In September I am co-hosting the Mediation Business Summit with Tammy Lenski . We are really looking forward to it. We have some great small business coaches and consultants lined up to help conflict resolution professionals take their business to the next level.

I'm not very technical...

Since we announced the telesummit we have had a lot of questions about how it will work over the three days and some questions about using the teleseminar format. So we have decided to run a free demo and Q&A session on Wednesday 4th August where you can try it out and ask questions about the event.

Tammy and I think it will be a great opportunity to connect with anyone attending and anyone thinking about attending.

So head over to the Mediation Business Summit site to register for the free teleseminar.

The latest in our “caffeinated conversations” Mediator Training and Preparation can be found at the following locations:

Mediation training and preparation podcast page

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Thanks to Diane, Tammy, Jeff and Vickie for a great conversation which could have lasted all night. I look forward to the next which will be on the gritty subject of credentials for mediators.

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

This evening I joined Tammy Lenski, Diane Levin and Jeff Thompson in the second of our Cafe Mediate conversations. We had a lively and fun debate round “what makes a great mediator?”

Thanks to all for some great insights and raising some interesting questions.You can find more of their thinking and ideas on their blogs.

For some further thoughts and perspectives on what makes a great mediator, I recommend IBA Survey Results posted at The Mediator Magazine penned by journalist Matt Rushton and my own research available from the archives on this blog Part 1 and Part 2.

I hope you enjoy the podcast. It lasts about 30 minutes. You will also find our first conversation Value-Based Billing which looks at how we might reconfigure the way we charge for mediation to reflect more closely and more clearly the value that mediation brings.

A report published last month by the Georgia Commission on Dispute Resolution found a family mediator, who was also a licensed psychologist, guilty of gross misconduct.  This refers to breaches of their published Ethical Standards for Mediators, and specifically for failing to “avoid any dual relationship with a party which would cause any question about the mediator’s impartiality” and for failing to show “impartiality in word and deed” and “failing to maintain the confidentiality of the statements made in mediation.”

I have a strong sense that this is a landmark story for mediators around the world for many reasons and that commercial mediators should not be tempted to discount the importance of this on the basis that it concerns a family mediator.

Which hat shall I wear today?

The main points in the report are as follows:

The Committee found that Respondent established relationships with the subject matter of the couple’s divorce, and that Respondent engaged in multiple professional relationships with Complainant’s family, in violation of the Ethical Standards for Mediators. Respondent’s multiple roles created a clear conflict of interest and eroded the integrity of the mediation process. And it was foreseeable that Respondent’s multiple roles would prompt Complainant to question Respondent’s impartiality as a mediator, even if Respondent did not display any actual partiality. When it was clear that Respondent’s credibility was beyond repair, Respondent did not withdraw as mediator as the rules require.

The second breach occurred because ‘in denying the motion, the court wrote in its order that it “found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

and then

“In May 2007, Respondent submitted to the court an eight-page affidavit because his “integrity and skill as a mediator was called into question in court.” The court needed to know “the true reason for the failed mediation,” Respondent stated. “I sought only to clear my name by describing [Complainant’s] manner and approach throughout the mediation process.

The Commission found that

By recounting in his affidavit Complainant’s behavior during the mediation, Respondent apparently believed that Complainant’s behavior was not a “statement” or “information” and therefore not subject to confidentiality requirements. That is incorrect, as emphasized by Advisory Opinion 6.4 Therefore Respondent’s description in his affidavit of Complainant’s behavior in the mediation violated the confidentiality rules. 5 Of course, a party’s oral statements during a mediation would certainly be “information”and thus confidential. Therefore Respondent’s quoting and paraphrasing of Complainant’s mediation and caucus statements in the affidavit violated the confidentiality rules. 6.

To sum up, Respondent’s testifying voluntarily in open court about the mediation and Respondent’s voluntary submission to the court of an affidavit detailing Complainant’s behavior and words in the mediation constituted multiple violations of the confidentiality rules.

Conclusion
This case demonstrates the fragility of a mediator’s credibility and the need for the mediator to scrupulously guard against even the perception of impartiality and bias. It also shows how that credibility, once lost, is nearly impossible to restore. Therefore, the committee strongly cautions against mediators handling cases in which the parties have engaged or intend to engage the mediator in another professional capacity. Mediators may find themselves violating not just the ethics rules for mediators, but also the ethics rules governing their other professions.

The Committee further recommends that mediators never voluntarily testify about their mediations under any circumstances other than those covered by the exceptions to confidentiality in the Supreme Court ADR Rules. If necessary, subpoenaed mediators should enlist the assistance of the local court ADR program director or the Georgia Office of Dispute Resolution in quashing the subpoena and educating court and counsel.

Likewise courts should never require or allow mediators to testify about their mediations. The mediator’s promise of privacy to the parties – which allows them to communicate fully and openly without fear that the information would be used against them later – is critical to the success of the mediation process.

The fact that the Georgia Commission on Dispute Resolution chose to publish the report is significant. It sends a clear message that having an Ethical Standards for Mediators means something and that those responsible for supervising should be and are prepared to investigate and take action. This is good for the profession. It is also good for the promotion of self regulation as opposed to the any other variety.

From the practicing mediator’s point of view (and I include commercial mediators in this) there are a number of helpful reminders. I do not know all the facts and circumstances and so the following points arise from my thoughts about the significance of this report and the issues identified by the commission.

1. re-read your own code of ethics and reflect on the conditions where you might breach the code;
2. be aware that your determination to find a solution doesn’t keep you engaged in the mediation for longer than is useful to the parties: maintain your objectivity;
3. be aware that your expertise in other fields doesn’t cloud your judgment or seduce you into taking inappropriate risks. Simply put, when you are engaged as a mediator, act as a mediator and more importantly, be seen to act as a mediator and not as a therapist/counselor/lawyer/barrister/arbitrator;
4. resist all temptation to leverage your other business practice development from your mediations.  It is so easy to say “I can do that for you”. Good intentions are not a good defence!
5. Notwithstanding that one’s reputation is vital working capital, be careful how quickly you rise to defend it and be sure you need to. Perhaps someone else is better placed to do that for you. Paradoxically, the ego is so often the enemy of reputation.

I feel extremely sorry for the mediator in question. This is the mediator’s nightmare. It does bring home the importance of the support of a professional body, peer reviews, and developing a good habit of reflective practice all of these help to minimise the risk of the “train leaving the rails”.

Does this story make you feel uncomfortable? Do you agree or do you have different views? Have you had a close shave?