Book Review The Mediator’s Handbook, Charlton R and Dewdney M, LawBook Co, 2nd ed, 2004 (www.lawbookco.com.au )
Reviewed by David Spencer BA.,LLB.,GDLP.,LLM Senior Lecturer-in-Law, Division of Law, Macquarie University
It has been eight years since the first edition of The Mediator’s Handbook – the ultimate text for the practice of mediation – but the wait for the second edition has been worthwhile. If you thought the first edition of this brilliant text provided the best possible instruction on how to conduct mediation, then the second edition will only enhance you formerly held view. Ruth Charlton and Micheline Dewdney have applied their extensive experience to revisit some of the topics discussed in the first edition and add some vital topics on mediation practice that have obviously come to mind since the first edition was published.
As would be expected from Charlton and Dewdney the text is written with the reader in mind and is a well-proportioned blend that tempers theory and philosophy with practice to produce an essential road map on issues of form and substance surrounding mediation. The text is broken up into five parts.
In chapter 1 it is pleasing to see that the authors acknowledge other process models of mediation and endorse the view that mediation is not about “slavishly following the process”. The case note given as an example of this last proposition is simplistic in its facts but devastating in its effect of promoting the notion of not allowing the process of mediation to detract from the needs of the parties. As with the first edition, Charlton and Dewdney’s explanation of mediation is so clear and concise that they may have done themselves a disservice because their description leaves one, perhaps falsely, with the impression that the process is simple enough therefore, the practice must be equally simple. Experienced mediators know the falsity of that proposition!
Chapter 2 deals with the mediator’s opening statement and contains, amongst other things, two very attractive elements. Firstly, the “dos” and “don’ts” table is of great value particularly to novice mediators still grappling with the challenge of presiding over the process. I would suggest that it is also of value to experienced mediation practitioners who have the habit of turning the opening statement into a “sermon from the mount!” Secondly, the example of an opening statement that discloses a number of very useful strategies such as: the key information to be imparted; the most useful phrases to use; and, the appropriate length of the opening statement. For those involved in co-mediation models the text does not ignore that style of mediation and includes some useful tips on how to handle the opening statement in a co-mediation.
If the reader of this review has not already grasped the benefit of this text as being the link between theory and practice, then chapter 3 is a good example of my point. One of the main difficulties mediators have is using the process of mediation to attack the substantive issues. This is of course the great benefit of mediation. You will often hear experienced mediators say to novice mediators, “Be true to the process”. They say this because adhering to the process allows the parties to see the substantive issues for what they are and to help the parties build a consensual outcome. Charlton and Dewdney suggest that mediators use the parties’ opening statements to create doubt. Unfortunately, they do not give examples of how to do this but the thrust of their point is that when parties hear each other and the mediator reframing the parties’ opening statements then doubt is often created in their minds because their argument may not sound as strong particularly when the dispute has arisen because of misinformation. In short, the process itself is attacking the substantive issues of the dispute. Once again the procedural tips just keep flowing including how to handle that awkward moment of ascertaining which party should present their opening statement first.
One of the most difficult tasks for mediators is the simultaneous skill of: listening to the parties make their opening statements; taking notes; identifying the issues; maintaining eye contact; crafting information-gathering questions; and, contemplating an agenda for discussions. In chapter 4 Charlton and Dewdney recognise that the distillation of issues and the formulation of an agenda based on those issues is the foundation of a successful mediation and in this respect, they suggest methods of coping with this arduous task in a professional and discrete manner.
Chapter 5 sets out some detailed information on issue exploration in the first joint session. Again the practical tips abound. Of particular use is how to deal with yet another awkward moment that many mediators trip over, that of selecting the first issue. Here the commentary is first-class and the authors give the reader four different ways to handle this situation. The short section on avoiding premature private sessions is another must read section and it is worth quoting the often forgotten rationale for calling an early separate session which states, at 72, that:
It is usually only necessary to separate the parties early if they find it impossible to speak to each other, or even the mediator, on any of the issues without verbally abusing each other destructively and impeding any clarification or exploration of issues.
The rush to private sessions can often impede the communication process that is essential in mediation. Improvements over the first edition include more consideration of issues such as what can the mediator do to make the most out of the first joint session. The inclusion of a section on helping parties to identify what worked well for them in the past is once again allowing the process to attack the substantive issues. Here the authors suggest exploring what worked well for the parties prior to the dispute as a way to facilitate constructive discussions between the parties and to allow the discovery of any useful information that may be used to build a consensual outcome.
