Category Archives: Mediation

Do you tell your mediation clients about neuroscience? A poll at Brains on Purpose

mind science and conflict resolutionMediator, lawyer, writer, and all-around Renaissance woman Stephanie West Allen needs your help as she prepares to write an article on neuroscience transparency. What is neuroscience transparency? It’s what conflict resolution professionals tell their clients about neuroscience. You can contribute by taking her survey at her site, Brains on Purpose, a blog which explores the role that brain science can play in the resolution of disputes.

Stephanie raises an interesting question that ADR practitioners no doubt will ask themselves more and more. Increasingly I myself look for ways to apply discoveries from neuroscience, cognitive psychology, and behavioral economics to my own work, whether assisting clients to resolve their disputes or teaching people how to negotiate or mediate.

Ethics and best practices for mediation provider organizations: 7 years after Georgetown

ethical business practices for mediatorsAs readers of this blog know, the private practice of mediation in the United States remains unregulated by government.  Arguably, this absence of formal regulation, licensing, and credentialing does not diminish mediation’s standing as a profession.  It does, however, place weighty responsibility on the shoulders of U.S. mediators, collectively and individually, to protect the reputation of the profession and to build public confidence in mediation services.

Professional standards of conduct remind mediators to aspire to moral values or principles, and to strive for consistency between those values and practice.  But a professional ethos embraces more than the practice of mediation: those professional values should apply not to the delivery of services alone, but also to the business of mediation.

In May 2002, as part of a joint initiative, two respected institutions – the CPR Institute for Dispute Resolution and Georgetown University Law Center – drafted and approved Principles for ADR Provider Organizations (PDF).  These principles were created to provide guidance to “any entity or individual which holds itself out as managing or administering dispute resolution or conflict management services” and to encourage the responsible practice of ADR.  Among other things, they encompass values that include fairness, quality and accessibility of service, and competence of neutrals; and they emphasize the importance of establishing policies regarding confidentiality, internal or external ethical codes, and conflicts of interest. I have reproduced these principles below.

As I read these principles, the product of evident hard work and deliberation, I note that one essential ingredient is missing: diversity. In revisiting them today, mediators might draw inspiration for revisions from the example set by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 7 (PDF), which provides that:

Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers.

A 2009 version might emphasize the importance of measures that ensure that decisions relating to hiring, evaluation, and promotion of mediators are free from bias.

I invite you to read the principles yourself and ask: what would you add or change today to improve them for today and for the years ahead?

I.  Quality and Competence of Services

  1. The ADR Provider Organization should take all reasonable steps to maximize the quality and competence of its services, absent a clear and prominent disclaimer to the contrary.
  2. Absent a clear and prominent disclaimer to the contrary, the ADR Provider Organization should take all reasonable steps to maximize the likelihood that (i) the neutrals who provide services under its auspices are qualified and competent to conduct the processes and handle the kind of cases which the Organization will generally refer to them; and (ii) the neutral to whom a case is referred is competent to handle the specific matter referred.
  3. The ADR Provider Organization’s responsibilities under Principles I and I.a decrease as the ADR parties’ knowing involvement in screening and selecting the particular neutral increases.
  4. The ADR Provider Organization’s responsibilities under this Principle are continuing ones, which requires the ADR Provider Organization to take all reasonable steps to monitor and evaluate the performance of its affiliated neutrals.

II.  Information Regarding  Services and Operations

ADR Provider Organizations should take all reasonable steps to provide clear, accurate and understandable information about the following aspects of their services and operations:

  1. The nature of the ADR Provider Organization’s services, operations, and fees;
  2. The relevant economic, legal, professional or other relationships between the ADR Provider Organization and its affiliated neutrals;
  3. The ADR Provider Organization’s policies relating to confidentiality, organizational and individual conflicts of interests, and ethical standards for neutrals and the Organization;
  4. Training and qualifications requirements for neutrals affiliated with the Organization, as well as other selection criteria for affiliation; and
  5. The method by which neutrals are selected for service.

III.  Fairness and Impartiality

The ADR Provider Organization has an obligation to ensure that ADR processes provided under its auspices are fundamentally fair and conducted in an impartial manner.

IV.  Accessibility of Services

ADR Provider Organizations should take all reasonable steps, appropriate to their size, nature and resources, to provide access to their services at reasonable cost to low-income parties.

