Photo by Darwin Bell

In the latest episode of Cafe Mediate, Tammy Lenski, Jeff Thompson and I discuss the nature of isolation in our practice of mediation and dispute resolution.

It is apparent from the laughter we share and the descriptions of “isolation” that any isolation we experience is more solitude as part of independence than loneliness.  A solitude that comes from a conscious choice for our independent practice in matters that are confidential.

Solitude is the state of being alone without being lonely. It is a positive and constructive state of engagement with oneself. Solitude is desirable, a state of being alone where you provide yourself wonderful and sufficient company.

Solitude is a time that can be used for reflection, inner searching or growth or enjoyment of some kind. Deep reading requires solitude, so does experiencing the beauty of nature. Thinking and creativity usually do too.

Solitude suggests peacefulness stemming from a state of inner richness. It is a means of enjoying the quiet and whatever it brings that is satisfying and from which we draw sustenance. It is something we cultivate. Solitude is refreshing; an opportunity to renew ourselves. In other words, it replenishes us. Psychology Today

Our work involves being with people (often large groups) who need us to be totally focused on them , very calm with lots of energy to manage long days. Solitude is a positive part of the way we work and it seems we all have strategies for making sure that the balance is right and that we have peers and close colleagues to share important conversations.

I am sure some of our speakers at the Mediation Business Summit will be addressing the nature of isolation in being an entrepreneur.

The Centre for Effective Dispute Resolution (CEDR) has just published it’s 4th mediation audit for the UK market.

The audit confirms the trend I had sensed nearly two years ago that mediation users are increasingly appointing individual mediators directly rather than using the services of mediation providers and panels. The report says

For individual cases, we can see a continuation of the long-term trend towards clients making direct referrals to mediators rather than working through service organisations.
Nearly 65% of ad hoc cases are now being handled on this basis (as compared to 60% in 2007, 55% in 2005 and 45% in 2003).  As might be expected, direct referral activity is particularly prevalent amongst the most experienced mediator group, nearly two-thirds of whom obtained more than half of their work from direct referrals, with around 40% exceeding 80% direct referrals, and 22% claiming to be totally free of providers.

The projected size of the current civil and commercial mediation market is estimated to be around 6000 cases per annum, split 60/40 between ad hoc referrals and schemes respectively. This represents a doubling of the market over the last two years. Excluding schemes, CEDR says that mainstream and ad hoc commercial casework has risen about 30% since 2007.

The make up of the market which is still “dominated by a select few”.

A group of around 90 individuals are involved in around 85% of all non-scheme commercial cases  (2007 – 80 individuals held 80%); and within this group, some 50 individuals are involved in 70%  of all cases (2007 – 35 individuals held 57%).

Mediation Business in the UK - Published 11 May 2010

And the profile of mediators which shows an extraordinary lack of diversity.

In terms of overall diversity, the mediator group still falls well short of our usual comparator, the legal profession, where 45% of practising solicitors are women with an average age of 38, compared 44 for men, and almost 11% are drawn from ethnic minority groups.  In contrast, we have only 19% female and 5% minority representation notwithstanding that the field continues to be dominated by the legal profession, with 60%
being legally qualified, slightly up from the 57% reported in our last Audit.

As far as the success of mediation as a service the figures are encouraging:

Mediators report that around 75% of their cases settled on the day, with another 14% settling shortly thereafter so as to give an aggregate settlement rate of 89%.  This is almost identical to the performance reported in the 2007 Audit, but slightly lower than the aggregate 93% rate reported in the 2005 Audit (although we noted at the time that that figure seemed surprisingly high).

An important part of the survey addresses the issues of mediator aspirations and this deserves attention. The obstacles to developing a successful practice were cited as:

A rather smaller proportion saw the challenge in more personal terms, namely their own difficulty in obtaining sufficient mediation referrals from which to grow a reputation and, hence, a successful practice.  Some recognised a need for more pro active marketing on their part to raise their profile, but others admitted an aversion to what they regarded as self-promotion.

These mediators will be pleased to hear that help is at hand in the shape of The Mediation Business Summit specifically designed to give mediators seeking to develop a healthy practice the tools and tips they need.

