What to Look for in a Mediator

My friend Valerie says that there is a mediator out there for everyone. With so many mediators to choose from and so many different approaches, how can you find the right mediator for you? Mediation is a confidential process, so it’s unlikely that you’ll be able to see a particular mediator in action before hiring. You can ask around or look for reviews on the internet, but that won’t necessarily lead you to the right person for your conflict. Even the mediator who helped your best friend won’t automatically be the best one for you.

Whatever qualities you feel are important in a mediator, probably the best place to start is with the professional association of mediators in your area. In Toronto, that would be the Alternative Dispute Resolution Institute of Ontario. A mediator who belongs to such an organization has made a commitment to the profession and to professional development. Depending on the rules of the organization, he or she will have been educated about the causes and dynamics of conflict, and about different approaches to conflict resolution. If you are looking for a mediator to help you facilitate a separation agreement or divorce, you should look for someone who has had training in family mediation. Such training usually includes an over-view of the relevant family laws. Of course, a mediator can inform you about the law but ordinarily will not (and should not) offer legal advice.

Very broadly speaking, the main difference among mediators is whether they take an evaluative or a more facilitative approach. Mediators who are strongly evaluative will not hesitate to tell you their views on your dispute and what they think an appropriate resolution would be. Mediators who are more towards the facilitative end of the spectrum may offer suggestions to help you solve specific problems, but their focus will be on helping the parties in the dispute arrive at their own resolutions. The thinking behind this approach is that the parties involved are likely the most knowledgeable about the details of their own situation and so the best equipped to come up with durable solutions. There is also a good deal of evidence that people are more likely to respect agreements that they themselves have had a hand in crafting, rather than settlements that have been foisted upon them.

It is perfectly acceptable (and probably a good idea) before you hire a mediator to ask about their training and about their style and approach. Whatever the nature of your conflict, it is crucial that you feel comfortable with the mediator and can develop a sense of trust. Even over the phone, you should have the feeling that the mediator is really listening to you, not just waiting for you to stop talking. It is very important that a mediator give the impression of being impartial about your conflict from the beginning. He or she will listen sympathetically but will not readily take your side no matter how compellingly you present it. Don’t be disappointed about this. While it is understandable that you would want an ally in an emotionally charged situation, do not try to put a mediator into that role. Mediators are able to do a better job in the end if all parties respect them as neutral in the dispute.

The Alternative Dispute Resolution Institute of Ontario currently has about 850 members. Whether your conflict involves a business, family members, co-workers, or the whole neighbourhood, one of them will be the right person to help you.

Mandatory Marriage and Divorce Counseling?

Divorce rates in the state of Wyoming are among the highest in the U.S., and legislators there have come up with a strategy they hope will change that. If a proposed bill is passed, couples who plan to marry or divorce will have to attend three hours of counseling at their own expense. Couples who refuse counseling will have to wait a “cooling off” period of one year before being granted a license. Judges will have the right to waive the divorce counseling requirement in situations of domestic violence. The Catholic Church and some other religious institutions already insist that couples who plan to marry in the church receive premarital counseling. Yet while couples who didn’t want to go through such counseling have always had the possibility of opting for a civil ceremony, a marriage license is a requirement for any kind of ceremony. Is Wyoming’s proposed legislation an inspired response to a difficult social problem, or an unacceptable intrusion by the state into the private lives of its citizens?

Critics of the bill have been quick to argue that marriage is a personal decision, between two free individuals, and that “big government” has no place butting in. But this criticism won’t fly. Whether we like it or not, the state is already firmly involved in the institution of marriage. Marriage may be a personal matter, but it isn’t a private one. In choosing to marry (rather than co-habitate) individuals ask the state to recognize their union. Furthermore, many costs of a high divorce rate – in adult and child poverty, strain on the legal system, and higher bankruptcy rates – are borne by the state. The sponsor of the bill, Representative Ed Buchanan (Republican), says that it should help people understand the consequences of life-changing decisions. If internet family law forums are a valid indicator, many people contemplating marriage or divorce have very little understanding of their legal rights and obligations. Helping them to become more aware can only be a good thing.

