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A Rounded Education For Mediators

A Rounded Education For Mediators

Should we really be let loose to mediate after completing a 40 hour mediation training course? Don’t get me wrong I think there is a lot of value to gain from a good mediation course that teaches process and skills but we must develop our thinking further and strive to improve our effectiveness by understanding the mediation theory that informs the way we practice. Charlie Irvine is a Senior Teaching Fellow on the LLM/MSc in Mediation and Conflict Resolution at Strathclyde Law School where he has developed a curriculum that includes a thorough examination of the theoretical underpinnings of conflict resolution and mediation.

The course locates mediation in the hierarchy of dispute resolution and as a student you cover a broad range of subjects from psychological theories, therapeutic approaches alongside prominent critiques of mediation from, among others, feminist, social justice perspectives. So I hope from watching this interview you feel motivated, inspired or compelled to start reading and improve your knowledge of mediation.

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Transcript

Full Transcript

Aled:               Hi Everyone,  My name is Aled Davies founder of Mediator Academy.com. Home of the passionate mediator.

 

This is where we interview the very best mediators and thought leaders from around the world. We learn about new opportunities in the field of mediation as well as how to sharpen our skills, develop our thinking and stay ahead of the game.

 

The big question for today’s interview is this – in what areas do we need to develop our thinking to become well rounded mediators that do more than just manage a process.

 

My guest today is former professional musician who has developed Strathclyde Law School’s LLM/MSc in Mediation and Conflict Resolution, on which he is Course Leader and Visiting Professor. He is an experienced mediator with a practice including commercial, employment and family disputes and past Chair of the Scottish Mediation Network.

 

He has founded University of Strathclyde Mediation Clinic, which since Feb 2014, has provided a highly successful free mediation service for unrepresented parties at Glasgow Sheriff Court.  His academic work is concerned with the role of alternative dispute resolution within the justice system and legal education.

 

It’s a pleasure to welcome Charlie Irvine onto Mediator Academy, Charlie welcome.

 

Charlie:            Hi. Hi, Aled. Nice to meet you.

 

Aled:               Charlie, I want to learn more about how I can become a better mediator, a more effective mediator and understand some of the key theories and principles of conflict resolution and mediation, what they are, why it’s important to learn about them. But before I go anywhere else, I can’t overlook the fact that you had a career as a professional musician. Now you’re a professional mediator. Tell me a little bit about that journey.

 

Charlie:            I have a sort of theory about mediators. I think . . . I once interviewed 20 people that wanted to be family mediators. Nineteen of the twenty, when we went round the room, had either just gone through major change in their lives, or wanted to. I think there is some kind of link between mediation and change. I think mediators tend to be people with a little bit of an appetite for change, so I think that a number of us have done a number of things.

 

Actually, the musician bit, if you think about it, I don’t know if you’ve ever been in a band or ever watched Spinal Tap, but that moment when the guitarist and the bass player glower at each other . . . There’s plenty of training in conflict when it comes to playing in a band.

 

You’ve got a group of people that have to live together and know each other better than their own family, but they might not be the kind of people you would choose.

 

Aled:               Okay. All right, so you think your experience as a musician lended [sic] itself well to mediating and getting involved in conflict resolution?

 

Charlie:            I didn’t know it at the time, but yes, I think it was a good training in dealing with conflict, for sure.

 

Aled:               All right. You were a lawyer, as well. Right?

 

Charlie:            I have a Law degree and I practised very briefly, for a couple of years only.

 

Aled:               Okay. This is before you became a musician?

 

Charlie:            Yes, that’s right. The rock and roll was really my passion at the time and I had to follow that one.

 

Aled:               What led you to deviate, or take another path, leave the musical career behind and become a mediator? What was that? Do you remember that moment?

 

Charlie:            Oh, it was more of a process than a moment. I mean, like many musicians, it became clear that although I wanted it, it didn’t want me. This path to stardom wasn’t quite as clear-cut as I had hoped. For a few years I actually ran a business, a recording studio business.

