights Journal 30 (2018): 181–201. https://doi.org/10.1007/s10672-018-9315-y

Ford, John. “The New SHRM Competency Guidelines.” Mediate.com, June 23, 2017. https://www.mediate.com/the-new-shrm-competency-guidelines/. 

Gadlin, Howard. “Addressing the Thornier Complexities of Racial Discrimination Complaints in the Workplace.” Dispute Resolution Magazine 15, no. 3 (Spring 2009): 25-29.

Gerardi, Debra. “Using Mediation Techniques to Manage Conflict and Create Healthy Work Environments.” AACN Clinical Issues 15, no. 2 (2004): 182-95. doi:10.1097/00044067-200404000-00003

Gerzon, Mark. Leading Through Change: How Successful Leaders Transform Differences into Opportunities. Boston: Harvard Business School Press, 2006.

Guttman, Howard M. “Conflict Management as a Core Competency for HR Professionals.” People & Strategy, vol. 32, no. 1, Mar. 2009, pp. 32-39. Gale Academic OneFile, link.gale.com/apps/doc/A200784475/AONE?u=googlescholar&sid=bookmark-AONE&xid=87c7a1fd. Accessed 3 Oct. 2022.

Hammonds, Dominique. S., Nickolas A. Jordan, and Jessica L. Block, J. L. “Clinical Mediation: Advocating for a New Role.” The Journal of Counselor Preparation and Supervision, 12(2) (2019). Retrieved from https://repository.wcsu.edu/jcps/vol12/iss2/7

International Ombuds Association. “Frequently Asked Questions about Ombuds.” International Ombuds Association. Accessed October 3, 2022. https://www.ombudsassociation.org/ombuds-faq. 

Jordaan, Barney, and Deborah Masucci. “Teach mediation as a core subject aligned to real world needs.” In Mediate.com (ed.), Seven Keys to Unlock Mediation’s Golden Age: A Work By 40 Authors from Around the World. (e-book) (July 2020). https://toolkitcompany.com/resource-center/page/82/7-keys-to-unlock-mediations-golden-age. (28 Sep. 2022)   

Kiorpes Parker, Laurel. “What is the Best Model for Campus Mediation?” Dispute Resolution Journal 68, no. 3 (July 2013): 81-87. 

Klingel, Sally, and Michael Maffie. “Conflict Management Systems in Higher Education: A Look at Mediation in Public Universities.” Dispute Resolution Journal 66, no. 3 (2011): 12-17.

Le Goff, Pierrick. “Act to ensure mediation is respected as a true professional practice.” In Mediate.com (ed.), Seven Keys to Unlock Mediation’s Golden Age: A Work By 40 Authors from Around the World. (e-book) (July 2020). https://toolkitcompany.com/resource-center/page/82/7-keys-to-unlock-mediations-golden-age. (28 Sep. 2022)   

Liddle, David. Managing Conflict: A Practical Guide to Resolution in the Workplace. London: Kogan Page, 2017.

Liddle, David. “Don’t Just Quash Conflict — Resolve It.” SHRM, November 1, 2017. https://www.shrm.org/hr-today/news/hr-magazine/1117/pages/dont-just-quash-conflict-resolve-it.aspx.

Lloyd, Viola. “Racial Discrimination and Mediation.” theHRDIRECTOR, June 8, 2015. https://www.thehrdirector.com/features/diversity-and-equality/racial-discrimination-and-mediation/. 

Matthews, Kayla. “7 Benefits of Mediation Programs in Higher Education Institutions.” Mediate.com, October 10, 2019. https://www.mediate.com/7-benefits-of-mediation-programs-in-higher-education-institutions/. 

McDermott, E. Patrick., et. al. “After 20 Years, Mediation is Mainstream at the EEOC.” Dispute Resolution Magazine (Summer 2018): 6-11. 

“Model Standards – Association for Conflict Resolution.” Accessed October 10, 2022. https://acrnet.org/page/ModelS. 

Moore, Christopher W. The Mediation Process (4^th ed.). San Francisco: Jossey-Bass, 2014.

Morreim, Haavi. “Conflict Resolution in the Clinical Setting: A Story Beyond Bioethics Mediation.” Journal of Law, Medicine & Ethics 43, no. 4 (2015) :843-856. http://dx.doi.org/10.1111/jlme.12324.

Poitras, Jean, Kevin, Hill, Virginian Hamel, and Francis-Benoît Pelletier. “Managerial Mediation Competency: A Mixed-Method Study.” Negotiation Journal 31 (2015): 105-129. https://doi.org/10.1111/nejo.12085

Reed, Sandra M. A Guide to the Human Resource Body of Knowledge (HRBoK). Hoboken, NJ: John Wiley & Sons, Inc., 2017.

Rhudy, Robert J. “Engaging Conflict for Fun and Profit: Current and Emerging Career Trends in Conflict Resolution.” Mediate.com, April 23, 2014. https://www.mediate.com/engaging-conflict-for-fun-and-profit-current-and-emerging-career-trends-in-conflict-resolution/. (29 Sep. 2022)

Samuels, Christina A. “Mediator in Chief: Solving Parent-Teacher Conflict.” Education Week 39, no. 9 (October 16, 2019): 18-20.

Saulo, Mileva and Robert J. Wagener, “Mediation Training Enhances Conflict Management by Healthcare Personnel.” American Journal of Managed Care 6, no. 4 (2000): 473-483. 

Shields, Anna. “3 Mediation Skills to Help Navigate Conflict in Times of Uncertainty.” Forbes Magazine, October 15, 2020. https://www.forbes.com/sites/annashields/2020/10/15/3-mediation-skills-to-help-navigate-conflict-in-times-of-uncertainty/?sh=c6de5ecf18ea. 

Schlairet, Maura C. “Bioethics Mediation: The Role and Importance of Nursing Advocacy.” Nursing Outlook 57, no. 4 (2009): 185-93. doi:10.1016/j.outlook.2008.10.006

Society of Human Resource Management (SHRM). “SHRM Body of Applied Skills and Knowledge: Your Comprehensive Roadmap for a Career in HR.” Accessed September 30, 2022. https://shrm.org/certification/about/body-of-applied-skills-and-knowledge/pages/default.aspx.

Smith, Dimples and Daniel Griffith. “Neutral Conflict Resolution: One university’s approach to helping employees address and resolve interpersonal conflict at the ground floor.” The Higher Education Workplace 8, no. 1 (spring 2016): 6-7. Accessed October 5, 2022. https://cupahr.org/hew/files/HEWorkplace-Vol8No1-Fresh_Ideas.pdf.

Smith, Tyler S. “Ombuds & Mediation: Frequency, Circumstances and Differences Amongst Backgrounds.” Journal of the International Ombudsman Association 7:2 (2014): 48-67.

Sunoo, Jan. “Make Mediation a Life Skill and a Core Value.” Mediate.com, February 8, 2018. https://www.mediate.com/make-mediation-a-life-skill-and-a-core-value/. 

Swonk, Katie. “Mediation Training: What Can You Expect?” Program on Negotiation, September 2, 2022. https://www.pon.harvard.edu/daily/mediation/mediation-training-can-expect/#:~:text=Through%20mediation%20training%2C%20employees%20will,satisfy%20all%20parties%20involved%3B%20and.Ury, William. The Third Side: Why We Fight and How We Can Stop. New York: Penguin Books, 2000.