We live in a VUCA (volatile, uncertain complex and ambiguous) world. The VUCA environment requires openness to new ideas and the adaptability to change behaviour and standard operating procedures where it makes sense. A VUCA world means more conflict as we respond to threats (perceived or real) or opportunities and take risks. Our approach to conflict management must also respond to the realities of the VUCA world with skilled professionals using adaptable tools such as mediation to help parties resolve conflicts before they spiral out of control. Conflict management tools are only as effective as the people using them.
There are many ways to analyse how conflicts can spiral out of control. I like the Glasl escalation model, as the nine step analysis shows how a negotiation deadlock, when not proactively managed, can quickly develop into attack and counter attack where even self preservation ceases to be relevant. This model also suggests that conflicts do not escalate because the issues are insurmountable; rather because of the way issues are handled or mishandled by those involved.
People, rather than issues, events and process, are the determining factor in meaningful conflict resolution; provided they are competent people, skilled professionals, those that really can help achieve the most appropriate resolution.
It is the skills and attitudes of people that determine whether conflicts can be addressed as battles to win or, more productively, as problems to solve.
The people element, the component that can tip the scales between win and resolve, win-lose and win-win, relationships destroyed and deals made, explains why, in March 2010, I accepted an invitation to Chair the Board of Directors of the IMI foundation.
Einstein defined insanity as doing the same old thing in the same old way and expecting different results. He also observed that we can not solve our problems with the same thinking we applied when they first arose.
IMI helps move the mediation field towards true professional status by doing new things, such as enabling dispute resolution institutions to qualify experienced and competent mediators as IMI Certified - a missing common thread in a fragmented field that confuses users and restricts the growth of mediation. This is a new, demand-driven approach. Users need simplicity and clarity. We need professionalism, transparency, standards and competency. IMI is convening stakeholders from the demand and supply sides to address that need.
In 2010, as this Review explains, IMI surged forward on a global scale. ADR institutions are being empowered to qualify experienced and competent mediators for IMI Certification by meeting clear criteria set by the Independent Standards Commission. Users, whether in communities or families, companies or governments need mediation to be a genuine profession. Achieve that and the demand for mediation will grow.
For those of us wishing to see mediation more widely used, that goal is within reach.
Patrick Deane, Senior Counsel & Head of the ADR Practice Group, Nestlé, Vevey, Switzerland
Chair of the Board, International Mediation Institute
- American Arbitration Association/ICDR
- Singapore Mediation Centre
- Singapore International Arbitration Centre
- Bahrain Institute for Dispute Resolution
- Netherlands Mediation Institute
- Lord Woolf of Barnes (Chair)
- Sheikha Haya Rashed Al-Khalifa
- Professor Tommy Koh
- William K. Slate II
- Professor William L. Ury
- Minister Aleš Zalar
- 1,031 mediators in over 30 countries have registered on the IMI portal
- 354 experienced mediators have become IMI Certified
- 586 mediators are being assisted in completing their online Profiles
- 7 institutions had approved Qualifying Assessment Programs (QAPs)
- 5 institutions have QAP’s pending or in progress
Evolving Stakeholder Opinion
Initially, many mediators and providers were sceptical of the IMI mission. Practitioners struggled to see how the goal of setting professional competency standards was achievable on local, let alone a global basis. Many recalled abandoned attempts to establish US national standards by the ACR and the ABA Section of Dispute Resolution.
But attitudes have changed. Australia introduced a National Mediator Accreditation Scheme and National Mediator Standards. The UK’s Civil Mediation Council (CMC) attempted something similar though it was largely withdrawn following mediator concern over inadequate consultation. Conferences, blogs and other discussion forums carried opinion and debate. Seeking feedback and making it available to prospective Users began to gain traction with mediators who realized that, without standards and transparency, mediation would not grow.
Article 4 of the European Mediation Directive urged the development of, and adherence to, voluntary codes of conduct by mediators and organizations providing mediation services “as well as other effective quality control mechanisms concerning the provision of mediation services”. An article by the CMC Vice Chair, Rethinking Accreditation – Time for a More Radical Approach, advocated a public complaints system, Codes of Practice for mediators, providers and trainers and a registration system based on publicly-available information. In 2009, the French Académie de la Médiation created the Institut Français de Certification des Médiateurs (IFCM) to certify competency of experienced mediators based on independent advanced skills assessments. Mediate.com announced a Certification Scheme including minimum training and experience requirements.