Chapter 6 provides one of the best descriptions of private sessions you will find amongst texts purporting to describe this vital stage of the mediation process. Take particular note of the topics on the timing of private sessions and how to foster a joint problem solving approach in such sessions.
Chapter 7 of the first edition has been split into two concluding chapters at the end of Part 1 of the second edition. Chapter 7 in the second edition is devoted to the negotiation and problem solving stages of mediation and concentrates on the all-important option generation phase of mediation. Again the authors display their practical experience by neither advocating nor rejecting the classical mediation view of forbidding mediators from participating in option generation rather the authors suggest that mediators can participate in option generation but must do so carefully in order to avoid the perception of mediator bias.
How to end a mediation session is the subject of chapter 8 and is worthy of its own chapter given the difficulty some mediators have in constructively drawing to a mediation session to a close. The unpalatable situation of having to call an adjournment is dealt with constructively by the authors as is the case of a partial settlement and how to deal with an agreement reflecting partial settlement. Where parties have reached final agreement on all issues is dealt with in some detail including reality testing the final settlement. One of the great benefits of mediation is its ability to adapt to the type of dispute and to the mediator’s differing views on the process itself. One view that departs from the authors’ view is that reality testing should take place in private session so as to avoid further disputation in the final joint session. Another view is that reality testing in joint session is therapeutic as it commits the parties to a course of action that they have considered in some detail. Either way the authors set out some useful questions that assist in the facilitation of such a vital session in the mediation process. The final section of chapter 8 is another must read section that deals with what to do if the mediation does not settle and how the mediator can handle this situation in a positive manner.
Part 2 of the text discusses variations to the mediation model discussed in Part 1. In particular, chapter 9 discusses co-mediation which is not widely practised, but perhaps should be if only as a way to train novice mediators. Its benefits are objectively stated by the authors and given the authors’ rationale for its use it should be considered more widely by mediation providers than it currently is. A new section in the text is chapter 11 dealing with multi-party mediations. Given the rise in popularity of mediation, it is being used in a wider variety of settings than ever before and this means the potential for multi-party mediation. I have fond memories of my first multi-party mediation back in 1995 involving approximately forty people representing 9 different statutory authorities, local government bodies and a private consortium. If only I had had Charlton and Dewdney as a reference back then! Chapter 12 deals with the ideas of shuttle negotiation and mediation which according to the authors is defined, at 167, as being where:
… the mediator meets separately with each party, moving backwards and forwards between them, conveying their respective ideas and responses. It may occur because the parties cannot communicate with each other face-to-face and can only do so through the mediator.
This procedural variation of the mediation model described by the authors in Part 1 of the text is very useful in such situations where the parties’ relationship has deteriorated to the point where they may resist mediation at all because of the requirement to meet face-to-face. In other words, the promise of shuttle mediation itself can be the motivating factor for some parties to participate in the process.
Part 3 of the text deals with the all-important pre-mediation stages of the process and whilst the issues raised in this part of the text are essentially procedural ones, they are vital if the foundation for settlement is to be laid. Issues such as authority to mediate and to settle are the sorts of issues that can send mediation off the track and so the importance of resolving those issues early at the pre-mediation stage is vitally important. Again Charlton and Dewdney give some practical tips on how to handle the difficult situation of contingent authority.
Part 4 of the text deals with mediator skills and strategies and its first chapter sets out the sorts of skills mediators need such as active listening and reframing skills. Chapter 15 provides examples of reframing that give the reader useful ideas on how to reframe effectively and encourage the reader to reframe in a positive way, thereby removing the usual negative thrust of a party’s position, as well as reframing in a way that poses a question for the parties to answer throughout mediation. This skill of reframing as a question is a difficult skill to learn, but a useful one in terms of helping set an agenda for mediation. There is nothing more pleasing than seeing a white board full of reframed issues posed as questions ¨C it helps the parties set the agenda for mediation. The section on questioning techniques and examples is valuable to ensure the efficient running of the investigation phase of mediation.
Chapter 16 acknowledges the important issue of the acceptability of mediators intervening in mediation. It primarily suggests that when an impasse is reached mediators should not passively stand by and watch the mediation fail rather, the mediator should be proactive and seek to assist the parties in overcoming the impasse and allow the mediation to move forward.
