• by Charalee Graydon
  • 6. June 2018
  • 2 Comments

Mediation in Context

The Past: Mediation is part of my past and will be part of my future as I continue to follow opportunities to learn and write about mediation and it´s place in the twenty-first century. For me, mediation is an opportunity to promote a forum that can be used in a variety of situations for management and resolution of conflicts.  My present objective has changed from when I first trained as a mediator in the late 1980’s. At that time, my objective was to provide an alternative method of dispute resolution for my clients. As a litigation lawyer, this required me to make a significant shift of mindset. I was no longer advancing a position for a party but facilitating communication between parties who were in conflict and seeking to reach a mutually acceptable agreement or understanding.  My mediation work was in the areas of corporate, contractual, and personal injury disputes. As legal counsel, I took part in mediation for my clients and in court assisted mediation. As an academic, I wrote about judicial mediation conferences and developed programs of mediation for groups starting mediation programs.

I introduced mediation as a dispute resolution option in my book of literary fiction, The Judgement Game.  The book does not, however, provide a method whereby the reader has an opportunity to determine if the protagonists in conflict could have resolved their dispute using mediation. Protagonists have only a literary presence and I did not provide a mediator to engage in the mediation process or illustrate different mediation styles.

The Future: The matter of creating a mediation forum for The Judgement Game can be addressed by choosing select stories and creating virtual reality scenarios with characters for the parties in conflict and the mediator. The mediator can adopt different styles of mediation as part of a virtual reality learning experience.

An Internet search shows articles about the use of virtual reality for this type of scenario. One article indicates that the evolving technology gives rise to legal issues involving intellectual property and copyright, which issues need to be addressed when using the medium. Another article explores virtual reality as an educative tool where, using simulated mediations, the types of problems raised in The Judgement Game, can be presented.  My search shows that mediation and instruction materials are available online as well as showing other uses being made of virtual reality mediation programs.  I provide examples of the use of mediation by community groups and schools to show how the concept of mediation is being used.

My experience of mediation has been augmented from attendance at a training course in 2016. While facilitative mediation techniques are essentially the same as those I followed in the 1980’s, other matters regarding mediation training have changed. Health and well-being have been built into the mediation process and transformative mediation, not part of my training in the 1980´s, was part of the program.  Another difference is that mediation materials are now readily available to mediators via the Internet and mobile phones. In the late 1980s mobile phones were primarily used for telephone communication and did not have the capabilities of today´s smart phones and applications. Metaphorically speaking, mobile phones have become human appendages and can be used to send text messages or engage in chat sessions. These technological advances shape how mediation is evolving and provide mediators with the ability to advance mediation both in their regions and internationally.

My review shows that mediation is now being used to deal with legal and non-legal matters, as well as for management of human and social interaction. Our world has become a world of photographs and rapid methods of communication. We see pre-school children with toy computers and mobile phones, and older children who are using mobile phones and computers in the same way that storytelling and board games were used in the past to learn social skills and communication with teachers, parents and peers. These changes provide mediators an opportunity to promote the concept of mediation for conflict resolution and to encourage human interaction based on cooperation and civility between the parties. In this respect, it is important that mediators provide a forum in which parties are asked to maintain respect for one another. This can be accomplished by creating virtual reality programs explaining the mediation process and showing different mediation styles. As well, when providing online mediation services, the mediator can use what is found to be the most effective mediation style, facilitative, evaluative or transformative, to deal with the dispute in question.

The mediation community can develop positive and engaging online games and activities about how to manage and handle conflicts.  I provide one example showing what has been done in relation to storytelling for pre-school children. For older children and adolescents, mindfulness sessions based on mediation concepts have shown positive results. Designing games using music, graphic art and photography can also provide positive role models for children and create characters that evoke a feeling of empathy by the recipient. It is also suggested that conflict resolution awards be provided to promote the message that conflicts are resolvable. Given information about mediation and by using mediation tools, young people can take charge of their own situations or work with parents and schools in seeking to resolve and better understand conflicts.

In relation to an online mediation, I refer to the article Creating an Environment for Mediating Disputes on the Internet, written in 1996, which sets out the idea of providing online mediation services.  This idea developed rapidly and, as shown by my Internet search, there are now numerous online mediation and virtual reality sites. In this way, the mediation world has changed significantly since my training in the 1980´s.

I now recognize that mediation is a holistic process that involves not only legal disputes but includes conflicts currently facing humanity. Issues of climate change, maintaining a non-violent society and promoting cooperation and civility, rather than discord and separation, are gaining attention. As a method to achieve these objectives, it is suggested that the creative arts can lead the expansion of mediation by using the universal language of music, art and literature in combination with the world of technology to highlight the use of mediation for conflict resolution of climate change conflicts. In an article in the New York Law Review, author Ethan Katsh, commented on the statement of media expert, Marshall McLuhan, who indicated “…when cultures change, games change.”