In August 2010, Prof. Frank E. Sander of Harvard Law School noted that as mediation has become more pervasive it was becoming unclear how lay parties could evaluate the quality of mediators and that it was inadequate to let the market decide. He concluded that the field should be "heading towards some kind of ... system for appraising the quality and competency of mediators at least in terms of requiring training". www.mediate.com/articles/sanderdvd06.cfm
In September 2010 ACR, one of the largest US groups of mediators with over 4000 members, published a draft “Model Standards for Mediation Certification Programs”. The draft document is the result of the work of the Task Force. In the UK, Clerksroom (an established organization providing clerical support services to home-based dispute resolvers) invited practicing mediators to join their National Mediator Database to comply with the latest CMC rules but also including a League Table by Feedback Rating.
In November 2010, the Republic of Ireland's Law Reform Commission published a Report on Alternative Dispute Resolution: Mediation and Conciliation which includes a recommendation to guarantee minimum standards of training and accreditation of mediators through a statutory code of Conduct. (www.lawreform.ie/news/report-on-alternative-dispute-resolution-mediation-and-conciliation.318.html).
Qualifying Assessment Programs
While it is very encouraging that momentum is building towards the establishment of competency and practice standards in mediation, this is likely to be a patchwork development. Standards and levels of transparency and efficacy inevitably vary from one country and provider organization to another. Few, if any, are linked up. Users will continue to be confused by the variety of approaches to addressing their needs for competent, suitable mediators.
IMI has therefore continued to establish high level, transparent competency standards and offer information about experienced, competent mediators to enable those mediators to be identified across state, national, practice and organizational borders.
2010 marked the introduction of Qualifying Assessment Programs (QAPs) for IMI Certification. Those programs need to meet the IMI Criteria for QAPs established by the IMI Independent Standards Commission. The Criteria fall under seven categories: Experience, Knowledge and Skills of Mediators; and Transparency, Integrity, Ongoing Monitoring and Commitment to Diversity of the Programme itself.
By the end of 2010, seven organizations had QAP’s approved by the Independent Standards Commission, namely:
- ADR Institute of Canada ADRIC
- American Arbitration Association/ICDR
- IFCM - Institut Français de Certification des Médiateurs
- IIAM – Indian Institute of Arbitration & Mediation
- LEADR - Australian Association of Dispute Resolvers
- Mediationcenter a/s
- NMI - Netherlands Mediation Institute
Mediators can now be qualified for IMI Certification by these QAPs and can approach these organizations directly via the ‘Find a QAP’ button on the web portal. QAP application criteria are openly accessible on the web portal.
All QAPs have a dedicated space on the web portal from where they can qualify their mediators for IMI Certification. A QAP Step-by-Step wizard on the IMI portal assists QAP to qualify and manage their mediators. A special IMI QAP logo was also designed and made available for the approved QAPs to use in their web and print communications.
November saw the first mediators being QAP-qualified for IMI Certification and by the end of 2010 the number had grown to 32.
Draft QAPs are in the pipeline or being considered in Ireland, Italy, India, Mexico, the Netherlands, Nigeria, Portugal, Romania, Singapore, South Africa, UK and USA.
Beyond QAPs – Other elements of the IMI Mission
Progress was made during 2010 in various other aspects of IMI’s Mission:
The Intercultural Taskforce of the Independent Standards Commission has prepared a first draft of Criteria for the planned IMI Intercultural Certification. This initiative has attracted much interest and support from users, mediators, trainers and providers and is due to be presented at the 13th Annual Spring Conference of the ABA Section of Dispute Resolution in Denver in April 2011. The Taskforce is led by mediator Joanna Kalowski (Australia) and Prof. Harold I. Abramson (USA) with Hannah Tümpel (ICC), Jeremy Lack (Switzerland), Prof. Ian Macduff (Singapore), Prof. Joel Lee (Singapore) and, as co-optee, Gigi de Groot (ITIM).
