This is the third article in a series, reflecting on significant periods of conflict that have occurred in the world. Following Armistice Day, Denise Evans encourages mediators to reflect on the power of mediation and their individual practice.
Each year, on the 11th hour of the 11th day of the 11th month, the world stops for a minute to remember and honour all the lives lost in war. This commemoration began in 1919 to recognise that the First World War had ended at that time.
In a speech on war aims and peace terms, made on 8 January 1918 to the United States Congress, Woodrow Wilson, the then President of the United States, outlined 14 points which he believed would result in lasting world peace. It is notable that his 14 points included the establishment of the League of Nations. They also included a plea for openness and transparency; the removal of trade, economic and navigation barriers; a commitment to readjustment of colonialist claimed rights and a commitment to peace. These 14 points formed the basis for negotiation of the Treaty of Versailles and negotiations for a final peace treaty between Germany and the Allied Forces concluded with its signing. The Treaty is a negotiated agreement which was declared to be a full and final settlement of all matters relating to the war and the conflict that lead to it.
That status as a ‘full and final settlement’ has not prevented ongoing commentary about the Treaty, and questions on whether it created the platform for ongoing conflict, and ultimately the Second World War. Many of the same issues from the 14 points remain the focus of ongoing discussion between nations today, and many of these issues remain unresolved or subject to new challenges.
As a mediator, I look at President Wilson’s 14 points as being an expression of the needs or interests that America believed to be important for any enduring settlement. The needs are not dissimilar to the needs expressed by parents who attend Family Dispute Resolution.
Most often, the parents are looking to share fully in the lives of their children. They want peace, they want economic security, and they want freedom to live their separate adult lives without interference from the other parent. Typically, they want to be able to celebrate their children’s achievement and support the children when they need support.
There is a lot of commentary about why the Treaty of Versailles did not result in lasting world peace. It is said that the Treaty was too harsh of Germany and which resulted in the Second World War. It is also said that the clause which made Germany acknowledge that they were to blame for the First World War made it easier for Hitler to convince the German people of the need for redress and a rebalancing of power.
Often during mediations one of the parties is intent on gaining concessions or admissions of fault from the other party. In employment mediations, some people struggle with the concept that the agreement is being reached based on no admission of liability. Conversely some mediators push for one party to apologise to the other party, as if the apology is an outcome of mediation that cannot be achieved in any other legal environment. These approaches often lead to mediations going late into the night whilst parties negotiate the quantum of financial recompense and the form of the agreement.
Lessons for mediators
Mediators can and should do better in addressing the interests and needs of parties who attend mediation. Ken Cloke in his most recent book The Dance of Opposites explores a new vision for conflict resolution which looks at the use of language in conflict, the narrative structure of conflict stories, and searches for ways of opening heartfelt communications between opponents. It is an essential read for anyone practising as a mediator and also for anyone who is engaged in the negotiation of agreements.
His main contention is that conflict occurs whenever there is a boundary violation. He believes that conflict can only be resolved when the person that pushes the boundary understands the importance of the boundary to the other person and the impact on that person when the boundary is breached. The resulting agreement may require the negotiation of a different boundary. This is only possible when the parties enter into a collaborative problem solving process.
The establishment of a problem solving environment requires the parties to have listened in a heartfelt way to the other person. Where there is significant hurt, this can be very difficult. Some mediators and lawyers feel more comfortable dealing with conflict by keeping the parties apart in separate rooms. There are legitimate reasons for separate meetings, however as the mediators role is to run a process which allows the parties to reach agreement, it is difficult to support the notion that the parties can reach agreement if they never spend any time together working on the problem.
One of the risks in mediation where an agreement is brokered on the basis of it being a compromise or tested on the standard that each of the parties can “live with it” is that in spite of a written agreement, crafted carefully to ensure that it is enforceable, the parties to the agreement may not adhere to it. An agreement based on concession and compromise is in fact a loss for all parties. No one has achieved what they want. An agreement based on collaborative problem solving must mean that the solution created by the parties is one they support. The task of the mediator is to assist the parties to move away from their positions and towards the parties understanding their needs. Once they have established what their needs are, they often find that their own needs are the same as the other party’s. For example, in a building and construction dispute one of the shared needs of the homeowner and the builder is to get the building project finished, preferably within the budget/contract price and for it to be a quality finish. In a recent case in which FairWay was involved, the subject matter of the dispute was resolved, however the conflict was not. The homeowener wanted to engage with the builder in a conversation about how annoyed he had been with the builder’s conduct particularly towards him when the project started to go wrong. The builder would not engage in that conversation so the homeowner has made a complaint to the builder’s licensing authority. The mediation resulted in an enforceable agreement, however this problem will not go away for the builder for some time.
Ken Cloke says that we should not be looking to end conflict – instead the aim should be for the disappearance of conflict. This happens frequently in mediation. These are the mediations that make it all seem worthwhile. There are hugs, handshakes and tears, and agreements to a change in behaviour. Often these agreements result in very short agreements, the form of them is less important and people go away committed to a new working relationship. This is valid for family, workplace conflict, building or commercial mediations.
As a mediator, I do not want a mediated agreement which I am involved in leading to another serious round of conflict.
Of course I have no power to stop that, however there are some definite techniques that I can use to improve the chance of the agreement being an enduring one.
For me these are:
- Engaging with the parties before any joint meeting to find out who they are, where they are from, what lead to the conflict, what is the boundary violation and what power they have to participate in the process.
- Designing a process which enables parties to diagnose their positions, interests and needs.
- Deferring reaching agreement until after the parties have had time to consider a number of alternatives, to reality test the ideas, to think and act collaboratively and consider the impact of any potential agreement on them and any other person who may be affected by the outcome.
- Allowing the parties time to have heartfelt conversations in a safe, positive and future focussed enviroment which encoursges collaborative problem solving.
- Ensuring that any agreement is future proofed through the use of “what if?” conversations and designing an appropriate dispute resolution process if something does not go as planned.
- Respecting and encouraging the parties’ capacity to make hundreds of thousands of decisions in the furture using some of the skills and techniques they have been exposed to through mediation.
About the author
Denise Evans is a Client Director at FairWay Resolution. As an experienced lawyer, mediator and arbitrator, with over thirty years’ experience in the industry, she is committed to finding a way forward that maintains relationships and achieves the best outcome for all parties.