 

Aled:               Okay.

 

Charlie:            When I reached the point where the people coming through the door, I began to think, ‘These could be my kids.’ It felt like time to, maybe try something more grown-up. I didn’t want to be a lawyer again and I remembered listening to a radio interview from about 1981, where somebody talked about family conciliation.

 

It stuck in my mind, and this is 10, 11, 12 years later, when I returned to Scotland. I looked it up in the Phone Book – Family Conciliation. I phoned the office and I got the manager, and said, ‘I’m this and that,’ and he said, ‘Well, as it happens, we’re looking for a new mediator and we have a training course.’ So it was strangely . . . was it serendipitous? Or some little thread in my mind took me back to it.

 

Aled:               Fantastic, and you never looked back.

 

Charlie:            I think anyone who’s involved in mediation knows it’s not exactly a glittering career. There are quite a lot of twists and turns. Even the simple business of making a living is pretty tricky in this country.

 

Aled:               Yeah. Why is that, Charlie? What’s your view on that?

 

Charlie:            Very interesting question. I think there are some cultural reasons why in the New World . . . Much of my reading in the academic literature, so much of it comes from North America and a fair bit also comes from Australia and New Zealand. I have a theory that in the New World there’s a mindset, I might be slightly wrong about this, that says, ‘There’s a new idea, let’s try it.’

 

Whereas in the Old World where we live, and that would cover Europe, really, when somebody says, ‘Here’s a new idea,’ the gut reaction is, ‘Are you telling me I’m doing something wrong?’ or, ‘What’s wrong with the way we do things already?’

 

Aled:               Okay.

 

Charlie:            I think there is an intuitive caution about change and novelty within, I have to say, the European, particularly British mindset, which has been tricky for us. That’s one theory.

 

Aled:               Yeah. I think it’s an interesting theory when you look at a part of the world where mediation has taken off. I wouldn’t say it has reached its full potential, by a long shot, but when you look at Australia and the U.S., they are much further ahead than the U.K. and parts of Europe. But we’ve got a lot more history than they’ve got – and a lot more baggage.

 

Charlie:            Yes, I think so. I think there’s also something else. There’s an intrusive dimension to . . . The idea of having a stranger involved in your business does go against the grain, especially in Scotland. I can’t speak so much for England and Wales. So I think there’s also a caution about that, which we have to overcome. Generally my sense now is that mediation is a distress purchase.

 

Aled:               Yeah.

 

Charlie:            Do you want to know my theory on this? As with dentistry, you don’t want it till you have a problem and then you want it to be good.

 

Aled:               Yeah.

 

Charlie:            You don’t want to think about it the rest of the time.

 

Aled:               Yeah.

 

Charlie:            Until we invent some kind of equivalent of the check-up, then I suspect we’ll always be that kind of profession that people would rather not think terribly hard about, until they have a problem.

 

Aled:               A distress purchase, yeah. Yeah, that is certainly a hurdle that we’ve got to overcome, and we’ve got to overcome it together, I think, as a field, you know?

I think another issue that we’ve got in the U.K., there are lots of different small pockets and organisations, all with their own issues with each other. There doesn’t seem to be a concerted joint effort and a willingness to get behind one group, one organisation, one message, one voice, you know?

 

Charlie:            Yeah, but if you look at the U.S.A., you wouldn’t say that’s been the driver for the growth in mediation. There’s not one voice there, either. In fact there are lots and lots of different groups. Actually you could argue that the real gift that America gives to the world is selling, and that people have got together and forged some pretty proactive businesses. That’s probably one of the biggest drivers.

 

Another big driver has been the American justice system having its own troubles and issues, although ours has many of the same. Yes, I think it’s complicated.

 

I also have a theory that mediation can never be like engineering or like being a doctor, or being a lawyer. In the sense that you can’t really say, ‘I’m going to do a bit of doctoring this afternoon.’ or, ‘I’m going to do a bit of lawyering this afternoon.’ as a lay person.

 

Aled:               Yeah.