The list of practical strategies in Chapter 17 could really be described as being a list of impasse breakers. This lengthy but useful list of strategies includes, amongst other things, invaluable advice on: option generation or brainstorming; converting the negative to the positive; role reversals; reality testing; the cost of disagreeing; abandoning the mediation; the last gap solution; the curiously titled “Garfield factor” ( I am not going to tell you about it ¨C you will have to read about at page 255!); and, not going back. Mediators would be best advised to read through this list of fifty-six impasse breakers prior to mediating as one never knows when one will reach an impasse in mediation.
Chapter 18 is a new chapter in the second edition but a vital one on note taking and white board technique. Given that the latter topic is a bug bear of mine, it is refreshing to see some practical tips on improving white board techniques. If you ever want to try and guess how many mediations a mediator has conducted, look at her or his white board technique! Committing the issues and the agenda to a white board or butcher’s paper is the test of the longevity of any mediator. Poor whiteboard technique has driven some mediators to re-engage in adversarial bargaining! Like most things in life, whiteboard technique requires practise. If you are having trouble with your whiteboard technique or just want to explore the possibility of adopting a more effective style take note of the suggestions by the authors on how to commit the issues to a visual medium for maximum impact. Charlton and Dewdney give some brilliant practical advice on how to develop and improve white board technique.
Dealing with legal practitioners in mediation can be a difficult element of the role of mediator, especially for non-lawyer mediators. Chapter 19 discusses the various issues surrounding the involvement of legal practitioners in mediation. It deals with some very important issues such as the directive lawyer who seeks to dominate on behalf or her or his client. An elegant section of this chapter deals with looking at mediation from the legal practitioner’s perspective and is a first in any dispute resolution text book on the market. It is important for a mediator to understand how a legal practitioner sees mediation and how the representation of a lawyer’s client is paramount to the effectiveness of the process (at least in the lawyer’s view).
One of the “hot potatoes” in mediation circles is the notion that mediators must be neutral and impartial. Charlton and Dewdney make it clear that not only must a mediator remain neutral and impartial but that they must be seen to be neutral and impartial and to this end they list the “dirty dozen” areas where mediator neutrality and impartiality can be compromised. Again this important practical pitfall in the conduct of mediation is addressed by example and is a must read for mediators.
Another “hot potato” in mediation circles is power issues and how they impact on the mediation process. The arguments have always centred on the power exerted by the parties but in Chapter 21 the authors raise the important issue of the power of the mediator. Mediators carry baggage into mediation via their own life experiences, education and influences, in addition their presence alone changes the power dynamic of mediation. This chapter raises this important issue and puts mediators on notice of their own predisposition to affect the balance of power in mediation.
Chapter 22 looks at the party driven problems that arise including bad faith participation and over-bearing parties exerting a destructive influence on the process. Also, the chapter addresses mediator-driven problems such as offering advice to parties or acting in a way that could attract the accusation of bias.
Chapter 23 discusses the role of interpreters in mediation. Interpreters can often throw a legal practitioner off her or his stride in the court room setting and therefore, probably has the same effect in the mediation setting. This very valuable and new addition to the text gives crucial advice on how to set up mediation using an interpreter or interpreters. Issues such as how to physically arrange mediation using interpreters is vital to consider ¨C should the mediator speak to the party or his or her interpreter? Read Chapter 23 to find out!
The appendices to the text include the following:
From a purely “form” viewpoint, the second edition of The Mediator’s Handbook is more user friendly than the first edition. The tables are better set out without the use of vertical lines separating the table from the rest of the page. The case notes are boxed to separate them from the body of the text and heading and sub-heading hierarchy is easier on the eye. Bravo LawBook Co!
The enormous experience that Charlton and Dewdney bring to the task of describing what happens in mediation and how to deal with various situations that arise is invaluable for mediation practitioners. Many mediation training providers use their own materials to teach the art of mediation ¨C instead they should discard those materials and just prescribe The Mediator’s Handbook. This text is a must for students of mediation and practitioners that want to hone their skills in mediation on a continuing basis.
Overall this is an excellent text and a “must have” one for anybody interested in the art of mediation. My only complaint about it is that it is not long enough. Once the palate is watered by the authors’ breadth of experience and the engaging way they teach the reader about the practice of mediation the book is over. I will be making representations to the publishers to increase the volume of the artfully written pearls of wisdom in the third edition – 344 pages are not enough!
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