The IMI Young Mediators Initiative (YMI) began work in April 2010 to define its scope, concept, structure and activity. The main focus of YMI is on creating an experience-gathering scheme and networking for young mediators. The formal launch of YMI is planned for the ICC Mediation Competition in February 2011 and is supported with a website donated by IMI. In addition this will provide an organisational structure through which young mediators can contact local organizations and network with experienced mediators to gain experience through co-mediations, scholarships, assistantships, internships and mentorships. Young mediators will be able create their own profiles on the YMI site, the criteria for which is currently being finalized.
Progress in information development and dissemination has been considerable during 2010, in particular:
- The Decision Tree that takes users through the key issues they may want to consider in the often-challenging task of selecting the right mediator continues to be developed and is a great success. http://www.imimediation.org/decision-tree
- Olé – Online Evaluation is a unique user-tested process enabling users and their counsel to analyse prospective and existing disputes, from the perspective of all parties, with a view to developing the most appropriate strategy and approach for resolving it. It has been greatly improved in 2010. www.imimediation.org/ole
- A Getting to Mediation Through Contract Clauses page has been developed which displays ADR clauses including a mediation step published by 20 organizations around the world. The page also includes links to important articles and guidance from authoritative sources on drafting various dispute resolution clauses. www.imimediation.org/model-mediation-clauses
- Links to Videos featuring and explaining mediation from different bodies have been given their own page on the Mediation Tools section on the portal. Negotiations have been started with two international institutions to secure rights to make publicly available DVDs of an actual mediation taking place and an accompanying Study Guide that can be used by trainers and others interested in understanding how a mediation works. www.imimediation.org/mediation-videos
- The IMI Library contains books and articles about mediation, appropriately sectioned for easy reference. www.imimediation.org/mediation-library
Getting the Message Across
Communicating the IMI Mission effectively so that it is accurately understood is the key to acceptance, especially on the supply side – mediators, providers and trainers. The demand side, the users and their advisers, tend to get the message immediately and are invariably strongly supportive and encouraged.
In December 2010, a new IMI Web App, “Find The Right Mediator” was launched. It has been designed for mobile devices (Blackberry/Android/iPhone) and features the IMI logo and a mobile interface to the IMI Search Engine. http://m.imimediation.org
The Web Portal has undergone a considerable re-design in 2010 to accommodate the QAP activation process. A new back-end aids Certified Mediators to build and update their Profiles and Reviewers to upload/update Feedback Digests. A Mediation Tools button on the main menu bar collects materials that can assist stakeholders. Clone sites been designed for use by QAPs and the YMI to assist the dissemination of information in local languages while leveraging the Tribiq Content Management System used by IMI. This will significantly extend the reach and accessibility of the search engine and other materials on the IMI portal.
Investor/State Disputes - In March, governments, practitioners, investors, educators and representatives from international and non-governmental organizations attended a symposium hosted by W&L to explore prevention and efficient management of investment treaty disputes, including mediation, which is still lightly used in this area. IMI was strongly represented in this discussion and suitable IMI Certified mediators were identifiable for this category of disputes.
World Legal Forum (WLF) HUGO Program - IMI assisted the WLF in October to review the establishment of an international dispute resolution facility for complex Financial Products and, separately, in the CSR field.
Books. IMI is extensively covered in Mediator Skills and Techniques: Triangle of Influence by Laurence Boulle and Miryana Nesic, including the Decision Tree for Finding the Right Mediator. The 2nd edition of ADR In Business – Practice & Issues Across Countries & Cultures includes a chapter entitled Making Mediation Mainstream co-authored by 7 in-house corporate counsel plus a mediator perspective contributed by Annette van Riemsdijk. The 1st edition was a bestseller in 2007. The chapter has a prominent explanation of IMI’s mission. www.imimediation.org/making-mediation-mainstream. An earlier article How Mediators Can Obtain Professional Certification And Thereby Elevate Their Profession: A Look at IMI’s Voluntary Credentialing Program was updated and included in the 2nd edition of the AAA’s Handbook on Mediation. IMI’s mission is also explained in International Arbitration and Mediation, A Practical Guide by Michael McIlwrath and John Savage.