 

Charlie:            Whereas anybody can say, ‘I’m going to do a bit of mediating this afternoon.’ I think we need to understand that it’s a daily life activity and a widely used skill. The idea of drawing a bright line around it, in the way that other professions have done and can do, I think it’s always going to be challenging and I question whether it’s even a good idea.

 

Aled:               Yeah. But if you think about it, ‘I’m going to do a bit of coaching this afternoon. I’m going to coach my children. I’m going to coach . . .’ Coaching, as a profession, it’s a real hockey stick curve, I think, in terms of growth. The executive coaching, life-coaching world, it’s just left mediation standing.

 

Charlie:            Really?

 

Aled:               I think so. Yes.

 

Charlie:            Interesting. I’m not fully aware of it, but I think coaching has a similar problem. The fuzzy boundaries around it are never going to be completely closed. I think there is a sense in which, one, we’re thinking about what we do with this. Would the world be a better place by creating a new profession, or by sharing our skills more widely with the population?

 

Aled:               Yeah. Interesting. Okay, tell me about the syllabus you’ve got going. First of all, tell me about the course at Strathclyde. Then I want to ask a little bit more about the syllabus, and maybe try and burrow into some of those ideas and theories that you’re teaching there.

 

Charlie:            I did a Master’s myself at Birkbeck College in 2005-2006 with Lorraine Schaffer and that was fantastic. For me it was like somebody opening a whole lot of boxes of treasure and giving me access to that. When I came back to Scotland – that was in London – I suppose I was left with that sense of, ‘We should have one. We should do this.’ So that became my goal for the next few years.

 

The thinking behind it has been to . . . Initially it was to provide practitioners with a critical, theoretical foundation. I suppose my profound belief would be that we cannot think enough, we can’t think critically enough, we can’t have enough knowledge and models and ways of doing things, because it’s an incredibly complex activity. When you’re actually in the mediator chair, a very, very wide range of things coming at you. Certainly my own experience would be the wider my reading, the wider my sense of ways of doing things, the less likely I am to be like a rabbit caught in the headlights, being stuck.

 

So that was the driver, it was to provide mediators with as much depth as possible. Also, to create an interest in creating a body of critical writing mediation that’s native to these shores.

 

Aled:               Yeah.

 

Charlie:            We don’t really have . . . It’s beginning. We certainly don’t have enough of it. So that was another driver. Could we have a group of people who had a more informed critical academic underpinning for the mediation activity? To start creating a body of knowledge and a body of research.

 

Aled:               Yeah, okay. You said a moment ago, you came back from Birkbeck and thought, ‘We need to have something like this in Scotland.’ The equivalent of course, or something. Why did you feel so passionately about that? Why did you make it your mission to do that?

 

Charlie:            I guess I did buy into . . . this is part of Lorraine’s vision, that she was equally passionate about, that the how-to approach to mediation has some limits. I’m possibly not quite as angry as she was. She was very passionate about this. I think a five-day how-to course can be incredibly useful and incredibly helpful. I’m not here to knock that, but I think I agreed that there was something potentially quite limiting about that.

 

My friend Ewan Malcolm, he talks about courses like that. I’ve delivered those courses as providing new mediators with handrails. Handrails are incredibly useful when you’re beginning, when you’re a beginner. Supposing you break a leg and you need handrails as you’re doing your physio. There comes a point when you start to walk confidently again, where you’re letting go of the handrails.

 

I would buy into that and my sense is that experienced practitioners are weaving a much, much more interesting and complex path through people’s conflicts than any of the how-to models would let you know.

 

Aled:               Okay. All right. Talk us through the key elements of the syllabus, then. What are you doing up there?

 

Charlie:            Okay. If you were to do the programme, the two compulsory modules are – one is called Theory and Principles of Conflict Resolution, and one is called Mediation in Practice.

 

Aled:               Okay.

 

Charlie:            As it says on the tin, the theory one is ten weeks of seminars, where we examine much of the underpinnings. I have quite a strong belief that we need to understand conflict and Conflict Theory. Maybe I should say something about my Three Pillars of Mediation?