Katsh goes on to state, McLuhan took games seriously and, indeed, devoted a whole chapter in Understanding Media to the subject of games. He did so because he considered games, along with art and literature, to be early warning systems, artifacts that react to and inform us about the nature and direction of early shifts in a culture. The theme of this article has been that network-based online games and virtual worlds may be more than early warning systems. The games or virtual worlds that are the subject of this article are not simply contests but new environments. As such, they may not only suggest something about the future direction of dispute resolution but allow us to design and experience new models, systems and approaches.

My future area of study will explore the value of using the creative arts to promote mediation concepts to address climate change issues. As a precursor to this study, I provide the example of the DiCaprio film, Before the Flood,   used to alert people to climate change issues. I also point to information of groups such as the United Nations, Mediators Beyond Borders, International, university researchers and private companies as to the handling environmental and climate change maters using mediation and environmental management systems. The value of mediation in facilitating communication between parties in conflict and promoting reconciliation or understanding between the parties,  can be said to be shown by these examples.

Mediation can move forward in the twenty-first century by developing models to address climate change, maintaining a non-violent society and promoting cooperation and civility between humans. My objective, as writer and academic, is to contribute to these developments.

Mediation in Context

My region is “my World” as my comments are global and can be said to apply to regions where I live and have lived: Canada, New Zealand. France and Spain. My World is changing and I and others need to adapt to these changes. Important to this adaptation will be to construct just and transparent dispute resolution systems. This paper will address mediation as a method of conflict resolution and how it is being addressed in activities relating to environmental and climate change conflicts. Mediation expert, Ken Clock, academic and past president of Mediator’s Beyond Borders, suggests what mediators can do to save the planet by working on environmental and climate change matters. I provide examples of current and proposed activities of mediation and peace building for conflicts arising from environmental and climate change. It is suggested that mediation plays, and will continue to play, an important role in conflict resolution in my World.

Examples of Mediation and Climate Change Activities in My World

News articles on environmental and climate change issues touch my World. In Alberta, Canada fossil fuel extraction and the proposed Keystone Pipeline raise environmental and climate change issues, as do recent floods in Paris, France, air pollution and agricultural problems in Spain and climate change impacts and environmental legislation in New Zealand.

These articles provide alerts that conflicts are occurring in response to climate change taking place in the world. It is suggested that forums, legal and non-legal, are required now and in the future to deal with these conflicts. Brief examples are provided of what is being done and future proposals for my World.

A noticeable change in education is taking place. There has been an increase in educational programs at schools, technical institutes, colleges and universities in areas of transition studies, environmental ethics, environmental justice and peacekeeping.  These programs include training in mediation and other forms of alternative dispute resolution. As well, studies are reviewing the efficacy of current economic, communication and political models. Suggestions are being made to redefine humankind´s focus  to promote cooperation and the common good as opposed to competition and individualism.

While traditional methods of litigation continue to have a role in resolving climate change conflicts, this method of dispute resolution may not be the best fit for resolving matters involving several stakeholders and dealing with the scientific, social and political issues involved. As well, the length of legal proceedings, their cost and the adversarial mindset of litigation can be argued not to be an appropriate way to handle climate change conflicts. The effects of climate change are such that parties with diverse agendas and ideas need to work together to handle problems. It is argued that management, using mediation, can serve to promote understanding and potential resolution of disputes by allowing parties to move from position taking to voicing suggestions and seeking common objectives to deal with the problems. A mediator can assist parties by facilitating this process so that the parties have a better understanding of their differences and can work toward providing an open discourse promoting cooperation and collaboration rather than position taking, discord and separation.

As we now live in a global world in which technology plays an important part, mediation allows people to use communication that can be understood by people from different cultures and using different languages. Communication between parties can be fostered by using the common language of the creative arts of music, art and film as well as evolving technologies of virtual reality as educative tools to show how mediation can be used by parties to deal with climate change conflicts.

I provide examples from my World to show how mediation is being used to deal with environmental and climate change conflicts:

CANADA: I provide is a proposal for Canada´s reinvolvement with UN peace operations. It has been suggested that there is the possibility of Canada creating a peacekeeping niche by using mediation for peacekeeping operations. Also suggested is the creation of a peacemaking and mediation advisory team as a project for Canada´s UN peacekeeping reinvolvement.

