REPRINTED WITH PERMISSION. This article was published in Alternatives, Volume 21, No. 3 (March 2003).
A skilled mediator has had substantial training and experience, enough to have a “mediator tool kit” and to use the process techniques at his or her fingertips to decide on interventions. Counting on intuition and accrued skills, the skilled mediator normally can do a pretty good job guiding the parties through the process. Relying on a base set of techniques, however, may translate to a routine approach that causes the mediator to sometimes overlook what might be unique to a certain case, or be at a loss for how to address deviations from the norm.
That is where reflective practice becomes essential to a mediator.
Reflective practitioners are attuned to their reactions and can articulate what is behind gut feelings or intuition in order to carry out effective interventions. They can anticipate the unexpected. The reflective mediator goes further by thinking carefully through a range of process options while contemplating interventions to make in mediation. Reflective practitioners have brought their practice to a deeper level. They make conscious choices based on cognizance of their core values and biases, as well as conflict and mediation theory, techniques and experiences that combine to form their skill base. Reflective practice challenges experienced mediators to keep our skills sharp and to develop a deeper approach to our work. Mindfulness results in a more creative, and thus more effective, practice. See the Reflective Mediation Practice Core Concepts in the box below.
|Reflective Mediation Practice Core Concepts
|1. Reflecting on our interventions, before, during, and after implementing action.
2. Reflecting on the dynamics of conflict at multiple levels.
3. Formulating and reformulating theories about a case as we mediate.
5. Articulating intuitive practitioner thought, or “gut” feelings.
6. Understanding our own values and biases.
7. Ensuring that our work is informed by theory and research.
8. Participating in practical training.
9. Learning from our experience.
10. Knowing that moments of frustration, uncertainty, and sheer surprise contain the seeds of the greatest learning.
Adapted from “A Reflective Practice Model for Ombuds Case Analysis” National Institutes of Health Ombuds Program
Traditionally, mediators have regarded training as the route to skills enhancement. Professional development conducted during day-to-day practice, however, is an even more powerful resource for practitioners seeking a disciplined and introspective way of thinking about interventions.
This article looks at basic premises of reflective practice for experienced mediators. Extrapolating from a training model for novice mediators, the article then lays out steps that seasoned practitioners will find useful in developing a more systematic analysis of their practice. If mediators are cognizant of the three roles in the novice program—mentor, new mediator and observer—they can improvise creative ways to locate voices for those three roles within themselves.
SELF AWARENESS IS CENTRAL
Self-awareness, including cognizance of internalized bias, is central to reflective practice. Mediators should continually explore what they “bring to the table” independent of any particular mediation.
Mediators are labeled “neutrals.” This term of art can cause confusion for mediators and parties alike. Less-experienced practitioners may believe that they go to the table as “blank slates”–that they are totally objective, and that no prejudices affect their perceptions of the parties.
Skilled practitioners recognize, however, that no one is ever truly neutral. Humans who enter conflict territory always will have some personal reactions. As mediators, we do a better job when we understand what we bring to the table—especially if we are mindful of it before a session or before a mediation has been scheduled. Self-aware, we will be open to new information that challenges the bias in order to conduct the mediation impartially.
Practitioners react internally to the stories that parties tell. Our reactions are based on our core values—or world view—as well as on our own mediation and life experience. In the best circumstances, we also filter what we hear through a screen of conflict theory and mediator ethics.
|Skilled Mediators Bring To The Table:
Reflective Practitioners Know that They Also Bring to the Table:
When we react viscerally to something a party says or does, how do we consciously manage our response? How do we handle violations of our personal core values? In our professional work with parties, we guide them to explore the issues before they start developing options. So in our personal work, before we can formulate our appropriate response, we need insight into our reactions to words and behaviors that are personal triggers for us.
In some situations, mediators’ closely held personal beliefs may themselves engender internal conflicts.
