"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser - in fees, expenses,and waste of time."
(Abraham Lincoln)
■ Mediation is a form of alternative dispute resolution (ADR). It is typically an informal, freely structured voluntary process, in which a third party neutral with no authority to decide the case (the mediator) helps participants reach their own agreement and find a mutually acceptable solution.
■ Mediation has been developed in the USA after the World War II and has become a main dispute resolution process. It is well-known and used in various other countries, like Austria, Great Britain, Finland New Zealand, Italy etc.
■ In Hungary Act LV of 2002 regulates the process. The Mediation Act came into force on March 17, 2003 and it provides resolution of various types of dispute.[1]
■ The European Union also underlines the importance of ADR which is portrayed as "an integral part of the policies aimed at improving access to justice" by the Commission Green Paper on Alternative Dispute Resolution in Civil and Commercial Law.
Now, as the Mediation Act has come into force in Hungary, this form of alternative dispute resolution has gained lots of attention. As there is no successful mediation without well-qualified mediators, the purpose of this article is to present some features of the American training. In the U.S., mediation is a wellknown and incredibly popular method to solve disputes. There are numerous classes in which students can learn about it, and more and more universities provide training. The first part of this article deals with the conflict resolution education for juveniles, while the second part examines the characteristics of mediation training as a form of adult learning.
Wolf: OK. I've agreed to get flowers to plant by Saturday, to draw a tour map of the forest, to go along with you to talk with the woodsman, to meet your friend and lead a tour through the forest, to take care of the donation box, and to visit Granny when you can't do it.
Red Riding Hood: I've agreed to arrange for an appointment with Granny and the woodsman, to plant flowers with you, to bring my friends to tour the forest and introduce you as a nice wolf, and to call you by seven o'clock if I can't visit Granny.
(The Agreement between the Wolf and Red Riding Hood From: Bodine, R. J. - Crawford, D. K.: The Handbook of Conflict Resolution Education. A Guide to Building Quality Programs in Schools)
One can say: it is never too late to learn how to solve problems in a nonviolent way. On the other hand, it is never too early as well. In the U.S., school kids from the age of twelve serve as mediators. As a part of violence prevention, since 1983 the National Institute for Dispute Resolution (NIDR) has promoted programs in all kinds of institutions. Surprisingly, conflict resolution education is part of learning not only at universities but also in more and more elementary and high schools. According to the statistics, today more than 10 per cent of the public schools established a conflict resolution program in the US; in other words at least 85.000 schools are involved in this movement.[2] These numbers show that fortunately more and more students have the opportunity to get familiar with one of the alternative conflict resolution methods such as mediation, negotiation, collaborative problem solving at an early age. Developing good conflict resolution skills as early as possible is desirable in a world were violence is spreading.
Of course, training differs from age to age. Education can even start at a very early age in preschool. No doubt, little children are more likely to be im-
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pressed by the story of Red Riding Hood than by the possibility of a future job or a promotion. Through games, fairy tales, group activities, these children learn the importance of searching for creative solutions instead of biting and kicking one another. The program shows alternatives to fighting and teaches the kids to sit down together and listen to each other's arguments. They will learn how to handle the problem. From grades three to five, the establishing of a peer mediation program starts. Children participate in more and more role-plays; they also make presentations to their parents or community groups. In middle school from grades six to eight students are taught how to train younger students. Now, they can also create their own role-playing exercises or even provide actual resolution services for community organizations. In high school students participate in peer mediation programs in school assemblies and demonstrations. They engage in role-play exercises and produce videos; they also teach younger students how to teach. At this age students can and do mediate both school and community disputes, for example a neighborhood dispute.[3]
In general, the school conflict resolution program covers the following fields: (1) understanding a conflict, (2) the principles of conflict resolution, (3) the process steps (from agreeing to negotiate to reaching an agreement), (4) the skills required (for example active listening).[4]
What is the result? Experiments show that children can solve their problems more efficiently, the number of abuses in the classroom decreases, and the climate becomes friendlier. There is an eternal truth: people support what they build. Learning how to create a solution themselves, rather than asking for judgment or punishment from their parents or teachers, gives children the opportunity of self-determination. Even more importantly, it is not hard to imagine that these kids will preserve their empathy and their ability to cooperate, and that they will be more reasonable citizens as grown ups. In sum, with this early education, from children to teachers, from families to neighbors, the whole society wins.