IMI Certified Mediators and Reviewers asked for two IMI-related LinkedIn groups – one for mediators, the other for Reviewers, and these are now in place, enabling both groups to inter-communicate, share experiences and have a discussion forum. Every IMI Certified Mediator and Reviewer has been invited to join the group. At the end of 2010 there were 162 IMI Certified Mediators and 84 Reviewers logged into these Groups. Several stimulating discussions have been posted, and ideas have been acted on.
A group of prominent IMI Certified mediators in the Chicago area formed an ad hoc professional chapter – they called it an “outpost” – to share and advance the IMI mission and inspire a better level of understanding and acceptance of mediation and quality mediation practice, and encourage Qualifying Assessment Programs. This is a model that may encourage groups elsewhere to convene with a similar goal.
IMI has been presented at numerous Symposia, including:
- Irish National Mediation Conference, Dublin, March
- UNCTAD conference - International Investment and ADR in Lexington, March
- Dispute Resolution Strategies Conference in Amsterdam, May
- EMNI Conference on Mediation, Paris, May
- Corporate In-House Counsel Dispute Resolution Strategies, Amsterdam, May
- WIPO conference, Geneva, September
- ADR Institute of Canada Annual Conference, Calgary, September
- FICPI Open Forum, Munich, September
- AAA-ICDR/ICC/ICSID Joint Colloquium, Paris, November
- DHBW Conference, Ravensburg November,
- Masters of Mediation Conference, Utrecht, December
In an article published internationally in November 2010 titled 2020 Vision – Where in the world will mediation be in 10 years time, IMI director Michael Leathes identified the action that, in his view, needs to be taken for mediation to progress effectively in the present decade. As one of the most-read articles on Mediate.com, these ideas started a global discussion on the future of mediation that is likely to last for some time. These actions are set out in the final section of this Review on page 10 and offer a strategic explanation for IMI’s mission. The article is available from IMI’s web portal at www.imimediation.org/2020-vision-article and from the Mediate.com website at www.mediate.com/articles/where_will_mediation_be_in_10_years.cfm from which readers can participate in a discussion thread on this vital subject.
IMI Advisory Council
The primary role of the IMI Advisory Council is to enhance the integrity, objectivity and effectiveness of IMI and comprises a number of internationally-recognized figures in the fields of mediation and negotiation who are independent of the members of the Board of Directors. The Advisory Council has review, advisory and enabling functions. The members of the Advisory Council are: Lord Woolf of Barnes (Chair); Sheikha Haya Rashed Al-Khalifa; Professor Tommy Koh; William K. Slate II; Professor William L. Ury; and Minister Aleš Zalar. www.imimediation.org/imi-advisory-council
Independent Standards Commission
The Independent Standards Commission (ISC) establishes and approves the criteria, standards and related materials for IMI Certification. In addition to Setting high competency standards for mediators, reviewing and approving programs to qualify mediators for IMI Certification and monitoring quality control of approved programs members, the ISC provides advanced thought leadership and when required, appoints assessors to review Code of Professional Conduct complaints. There are over 60 members of the ISC. The Chair is Judith P. Meyer, a leading mediator who succeeded Prof. Tommy Koh upon his joining the Advisory Council in June 2010. The Vice-Chairs of the ISC are: Christopher Honeyman, Geoff Sharp, Eileen Carroll and Bruce Whitney.
Board of Directors
There is an approximately equal representation on the IMI Board of Directors of the supply and demand side of the mediation field. During 2010, the Bahrain Chamber for Dispute Resolution joined IMI as a Founding Institution and its Chief Executive, James MacPherson joined the IMI Board. Patrick Deane, Senior Counsel and Head of the ADR Practice Group of Nestlé succeeded Michael McIlwrath of General Electric as Chairman of the IMI Board in March 2010. Ms Ute Joas Quinn Associate General Counsel of Shell International’s Upstream International Functions joined the IMI Board.