Take a workplace mediation where, for example, the employee contends that he was not promoted because of his membership in a protected class. In private caucus, the management official acknowledges that he has indeed “discriminated” against the employee. The manager feels that persons with this employee’s particular disability–or gender, race or sexual orientation—should not be in customer service or “front of the house” positions. How would the mediator react? Would the mediator feel totally “neutral”? Would the manager’s behavior conflict with any of the mediator’s core values? What if the employee later accepted management’s offer of a shift change in lieu of the promotion, and, in exchange, dropped the discrimination complaint? Would that make a difference?
Institutional pressures or our own internal forces may compel us to act contrary to our values; our own values may be in conflict with each other. When our core values are violated, we experience “moral distress,” a concept identified by ethicist Andrew Jameton. Conflict Management in Higher Education Report, Volume 2, Number 1, “Responding to Moral Distress in the University: Coping with Moral Distress by Using the Theater of the Oppressed to Identify and Resist the Sources of Distress” by Kate H. Brown (Oct 2001)(available at www.campus-adr.org/CMHER/ReportResources/Edition2_1/Moral2_1.html ).
A case such as the one just described could put in conflict the mediator ethic of “self-determination” and a mediator’s deep commitment to civil rights. Does self-determination win out? Or does the mediator walk away from this mediation? Perhaps most mediators would decide that their primary duty was to the mediator ethic of self-determination. Others may feel that the civil rights value is paramount and may recuse themselves or even take other action. Either decision represents a response to core values in conflict. The key to formulating the appropriate response is to be attentive to who we are.
IDENTIFYING A CONTRADICTION
A common example of “moral distress” arising from internal values in conflict is a case where the mediator fears that a party may not be fully capable of making an informed decision, but the party has refused to have representation. The mediator believes in self-determination but also believes in the importance of a fair process. Having identified a contradiction, the mediator now has the wherewithal to break down the concepts of “self-determination” (informed decision-making, cognitive functioning, etc.) and “fair process” in order to analyze and decide on the appropriate course of action. This is reflective practice.
In addition to addressing conflicting values, mediators need to examine conflicts involving the related area of personal bias. Reflective mediators are aware of their biases and constantly monitor their reactions to the parties. Mediators may not be aware of their (positive or negative) reactions to particular parties, but the parties are likely to pick up on them. Mediators may have a bias that they don’t consider negative. It may be cloaked, for example, under the gentle guise of concern with a balance of power.
Some mediators may believe that less-educated individuals need assistance negotiating with the attorney or corporate executive they face on the other side of the table. The mediator who assumes, even on a subconscious level, that the less-educated party will not be a good negotiator may instinctively discount the input of this individual. In reality, however, the person’s background may give him or her a better grasp of both parties’ interests, while the executive may be a positional and ineffective negotiator. The mediator’s apparently benevolent bias may obstruct self-determination and may ultimately harm the process.
Alertness to our “triggers” is critical. Reflective practitioners first explore their own reactions and then call upon their knowledge base, including theory, to address the internal disconnect. Take the common example of mediators becoming frustrated, even annoyed, when parties “refuse” to acknowledge the weaknesses of their case. Before considering how to address the parties’ ability to make informed decisions about their case, reflective practitioners would first try to understand their own strong emotional reaction to what theory tells us is a common phenomenon, “optimistic overconfidence.” Optimistic overconfidence, which is discussed helpfully by Daniel Kahenman and Amos Tversky, in among other writings, “Conflict Resolution: A Cognitive Perspective” (in “Barriers to Conflict Resolution,” W.W. Norton & Co. (May 1995)), is just one of many instances in which theory informs the conscious practitioner’s responses.
USING A TRAINING MODEL
To promote more conscious practice, experienced practitioners can adapt for their own use the process debriefing steps found in a mediator training program that are described in the chart below.
The program functions with a three-person mediator team: experienced mentor co-mediator; novice or intermediate co-mediator; and (by prior permission of the parties) an observer, who can be a mediator at any level of practice. For purposes of adaptation, the solo practitioner may consider himself or herself in the “novice” role, carefully crafting layers of self-production for the other voices.
Figure 1 shows the interplay in the program between the traditional mentor role and an innovative observer role. The mentor mediator models, critiques, shares experiences, answers questions and discusses, as the co-mediator watches, listens, acts, challenges and tries out new ideas.