Right now, there are very low barriers to marriage in Wyoming and its neighbouring states. Obtaining a marriage license will set you back $25 in Wyoming, $30 in Colorado, and a measly $15 in Nebraska. (For comparison, in Ontario a marriage license costs $130.) Making marriage and divorce more difficult might encourage some people to consider their decisions more thoughtfully, and this in turn might affect the divorce rate. Yet despite the good intentions of those who support the bill, I can see a few problems. First, there is nothing to stop couples in Wyoming from crossing the border to get married in another state. Second, I don’t know how strictly the counseling profession is regulated in Wyoming, and it isn’t clear what requirements marriage counselors would have to fulfill and what kind of expertise they would be expected to have. For example, would counseling by members of the clergy be acceptable? The issue of counselors’ training and expertise is all the more pressing when you consider that the issue of whether marriage counseling works at all is controversial. (Click here for an article from the New York Times Magazine that surveys some of the evidence for and against the effectiveness of couples counseling.)

If the bill passes, I hope that someone will do follow-up research. How many couples who receive mandatory counseling will revisit their decisions to either marry or divorce? Will the change have any effect on Wyoming’s divorce or marriage rate? Perhaps the idea will catch on, and mandatory counseling requirement for civil marriage will one day come to be seen as unremarkable as the requirement to undergo a blood test once was.

When to hire a mediator (rather than do nothing)?

People often ask me in what circumstances they would need a mediator. Mediators are experts in conflict resolution, and mediators work in many different settings. There are mediators on the international stage, mediators in family courts, schools, workplaces, prisons, and out on the streets. But when should you hire a mediator rather than doing nothing? I think that there are two basic factors:

1. A decision needs to be made.
2. Something of value is at stake.

Let me explain: We all have conflicts with others. Many of these, thankfully, have little effect on our daily lives. We can avoid the neighbour whose early morning leaf-blower is a weekly annoyance. We can change the subject when our brother-in-law brings up politics or the economy. We can agree to disagree with the other parents in the playground when the topic of our children’s “screen time” comes up. But sometimes we have to co-ordinate and work together with others and conflict becomes unavoidable. And sometimes, despite conflict and differences of opinion, decisions have to be made. For example, will the children of divorced parents spend the weekends with their father or mother? Will they continue to attend the neighbourhood school or transfer to a private school? Where will they spend the holidays? Who will be in charge of their religious instruction?

It isn’t only divorced couples who need to make decisions together. Mediators also work with couples who plan to marry, to help them frankly discuss and then plan for the financial and “business” aspects of their relationship. They help married couples who plan to stay together, but need assistance to communicate effectively. And a whole range of potential conflicts can arise among adult siblings. When an elderly parent can no longer live independently, who will decide the best course of action? Who will take away grandpa’s car keys if his driving is putting others at risk? What is to be done if the family farm or business is no longer viable in its present form?

What all of these different situations share is that a decision needs to be made, and there is something of value at stake. The question of what counts as “something of value” is in the end a personal matter. I’ve seen families nearly torn apart over the issue of who will host Christmas dinner! While this isn’t something that I personally would seek help with, I know others for whom a couple of hours with a mediator to resolve this issue would be a sound investment in future family relations and personal happiness.

In general the cost of mediating a particular conflict can be weighed against the cost of doing nothing. Sometimes, if we’re fortunate, the cost of doing nothing is low. But the costs of inaction and indecision are sometimes very high. Failing to act can allow conflict to fester and can end up costing as much or more than taking action. And it has to be remembered that the costs of many conflicts are both financial and emotional – with the emotional costs being much harder to calculate.

Mediator – One of the Best Careers for 2011?

