This is the first in a series of short articles that I’ll be sharing in the following months to encourage critical reflection about some of the things that are typically taught in standard facilitative mediation training. These ideas have arisen from my work supervising and mentoring new mediators, who often face challenges when putting their training into practice with real clients in the real world. In many cases, the challenges arise because they have been taught “this is the way we do things” in an uncritical way. The challenges also exist, I believe, because often the new mediators have not been taught to understand the underlying purpose of certain parts of the process / interventions, and so they do not have a foundation on which to build in flexibility or adaptations that might still meet the purpose and better suit the needs of the people involved in their specific situation.
The first topic for critical reflection is setting ground rules. In facilitative mediation training, students are usually taught that it’s important for the mediator to set ground rules for the mediation. Some courses teach ground rules as an essential part of the mediation process, however this is not actually the case. For example, the Australian National Mediator Practice Standards (NMAS) only refer to something like ground rules in clause 6.2 which states that:
“A mediator must consider the safety and comfort of participants and where necessary take steps, which may include (a) agreeing guidelines to encourage appropriate conduct.”
Importantly, note that the term used is “guidelines” not “rules”, and that it refers to parties agreeing to guidelines (not having them imposed on them by the mediator). Finally, the clause explains the purpose of these guidelines as potentially promoting the safety and comfort of participants.
When new mediators are taught to set ground rules, these are usually some combination of:
- Parties should communicate respectfully;
- Parties should not use offensive language;
- Parties should call each other by their first names and not use any demeaning terms;
- Parties should take turns speaking and not talk over / interrupt each other;
- Parties should listen to what the other person is saying;
- Parties should be honest and open about their needs and concerns / underlying interests.
Let’s first reflect on the benefits of parties complying with these ground rules.
As clause 6.2 NMAS suggests, guidelines about appropriate conduct in a mediation may support the parties safety and comfort. However, what is “appropriate” will usually vary from party to party, and also from what the mediator believes is helpful. It’s also arguable that if parties are too “comfortable” they may not be acknowledging or discussing some of the more challenging aspects of the conflict, nor motivated to work towards any change. It’s also debatable whether setting ground rules such as these have any significant positive impact on party safety. Any safety benefits seem to be based on the assumption that once set, the rules are complied with, which is almost inevitably not the case.
It’s also true that, when parties do communicate during mediation according to these rules, it can be easier for the mediator to manage the process, especially if these rules are consistent with the mediator’s comfort zone of communication. Tammy Lenski describes ground rules as
“a helpful crutch for novice mediators who don’t yet have the depth of learning or experience to handle difficult behaviours in other more effective ways.”
We tend to assume that, if parties comply with these ground rules, they should be able to have an effective conversation. In theory, these kinds of ways of communicating are also supposed to promote the parties saying what they need to say, hearing what others say, and making appropriate choices (often, reaching an agreement on the issues in dispute).
However, this is also based on some cultural and personal notions of how people should communicate. For example, what a white British, university educated, middle to upper class man may see as a respectful way to communicate, may differ greatly from what a blue collar worker from an Eastern European background would see as their normal way of communicating. For many people, for various reasons (including personal and cultural factors), attempting to communicate in accordance with these kinds of rules may be unnatural and very difficult.
I’m reminded of something Beth Roy said in the book Beyond Equity and Inclusion in Conflict Resolution:
“People of color and people from cultures beyond northern Europe often find the structure – time limitations, office settings, conversational turn-taking, controlled modes of emotional expression, leadership that hides its opinions – incompatible enough with their cultural norms that just walking in the door is silencing.”
Even assuming that parties comply with the ground rules, there are some downsides to this compliance.
Firstly, there’s a risk that parties don’t say what they really need to say. They follow the rules, they “play nice” but they don’t raise the unpleasant, undesirable aspects of their conflict that really need to be talked about. Playing nice “disguises” what people really think and feel, and so communication sometimes isn’t open and honest.
The other potential problem is that parties may need to expend considerable effort into compliance, and are distracted or exhausted by this and are then less able to work on the substance of their conflict.
When the mediator is responsible for setting, monitoring compliance and responding to breaches of ground rules, there can also be a negative impact on the mediator.
Many new mediators express discomfort with the process of setting ground rules. They say that it makes them feel like a parent or teacher, which is not the relationship that they want with their clients. They feel this even more when parties do not comply with the established ground rules and they have to call them out on their “bad” behaviour.
When this happens, parties also frequently feel disrespected or patronised. The mediator can also be perceived as losing their impartiality if they are berating one party for their conduct during a mediation more than another.
Anyone who has done a lot of mediations knows that parties almost NEVER comply 100% with all ground rules throughout the entire mediation. Setting ground rules in this way can frequently set them up to fail.
What are some alternatives to ground rules?
Even assuming that having particular (standard or bespoke) ways to communicate during mediation is beneficial, there are better ways to encourage these than the mediator setting and monitoring/enforcing ground rules. The mediator can do things before, at the start, and during a mediation to support parties to communicate effectively without having to set, monitor and enforce ground rules.
Tammy Lenski suggests that during intake / pre-mediation meetings, the mediator can have a conversation with the parties and invite them to “consider what would help them bring their best listening, thinking, and problem-solving to the table.”
e.g. “What do you think are going to be the most challenging aspects of communicating with each other during the mediation?” Is there anything that you think might help prevent or respond to those challenges if they arise in the mediation?” “What could you do, or what would you like me to do to support you to communicate at your best?”
At the start of a mediation:
Asking the parties whether they’d like to request from each other / agree on anything to do with how they communicate during the mediation.
e.g. “Is there anything you’d like to ask of each other, or me, in relation to how we all communicate today?”
Observing (non-judgmentally) behaviour that appears to be potentially problematic, and letting the parties decide what to do about it, if anything.
e.g. “I’ve noticed over the past fifteen minutes or so both of you have been talking at the same time, and I’ve been finding it hard to follow the conversation and to listen to what each of you are saying. I’m wondering how that’s working for you?” If the parties agree that it isn’t working for them, asking “I’m wondering what might be a better way of ensuring that each of you get to say what you want to say while everyone else is listening? What would you like to do instead?”
What are your thoughts? I’d love to hear your experience with setting ground rules (or not!) and also any ideas for alternative approaches.