 

Aled:               Okay.

 

Charlie:            That’s the real foundation for everything that I do. When I finished at Birkbeck and I was thinking about delivering some training, I realised, reflecting back, that in my view you could build the whole of mediation practice on three pillars.

 

One is Conflict Theory. That’s a very wide range of ideas about conflict coming from psychology, philosophy, economics, sociology, anthropology, law. That’s the first pillar. The second pillar I would call Communication Practices. That’s the how-to. How do mediators actually do their work? That’s practical.

 

Aled:               Yeah.

 

Charlie:            That’s very interesting. For most adults that’s about tweaking. We all know how to communicate, but tweaking it into conflict situation. The third pillar is what I call Paths to Resolution, which is the models. You’ll be familiar with what you might call the mainstream, the Facilitative Mediation model. There’s a model known as Narrative Mediation, there’s a model known as Transformative Mediation.

 

It turns out there’s a model of negotiation, called Principled Negotiation, which is deeply woven into much mediation training. So that’s the third pillar. The whole course is premised on that quite simple vision.

 

Aled:               Yeah, okay. The second pillar, you said we all know how to communicate, it’s just about tweaking. Do we know how to communicate? Do we know how to do it effectively?

 

Charlie:            Well, it’s quite a major tweak, yes. When you put people into situations of conflict, there’s a scrutiny of your communication practices, which is quite bracing. The potential to get it wrong and the potential to make conflict worse is really scary, but at the same time also very interesting. I sometimes liken it to when people go on media training. The knack is to make it look as if you’re just having a chat when, in fact, at the same time it’s a purposeful conversation.

 

Actually, in this respect mediation has a lot in common with the therapies and that’s probably where our biggest overlap with therapeutic endeavours, like counselling and psychotherapy. Huge amount we can learn from them, because those are purposeful conversations.

 

Aled:               Yeah. Just to take your example earlier about . . . you mentioned being stuck, the rabbit in the headlights. How much of that stuckness is transference in the mediation room? You know, it’s not the mediator’s being stuck, it’s the parties’ stuckness that is now infiltrating our own thoughts. I’m sure you’re familiar with the concept, the ideas of transference and counter-transference.

 

Charlie:            Yes, I am a wee bit. I wouldn’t claim to be an expert. I’m certainly familiar with situations where the mediator seems to inhale the despair of the parties and that’s a hard place to be.

 

Aled:               That is just a beautiful phrase, ‘inhale the despair’.

 

Charlie:            It’s not nice. My friend Mike Jacobs, he wrote a lovely piece for Mediate.com where he suggested that mediators ought to sometimes feel bad at work. Sometimes this is difficult and it’s difficult for our clients. You wouldn’t necessarily want a mediator that just skipped off into the sunset and was unaffected by the work, so I agree with that.

 

At the same time, I would like us, myself and my students, to have a sense of ‘If that doesn’t work, then I’ll try this. If it doesn’t work, then I’ll try that,’ and to have a lot of different approaches. Another of my little clichés from the course is the old joke about ‘I always find my key in the last place I look.’ I think it’s like that with mediation techniques. You know, the right mediation technique is the one that works.

 

Aled:               Yeah.

 

Charlie:            Actually, you can try 10 or 20, and that’s okay. If it’s done in the right spirit, people will not object to a mediator trying something that doesn’t work.

 

Aled:               Yeah.

 

Charlie:            I think that’s a whole interesting knack at how do mediators present their moves as a kind of offering to the parties.

 

Aled:               It sounds like, then, a lot of the effectiveness of the mediator comes from his or her . . . I’m not going to say ‘ambivalence’ or . . . a humility, you know? It’s kind of, ‘Yeah, I’ll give this a go. I’m aware that there might be some stuff going on, therefore let’s try this,’ and just being okay with it either working or not working, in the comfort, or in the knowledge of ‘If that doesn’t work, don’t worry. We’ll figure something else out. I’m just holding the space for this conversation.’ That’s the reassurance that the parties need. We need to be able to give that reassurance at not necessarily a conscious level, but at unconscious level.