“Mediator” made the list of U.S. News & World Report’s 50 best careers for 2011. They predict that in the U.S. – one of the most litigious countries in the world – employment in alternative dispute resolution will increase by 22% between 2008 and 2018. Jurisdictions all over the world now require disputants to try mediation before bringing their disputes into the courtroom. I think that this reflects a greater awareness of alternative approaches to conflict, and a growing acceptance of the view that the courtroom may not be the best place for every kind of dispute.

Mediation is being used in an expanding variety of circumstances. In the wake of the housing crisis in the U.S. many states have suggested or required mediation between banks and homeowners before allowing foreclosure. (Interestingly, researchers have found that mandatory mediation has a higher rate of success than voluntary mediation. See my earlier posting, “Is Mandatory Mediation an Oxymoron?”) A&E has been airing “The Peacemaker,” a series on Malik Spellman, a former gang member who now works to mediate violent disputes between gangs in L.A. And mediation continues to be used as a way of addressing conflicts over environmental resources. Bill Ritter, the governor of Colorado, recently ordered the creation of a “River Access Mediation Commission” to resolve disputes between boaters and property owners.

But increasing opportunity is not the only reason to be excited about a career in mediation. Being a mediator can be rewarding in itself. Mediators help individuals in difficult situations who often can’t see a way out on their own. For example, mediated parenting plans can help defuse the often wretched emotions involved in marital break ups. A more startling example is that tribal mediators in Yemen were recently able to resolve a nine year family conflict over land. Three people had died and twenty-one were injured in the cycle of revenge violence. While I don’t know of any such dramatic cases in Canada, mediators everywhere help others to resolve their conflicts, reduce the stress in their lives, and return to meaningful activity. To do this as one’s job is a privilege.

Happy new year.

Conflicts that Should have been Mediated: (1) The Judge’s Dog

Every now and then I hear about a conflict that wasn’t mediated but should have been. Mediation would have saved the participants time, money and aggravation.

Judge Beatrice Bolton and the Malia family had been neighbours in the north of England for years when the judge acquired an Alsatian puppy. I don’t know how exactly it all started, but the Malias and Georgina, the dog, did not hit it off. The family say that they lived “in terror” of the dog, and demanded that Judge Bolton keep her chained up. Apparently the police were called several times, and the Malias resorted to installing CCTV on their property and keeping a “dog log” of incidents. The conflict came to a head at the end of May, when Georgina bit the Malias’ son, Frederick, who was home visiting from university. The bite did not require medical attention; the judge apologized. On December 13, 2010 she was convicted of allowing her dog to enter a private area where there was a “reasonable apprehension” that it would bite someone. She was fined £2500 and ordered to pay £275 to Frederick, £930 in court costs, and a £15 victim surcharge. The case has received a fair amount of press coverage in the UK because the judge was heard swearing loudly (calling the decision “a f****** travesty”) outside the courtroom after the verdict. She was also heard to yell, “I’ll never set foot in a court again!”

I know about the case only what I’ve read in published reports and many details are hazy. Judge Bolton’s legal counsel said that relations between the neighbours had deteriorated before and since the dog attack. At some point, Judge Bolton had attempted to mend the relationship by offering to introduce the dog to the Malias and to build a fence between the properties, but the Malias had refused both. It isn’t clear why the Malias refused the fence, and it isn’t clear whether the Judge allowed her dog to run free or whether she simply lost control of it on the day it bit Frederick.

The Judge plans to appeal the decision and is “considering her future.” Her behaviour outside of the courtroom will be referred to the Office for Judicial Complaints. Georgina the dog is being trained. The Malias have the satisfaction of having been vindicated in court; their son will live with what must be a frightening memory. Relations between the neighbours can hardly be comfortable.

Reading about the case, I wondered whether the police, on any of their numerous visits, had suggested mediation. A mediator would probably have met separately with both parties. (A meeting with Georgina the dog would be strictly optional.) He or she would have asked some probing questions to better understand the situation. Why did the judge acquire a dog? For companionship? For protection? What did the dog mean to her? What were her long-range plans with regard to training the dog? Why were the Malias afraid of the dog? What kinds of previous experiences with dogs, good and bad, had either of them had? Why did they refuse the Judge’s offer to build a fence? Depending on the answers, the mediator might shift strategy and ask questions that would help each party to start thinking about the situation from a different perspective: Had the judge ever considered what might happen if her dog bit someone? Did the Malias think a large playful dog would be content to be chained up for long stretches of time? Had they ever heard of a situation in which a dog-owner gave up their pet at the neighbours’ behest?

