‘Getting a Mediation Agreement’ – Mediation’s Red Herring

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This morning I had another talk with the German Chancellor, Herr Hitler, and here is the paper which bears his name upon it as well as mine. Some of you, perhaps, have already heard what it contains but I would just like to read it to you: ‘ … We regard the agreement signed last night and the Anglo-German Naval Agreement as symbolic of the desire of our two peoples never to go to war with one another again.Neville Chamberlain 30 September 1938

 

Why is ‘Agreement’ so often quoted as the purpose of the mediation process?

Why are mediation agreements often described as ‘not worth the paper they are written on’?

For me the idea of a ‘mediation agreement’ is a ‘red herring’ – Wikipedia will explain:

Red herring is an English-language idiom that commonly refers to a type of logical fallacy in which a clue is intentionally or unintentionally misleading or distracting from the actual issue. It is also a literary device employed by writers that leads readers or characters towards a false conclusion, often used in mystery or detective fiction.                            

And, I would  add, often used in literature about mediation.

I’m frequently puzzled and disappointed to see  that a mediation agreement is seen as the ‘Holy Grail’ of the mediation process. Wikipedia (today) includes the following in its entry about mediation:

The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. ……..and it goes on to say:

Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training.

The statement that a mediator ‘helps parties reach an agreement’ happens so often I’m not sure many mediators actually stop and think about it.

Why is there a particular focus on agreement in mediation of an unresolved conflict of some kind whether a complaint, relationship breakdown, disagreement or other difficulty between two or more people? When we resolve conflict without using mediation it is not essential that ‘agreement’ is part of that resolution…..

  • Mutual understanding may be part of the resolution – what we once thought was someone’s threatening motive, we now find to be something less malign.
  • A change in our own response to something may be part of the resolution – we may no longer get angry at an action someone else takes. They may still take the action but we question our own reasons for getting angry or the ways in which we express that anger and decide it has been a destructive or even self-destructive response and unnecessary, possibly because we realise their action was not meant offensively.
  • We may decide to do things differently in the situation in the future in a logistical or practical sense because we have realised that what we did before didn’t work.
  • We may simply feel differently about someone or a situation because we have seen them differently through the opportunity to have a discussion with them for a period of time.

But none of these ‘requires’ agreement to anything before we go ahead with them. And all of them can form part, or all of the resolution of a dispute.

Consider any situation that you have found yourself in where, even briefly, there has been a difference of views about something that has led to some kind of difficulty. Was it essential for you and the other person(s) involved to agree on a particular point of view before you were able to continue with anything or were you able to acknowledge the disagreement of views – and go forward anyway? Often you will have simply accepted and accommodated the different points of view and expectations within the actions you  proceeded to take, and the matter was resolved.

Mediation Agreements Don’t ‘fix’ things, people do

Agreement in mediation can actually cause an assumed resolution to be unsustainable where it does not acknowledge that what I think and feel today, the circumstances I find myself in, the things that occur in my life may change tomorrow. This is particularly true in areas such as mediation in child-access issues between separating partners. There is often a ‘pressure to agree’ from the mediation process used – and the mediator providing it, and so an agreement is reached, for example, that …the father will see the two youngest children every other weekend.

Is that really a sustainable, useful, workable outcome? How many people’s lives are that ‘regular’? What if one of the youngest children has a school trip away one weekend? What if the father has a crucial work commitment on the weekend he was due to see them? What if the mother would like to take them to see their maternal grandparents one of the weekends because it’s their grandma’s 80th birthday? These are all things that can and do mean that access arrangements often break down – because of the insistence within some mediation processes and by mediators with an ‘agenda’ that ‘agreement’ is the necessary outcome of mediation.

Workable relationships between separated parents have flexibility and openness to each other’s and the children’s irregular lives. And so a more effective outcome to a mediation would be resolution of the ‘working relationship’ between the parents – one that is very different to their previous relationship, but one that, if they both want as loving and effective a relationship with their children as possible, it is in their interests to work at. Often, however this is not supported or encouraged when the focus is on ‘getting a mediation agreement’ which can be neatly defined and recorded. Check out divorced parents’ discussion forums and the dissatisfaction with the outcomes of mediation agreements if you wish to see how this pans out in practise.