V.   Disclosure of Organizational Conflicts of Interest

  1. The ADR Provider Organization should disclose the existence of any interests or relationships which are reasonably likely to affect the impartiality or independence of the Organization or which might reasonably create the appearance that the Organization is biased against a party or favorable to another, including (i) any financial or other interest by the Organization in the outcome; (ii) any significant financial, business, organizational, professional or other relationship that the Organization has with any of the parties or their counsel, including a contractual stream of referrals, a de facto stream of referrals, or a funding relationship between a party and the organization; or (iii) any other significant source of bias or prejudice concerning the Organization which is reasonably likely to affect impartiality or might reasonably create an appearance of partiality or bias.
  2. The ADR Provider Organization shall decline to provide its services unless all parties choose to retain the Organization, following the required disclosures, except in circumstances where contract or applicable law requires otherwise.

VI.  Complaint and Grievance Mechanisms

ADR Provider Organizations should provide mechanisms for addressing grievances about the Organization, and its administration or the neutral services offered, and should disclose the nature and availability of the mechanisms to the parties in a clear, accurate and understandable manner. Complaint and grievance mechanisms should also provide a fair and impartial process for the affected neutral or other individual against whom a grievance has been made.

VII.  Ethical Guidelines

  1. ADR Provider Organizations should require affiliated neutrals to subscribe to a reputable internal or external ADR code of ethics, absent or in addition to a controlling statutory or professional code of ethics.
  2. ADR Provider Organizations should conduct themselves with integrity and evenhandedness in the management of their own disputes, finances, and other administrative matters.

VIII.  False or Misleading Communications

An ADR Provider Organization should not knowingly make false or misleading communications about its services. If settlement rates or other measures of reporting are communicated, information should be disclosed in a clear, accurate and understandable manner about how the rate is measured or calculated.

IX.   Confidentiality

An ADR Provider Organization should take all reasonable steps to protect the level of confidentiality agreed to by the parties, established by the organization or neutral, or set by applicable law or contract.

  1. ADR Provider Organizations should establish and disclose their policies relating to the confidentiality of their services and the processes offered consistent with the laws of the jurisdiction.
  2. ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the neutrals associated with the Organization.

ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the ADR participants.

Public licensing and regulation of mediators: the arguments for and against

for or against public licensing of mediators?One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.

In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.

The arguments in support of state licensing of mediators:

  • State regulation of the practice of mediation would assure the quality of mediation services by establishing best practices and setting standards of ethical conduct, increasing public confidence in ADR.
  • State regulation would establish a mechanism for disciplining, rehabilitating, or suspending from practice those whose conduct falls below a specified standard.
  • State licensing would enhance the professional standing of mediators and confer greater credibility upon the profession.
  • State licensing would enable mediators to market their services more effectively and to compete more nimbly in the marketplace against other service providers.
  • State licensing would protect mediators practicing within a defined geographic area, and give local practitioners preference over out-of-state practitioners.
  • Given the long-standing uneasy relationship between lawyers and mediators, state licensing of mediators would level the playing field between lawyers, who hold state-issued licenses to practice law, and mediators, who do not hold state-issued licenses to practice mediation.
  • State licensing would establish standards not only for mediators but also for the training and education of mediators.  State regulation of mediation trainers and mediation training programs, which at present vary widely in terms of quality and effectiveness, would increase public confidence in institutions and programs that train mediators.
  • State regulation would ensure that mediators possess professional liability insurance to compensate consumers for losses resulting from professional negligence by mediators.
  • State regulation would result in a database of practitioner contact information, including office location or residence for service of process in the case of a legal proceeding or disciplinary action against the neutral.
  • Licensing and related fees resulting from state regulation of mediation and mediation training would generate revenue for state coffers.

The arguments against state licensing of mediators:

  • Apart from anecdote, no hard evidence supports state regulation of the practice of mediation to protect the public from the unethical or unskilled. At this time, no external pressures exist —  such as demands by consumer watchdog or legal advocacy groups in response to actual harm to consumers caused by mediators — to place mediation practice under state regulation. The impetus comes from mediators themselves, not a concerned public.
  • State licensing of professional activities typically results in geographic limits on the practice of such activity, prohibiting those who are unlicensed from operating within its jurisdiction. Given the multi-jurisdictional and transnational nature of much ADR practice, state licensing of mediators would unduly burden the practice of mediation and constrain the ability of mediators to practice.
  • State licensing of mediators runs contrary to one of the foundational principles of mediation, self-determination. State licensing of neutrals would unfairly restrict the ability of parties to utilize a neutral of their choosing.
  • State regulation rests upon the articulation of standards of practice, which promote and reward conformity in behavior but work to discourage innovation.  (Consider, for example, the case of opposition by some members of the bar to the legal innovation known as collaborative law.) This would have an inhibiting effect  on what is still an evolving field.
  • Market forces and consumer preference already operate in place of state regulation, ensuring that the lion’s share of cases go to mediators with reputations for effectiveness.
  • The positive benefits of state regulation could be achieved through the creation of certification mechanisms by private actors who understand the profession and its needs better than would state bureaucrats and politicians.
  • Within the mediation profession, the differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.
  • During economically difficult times, it is not sound policy to impose fees and erect bureaucratic barriers to the conduct of business by mediators in private practice, particularly in light of the lack of evidence to support state regulation.
  • Creating barriers to practice and imposing licensing fees would unfairly burden mediators who provide low-bono or pro bono services in non-profit mediation programs, which traditionally serve disadvantaged communities.

Related posts on this subject:

More like guidelines: ethical standards of conduct for mediators considered

Model Standards of Conduct for mediators more like guidelinesSome of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.

That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.

As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters –  of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.

Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.

Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:

These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.

The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.

Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.

Unlike the fictional pirates in Hollywood films, they have real-world impact.

What's in your agreement to mediate? Confirming confidentiality before the mediation starts

Confidentiality in mediation - caveat emptorConfidentiality stands as a cornerstone of mediation practice. It encourages the resolution of disputes by allowing those in conflict to candidly discuss the issues they face, secure in the knowledge that what they say in the mediator’s presence cannot be held against them later. In pop culture parlance, what happens in Vegas, stays in Vegas.

Thousands of laws, judicial decisions, scholarly articles, and customary practice among neutrals speak to the important role that confidentiality plays and the value that institutions, users of ADR, and mediators themselves place upon it. Disputants reasonably expect that the disclosures they make will remain in the mediator’s confidence. Often mediators themselves establish or reinforce these expectations at the commencement of mediation by making an introductory statement intended to orient the parties to the process and establish basic guidelines for how the mediator and disputants will work together. This introduction usually includes reassurance by the mediator that what is discussed or disclosed will “stay in the room”. People rarely inquire further into what this means precisely; mediators themselves are sometimes overwhelmed by the difficulties in satisfactorily explaining confidentiality in all its complexity.

Despite these expectations, despite the professional and scholarly emphasis on its virtues, confidentiality is vulnerable and not always assured, as a recent case makes plain. In an article on her always informative Negotiation Law Blog, “Mediator Testifies for Insurance Carrier and Court Enforces Mediated Settlement Agreement against Policyholder“, Victoria Pynchon discusses with dismay Palmer v. State Farm General Insurance, a California case in which a mediator filed a declaration in support of an insurer’s motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings. You can read her unflinching criticism of the mediator’s conduct here. This case also prompted complex commercial litigation lawyer Stephen Goldberg to ask on his own blog, “Can Your Mediator Be Your Enemy?“, finding that sometimes, sadly, the answer may be yes.

So what’s a disputant to do to protect themselves up front? Mediators and parties typically enter into a signed agreement known as an agreement to mediate (PDF). Among other matters, this agreement customarily addresses the issue of confidentiality – its scope, exceptions, waiver, and the obligations of those involved to uphold it.  Typically such agreements include language prohibiting the parties from calling the mediator as a witness or from subpoenaing the mediator (PDF). Such a provision is important for mediators, for whom confidentiality – and impartiality – are stock in trade. Most of us who mediate have no wish to be in the position of disclosing information revealed to us in confidence or providing testimony that would most certainly give one side victory over the other.

But confidentiality provisions also protect the parties. Before mediating your dispute, review the language of the agreement to mediate with care. Make sure you know what you’re getting. I know that what I am about to say risks provoking cries of outrage from mediators who see mediation as a refuge from the legal system for ordinary people who shouldn’t have to hire lawyers, but needless to say, if you’re not an attorney or don’t have one representing you, consider getting competent legal advice before signing an agreement to mediate. It is after all a contract. If the Palmer case teaches us anything, it’s that parties – not just mediators – must take care to safeguard confidentiality.