In January 2010 the Dutch Tax Service confirmed IMI’s ANBI status. ANBI (Algemeen Nut Beogende Instellingen - Institution Aimed at the Common Good) status grants exemption from Dutch Gift Taxes to charitable, religious, humanistic, cultural and scientific institutions whose mission and operations are deemed by the Tax Service overwhelmingly to serve the Common Good. The Dutch government implements a fiscal policy that encourages the donation of funds to causes that advance the Common Good. Apart from the tax advantages to IMI, ANBI status favors Donors, Contributors and Patrons in countries that grant tax concessions to foreign registered charities, as well as those in the Netherlands. www.imimediation.org/imi-anbi-charitable-status
IMI is wholly reliant on grants and contributions from stakeholders, does not compete in the market for mediation services, and has no income-bearing activities. Although members of the Advisory Council, Independent Standards Commission and Board of Directors contribute their time and expertise to IMI pro bono, IMI has considerable costs that require funding, including staff, the web portal, operations, communications and promotion of the mediation field. IMI Certified Mediators are invited to make an annual contribution to the costs of operating the search engine of $175/€125/£110.
All other overhead and promotion costs are funded by donations from IMI Patrons. For example, part of a donation during 2010 from the GE Foundation has been applied to developing the Find The Right Mediator Web App for mobile devices, launched in December. Shell International’s funding is being applied in part towards building IMI’s focus on disputes involving communities. www.imimediation.org/imi-patrons
2011 - 2020
Moving mediation from a niche alternative form of dispute resolution into a globally- recognised profession in its own right will greatly benefit those who need mediators, mediators themselves, provider organisations, skills trainers and educators, judiciaries, government bodies and NGOs. It can only happen by design and deliberate effort, as it cannot occur by accident.
Fortunately, it is an achievable mission. The prime movers are mediators, professional bodies, providers, trainers and educators. Though they compete in their day-to-day operations, they can also collaborate in achieving this over-arching goal that will serve their needs and those of users of mediation services and other stakeholders. IMI is a framework through which that collaboration can take place. The individual effort required is not huge. The status quo can be changed.
Experienced mediators increasingly appreciate the user need for more information and make Feedback Digests available to prospective users – not only via the IMI portal but also through the websites of their provider organizations and their own private networks; they are allowing more transparency in other ways – their technical areas of expertise, their professional indemnity insurance arrangements, what Codes of Conduct they are governed by and with what level of scrutiny. They increasingly understand that transparency has substantial upsides – making their exceptional skills better known and understood to more users. In short, giving mediation a strong professional feel based on high and credible standards.
Professional bodies, providers, trainers and educators have the opportunity now to devise or adapt programmes of their own to meet the Criteria of the Independent Standards Commission to qualify mediators for IMI Certification (in addition to any other qualifications they may also wish to offer). No fee is payable to IMI in relation to the application process as ISC members provide their time pro bono.
The 2020 Vision article envisaged seven specific things need to happen to achieve this goal:
- Mediators, providers and trainers, with the help of government, create a national professional body. The leader must not be an active mediator, trainer or provider. The supervising Board or Council includes representatives of all the stakeholder groups. Everyone participates pro bono in professional development and best practice sharing.
- A realistic five-year funding plan is put in place. Government provides seed funding. Overheads are kept low and bureaucracy avoided. The Internet is leveraged.
- The professional body does not earn any income from the provision of services. It is entirely non-profit and registered as a charitable institution if possible.
- Rather than re-invention of the wheel, appropriate cultural adaptation occurs. Lessons are drawn from and shared with professional bodies in other fields. All national professional bodies are linked up globally through IMI. Transparency and quality characterize this and all other national professional bodies for mediators. There is a strong mission to encourage and develop young mediators.
- High-level training and independent assessment standards are set and applied. High competency is accredited/certified. User feedback summaries are required.
- The professional body is open to all who meet the quality criteria set, irrespective of background and other professional qualifications.
- There is a strong code of ethics and an independent review body to apply it.
Such efforts, on a widespread and collective level, will quickly propel mediation into a profession recognised everywhere in this wired world. Users are coming to understand, respect and value mediation on a much more widespread basis, and mediation is emerging out of its niche, “alternative” chrysalis into the primary means for resolving conflicts and forging deals at all levels of society.
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