This outcome is analogous to any area in which mediation occurs because what mediation offers is more than just ‘agreement’. A better working relationship can’t be ‘defined by agreement’ in any context because it is a dynamic process.

In my own experience of mediating I would say that only 1 in 3 cases that are resolved actually involve an agreement, and in even fewer do the participants  want any agreement to be written down. They are usually of the view that as they’ve discussed the situation there’s no need for ‘An Agreement’, particularly one that has to be written down. They’ve understood the other person’s perspective, they’ve put across their own view and experience and had a sense that the other person ‘gets where they are coming from’ and they’ve realised why things didn’t work out in the past because of what they both misconceived about each other. What’s to agree?

Why Agree?

Often, the pressure to ‘agree’ comes from one or both of the following sources:

1. Statistics about the outcomes of mediation include the performance indicator ‘Agreement reached – yes/no?‘ and so those who are monitored via such a misguided indicator succumb to a pressure to provide this rather than challenge it and point out that the ‘success’ it purports to represent is a red herring. I have worked in situations where the only ‘acceptable’ outcomes to a mediation, prior to that mediation and without the consent of the parties were:  Agreement or Partial Agreement or No Agreement – as if these are the only things that matter as an outcome of mediation. Self-determination by the participants?

2. A mediator’s own perception of ‘success’ being that ‘getting an agreement’ is an effective outcome. Indeed some mediators even quote their ‘agreement success rate’.  If we consider that mediation is a self-determining process whereby the participants create an outcome that works for them, then for a mediator to have a prior expectation that ‘An Agreement=success’ is contrary to their role and to the aims of the process. This can be particularly common where mediation is treated more like negotiation, for example where ‘shuttle mediation’ is used. The personal changes and mutual understanding of each other’s perspectives between mediation participants are much less likely to occur when they are kept apart in shuttle mediation, and so pretty much all that remains that can be created is ‘An Agreement’. (And as discussed elsewhere, shuttle mediation is often indicative of a mediation approach that has an underlying adversarial emphasis)

You can perhaps see that 1. above influences this perception in 2. and so the process becomes less one of self-determination by the participants and more one of how to get participants to jump through the hoop of ‘agreement’ – a Red Herring ‘….misleading or distracting from the actual issue…..and……leads… characters towards a false conclusion’ – that ‘agreement resolution’.

If participants in mediation specifically express a wish to create an agreement then it is entirely appropriate that one be made, but any cajoling or suggesting or persuading based on  the mediator’s preconception  that an Agreement  should be made  is not appropriate and potentially obstructive to the resolution of the difficulties involved in the situation through being a distraction from the aims of the participants.

Many mediators, lawyers and participants in some mediation processes speak of how a written mediation agreement ‘is not worth the paper it’s written on‘ or  is often ‘torn up‘ within days of it being made – again, see the discussion forums for examples of experiences – as if the piece of paper is the ‘symbol’ of the outcome of  mediation, but not a very effective one. And, no, it’s not effective from the standpoint of an adversarial process where agreements are not created and based on ‘good faith’ but as a binding contract. But this doesn’t seem to lead to a questioning of ‘agreement’ as the primary expected outcome. Instead it is frequently suggested that mediation is an ineffective way of getting an agreement. So we have an outcome expected of an adversarial procedure being imposed as an expected outcome for a non-adversarial procedure.

The only symbol of resolution that can arise from mediation is a different way of dealing with a difficulty that works more effectively for those affected by it. And whether it is different and more effective can only be decided  by those whose difficulty it is and no-one else. This may, or may not, involve some form of ‘agreement’, it is not for others to pre-decide that this should be the outcome of mediation.

For me, the preoccupation of some mediators with ‘getting agreement’ is another reflection of how the process is often intertwined with adversarial processes and not seen as a separate, alternative process with different aims, practises and Underlying Philosophies. When it is seen and practised as a genuine alternative, the shackles of the adversarial process are removed and the outcomes of mediation can be many and varied and not constrained by the expectations of a different, adversarial, approach, which are appropriate and necessary and required for that approach, but not for mediation.

 

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