Grain of salt: how much does mediator behavior influence the outcome of mediation?

taking mediation research with a grain of saltThose of us who mediate like to believe that our skills and temperament influence parties who are poles apart to move toward resolution, reconciliation, or settlement. But how influential are we really?

My colleague, attorney and mediator Stephanie West Allen, steers readers toward an article by ADR academics James A. Wall, Jr. and Suzanne Chan-Serifin, “Civil Case Mediations: Observations and Conclusions“, in the new edition of The Jury Expert. This article appears to cast some doubt on how mighty that influence may be.

Concerned by the absence of “empirical studies that report mediators’, plaintiffs’ and defendants’ behaviors in mediation or more importantly that indicate how the various participants’ behaviors may influence the process or the outcome”, authors Wall and Chan-Serifin undertook an inquiry into mediation practice, observing 62 civil cases conducted by 21 attorneys and eight judges with substantial legal and ADR experience.

These observations led them to some conclusions that mediators may find humbling:

When we reflect on our study and its results, we find civil case mediation is a lot like aspirin: it works, but we don’t know exactly how. Consider that we found mediation frequently resulted in settlements but the settlement rate was dependent upon the case type. In attempting to obtain agreements, mediators pressed defendants as well as plaintiffs whenever they expressed high aspirations; however, they pressed plaintiffs more strongly than the defendants. But their pressing – like all of their other techniques – appeared to have little effect upon case settlements.

What are the practical implications of these findings? The primary implication – for mediators – is that they should acknowledge that the outcome of the mediation (e.g., agreement or nonagreement) is to some extent independent of the mediator’s behavior. This suggestion is consistent with Judge Wayne Brazil’s charge that mediators should not exaggerate their responsibility, ability or contribution to the mediation (Brazil, 2007). Rather, they should understand that they are hosting a negotiation process. . . .

The final implication is for scholars as well as practitioners. In the last decade there have been approximately 80 articles that advise mediators on the tactics and strategies they should employ. They are told to control emotions, obtain apologies, overcome perceptual errors, facilitate, define the problem, evaluate, not evaluate, not believe attorneys, be neutral, be fair, improvise, manage risks, focus on central elements, etc. Most of these prescriptions and proscriptions should not be proffered, because they assume the mediators control the mediation process. As noted previously, our evidence, as well as that from other studies indicate mediators do not have substantial control over the process. Rather, it seems that the case type and the plaintiffs’ behavior are the more influential factors.

Mediators, don’t panic yet. Sixty-two civil cases mediated by 29 mediators does not seem a large enough sample to draw reliable, universally applicable conclusions from. Stephanie has already raised some good questions herself in her post. I would add some of my own.

  • What model or philosophy of mediation practice do these 29 mediators rely upon? It’s not clear from the article, and the differences among the various approaches to mediation practice, including the role that each participant plays and how broadly or narrowly issues are defined, are significant. They matter. I for one would welcome research that examines what influence if any different models of mediation may bear on resolving conflict. It’s time at last to test the assumptions that so many of us hold about the efficacy of the various models of practice (and of course we all have our favorites).
  • What about other kinds of disputes?  What would the results be if instead the study involved observations of disputes not in litigation – cases in which the law and the court play no role?
  • What about the identities of the participants themselves? Does it matter that the mediators were all members of the bar and that these cases involved attorneys and represented clients? What differences might we observe if the professional identities of the players were wholly different?

As provocative and arresting as the conclusions may be that the authors draw from their observations, I don’t think it’s time yet for mediators to rewrite their marketing materials or for mediation trainers and educators to revise mediation training materials or course outlines. The authors are correct to point out that we most certainly do need more studies of mediation. Our profession – and consumers of mediation services – would benefit from further and in-depth research that illuminates whether and how mediators influence the parties at the negotiation table.

Mediation: not meditation, not medication, and definitely not arbitration

confusing apples and oranges - mediation is not arbitrationYesterday the New Jersey Star-Ledger reported that the state’s Supreme Court “OKs mediation in custody disputes“.

The problem with the story is that the New Jersey Supreme Court did nothing of the kind. Instead, it held that parties to a matrimonial action can submit questions relating to child custody and parenting time to binding arbitration (PDF).

Was this confusion in reporting the result of careless journalism? No doubt. But this also tells me that the ADR field still has plenty of work to do in terms of public education and awareness. Arbitration and mediation are not concepts to be used interchangeably. One is not a synonym for the other. They serve different purposes and produce different outcomes. And we need to help the public – our prospective clients – understand that.

