I’m going to be spending a little time talking about the space within which we mediate and the stance, or the inner posture that the mediator brings with them.
The Mediation Space
Although Mediation is presented as an alternative to law and litigation, Boulle and Rycroft point out that it also operates within the ‘shadow of the law’[i]. They describe some of the implications which I believe come to the fore particularly in the type of mediation at hand within the RAF Pilot project and which are, inter alia, that the parties operate within a perception of how the legal system would resolve the matter and with the sense of time, costs and implications of a litigated outcome.
The extent to which a mediation operates within this shadow, exists on a continuum with, for example, a neighbourhood dispute existing lower down on the spectrum and a medical negligence claim or a personal injury claim existing higher up on the spectrum and playing out strongly within the shadow of the law.
It is for this reason that, as the leader of ADR Network SA, I have sought out the support of organizations like the PracGuide as well as SAMLA to provide the architecture within which our mediators who venture into this narrowly specialised area of mediation can be rooted, supported and ultimately grow in both knowledge and skill whilst committing to align to both existing and emerging standards of best practice. Advocates Posemann and Dutton will be specifically addressing how that may look and what mediators should expect and what should be expected of mediators in this area of mediation. Advocate Dutton goes on to speak more specifically to representatives, experts and other roleplayers within the process.
We must not forget, though, and lose sight of mediation as both an alternative and a challenge to the legal system and, in particular, its adversarial aspects which can, and does damage lives in very many ways.
This challenge to the legal system is in keeping with many aspects of our law reform projects which are demonstrating and articulating a growing commitment to restorative justice and to alternative dispute resolution methods such as mediation as better fora for access to justice. It is also deeply connected to and finds resonance with the international integrative law movement and growing initiatives in therapeutic jurisprudence or problem-solving and holistic approaches to resolution of legal disputes.
An inter-discipline stance is emerging and gaining momentum with individuals within those disciplines starting to find resonance with their roots in healing: the physician or medical practitioner as healer of the body and mind, the lawyer as healer of society and relations within it, the mediator as healer of the discourse, the builder of bridges or the mender of the breach across impossible divides. And there is a growing realisation that the disciplines need to work together in an integrated manner. I always say to those we teach and mentor that it is difficult if not impossible to solve a dispute in a vacuum.
So when we mediate in matters like this, we hold both in mind: we operate both within the shadow of the law and we operate as a challenge to (particularly) the adversarialism of the legal system.
Operating within the shadow of the law
At the outset it is important that we know and understand that, at common law, all mediation is protected under the ‘Without Prejudice Doctrine’. In as far as mediation amounts to attempts to settle a legal dispute, discussions are off-the-record and without prejudice to both and/or all parties’ rights. This means that, deeply embedded in our law, is the recognition of and protection of the sanctity of attempts to settle legal disputes apart from pursuit of litigation.
This means that we may think of the law as regarding non-adversarial attempts to resolve disputes as sacred and so should we.
The ‘without prejudice’ doctrine applies automatically and even without uttering a word. But it is prudent for the mediator to articulate it. We are not only dealing with facts but also with perceptions and if parties perceive that this is not a safe place, discussions may be guarded and defensive and may not progress to the robust and open discussion that may be required for real resolution.
So we may literally say, ‘you are safe here’. ‘This process is off the record, without prejudice and confidential’. It is important to get our parties bought in and committed to that and to imbue in them a sense of trust that may also underpin the courage they may need to proceed through tough conversations.
Naturally, we need to be wise about tough and robust conversations at the table and if we need to use reality checking techniques or confront parties about bad behaviour or lack of good faith then we circumspectly consider doing this in caucus. We must never forget the significance of face-saving at the table and designing our processes in ways that neither party has to lose face and that tough conversations can be held with dignity, respect and reverence holding in our minds at all times the sacred human within.
Even though the process may firmly operate within the shadow of the law, what we don’t want, is for the process to feel like court. We have just taken a traumatised victim out of the midst of the adversarial system. We don’t want the process to be different in name only. We want the process to actually make a difference, not only to the victim but to all of society bearing in mind that as the single biggest litigator, we may have no concept of how much collective resource drains away to RAF litigation.