The observer, who does not speak in session with the parties, provides feedback to the co-mediators, shares insights and offers observations. Observers are alert for mediators’ unconscious behaviors and for unnoticed party reactions.
Reflective practitioners can add the “observer” layer to their own practice by experiencing in the moment, while attuned to subtleties of participant reaction–including their own. The observer mystique gives the mediator a steady infusion of dispassionate, cool review in the moment. Mediators who incorporate this role into practice can more easily avoid getting swept up when their buttons are pushed or tuning out because they have seen it all before. That internal observer can be a real prod to stay on top of the game.
BRINGING IN OTHERS
Even highly skilled mediators have an ethical obligation to improve their professional skills and abilities. Yet in mediation, no professional expectations or structures govern the practice of self-examination.
Therapists recognize that their own conflicts may be projected onto clients. In supervision they are assisted to monitor their reactions to clients. Counter-transference–where the client triggers a reaction in the practitioner—can also occur in mediation. To address this issue, solo mediators can build on the supervision or case review practice found in other fields of practice, such as counseling, by forming informal partnerships with peers or by formally engaging master mediators for continuing skills development. It would be a worthwhile investment for organizational providers to institutionalize observation, by peers or masters, as part of continuing professional development.
Here is a place where the solo can self-educate, consult, or even bring in an observer who can enrich the mediator’s understanding of the issues. The observer may be selected because he or she brings something unique to the table, such as knowledge of organizational culture or subject matter expertise.
Reflective practice is multifaceted. First, as noted, the mediator needs to account for what he or she brings to the table. Second, the mediator is constantly thinking in different modes of time—past, present and future—in the session: What did the parties say?/ Where have I heard something like that before?/ How is it different this time?/ What worked then?/ How might I modify my questions this time? etc. The mediator also is thinking in terms of past, present and future developments in the case for the various parties, individual and group issues, and private and public issues. There is a lot going on. Reflective practitioners’ thinking is informed by their awareness of the complexity of levels at which the parties are experiencing the mediation.
During mediation, the mind of the reflective practitioner is going a mile a minute. He or she is continually taking in new information, formulating questions to ask, calling on what he or she knows of theory, and revising his or her view of the case as he or she deepens his or her understanding of the issues. Based on this multiplicity of factors, the practitioner makes conscious choices about interventions.
Mediators are adept at helping the parties refrain from moving forward until they understand the issues and generate multiple options. This concept, originally presented in “Getting to Yes” in 1981, is now ADR bedrock theory. In the same way, reflective practitioners review a range of intervention options before selecting and refining the right one. A technically proficient mediator might do an adequate job by grabbing a tool out of the tool kit that worked the “last time.” But interventions based on conscious selection from a range of options are likely to be most meaningful.
FORMS FOR REFLECTION
The hair-trigger analysis that mediators perform during the session needs to be supplemented with reflection afterwards. In the program, this is done in two stages: immediately after the session with the mentor; and later with the program administrator or other mentor. Each member of the three-person mediator team fills in a “debrief form” which functions as a tool in the debriefing process.
The mentor completes an observation sheet to share with the team after the session. [See Figure 2 below.] More important than the scoring of mediator skills is the inquiry into the novice mediator’s reflective abilities. The mentor is asked to assess the mediator’s openness to and understanding of feedback, the comprehension of the issues raised by the mentor, and the ability to self-critique.
The novice fills out a self-evaluation, reflecting on what he or she did that worked, what she learned, and what she still has questions about. The questions are open enough for the mediator to explore what she thinks is most relevant, but not so vague as to foster simplistic observations. The program fosters the notion that “mistakes” are opportunities to learn, helping the novice to not lose face by identifying his or her areas of weakness or doubt.
The solo practitioner can greatly benefit by taking the time after a session to reflect and address questions that he or she wants to work on, such as (to name a few): when he or she was stumped, what did he or she learn, what mistakes did he or she make. Each practitioner will decide for himself or herself what questions are most relevant and what directions he or she wants to go in. Without this concerted effort to understand one’s place in the mediation, the mediator’s skills may stagnate.