Hat tip to Jim Melamed, Mediate.com‘s CEO.

Mediation credentialing: what about mediation trainers?

questions for the mediation fieldMuch discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill.  That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.

Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public.  In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air – an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?

As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.

Lawyers are from Mars, clients from Venus: differing perceptions of mediation documented in new book

lawyers and their clients inhabit parallel worldsAfter attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled  “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.

The June 2009 newsletter of the Resolution Systems Institute is out and includes a review of a recent book (PDF), Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, by Dr. Tamara Relis, a British Academy Research Fellow in the Law Department of the London School of Economics and Political Science.  Relis’s book describes a vast perceptual gulf between lawyer and client, who hold opposing views and expectations of mediation. From the review:

Relis uses quotes effectively to demonstrate the parallel worlds lawyers and parties inhabit. Moving chronologically from parties’ aims in litigation through their experiences with mediation, the quotes show that lawyers’ and clients’ views and experiences were often completely different. When asked what the plaintiffs wanted from litigation, lawyers unanimously stated it was entirely, or primarily, money. Plaintiffs, on the other hand, discussed a need for explanation, admission of fault by the doctor and/or hospital, and apology. Money was not their focus. These parallel worlds had a significant impact on the cases, the mediations and the resolutions because lawyers maintained control…

Relis documents striking differences not only between lawyers and clients but also between men and women:

Interviews also indicated gender differences among lawyers and parties in perspective and approach to mediation, and among mediators in their ability to control the lawyers. Female lawyers were more likely to see merit in the emotional aspect of mediation. Female parties were more likely to feel trepidation about the mediation, to be more concerned about how their statements were perceived, to be influenced by mediators’ statements and behavior, and to be less likely to talk during the mediation. Female mediators were viewed by the parties as being less in control of the lawyers and the mediation.

An excerpt from the first chapter is available for downloading.

Dr. Relis is also the author of an earlier work, “Consequences of Power,” an article that appeared in Harvard Negotiation Law Review and  available as a PDF download at the Social Science Research Network.  It describes a disconnect between attorneys’ objectives and those of their clients and shows that the intentions of plaintiffs and defendants in mediation are more closely aligned than one might suppose–and  all too often thwarted in their desire to communicate with each other.

I hope that my brothers and sisters at the bar are listening.

In praise of joint sessions: mediator Geoff Sharp pays tribute to face-to-face negotiations

in praise of the joint sessionRing the bells that still can ring
Forget your perfect offering
There is a crack in everything
That’s how the light gets in

- Leonard Cohen

The past couple of years have brought energetic debate within the mediation profession, pushing mediators to confront questions about practice, professional identity, and the nature of mediation itself. One of the most controversial questions concerns the use of the caucus, the private meetings behind closed doors with each side to a dispute separately. Some consumers of mediation services, particularly attorneys, insist upon it, as I learned while attending one of the break-out sessions at the annual spring meeting of the ABA Section on Dispute Resolution.  Some mediators rely on it heavily. Meanwhile, others, like Gary Friedman and Jack Himmelstein, authors of Challenging Conflict: Mediation Through Understanding, reject the use of the caucus entirely, arguing that the caucus distorts the flow of information between parties and negates the principles of dialogue and rapprochement that lie at the very heart of mediation practice.

Wading into the debate is experienced international commercial mediator Geoff Sharp with a working paper entitled, “In Praise of Joint Sessions” (PDF). Geoff pulls no punches in his criticism of devotees of the caucus, observing that “shuttle mediation has arisen, in part, out of a laziness by mediators.”  On the basis of his substantial experience mediating difficult commercial disputes, Geoff explains why he believes the joint session is so essential to their resolution:

The heart stopping success or failure of a large commercial mediation often occurs in joint in those pivotal moments where the mediation sets its course, north or south. In my 10 years of mediation, I have never seen a party make the kind of movement, whether emotionally or financially, in private as they do in joint. Sure, movement may manifest itself away from the public glare but it is usually as a result of insight gained in the fire of a joint session.

Of great importance to Geoff as well is the capacity for mediation to bring transparency to people whose differences have largely kept them in the dark, as well as revelations that light their understanding. To bring his point home, he shares the quote from Leonard Cohen with which I began this post. The joint session illuminates the shadows and brings the sun to the dark places in the disputes that divide us. Go read this working paper – it truly shines.