The decade to 2030 presents humanity with unimagined challenges, each of which will require ingenuity and a capacity to embrace innovation. It threatens to be a much more dangerous and fractious world. The likelihood of conflict and conflicting ideologies makes effective resolution of disputes and the negotiation of sustainable deals crucially important.
If the shared goal is to take mediation forward as the process of choice in the post-Covid world, we may need to shift the focus of communication to the end – the outcome of negotiations and the prevention of disputes – and away from the means – mediation. Such a shift requires research that demonstrates when and why mediation is the process of choice. Opening the field to research into comparative techniques such as coaching could yield useful information as well as expand mediators’ own repertoires.
The authors of the Seven Keys believe data matters, and that to date, we have relied largely on anecdote.
Research might also reveal that mediation is not as widely understood among users as previously believed. The need to commission, publish and publicise research, not just settlement rates, is essential information for users in the many places and sectors where mediation is still languishing.
If access to justice in the public mind means access to courts and tribunals, how to get across the message that only a very few disputes ever get to court, and the rest are negotiated and settled between the disputants themselves? That mediation can achieve such negotiations more amicably and more sustainably? That mediation is not second-rate justice? That mediators are professionals open to scrutiny and new learning? Having committed, for instance, to a Code of Disclosure in each jurisdiction, mediators will be judged accordingly, and users will be able to hold mediators accountable.
If courts in many countries have used mediation primarily as a case management tool, users may have little appreciation of its value in its own right.
Unless we undertake research, share our findings across the field and implement what we discover, users will remain unable to distinguish mediation from litigation or from meditation.
Internationally, models and approaches may differ but the message must be fundamentally the same, and as a field, we must hold each other to account.
The Seven Keys chart a course towards achieving a new vigour, and constitute a series of recommendations, identifying the need for:
- a new leadership style in the global field, adaptive and ‘mediative’;
- intentional collaboration among provider organisations internationally;
- education of the next generation of resolvers;
- collection and analysis of field research and experiential data;
- commitment to a unifying set of universal principles such as the Edinburgh Declaration;
- adoption of a Code of Disclosure;
- commitment to an interdisciplinary approach that creates an independent profession;
- continuing education in information communication technology (ICT) and Artificial Intelligence (AI);
- redesign of academic curricula in negotiation and dispute resolution;
- education of ‘gatekeepers’ – judges, in-house counsel;
- influencing national governments to ratify international instruments that promote mediation;
- more nuanced and targeted marketing and promotion to diverse audiences;
- an emphasis on the language of negotiation over mediation since the former is within users’ experience;
- shifting the focus of mediation away from conflict resolution, since the need for a third party does not necessarily arise out of conflict;
- emphasise the value a third party neutral can add to negotiation and deal making;
- encourage courts and tribunals to promote mediation as a first step in the settlement of legal disputes, with access to mediation professionals rather than court staff, so that first time users gain a lasting impression of its value.
A renewed collaboration is urgently required of mediators and providers across the world if mediation is to achieve all it can in the new decade. Taken together, the Keys clearly set out how and why this is feasible and what is at stake.
If the field can demonstrate its usefulness to users, it can attract and inspire philanthropists and other benefactors once again to provide the capital that unlocks the future. The Seven Keys confront the field with a stark choice: either to pull up the ladder of success, however qualified it has been, and leave the next generation to rebuild all over again; or commit to leaving a lasting legacy by charting a strategic future now.
[i] Joanna Kalowski is a mediator, facilitator and judicial educator. For over thirty years, Joanna has led mediation workshops in Australia, Europe and Asia, and in 2014, co-chaired the International Mediation Institute’s committee which designed the criteria for IMI intercultural mediator accreditation. In her native Australia, Jo has been a member of the Federal Administrative Appeals Tribunal and of the National Native Title Tribunal, mediating claims by Indigenous Australians to their traditional lands and waters. In 2017, 2018 and 2019, Joanna was listed among the Who’s Who Legal list of eminent Australian mediators.
Originally published via Mediate.com on July 17 2020. Republished with permission.