While appearing passive, the observer actually is engaged in the proceedings, analyzing the mediator’s choices simultaneously with the action taken. The solo can fill this role for himself or herself. By “watching” himself or herself during the session and observing reactions, and watching for party responses, the practitioner is engaged in a deeper level of participation that should yield deeper learning results.
Experienced solo mediators can combine the three roles into one complex practitioner role—learning, observing and mentoring themselves. By understanding and reinforcing their own “lessons learned,” solos can reach a new level of practice.
In the training program, the mediation team debriefing is followed by a third step. [See Figure below.] It involves a discussion between the mentor and the program administrator, regarding the novice’s and the observer’s participation in the mediation and in the debriefing session. The mentor provides information about the novices’ ability to recognize and learn from mistakes, in addition to the more obvious skill markers. The mentor also shares thoughts about the observer’s ability to pose relevant questions and understanding of issues raised by the mentor.
The days after the mediation and the mediator-team debriefing provide the opportunity for deeper reflection. Mediators certainly benefit from filling out a self-evaluation form right after the session when the experience is fresh. The value of the self-evaluation increases as the mediator has some time to mull it over and add to it.
Solo mediators also may get insights from a well-designed party exit survey. Mediation participants may not be willing to be brutally honest when they know that the mediator will see the form, but by asking subtle questions, the mediator can gain valuable insights into how his role was perceived.
In the training program, the initial debriefings are followed by another level of process debriefing between the internal mediators—that is, the novice co-mediator and the observer—and the program administrator, who functions as a second mentor. While mentor mediators may rotate, exposing the novices to different styles, the program administrator is the continuing mentor, providing skills-development continuity. The administrator is familiar with the challenges the individual mediators face within the program’s context. For example, a novice who sees disruptive actions by parties only in the most positive and innocuous light, and consequently misses important cues, will be served by continuing support in addressing this personal skills development issue.
Solos can play, for themselves, the role of the long-term mediator by identifying and continuing to work on a specified thread of issues.
The layers of debriefing in the training program help novice mediators develop the skills to “mentor” themselves. [See Figure 4 below.] During the debriefing, in keeping with a reflective approach, the administrator generally does not tell mediators what they have done is “wrong.” Rather, the administrator poses questions to stimulate mediators’ introspective thinking.
Below is Debrief Excerpt #1–an actual interchange between two mediators, William and Maria, and their program administrator. It illustrates questioning as a mentoring approach. To foster development of this discipline, the administrator takes the questions that the novices pose to her and reframes them back as questions that the novices need to address themselves. If, at times, the mediators are stymied, the administrator may bring the problem into the room, by playing a part and having the mediators respond and try out options. The debriefing team articulates lessons learned to keep the information accessible the next time a related issue arises.
The substantive issues under consideration in a case are normally not addressed during the debriefing. The team focuses on process issues. This debriefing, for example, begins by exploring interventions when the management official has arrived late to an employment discrimination mediation.
DEBRIEF EXCERPT #1
WILLIAM (Co-mediator): The manager came in late. …
MARIA (Observer): He … came in and he said, “Oh, I’m sorry, I neglected to put this in my calendar.”
PROGRAM ADMINISTRATOR [to William]: What was the way that you decided to handle that?
WILLIAM: I felt that the apology was sufficient for the time being. The complainant didn’t look particularly upset. …
PA: … You’re saying you felt that he apologized and that it didn’t appear to be a problem for the complainant and so you just moved on. … Any thoughts on this, Maria?
MARIA [pause]: … Do you think that we should have addressed the fact that he was late some more?
PA: Well, if you don’t address it, what might happen? Let’s look at that first.
WILLIAM: Also, let me ask you [to Maria], did you think that his being late, should we have addressed it?
PA: Well, you’re talking about options, what to do … Why don’t we first look at: What’s the issue? Then we can talk about whether you should address it or do this or do that.… What’s the real issue there? Management official comes in late, says, “I’m sorry, I didn’t put it on my calendar.” And if the mediators don’t address that, what’s the issue that then faces us?
WILLIAM: That the potential issue of the complainant getting the impression that . . . that management can do whatever he wants and to take it a step further that maybe we’re a part of all that and we’re just government flunkies.