 

Charlie:            I agree with you. I think that term ‘holding the space’ is important. I think that’s what we do. I really wouldn’t want people to think that there’s too much of an easy oozy laid-back quality. I think there are lots of very interesting polarities. Do you know the term polarity?

 

Aled:               Yeah.

 

Charlie:            When you think about mediation, for example, one polarity might be between Evaluative and Facilitative. That’s a bit of a cliché in the mediation world. I think there are much more interesting ones. One, for example, is the extent to which a mediator puts their foot on the gas and drives the process, and the extent to which the mediator sits back and observes and facilitates a conversation between people. Now, I think there’s a lot to be said for a mediator who’s very flexible about that.

 

Aled:               Okay.

 

Charlie:            There are times for sitting back and allowing an organic process to unfold and there are times for being quite forceful and taking a leadership role, right?

 

Aled:               Yeah.

 

Charlie:            If you observe – you’ve interviewed some very experienced mediators, I think you would glimpse that leadership persona quite strongly in a number of those people.

 

Aled:               That’s possible, yeah. Okay, so we’ve hovered around the second pillar. I want to come back to the first pillar, the theory. Conflict Theory. You talked about philosophy, anthropology. Give us a flavour of the kinds of thinking, understanding, awareness that we should be developing as conflict resolution practitioners, as mediators.

 

Charlie:            Yeah, it’s an interesting challenge. Some writers are beginning to try to fold this into their work. Kenneth Cloke, for example, recently just brought out a new book where I think he attempts to integrate more psychology and neuroscience into that. I didn’t really find anything that I could go to off-the-shelf, so probably I would have to do a lot of investigating. I find social psychology incredibly helpful.

 

Aled:               Yeah.

 

Charlie:            You know, for 50 to 100 years . . . Actually Morton Deutsch was really a key figure for me. When I realised that Morton Deutsch was a social psychologist, I thought I’d better find out more about that. I think that would be a good place to start. Look at Deutsch, look at the work of a whole series of prominent social psychologists around the way that we operate in the social world. I’m particularly interested in the whole business of cognitive biases.

 

That’s this business that our thinking may not be 100% accurate when it comes to the social world. If we have some understanding of our tendencies, that’s very helpful in conflict. I think people in conflict are affected, on a cognitive level, by the situation they’re in. I think there’s a huge amount of neuroscientific information, which is quite hard to wrestle to the ground.

 

Broadly speaking, a simple, simple model would be to say, ‘We need to understand that conflict has the tendency to create arousal, emotional arousal.’ So we need some kind of working model that links emotion and cognition, the way we feel to the way we think. I think mediators, we owe it to ourselves to have some sense that that’s the business that we’re in. That’s part of conflict. But then, there’s a whole world of international conflicts.

 

If you think about it, read Tolstoy, if you want to understand conflict, read War and Peace. It’s a fantastic area. Human beings have forever been trying to understand conflict. So in a short course, the students get some social psychology, we get some neuroscience and we also reflect, actually a very strong part of it would be, do force people to reflect on their own lives.

 

Aled:               Right.

 

Charlie:            That’s the great thing about having Master’s students, you can make them write essays. That’s one of the biggest differences between a five-day course and what you’re doing on a Master’s, is you’re forced to write critically and reflectively about your own experience. I think that’s incredibly rich. So I do make people write reflections and draw on their own experience of conflict.

 

Aled:               Okay. So social psychology, social science, neuroscience. Say a little bit more about what are the neuro-scientific . . .

 

Charlie:            As I say, I’m a wee bit hesitant to. I wouldn’t set myself up as any kind of expert. In fact I’ve recently come across some neuro-skeptics, who are saying this has been overblown. But it certainly . . . Let me think of an example. There’s a great book by John Medina, called “Brain Rules”, for example. I found that incredibly helpful in my work, because it gives you insights about issues like attention. The things that affect our attention, the things we pay attention to.

