Making of a mediator – March 2020

Denise Evans monthly ‘making of a mediator’ blog series is aimed at dispute resolution professionals.
Each month, she will explore different topics and share her own reflections as a mediator.

It is amazing that we are in March already.  It is common as we conclude one year and enter the early months of the next, that we often have had time to reflect on all our relationships, potentially resolved conflict that existed, and in some cases created new conflicts or experienced an increase in conflict in new areas.  The December/January holiday period is well known for an increase in family conflict, however in other areas conflict seems to go on hold at least until the Courts re-open and the lawyers are back.

Hopefully during these months, we have all had some time to watch the ripples from a stone dropped in the pond, the flying spray from the stone as it skips across the water or the rhythmic rolling of a stone as it mingles with the push and pull of the waves on the beach.  All of these phenomena are accurate portrayals of the effect of conflict.

What the images show is that it really is conflict, not love as espoused by the theme of Love Actually, that is all around us.  Having re-watched that film for about the hundredth time, I am clear that the film would be non-existent if it were not for the conflict between the people.  Conflict is creative and can have an amazing impact – however often problems arise when conflict is not well understood or managed.

My personal reflection on this over the holiday time is how lucky we are to live in New Zealand. Te Tiriti o Waitangi came about as an attempt to regulate conflict between the tangata whenua o Aotearoa and other groups of people who wanted to live here.  It provided then and continues to provide now an opportunity for dialogue about many aspects of life and how people work together to manage issues.  Those voices that call for an end to the treaty grievance process overlook the greatest thing about Te Tiriti which is that it created a framework for ongoing dialogue.  This framework is referred to as the Principles of the Treaty of Waitangi. 

By their very nature the notions of partnership, participation and protection conjure imagery of relationship and the need to build, maintain, refresh and reconsider just like any other relationship.  For those of us who work with conflict, the common theme is that destructive conflict comes from how the people manage it. In commercial disputes, often the parties will hide behind experts arguing over the quality of the expert opinion rather than bravely confronting the real issue. The fact is that the parties got into a relationship based often on a contract, the vision and dreams that held for that relationship have not been fulfilled and now they are unwilling to see that each of the parties is responsible for the destruction of the relationship.  Conflict resolvers would do well to encourage the parties to engage in open hearted and authentic dialogue to see what can be done to maximise the outcome of the dispute.  Commercial mediators who focus on getting the parties to compromise do little to assist the parties or the situation.  What is needed is the opportunity to build an outcome in which both parties participate and get some protection from the, often, savage storms that have occurred and ruined the vision or intent of the original relationship.  

As we enter into the high conflict election period, over the next few months, we will be assailed by well-meaning and hard-working politicians criticising and poking at each other.  Why do we do this?  Surely the power is in all different voices collaborating for the common goal of improving our country and its place in the world.

I’m sickened by the stories of homelessness, poverty and depravation that we have in this country. Too many people fall through the gaps.  We need to create a society where justice and fairness prevails.  There needs to be a way where all people have the opportunity to participate fully in the democratic process and to make this happen politicians might like to attend meetings where they listen to the people rather than tell the people what they will do for them. Often politicians are asked to speak at events – perhaps their push back could be to attend and engage?  Protection is not a cloak which is worn as a burden or one that keeps the person down or distant from what is real issue.  We need to live the principle of partnership which recognises that we are all in a relationship with each other and relationships don’t work when the inequality of power between one person and another prevents one partner fully participating.  It’s ironic that mediators are asked to assess whether or not a case may be mediated based on perceptions of power imbalance when in fact mediators are in the best position of anyone to work with parties skilfully maximising potential of both and minimising impact of power imbalance.

My hope for this election is that politicians will come up with policies the effect of which will:

  • ripple through our society, just like a stone dropped in a pond;
  • shower our people with nourishment like gentle rain; and
  • polish up existing policies just like the shells and stones on the shore.

Most importantly all policies must be worked through – to be current, well informed, open to wide ranging views and importantly live in the ebb and flow just like waves on a beach which allow resources to move and meet ever changing need.

About the author

Denise Evans is a leading dispute resolution professional and Principal, Dispute Resolution at Fair Way.

With over 30 years’ experience, Denise has committed her career to advancing the dispute resolution profession and developing New Zealand’s unique approach to resolving disputes. Her innovative and skilled method of resolving commercial and private disputes is renowned, placing her at the pinnacle of the dispute resolution profession.

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