On General Election evening, 8 June, John Sturrock, joined Charlie Irvine, Course Leader on the LLM/MSc/PGDip in Mediation and Conflict Resolution at The University of Strathclyde and Director of University of Strathclyde Mediation Clinic, in a well-attended conversation about their experiences at the recent American Bar Association (ABA) Section on Dispute Resolution conference held in San Francisco in May which they both attended. The conference is reputedly the largest of its kind in the world. What is the current approach in America? What can Scotland learn, and what can we avoid?
One observation, inspired by a session on “Reworking the System”, was that in order to allow mediation to reach its full potential within Scotland, consideration must be given to what such a system, in a sustainable form, might look like. J. Kim Wright had called for a reworking of the justice system in order to benefit the users so that the system is measured in qualitative rather than quantitative terms. We need to work out the process which fits the users’ needs.
And within that system, what should the role of the mediator be? What level of autonomy should be maintained? The Honourable Judge Jeremy Fogel, Director of The Federal Judicial Center, noted that mediation’s core value is giving power to the parties and expressed concerns about the use of ‘evaluative’ mediation and how clients should be protected from mediators taking on the role of ‘deal broker’. Mediation is a serious skill and mediators need to be rigorously trained, to understand power imbalances, their own biases and other aspects. Certainly in Scotland, both the autonomy of the parties and the ability of the mediator to maintain control of the process itself and preserve independence is thought to be of paramount importance.
In taking and holding control over a mediation process, we must then consider the ‘power paradox’. Dacher Keltner warned that “the seductions of power induce us to lose the very skills that enabled us to gain power in the first place.” In ensuring the success of mediation, it is essential that mediators are aware of this paradox and are mindful of the skills, such as empathy, listening and compassion, that give them such power as they may have.
It was a fascinating event, which provided much food for thought. As the International Academy of Mediators conference beckons (coming to Edinburgh in 2018), it is important to continue to have these conversations and think about how we in Scotland, and indeed the UK, can improve and build upon what we know and do well.
By Miriam Haboubi, Business and Mediation Manager, Core Solutions Group