 

Now, that’s highly relevant in a mediation setting where I have two individuals who are in conflict with each other, and I have me. So we’ve got that triad where the three members of that triad pay attention. What they’re going to pay attention to? It’s really helped put out some knowledge about how that might be helped, that might be supported. The idea of emotional . . .

 

Aled:               Sorry, Charlie. I just want to come in there. When you say, what they’re focusing their attention on, can you give me a specific example of how that understanding or knowledge would be helpful in that context?

 

Charlie:            I think most of us do this intuitively. For example, the notion of priming is quite significant, I think, in psychology, really. Neuroscience just backs this up. That idea that the language that we use can prime subsequent actions and thought by individuals. So at the beginning of a mediation, I now, reinforced by my reading, will say to people, ‘As well as what do we need to tackle, what do you hope to get from this?’

 

As I say, many people do this intuitively and now would have an understanding that my use of the word ‘hope’ primes people’s attention forwards and it primes people’s attention in a positive and optimistic direction. If I were to say, ‘Let’s talk about the problems and the conflict that you’ve had,’ I’ve primed people in that direction. Both might be useful but it’s that sense of being purposeful and self-aware in our use of language.

 

The way I set the room out will prime. I now understand that if you want people to be flexible in their thinking, it would be better to have a warm environment than a cold environment. The brain is a muscle. Muscles are not very good in the cold, you’ll know this. If you warm up a muscle, it starts to be more flexible. Well, it would appear to be similar with our thinking. Too hot is bad. Just simple, simple things like that. These are the kind of things that lots of us know intuitively. A prominent mediator in Scotland always starts with croissants in the morning.

 

Now, again, having read a bit of neuro-scientific, neurobiological literature, it would look like there’s very good theory that, first of all, simple glucose and blood sugar is quite helpful when we’re in a cognitively demanding situation. But then the whole ritual of people eating together has again got an impact in priming people for collaborative problem solving, together against the problem, that’s one of the directions of travel that you want to create. So as I say, lots of this stuff is maybe intuitively happening anyway, but I think it cannot be a bad thing to have a theoretical underpinning.

 

Aled:               So understanding why we’re doing what we’re doing?

 

Charlie:            Yeah, absolutely.

 

Aled:               Yeah, okay. All right. So social science, neuroscience . . .

 

Charlie:            [inaudible 00:28:55]

 

Aled:               What’s that?

 

Charlie:            I got a bit bogged down in all that stuff . . .

 

Aled:               No, no, it’s helpful, you know? Breaking bread, temperature of the room, laying things out, priming. I was going to ask you about, I wonder what Joseph Folger would say about priming. To what extent is that consistent with Transformative . . . but I’m not going to go there.

 

Charlie:            No, please go there. Please go there. I know Joe, and I met him and I’ve heard him speak. Folger and Bush, although I’m not a transformative mediator, they have many wonderful insights and if you read one of their chapters, they say the introduction says it all.

 

So I think they would be completely supportive of the notion, because they’re saying, actually, you can prime people by either empowering them to take control of their own problems, that’s human agency, or you can take that power away from them by setting lots of ground rules. So yes, I don’t think they would be at odds with this at all.

 

Aled:               Good, yeah, I agree. So neuroscience, what next?

 

Charlie:            You mean in the course, or . . . ?

 

Aled:               Yeah, in the course.

 

Charlie:            [inaudible 00:30:14] Oh, in the course. We start with Conflict Theory, we then move into the models, so we actually move into our third pillar very much.

 

Aled:               Okay.

 

Charlie:            I take people through Facilitative, we look at Narrative and Transformative Mediation. We look at a model called . . . Daniel Dana, who’s a very under-appreciated mediation innovator, started in the 1970s, in the Carter White House.

 

Dana’s model, I think, invented Transformative Mediation before Bush and Folger. So I offer these things to the students, get them to wrestle with them, critique them. Then, another thing that’s very important, actually, to say, we spend quite a bit of time looking at the critical literature on mediation, of which there is a lot.