PA: Maria, any other thoughts?
MARIA: It’s kind of an unequal situation where the manager is free to say, “Oh, I forgot or this wasn’t important enough for me to even put it on my calendar.” . . . And somehow that’s an unequal power situation, I guess . . . and that we’re not addressing it.
PA: Right, so it’s an unequal situation, you say. It seems like we’ve identified that the mediator does need to address it. So what are some ways that you could address it?
MARIA: That’s difficult. How would you do that?
PA: Well, what do you want to get across when you address it? What do you want the complainant to feel?
WILLIAM: That you’re acknowledging the late behavior.…
MARIA: And we’re not really saying it’s okay to be late. PA: And what else are you going to try to accomplish by addressing it?
WILLIAM: … to let the manager save face. You don’t want to go overboard by calling attention to it.
PA: And you want to get the mediation off, now on a—
WILLIAM: —on a positive, forward note.
PA: Positive, forward, and what else? You’re controlling it, you’re guiding the process and your going to make it clear what the expectations are at this point. So how might you do that? [William and Maria do not respond.] . . . I’m going to come in, I’ll be the manager and why don’t you guys try out different ways to respond.
[Speaking as the manager:] “Oh, I’m sorry that I’m late. I’m really busy and I forgot to put this in my calendar. . . .”
MARIA [Responding]: “Yeah, we were wondering maybe what happened to you, we were all sitting around here, wondering what happened to you.”
[Laughter]: …We have to find a different way to say that.
This excerpt from a reflective process debriefing with new mediators illustrates what more experienced practitioners can do with a peer or master mediator observer—or even on their own. By solo mediators adapting and following these steps, they can develop the internal resources to recognize challenges and mistakes and look upon them as opportunities to learn. Conscious self-questioning is a powerful tool. Solo practitioners can use the same type of questions to develop a clearer understanding of what transpired in a particular mediation. To make the lessons accessible for next time, practitioners need to articulate the proceedings’ intricacies, and analyze them and name them.
Setting aside the time for reflection can lead to the general discipline of more conscious decision-making. Conscious practice gives mediators the ability to retrieve the lessons in future mediations, replicate what worked, and avoid what didn’t.
Identifying ourselves as reflective practitioners means making a commitment to learn, to treat unexpected challenges and mistakes as opportunities for professional development, and to identify personal growth areas. Asking questions moves mediators beyond the obvious into the deeper understanding, as we see in the following debriefing excerpt continuation.
DEBRIEF EXCERPT #2
PA: Yes, you’ll want to find a way for him to save face, while you’re addressing this.
[Speaking as the manager:] “Sorry that I’m late. I’m really busy and I forgot to put it in my calendar.”
WILLIAM [Responding]: “Thanks for apologizing. … Let’s discuss some guidelines for proceeding for the rest of the day. We will take breaks later on and let’s all try to ensure that we come back at a reasonable time, say, 15 minutes.…”
PA: Great. And what do you need to build into that? …
MARIA: Oh, to get them to agree … to buy in. . . .
PA: So what are some of the things to do to ensure that the parties buy into this?
WILLIAM: “Can we agree to this?”
The program administrator can take this process a step further. For even more reinforcement, during regular monthly meetings, each mediator/observer team can report on lessons learned to the mediator group, taking care to preserve confidentiality of mediation communications. [See Figure 5 below]. After each report, the other mediators ask questions and discuss the practice issues raised. These discussions can lead to deeper explorations of the issues involved. After the discussion, the ADR program administrator summarizes the lessons learned, and subsequently posts them on a mediator Web site. [See Figure 6 below.]
Many experienced mediators do not set aside the time to reflect on their work. Reflective practitioners, however, need the inclination and the resources to develop the tools that are most productive. Individually and within practice groups, whether structured programs, support groups or observation sessions with peers or mentors, solo mediators and program administrators can engage in continuous professional development by seeking and creating opportunities for regular examination of their work.
Copyright © 2003 by the CPR Institute for Dispute Resolution, 366 Madison Avenue, New York, NY 10017-3122.
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