At some point, the mediator would have probably got the two parties to sit down together and listen to one another. Judge Bolton would hear about the Malias’ fear of Georgina and how having a dog next door affected their lives. The Malias would hear about Judge Bolton’s affection for the dog, and her hope for continued good relations with them. Then the mediator would move the parties towards thinking about the future. How could they ensure that the Malias didn’t have to live in fear of the dog, while at the same time allowing the Judge to care for her pet in the most suitable fashion? While it wouldn’t be easy or necessarily quick, the parties working together with the mediator would likely be able to come to a solution. All for much less than the price of CCTV installation.

A final note: As a North American, I found it a little dismaying that both the Daily Mail and the Telegraph felt necessary to refer to Judge Bolton as a “woman judge.” (Anyone not sure why might check out this nice posting on gratuitous modifiers.)

Should Artists Give Away their Work – Even for a Good Cause?

I was chatting with an artist friend the other day, who told me how frustrated he gets when he’s asked to donate his artwork to various causes. Apparently a number of arts organization have a similar fund-raising model. They persuade artists to donate their work, which they sell and then use the proceeds to support the work of the organization. My friend, by no means in the “Damien Hirst” category of rich well-known artists, tells me that he receives four to five such requests a year.

Now, this might not seem like such a big deal. Most of us are regularly solicited by various charities, whether through mailings, emails, telephone calls, appeals at work, even requests to pitch in to various good causes while paying for groceries. And my friend is no Scrooge – he supports the arts and wants to help the organizations that approach him. But consider this: He provides for himself and his family with a full-time job. The time he has to make art is therefore limited to evenings and weekends. Some of his artwork is already promised to galleries, etc. He simply doesn’t have much time to produce “extra” work that he can donate. In asking for his art, these organizations are asking for something that is in many ways more valuable than a straight-forward cash donation.

But there are other reasons, aside from the time constraints, that artists should think carefully before giving away their work. Reflecting on my friend’s situation got me thinking about philanthropy and volunteering more generally. (Volunteering one’s time and giving money are of course different, but they are structurally similar enough to discuss together here.) Economists and other social scientists have paid surprisingly little attention to the charitable sector, and to uncovering the reasons why people give and why they give what they do. Some people help others out of a sense of obligation. They simply feel that it is the right thing to do. Others give because they support the goals of a particular organization and want it to succeed. Much political volunteering is like this. Still others help because it makes them feel good – sometimes called the “warm glow” factor. There can be other, more tangible benefits to volunteering. It can be a way of gaining experience and knowledge that one could not otherwise get, and it can be a form of networking. Of course, these reasons are not mutually exclusive, and any one person might volunteer or donate from any number of motives.

There is another reason why people give. We sometimes give what we have too much of, or what we don’t ourselves value or no longer value. I think of this as the “zucchini paradigm.” If your neighbour has an overabundance of zucchini in her garden, she might give you some. It doesn’t mean she doesn’t value the zucchini as such, only that she currently has so much that the zucchini she gives away has little value. And her motives might be mixed. She may feel good when she gives away produce, and she might secretly hope that you will reciprocate with some tomatoes. Now think of volunteering. Have you noticed that all too often the same people end up giving their time again and again? Is it just that they can’t say no? I don’t think it is so simple. Unfortunately, when people generously give a lot of their time to help others, they risk sending the message that, “My time is not so valuable to me.” I was reminded of this the other day in the schoolyard, when I overheard a parent complain that the principal had asked her to drive the swim team to their next meet – this after she had helped out all day at the Terry Fox Run, and was also organizing the bake sale! Sadly, the principal seemed to have made the inference that it was OK to approach this woman with yet another request because her time was not so precious to her.