As it has been mentioned, mediation has become an integral part of education in the U.S. The subject of this article is the most common Basic Mediation Training for adults. This lasts for two long weekends (Friday, Saturday and Sunday), takes altogether 40 hours and is offered to anyone who is interested. It is a combination of lectures and mediation simulations (role plays). After each weekend, students prepare a reflection paper, and at the end of the training participants are given a documentation of attendance.[5] Of course participation in a Basic Mediation Training is only the first step. Afterward it is possible to participate in special trainings based on the basic knowledge. For instance several Universities provide a 30-hour Advanced Family Mediation Training that includes family law, family dynamics, domestic violence, and child development, ethical and practical considerations. Divorce Mediation Trainings or Cross Cultural Mediation in Religious Organizations[6] are offered too. The latter includes issues such as children, property and finance, domestic violence awareness and screening, the indirect consultation of children.[7] Dispute Resolution Centers also offer a variety of customized training. These focus on conflict within the workplace and collaborative problem solving for community groups. The duration of the training can be several hours up to two days.[8]
One might ask, "Is 40 hours really enough?" The answer is, so far it has been a very effective way of learning. Let us try to find out why it is so successful! John Dewey's highly influential concept about effective teaching contains four cornerstones: (1) Experience (2) Democracy (3) Continuity, and (4) Interaction.[9] These four elements are well represented in mediation training as well. The training focuses on practice (Experience). It avoids the power relations between coaches, trainers and trainees (Democracy). It is a continuous learning process; every step is based on a previous one. As the education is extremely concentrated - only 40 hours - there is simply no time for issues per se, everything said has a reason. (Continuity) It takes into consideration the importance of internal factors (Interaction). Each of these elements is important, however, allow me to focus on the first one. I do believe that the incredible efficiency could not exist without an eight-letter word: practice.
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During the training each student has an opportunity to participate in negotiation and mediation simulations. The role-play is something very diverse from our theory-centered teaching system. The teacher encourages the participant to experience how it feels to participate in a real mediation.
At a very early stage trainees are divided up into small groups each of which is supervised by an experienced mediator. As coaches and the members of the groups vary from mediation to mediation, students have the opportunity to face with various characters, study different styles and gain as much feedback as possible. After the simulation there is always time left for small group debriefing. Role-plays model everyday disputes like landlord-tenant, employer-employee conflict. The subject can be everything from a barking dog, through a fence in bad condition, to ethnic discrimination. There are three roles: disputant, mediator and observer. Participation in a role-play enriches every participant. The one who acts as mediator can prepare for his/her profession in a safe environment. To err is human, however, it does matter whether the consequences of an error affect real lives or not. During the training the mediator can learn from her errors without causing harm to anyone. It is useful to live through how it feels to be a party. He can feel his own reactions and can tell whether a certain movement of the mediator was good or not. He can say to himself, for instance: when the mediator told me I was wrong I felt that he favored the other. I would have done it differently. The observer can pay attention to everyone in the role-play. From his chair he can examine the whole process, the dynamics, and ask himself "If I were him what would I do?" Of course there is always the possibility of asking "time out". When one of the mediators or even one of the parties is not sure what to do, he only has to ask the coach for advice.[10]
Practice-is that all? Well, it is far more complicated. As mediation training also belongs to the field of andragogy, anyone wanting to understand the training has to understand its roots: the theories and rules of adult learning.[11] It is known that andragogy accepts and develops pedagogy's assumptions. While in pedagogy the protagonist is the teacher, in adult learning the adult student plays a key role as well.[12] First of all let us examine this main character: the trainee.
In his comparative study, Cyril O. Houle differentiates the character of students from that of adult learners.[13] He shows six main differences between the two groups. With the help of Houle's model let us examine the characteristics of the trainees participating in the mediation training.
One has to see that mediation training is highly affected by the trainees. They influence the dynamics of education in several ways: with their comments and recommendations. They also influence the style, the subject, and the timing of the discussion. Of course the mediation training has its schedule, but this is not untouchable; strict external structure is replaced by free choice.
Three main types of learners can be distinguished. Of course no one can be characterized purely by type: usually these categories are mixed.[14]
a) A goal oriented learner learns because it is essential to satisfy his needs or interests (e.g. promotion, better job)
b) Activity-oriented learners are motivated by the circumstances of learning.
c) Finally, someone who is learning-oriented wants the knowledge per se.
Most adult learners fall under the first category. Carl R. Rogers in his student-centered approach to education emphasizes that the teacher cannot teach the student directly, he can only facilitate the learning. He also underlines the importance of making the materials relevant to the student, as a person can only learn things matching the structure of self.[15] It is true, adults usually do not learn for the learning itself, but for some other reason. To satisfy this special need, mediation training is very practice oriented: listening to the teacher and studying books are only the first steps; experiencing what you have just heard or read is even more important. This interactive training has been designed to appeal to a variety of adult learning styles.
This second issue is related to the first one. Because the trainees are mostly pragmatists they want to know the answer to the question: why? Unlike in the case of children, it is not enough to say you must learn, otherwise you will not pass. (However fear of failure can be a strong motivating factor as well.) Trainees are more likely to learn if the coaches explain to them what the benefits of learning are, on
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the one hand, and what the disadvantages of non-learning are, on the other. Measuring these two factors they are able to render a decision of their own.
While young students usually feel that they are dependent on the teacher, a trainee knows that she is the one who determines her life. If we look around a classroom composed of young students, we see a more or less homogenous group of children, usually with limited experiences. Adults are different in this respect too. The classic formula: the experienced teacher versus ignorant student has to be replaced by another, specifically "Let the class do the work!".[16] The trainers have great skills, broad knowledge and in most cases, years or decades of experience. On the other hand, the adult learners also have their knowledge, life experience, and background. Student participation is crucial; it is essential to the discussion.