 

Aled:               Go on.

 

Charlie:            A lot of that comes from the law, from critical legal scholars, and some from sociology and anthropology. I think that’s very important to understand all the ways in which what we think of as a terribly nice, useful endeavour for humankind, could actually be cut in exactly the opposite way. So I make my students read quite a lot of critical literature.

 

Aled:               Okay. Has that led to you . . . I know you’re doing a bit of research for your PhD around mediation and just outcomes. There’s an argument that mediation doesn’t promote or provide adequate justice outcomes for parties. Is that right?

 

Charlie:            Absolutely. Well, that’s a critique.

 

Aled:               Yeah.

 

Charlie:            You may be aware that a number of people have said, effectively, mediation is a kind of second class justice. That it’s not really interested in fairness and justice, it’s just about settlement, or it’s just about efficiency, or it’s just about saving money. We need to take those things on the chin, you know? Some of the critiques that have been levelled at mediation are absolutely right.

 

Aled:               Yeah.

 

Charlie:            I think mediation has improved as a result of the critics, so I don’t see it as my job to sit and defend mediation.

 

Aled:               Yeah.

 

Charlie:            However, I do . . . My PhD, for what it’s worth, I do have a hunch that when I’m mediating, issues of fairness and justice are absolutely central to what’s going on in the room. Even if it’s as simple as ‘Can I live with this deal?’ That’s a valuation that people are making on an emotional level, on a thinking level, and in the mix, is their sense of fairness, I would argue.

 

Aled:               Okay. If you think about it, if mediation is about efficiency, saving money, etc., so what?

 

Charlie:            I think it has to be both/and.

 

Aled:               Right.

 

Charlie:            Or ‘so what?’ would be a problem. If you’re saying you can get first class justice by going through the courts of justice and you can get second class justice by going to mediation that is cheaper, so that’s what you’ll get. Then you do get into, I think, a very unfortunate feeling that has been around in some parts of the U.S.A., that mediation, as I say, it’s justice on the cheap, it’s justice for the poor, it’s not as good as . . . I don’t believe that.

 

Aled:               Yeah.

 

Charlie:            I think the fact that some of the biggest corporations and organisations in the world choose to mediate their multi-million dollars disputes, would tend to suggest that the market doesn’t believe that either. It can’t be as simple as that. But I think we have to wrestle with that. That’s why I believe it’s important for us in our work to have a sense that there’s something of principle in what we do, as well as pragmatism.

 

Aled:               Yeah. You know, it’s an alternative, I think. I believe that is why the ideal of party self-determination has to be preserved, in order to maintain the integrity of mediation. If you want, regardless of whether it is justice, it is second-class justice, it’s just efficiency, or it’s just financial. Regardless of all of that, if people are making free and informed choices to engage in the process and are not coerced into it or during it, I think it’s a great thing.

 

Charlie:            That’s what I’m trying to develop in my own PhD, is the idea that actually if people make choices about what is just, collectively. I’ve got this little triad in my head, so we’ve got mediator-party-party or you’ve got judge-party-party. If the decision emerges from the people and not from the judge, what’s to say that’s any less just? What’s to say that ordinary people have any less claim to know about justice than a man in a wig, or a woman in a wig?

 

I’m still working with that, but I have a sense that we might be able to cut this in such a way that, in a society where norms are quite contested, a very diverse society, normatively, we could possibly argue that more justice might flow from a collaborative process than from a litigation and adjudicative process.

 

Aled:               How do we grow mediation? How do we promote it? How do we develop it, so that the likes of you and I, Charlie, and others watching this, are busy, busier mediating?

 

Charlie:            That’s a really interesting question. My sense is, in Scotland, that almost the lack of encouragement from the courts has pushed mediation out in some very interesting directions. So I think we probably do need social entrepreneurs, you know? People who have a vision and who are going to take the new [inaudible 00:37:08] interest.