So to answer the question I posed in the title – should artists give away their work for a good cause? The answer is yes, but only after they have carefully reflected on its value in terms of materials, time and opportunity cost. If they do this, then I suspect that most artists will choose to donate their work fairly rarely. And arts organizations might also start to think about different ways of raising much-needed funds. Artists and arts organizations need to beware of the zucchini paradigm. When artists give away their work too freely, and when arts organizations ask artists for their work, they risk inadvertently sending the message that art in general – and their work in particular – is not something to be treasured. They risk undermining the very foundation that they are trying to construct.

Conflict Resolution and Anger

Anger can make us do and say things that we later regret. It can make a person do and say things that they would never do or say in normal circumstances. Most of us know or have known someone who became angry over trivial matters, or whose anger was detrimental to themselves and their relationships. There is a Buddhist saying that I think perfectly sums up the self-destructive character of anger: Holding onto anger is like holding a burning coal with the idea of throwing it at someone else; you are the one who gets burned.

Yet there is another side to anger. Anger or indignation can also be tied to our sense of justice and injustice. When we believe ourselves or others to be the victim of an injustice this can make us angry. The philosopher Aristotle thought that the ability to feel anger to the right degree, at the right times and for the right reasons, was a characteristic of a virtuous person. He thought that there was something flawed about a person who would fail to become angry over a serious injustice to himself or his friends. And later feminist thinkers have linked the ability to feel anger to proper self-respect. This is why to tell a woman that, “You’re cute when you’re angry,” is demeaning. It suggests that the individual expressing anger (and the slight that caused it) are not to be taken seriously.

So while the expression of anger can be both damaging and self-damaging, it is not necessarily an emotion we’d be better off without. Sometimes we feel driven to express anger, as Shakespeare’s “shrew” Katherine tells us:

My tongue will tell the anger of my heart,
or else my heart concealing it will break.

Yet at other times the expression of anger would be self-indulgent at best, and have serious harmful consequences at worst. I have in mind here occasions like expressing anger towards a boss, co-worker or a customer, or having an angry exchange with one’s partner (or ex-partner) in front of the children. Even if the capacity to feel anger is tied to self-respect, sometimes the ability to suppress the expression of anger is a sign of mature self-restraint.

In modern society we’re often encouraged to express anger. However it is worth noting that the available empirical evidence does not support the view that the expression of anger is always beneficial. In fact, recent research suggests that the expression of anger is helpful only if it is accompanied by constructive problem solving designed to address the source of the anger. [See Littrell, J. 1998. “Is the Re-Experience of Painful Emotion Therapeutic?” Clinical Psychology Review, 18, 71–102; and Lohr, J. M., Olatunji, B. O., Baumeister, R. F., & Bushman, B. J. 2007. “The Pseudopsychology of Anger Venting and Empirically Supported Alternatives,” Scientific Review of Mental Health Practice, 5, 54–65.]

Mediators have different views on the expression of anger during the mediation session. While mediators are trained to diffuse anger and other negative emotions, they don’t always choose to do so. I’ve heard experienced mediators say things like, “My clients were really screaming at each other – that’s when I knew we were getting somewhere!” I find it interesting that these mediators link the expression of anger with the work needed to resolve a dispute. It has been known for some time that attempting to solve disputes through a confrontational process such as litigation tends to make individuals who are already aggressive even more so. Furthermore the expression of anger in litigation is unproductive; it is not tied to any work or to any eventual solution of the dispute. The very nature of litigation is that someone else has the responsibility for solving the dispute. The expression of anger in a mediation session is a different matter. It has the potential, at least, to be real constructive work. An angry exchange in the privacy of a mediation session might be part of the process that leads to a satisfactory resolution for everyone involved.

Note: I’d like to thank my friend Jim Davies, cognitive scientist at Carleton University, for telling me about the research mentioned above. Check out his blog posting on How to Deal with Anger.