The second example deals with the use of mediation for an environmental forestry issue in British Columbia, Canada. Author, Michael Blackstock, forester and mediator, in an article published in 2013, explains how mediation was used to promote better understanding and resolution of forest related conflicts between First Nations peoples and government agencies. An additional example, from the Canadian Institute of Planners, provides a list of adaptation projects involving the concept of mediation that are taking place to deal with climate change. Specific material published by the Government of Canada also provides information about handling climate change issues for municipalities.  A First Nations group, Turtle Lodge, in Manitoba, provides an educational forum, “Tipi Tales” that provides lessons to recognize that people are one element of earth’s  biosphere .

SPAIN AND FRANCE (EUROPEAN UNION MEMBERS): The European Union (hereafter referred to as the EU) of which France and Spain are members, is active in developing programs for adaptation to climate change. The EU has created a mediation project, is a donor for climate change projects and advances mediation projects in areas experiencing the effects of climate change. The EU is also an international mediator facilitating resolution of international disputes. Mediation projects are organized to deal with areas where climate change is taking place and where plans of adaptation are most needed. As well, joint work of the EU and the United Nations may strengthen the EU´s ability to contribute to health, education and mediation in dealing with climate change in areas where both agencies are engaged. It is not yet known what the effects of England´s decision to leave the EU will have on the strength of EU´s policies for mediation and climate change adaptation, leaving Europe in a period of uncertainty.

NEW ZEALAND: New Zealand has implemented laws and policies to use mediation for addressing environmental and climate change conflicts. In 1991, New Zealand enacted the Resource Management Act (hereafter referred to as RMA). The legislation seeks to advance environmental sustainability and recognizes the importance of balancing environmental, social, and economic goals. Review of the RMA focuses on the idea of achieving sustainable management of resources including land, water, air and soil, minerals and energy, plants and animals. The legislation is innovative and endeavors to create a model to foster environmental sustainability. The RMA has created an Environmental Court which adopts a case management system to deal with environmental disputes from their inception and uses a variety of dispute resolution procedures, including both litigation and alternate dispute resolution approaches, one of which is mediation. The Court has also implemented a court-annexed mediation project to handle these disputes. Its role in managing climate change conflicts is being developed along with its use of mediation and consensus building as methods of dispute resolution.

This brief review of the use of mediation for resolution of environmental and climate change conflicts in my World shows the role mediation can play in bringing parties together, to facilitate understanding and management of conflicts. At present and for the future, the examples provided show the flexibility of mediation and its potential as an effective forum for dispute resolution in my World and our world.

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2 Comments on Mediation in Context

Dear Charalee,

many thanks for your very personal insights and statements. I believe that you shared a real treasure of knowledge with us. The fact that your professional training took place almost 40 years ago is of upmost importance to me. By observing the conceptual development and transformation of trainings in mediation, we all might confirm that obvious changes took place. More and more topics were introduced to the field and the catalog of terms to study became more and more complex. In my book: ‘Comprehensive Mediation – Towards an educational concept for the training of globally effective mediators‘ I am talking specifically about this problem. I called this ‘misleading’ development the ‘widening of a system horizon’ – which describes the fact that students are asked to learn a high quantity of topics at a superficial level, but are taken far away from the proper development of individual skills.

I believe that this is due to the institutionalization process of mediation and the educative market that requires the curricula of trainings to look more and more fancy, by including constantly new topics to their concepts. I think this is not supportive to true mediation at all. So, the question might be, what true mediation means to me, to you, and what it might mean to the general public. To me, true mediation is a core skill of all humans that was developed during their lifetime to a more or lesser level. I believe it does not necessarily need a framework, rules, and legitimation but an individual who is able to handle a situation itself. Handling a conflictive situation grants lots of space for sensibility and creativity and enables a mediator to walk a path that was never walked before.

As humans and their conflicts bear an infinitive number of variables, we need mediators who properly developed self-confidence regarding their skills that they bear within. Therefore, I truly welcome the mediation trainings that took place before the industrialization of mediation, and this is why the WMO Training is comprehensive and limited in topics. It is an attempt to re-offer a training concept that focusses on the development of the individual – namely by identifying and developing her / his core competencies.

Summing it up: I think mediation requires a person to be authentic. Being or becoming authentic needs time individual development to get. Therefore, each mediator is unique as the mediation that (s)he offers. Additionally, I think you can never promise a solution or specific outcome of a mediation, as you never know where the mediation might take you to. If a resolution and signing of agreement is promised, you might not call it a mediation.

Best regards, Daniel

    Thank you for your comments Daniel. I agree that people engaging in mediation need to learn and work with the core concepts, listening skills and acting to guide the disputing parties to a mutually acceptable conclusion.

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