 

For example, in Scotland there’s an initiative in homelessness mediation, which has actually got some Government funding and is now called the Scottish Centre for Conflict Resolution off the back off that. They’re working with vulnerable young people, trying to help them not be homeless and rebuild social connection with their families.

 

I think there’s, off the back of that work, it’s another example of how a mediatory approach has got enormous mileage. It might not be that you train another professional mediator, it might be that you train a housing officer how to take a mediatory approach. I came across some fascinating research from Holland and Denmark about, technically, it’s about handling complaints against public authorities.

 

Aled:               All right.

 

Charlie:            So you might not think very promising, but in fact, what they were doing there was based on procedural justice literature. Which is another thing we cover in this theory course. That’s one of the contributions of law into all of this. Based on that, they have this idea that if you could teach civil servants to take a mediatory approach to the public, they might be able to reduce the number of appeals that were lodged, the number of complaints that were made.

 

Aled:               Yeah.

 

Charlie:            Well, it turned out in both Holland and Denmark, not only did it do that, it also increased the job satisfaction of the civil servants. The simple, simple device of picking up the phone and calling somebody and saying, ‘I’m probably going to make an adverse decision, but would you like a chat about it?’ Instead of the very typical reaction of public servants would be, ‘We’ll put it in writing and we’ll send a letter.’

 

Aled:               Yeah.

 

Charlie:            That increased job satisfaction to something like 25% to 30%.

 

Aled:               Wow.

 

Charlie:            These are very interesting areas with, I would say, a mediatory approach, the whole field of employment. I think it’s fascinating. That’s a growth area, I would say.

 

Aled:               Yeah.

 

Charlie:            From experience, I know a number of mediators in Scotland who are beginning to . . . I wouldn’t say it’s a huge full-time living for anyone, yet, but there is more and more around. Again, huge flexibility is called for. I’m involved with [inaudible 00:39:28] coaching, sometimes it’s called conflict coaching . . .

 

Aled:               Yeah.

 

Charlie:            . . . I’m sometimes involved in training, team building, working with groups, facilitating group discussions. Now, is that mediation? I think the boundaries are quite blurry, and for what it’s worth, I think mediators are probably better qualified, when you’ve got a few years of mediation under your belt, to offer those skills in a very wide array of situations.

 

Aled:               Yeah.

 

Charlie:            It’s not really growth of the mediation field. I think, what I’m saying is I can see a career development path for people who, get conflict resolution skills under their belts, becoming very useful in organisations and in settings of conflict. Can I say, quite a number of students now – we’re in our fifth year now – most of the students I would say are people who are doing something else.

 

They’re coming from and HR or a management background, some from a legal background, some from education. They’re not necessarily intending to be professional mediators. Some are and some aren’t, but they’re integrating this stuff into their existing career. I’m very comfortable with that, those seem to be people who’d get a lot out of an understanding of a mediatory approach.

 

Aled:               Yeah.

 

Charlie:            One module that’s been a revelation to me was, I do one on negotiation and it’s absolutely fascinating. That’s such a core activity for everybody, and yet very little-covered and particularly on a critical-theoretical level. Very few negotiators in Britain.

 

Aled:               Yeah.

 

Charlie:            Any sense of any theory underpinning what they do.

 

Aled:               Great. Charlie, thank you ever so much. If people want to find out about the course you’ve got running, where do they go?

 

Charlie:            Just google Strathclyde University Mediation Masters.

 

Aled:               Okay. Charlie, thank you very much.

 

Charlie:            Thank you, Aled. It’s been a pleasure.

 

Aled:               Okay. Cheers.

About the mediator

Charlie Irvine Profile Pic

A solicitor and former professional musician, Charlie Irvine has developed Strathclyde Law School’s LLM/MSc in Mediation and Conflict Resolution, on which he is Course Leader and Senior Teaching Fellow. Additional teaching duties include an Elective in Mediation for PEAT1 students; Negotiation and Mediation on Strathclyde’s LLM in Advocacy; Negotiation on the Clinical LLB; and Legal Process for undergraduates. He has also founded Universi... View Mediator