Updated: Feb 21, 2022
Summary: Conflict resolution is much more than working as a mediator! Rather than training more new mediators who will eventually struggle to find cases, the conflict prevention and resolution community should be concentrating on spreading collaborative skills which help to prevent and defuse conflict before mediation or litigation become necessary. Training in collaborative disciplines would go much farther in decreasing the level of conflict in interactions between people, and in bringing us closer to a collaborative world. These subjects include integrative negotiation, conflict coaching and - especially for lawyers - mediation advocacy, collaborative law and the Conscious Contracts ® method of relational contracting.
Collaboration is the way of the future, and mediation is one of the most important forms of collaborative problem-solving and dispute resolution. More and more people, businesses and institutions are becoming aware that the existing adversarial, competitve paradigm of approaching relationships isn’t compatible with their values and purpose.
Recognising this trend, we see more and more firms, institutes and trainers offering training of individuals to serve as third-party neutrals - the so-called “40-hour trainings”. These courses promise a foot in the door and a fulfilling and lucrative career as a neutral mediator.
Methods of integration and collaboration are the way forward in business and legal interactions
The demand for mediation is far lower in practice than it would seem to be from a theoretical standpoint. The shortcoming of mediation is that it introduces the concept of collaboration after conflict has erupted; the awareness of the benefits of mediation - first and foremost, by parties to a relationship, and of course by their legal counsel - often only becomes evident at the time of mediation itself.
As every experienced mediator knows, due to this lack of awareness and hence demand, it is almost impossible to keep food on the table solely by serving as a mediator. The promises of mediation trainers often ring hollow. Consider it - if there were so much work for mediators, why are so many mediators working as trainers rather than out there mediating? If collaborative problem solving were so universally embraced, why are there only 9 countries full parties to the Singapore Convention on Mediation (congrats #georgia !)?
This last question hints at its own answer. The major reason conflicts are not mediated is that parties and their counsel, employers and their employees, and other people in relationships do not think of collaboration as their method of choice for prevention and resolution of conflicts.
Advancing the paradigm of collaboration
Some mediation trainers claim that their primary purpose in running mediation courses is spreading the word about collaborative problem solving, rather than actually teaching the “trade” of mediation. This may be so, but training new mediators is a roundabout way to that end, when there are so many other direct avenues to achieve that aim.
Trainers who are truly interested in building a future where collaboration rather than competition is the rule should be focusing on training parties to collaborate, rather than training scores of mediators who will likely never mediate a case. Such training might include the following::
Training mindset from the outset: Mediation training with its phases, facilitation skills and other technical aspects often misses the point and does not drive home the lodestar of collaboration - integrative, interests-based communication. Internalising the most basic principles as set out in Fisher and Ury’s seminal Getting to Yes is a necessary first step before getting into practical mediation techniques. Few mediation courses have this text as required reading, few trainees have heard of this short, revolutionary book, and even fewer have actually read it. The book is 150 pages long and can be read in a few hours. (Accessibility note: it is also available as an audiobook).
Integrative negotiation - a mediator resolves disputes by encouraging interest-based, collaborative communication. If the parties were already trained in collaborative negotiation at the time of cementing their relationship, there would likely be very little need for mediation, and almost no need for litigation (see my discussion of the Conscious Contracts® model below for an idea of how such conflict prevention could look). Some trainers and institutions offer negotiation training and most base themselves on some form of interest-based communication or another. Experienced mediators should be particularly capable of conducting this sort of training - aren’t caucus meetings during mediation actually training the parties how to negotiate, under time pressure and on the fly?
Conflict coach training - there are a lot of programmes purporting to train coaches. Unfortunately, conflict coaching seemingly has a narrower appeal than life coaching or career coaching (from an income point of view), precisely due to our often unwitting commitment as a society to the adversarial system. At heart, a conflict coach trains the client in integrative communication, often against the backdrop of a specific situation (as opposed to general negotiation training). Once again, the substance (collaboration) is the same and only the delivery method is different.
Lawyers are central in promoting the collaborative mindset! Sharpening of certain skills directed specifically at legal professionals is also the order of the day. Some examples of available training are:
Mediation advocacy - some forward-looking mediation trainers have realised that it might be just as important, or even more important, to train attorneys in the effective representation of parties in mediation - which is a collaborative skillset and entirely different from traditional adversarial representation. Beyond developing this mindset and tool box, perhaps the most important impact of this training is inculcating the advantages of mediation among legal practitioners, such that more and more will recommend mediation to their clients in appropriate cases. The field of family law has been deeply influenced by this thinking; it is high time that other areas of the law follow suit. Offering attractive training (backed up with CLE/CPD credit, of course!) to lawyers outside the family law sphere would go a long way in helping push this quiet revolution forward.
Conscious Contracts® training - at the leading edge of contracting practice, relational contracting and the Conscious Contracts® method offer a proprietary process for creating sustainable, relational and values-based agreements. Taking the collaborative mindset to its logical conclusion, conscious contracts include trust building, clarification of common interests and values and creation of bespoke structures for addressing change as it arises, and even before it erupts into fully developed conflict. As with mediation advocacy, lawyers should be trained to recognise the advantages of such relational contracts, so that they may work together with a qualified professional to create such contracts for their clients, or decide to become qualified practitioners (and even trainers) themselves.
Integration and collaboration are already on the horizon as the communication paradigm of the 21st century (and beyond). Superficial training of mediators does not however increase the acceptance of the collaborative model - it mostly promises a source of income which is difficult to realise in the business world. The collaborative paradigm would be better served by other forms of training - be it for individuals, coaches and mentors, or legal professionals. Negotiation training, conflict coaching, mediation advocacy training and relational Conscious Contracts® training all serve the collaborative mindset to a far greater extent than mediation training.