Some years back, we trained a number of Tanzanian High Court Judges. They had had court annexed mediation for several decades. South Africa was still in the throes of setting up our first pilot project in court annexed mediation. I was curious as to why they had sought out our mediation training and they explained to me that they recognised that while they had the system and the rules, parties resisted it because, they said, it was not enough of a departure from court. In their system, judges were expected to mediate in chambers. They felt that parties perceived that this was the same process but in another room. We must work carefully to avoid this perspective.
Naturally, there is much more to say about the mediation space and the extent to which it may operate within the shadow of the law and the continual work it takes to keep parties vested in the process and operating off a base of good faith and candour.
Time doesn’t permit us to mine the depths of this conversation but merely to point to this conversation which must, of course, be ongoing.
So we turn to the mediator stance.
The Mediator Stance
Indelibly and intricately bound up with the mediation space is the mediator stance. This is our inner posture. And we must know that we bring that posture to the table.
In his book, Peace at Work, John Ford talks about how students in martial arts training are taught the benefit of various body and mental postures.
The totality of these postures, when adopted together, amounts to an effective stance for defence and attack[ii]. Students are taught to adopt this stance when presented with a challenge notwithstanding any contrary reflexive or reactive instincts or habits. He goes on that the familiarity of the stance inspires confidence and prepares them to meet their reality with competence and agility. It ensures, he says, that they are on the best footing possible.
Ford talks about the following aspects of such a stance as follows:
- The real self
- Relaxed and clam
- Open to subtle information and feedback
- Empathetic rapport builder
- Balanced and omnipartial-equally there for everyone
- Collaborative process guide-not a decision maker
- Keeper of confidences
- Respecter of differences
- Inspiring beacon of hope
It is borne out of a similar commitment that, on our mediation training program, our mediators are expected to undertake deep self-work and they are also expected to undertake this work as a commitment to life-long learning. It is not expected that we all miraculously overcome our deep woundedness and brokenness in each of our own lives but rather that we acknowledge that we are all made up of everything that has happened to us and everything that we have learned and experienced along the way and that for this reason, we consciously adopt, develop and work at an inner stance or posture that we bring to the table, alive to the fact that high conflict may be contradictory, chaotic, confusing and the mediator must adopt a posture that is able to consistently, thoughtfully and wisely bring dualling parties back to a grounded median in order to best explore and work towards the possibility of resolution.
We work with and encourage our mediators to life-long self-reflection. Life-long seeking of wisdom, a lifelong commitment to awakening, to being more aware and to develop an intuitive operating system that can work in and around our hard skills, what we know, our intellect and learned skills. Dr Cornel West talks about ‘what it means to be human’[iii] He talks about the courage required for humans to learn how to think for themselves, to learn how to love and to laugh and to hope. Differently put, and in the Socratic Tradition, the unexamined life is not worth living.The Greek actually says that the unexamined life is not the life of a human.
It is to be acknowledged though and we must be ever-present to the fact that this stance alone, no matter how strong, how peaceful or how grounded, or how real is not enough for a mediator working within the narrowly specialised field of medico-legal work and as such, and as mentioned, it is the intention that our mediators (and those who relate to other organizations) can become grounded and grow and develop within the architecture of the ongoing content and knowledge provided by the PracGuide in Medical Law and Ethics on the one hand and the standards, protocols and best practice set up, being developed and researched through SAMLA with research initiatives like that of Adv Posemann contributing to what may emerge as a lighthouse of best practice in this area of mediation.
So we are, I am excited to locate our mediators (alongside the mediators of other organizations) within a matrix, an architecture if you will, that provides access to ongoing and up to date content in the area of medico-legal mediation, that helps our mediators to align with and grow and develop firmly within an environment sincerely considering issues of best standards and best practice in this area of work and to grow and be enriched by the various disciplines that SAMLA has and is drawing together to continue to grow, reflect on and develop this work.
[i] Boulle and Rycroft, Mediation: Principles, Process Practice (2009) 1st Edition (1997) Reprint, Lexis Nexis
[ii] John Ford, Peace at Work, 1st Edition
[iii] Dr Cornel West, Public Lecture ‘What it Means to be human’
By Sheena St Clair Jonker (SAMLA Lecture)
ADR NETWORK SA