Tammy Lenski and I have joined forces to bring together a superb line up of speakers to deal with issues such as promotion and marketing in a sector which has always been challenged in these activities.

I found this terrific interview by Katie Couric of CBS News with Ellen Galinsky on a new book about life skills for children called Mind in the Making: The Seven Essential Life Skills Every Child Needs. Happily, the ability to resolve conflict is included (you will find the reference at about 32 minutes). It also echoes my own research into the skills of a mediator which place competence in the skills Galinsky talks about at the top of the list.

The book has been called “the best thing since Emotional Intelligence”. In the book, Galinsky identifies 7 life skills:

1. Focus and Self Control – pay attention and the ability to inhibit the desire to go on automatic.
2. Perspective Taking – knowing what others think, feel. Empathy is part of that but Ellen goes further to include the Theory of Mind (understanding what is going on in other people’s minds).
3. Communicating – the ability to put aside your own thoughts in order to understand the other, knowing how your words will be heard and know how to frame your own words so that you will be understood.
4. Making Connections – the ability to see the connections and the ability to make unusual connections which is the basis of creativity
5. Critical Thinking – looking for valid and accurate information – how to challenge and discern what is right and useful.
6. Taking on Challenges – resilience, risk taking, having a growth mindset, not giving up when that would be the easy thing to so.
7. Self Directed, Engaged Learning – curiosity, “I don’t know everything” mindset, I am not the expert, humility.

The things that stand out for me in making my own connections from this interview to my work as a mediator is that I notice the lack of these skills in my work and it is increasingly common with younger people. This suggests a change in the education system which may have something to do with the narrow focus of education to achieve higher levels of literacy and numeracy and the emphasis on measuring those to meet political agendas. The laudable intention seems to have had unintended consequences.

Despite all the books and courses on communicating skills, mindfulness, collaboration, my experience is that they are expressed less often in practice. Most of all, I notice how difficult it is for people to be empathetic as they struggle with their conviction about their rights or for them to be curious or to make unusual connections unless they are coached and encouraged to do so. I also agree with Galinsky when she says in the interview that it is never too late to learn these skills. They are essential skills not just for life but for dealing with the challenges that face us from the workplace to our relationships with other countries.

So to my mind whether we are mediator, lawyer, manager or employee we all need to

1. Show up and pay attention.
2. Put aside your own thoughts in order to understand the other and make a habit of seeing other perspectives.
3. Be humble and curious because whenever we start to think that we know best, or there is nothing to learn, we fail to inhibit the desire to ‘go on automatic’.
4. Practice giving praise and encouragement but not about the people themselves but rather on the approaches and strategies they use.

I think giving praise and encouragement to “grown ups’ is one of the most difficult things to do well without sounding patronising or inferring labels. Appreciation of effort and outcomes is a huge part of keeping people engaged and it requires real skill to do that.

Here’s the video.

Watch CBS News Videos Online
Ellen Galinsky, president and co-founder of the Families in Work Institute speaks to Katie Couric about her new book, “Mind in the Making: The Seven Essential Life Skills Every Child Needs.”

I really look forward to preparing for and participating in our Cafe Mediate podcasts because it makes me re-view my assumptions and opinions especially those I may have previously given a lot of thought to and even written or spoken about. I really look forward to “meeting up” with my colleagues on line and I find each session provokes reflection particularly on the points which raised differences between us.

At the end of our latest Cafe Mediate podcast, I was asked what were my personal views on certification. My answer was that I had been against it for many years but that lately I had started to think there might be some benefits. To be honest, I am surprised at this shift in my views because the arguments against certification are still very compelling.

Like my fellow Cafe Mediator, Diane Levin, who has since written more on the subject in her recent post at Mediation Channel, I have noticed some changes in the market over the last 12 months. These changes have lead me to think resistance to certification might be counterproductive but deep down I still think that certification, regulation, call it what you will, will not answer the real questions we should be addressing about where the practice of mediation is going. I think nearly everyone agrees that by now it should be the first choice for the great majority of people in resolving disputes, simply because it works and because the alternative is uncertain, costly and generally unsatisfactory.

