Making of a mediator – May 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.

First on the list of influences for me becoming a mediator is that I am made in New Zealand. New Zealand is a bicultural country, founded on a Treaty which means there are two groups of people in New Zealand, tangata whenua (our first nation Māori people) and tangata tiriti – all of us who have the privilege of either being born or have immigrated here.  Being bi-cultural means we get to draw on the knowledge of both cultures and, even better, integrate them to create a unique New Zealand way of doing things.  Over the last 30 years particularly New Zealand has been learning about its history, dealing with breaches of the treaty and increasingly integrating Māori traditions and values into our everyday lives.  This integration is being played out on the world stage, led by Jacinda Ardern and the approach taken to deal with the COVID-19 crisis. 

Becoming a mediator involves a commitment to ongoing learning. I love immersing myself in any form of learning and am particularly enjoying engaging with mātauranga Māori.  The mātauranga Māori is so rich, embodied in stories and often beautifully articulated through carving and artwork.  The traditional lore and tikanga speaks to the need for people to come together in a framework where safety and support are essential to the wellbeing of the people.  Being part of a collective approach to problem solving and having a long-term approach are, in my opinion, essential skills for a mediator and mediation.

I am currently studying Corporate Governance and recently saw a diagram outlining the Ariki Framework for leadership and governance. It struck me that the framework provides insight into the skills required by a mediator.  At the centre is the skill of the Ariki as the enabler for other people to bring forward their “super powers”.  The other super powers are the roles of tohunga (subject matter expert), toa (ambition/action), rangatira (connector/communicator), kaumatua (wisdom), matakite (visionary) and tohunga ahurewa (stabiliser/balancer).  The reason I am so enchanted by this thinking is that all super powers have the ability for both greatness and evil, and the juxtaposition of these powers creates possibility.

I believe that it is vital that all of these super powers are available at a mediation and very likely that the super powers exist in the people who attend the mediation as parties, representatives and or supporters. 

I also believe that an essential skill of the mediator is to get to know the people in the room and discover the gifts and super powers they bring to the process.  The only way for a mediator to know of the super powers is to create an environment where people feel safe and valued, and to ask them what super power the person brings to the mediation.  Creating the environment for active collaboration and valuing equally the skill of the matakite with the skill of the tohunga ahurewa.  Or to put this another way, it is really important to have someone in the mediation who is creative and inventive and also someone who will ask the hard questions, do reality testing and interrogate other people’s thinking.

The super powers may be different and will come in many forms AND they do not necessarily lie in separate people. It is likely there will be combinations of the super powers within each of the individuals who are at the mediation.  It is highly likely that some of the super powers may be more willing to show themselves at different times. 

As a mediator, I need to expect and accept that the super powers will express themselves in ways that may create a loss of comfort for the mediator and others in the room.  Emotion is inevitable when people talk about things that matter to them - be that in a commercial or personal environment. It is the energy that transforms something from one state to another and is a mediator’s friend. 

I worry about people believing that they can become mediators by doing a one week course as that is never enough time for anyone to develop the nuanced skills required.  At best, these courses provide a framework and should highlight for each individual the areas where they will need further development and training.  There are many talented people who complete these courses and it is incumbent on those of us with more experience to provide mentoring and support as they develop their skills and practice.  Our profession requires development of new people within it who will lead it in future.

I also worry about the current trend which requires mediators to “triage” parties to a mediation to determine whether or not the case is “suitable for mediation”, whether the parties have capacity to participate and, even more worryingly, gives the mediator the right to stop the mediation if they form the view that something is no longer suitable for mediation.   It would be sad if the appearance of the super powers were misunderstood and instead of the mediator making use of the superpowers and encouraging more of the superpowers to emerge, the mediator refused to allow the mediation to proceed.

The only way someone who wants to be a mediator can become a mediator is through experience. They need to develop confidence that they can provide a safe environment which is enabling of conversations, some of which may be uncomfortable.

I believe that the mediator should assess whether they are “suitable” for the mediation.  They should ask “do I have yet, the skill and experience to address issues of capacity, power imbalance and all the other myriad of dynamics which are an ordinary part of mediation?  Am I able to be the “Ariki” of the mediation and enable the super powers?”  

I have heard some mediators say they are afraid of opening Pandora’s box and I wonder why……….  have they forgotten that the last item pulled from Pandora’s box is HOPE?!

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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