Shortly after the podcast I read a brilliant post on certification by Michael Port who has really put his finger on the key issues around “why bother?” It often takes an independent “third eye” to see other perspectives. This is what mediation is about, after all.

Michael Port writes about the value of certification generally and brings a really pertinent question sharply into focus for me: will certification mean more business for mediators?

This goes straight to the heart of the matter. What if it is not the lack of certification or comfort for end users that has got in the way of the market growing but the fact that there is focus on shaping the profession and not on building the business? What if underneath all this there talk about standards there it is more to do with identity and the enduring divide between the ‘profession’ label and the ‘business’ label? I can’t speak about the rest of the world but here in the UK there is a snobbery about professions compared with ‘business’. What if this is more about thinking that if you are part of a profession then you will get more business. Qualifications = higher prices? Profession = regular work.

Is it possible that mediators are suffering from an identity crisis based on the perception of the difference between a profession and business? Do we want to be professionals in practice, professionals in business, professional consultants, part of an Association, Institute, Academy, panel, chambers? Are we seeking to professionalize the practice of mediation to deal with a need to belong? I think professionalism is actually about trust and being part of a professional group sends a message that we have somehow passed a ‘trust’ exam. Most of the professions require that members be trustworthy and ethical.

What if it was more a question for some of being part of an existing profession and not wanting to give up that status?

Panels, chambers, associations have all been used as business models and none of them have worked in increasing the business but they have succeeded in dividing up the available pie. It is ironic that we talk about increasing the pie with our customers and then fall short in doing the same for ourselves.

The brilliant thing is that we have today some of the best tools ever to build fellowship and community and they are the tools of social media. We have a chance to build communities with a brand, benefits and an outreach that can surpass the membership of of any established profession and reach the people who need our skills without the gatekeepers who may have got in the way of the growth of this great service offering. In my next post, I will talk about why mediators need to get into social media.

If we had been more successful in building our business would we be so concerned about “certification”?

If you haven’t listened to the latest Cafe Mediate podcast yet then you will find it listed on iTunes or on Libsyn. Do leave a comment.

Does the Patriot Act Violate Free Speech?

This short radio article which I found on the NPR web site brings to light a very important question in how far any government should take security measures before they become fundamentally self-defeating and destructive. The text of the article is available here.

The essence of the article, which refers to the nuances of The Patriot Act and only relevant in the USA, is that if an organisation is blacklisted by the State then anyone assisting the organisation, which would include conflict resolution training or expert assistance that meets a need of the organisation, the providers of that assistance would be committing a crime.

The issues that this article raises for me are that engaging in conversation to bring about a resolution to a problem (big or not so big) is still fundamentally alien to politicians and others.

Paradoxically, and a point made in the article, it is precisely such conversations which have brought about improvements and positive change: Northern Ireland is a good example but there are many others and many that we don’t hear about. As much as Tony Blair would like to be remembered for his work in Northern Ireland, many would point to the sustained efforts of small community projects, cross-denominational groups, conflict resolution training and, dare I say, the women (including the incredible Mo Mowlam), who really brought about sustained change and understanding.

When the people of the world experience or perceive a lack of abundance, there you will find conflict. A nice Western word for it might be competition and given that we are running out of a lot of things we take for granted and many people are seeing the economic conditions as a serious threat to their own abundance, there lies potential for a lot of “competition”.

So, if we can’t talk to people and you can’t teach them to talk to each other or provide expert skills to help them resolve competing interests, because they have been blacklisted by the state, then I guess we’ll have to shoot them!

On a happily ironic note and from the same web site, a wonderful interview with the Dalai Lama with a noteworthy comment on the future of the institution of Dalai Lama and with reference to the thought that China might try and install its own choice of Dalai Lama. His Holiness says:

If people feel that the Dalai Lama institution is no longer much relevant, then this institution will cease — no problem. It looks like the Chinese are more concerned about this institution than me.

And he chuckles in a way that just makes you smile.

Dalai Lama: Committed to Promoting Human Value