The trainers have to take into consideration that the trainees come from various backgrounds, and certainly from various age groups; they have different experiences, values, professions and learning styles. The study group can contain retired teachers, social workers and of course it is likely that there will be people from the legal and psychological professions as well. The trainers and the coaches have to acknowledge that trainees arrive at the mediation training carrying a backpack of former experiences. It is possible that some of the backpack will contain informal mediation experiences.
People come to the training because somehow they are or they will be connected with mediation. The members of the study group will not start to learn when the monster of the final exam is very close. They instead will be ready to learn only if they need the knowledge in order to deal with their life situation. Let us emphasize again: one of the most important questions in mediation training is "Why?" This also means that it is very important for the trainees to know why mediation is useful. It is crucial to see the rewards of it. (For instance, this is a way to help people, it is very effective, quick, cheap, it can create better understanding between the parties, even if the process is unsuccessful, the parties learn something about themselves, perhaps next time they enter into a conflict they will react better, and the whole society benefits from mediation, and so on.)
We all know children are highly motivated by external factors, most typically by grades or parental pressure. In the case of adults, internal motives play an important role as well. One cannot deny that higher salary, better job and future promotion are motivating forces, (for some, a story about an extremely well-paid mediator stimulates better than anything else) but internal factors, like enjoyment, better quality of life, self growth and development play an important role, too.
Besides the importance of practice and knowing the characteristics of trainees, the experience of trainers and lots of other factors, there is one more vital issue that cannot be set aside. Carl R. Rogers draws a parallel between client-centered therapy and student-centered teaching. His student-centered approach of education lays down some basic hypotheses that can be useful for mediator trainers creating a safe environment. People under stress are less likely to learn while the lack of threat tends to relax people. Therefore, effective learning can be achieved if the learner feels safe.[17] Creating a safe and pleasant learning-environment is of crucial importance. Mediation training has to provide good, comfortable conditions, on both physical and emotional levels. Providing physical comfort (well-equipped room with proper light, heat etc.) is a basic requirement, but the second level is even more important. It is the trainer's responsibility to create an environment where the participants respect each other; they trust one another and the coaches and trainers.[18] A learning community will work effectively only if everyone feels free to express himself and knows that his opinion will be respected even if it is different. Maslow also emphasizes the importance of safety. An extremely simplified version of his concept: life consists of never ending choices, the individual always has to choose between safety on the on hand and growth on the other. According to Maslow, only the person that already feels safe will choose growth. The individual makes his choice alone, but the educator may influence him in a positive way by creating a safe and encouraging environment and by showing the benefits of choosing to grow.[19]
Mediation is in its childhood in Hungary, but the steps recently taken are encouraging. Thanks to the efforts of those who are devoted to mediation,
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hopefully more and more people will become familiar with this outstanding way of conflict resolution. ■
NOTES
* I would like to thank the Julius Rezler Foundation for the opportunity to spend a semester at the University of New Mexico (U.S., New Mexico, Albuquerque). This chance enable me to examine not only the literature of this field but to participate in classes and mediation trainings as well. I also would like to say thank you to Prof. Scott Hughes and to my group mate Paul Bossert for their support and encouragement. It would have been impossible to put together this article without their help.
[1] See also Somfai, B.: A mediáció, mint alternatív konfliktuskezelés. (Mediation as a Form of Alternative Conflict Resolution) Dél-Dunántúli Gazdaság 2001 december
Somfai, B.: Bontás és közvetítés. (Divorce and Mediation) Családi Jog, Hvgorac 2003 szeptember
Kiss, Gy.: Munkajog. (Labour Law) Osiris, Budapest 2000
[2] According to the Conflict Resolution Education Network of the National Institute for Dispute Resolution (NIDR)
[3] Bodine, R. J. - Crawford, D. K.: The Handbook of Conflict Resolution Education A Guide to Building Quality Programs in Schools. San Francisco, Jossey-Bass Publishers, 1998. pp 119-120
[4] ibid xv
[5] As a student of The Rezler Foundation in I had the excellent opportunity to participate in two mediation trainings organized by the University of New Mexico Law School (U.S., New Mexico, Albuquerque). This part of the article is partly based on my personal experiences, the lectures I attended and materials I received at these trainings.
[6] https://learning.depaul.edu/about/centers/dispute.asp
[7] http://www.nfm.u-net.com/training.htm#whatis
[8] http://www.austindrc.org/mediationtraining.htm, http://www.to-agree.com/
[9] As cited ibid: p. 92
[10] Hughes, S. H.: Basic Mediation Skills. University of New Mexico School of Law, Fall 2003
Hughes, S. H.: Theory of Conflict. University of New Mexico School of Law, Fall 2003
[11] See also: Edelson, P.J. - Malone, P.L. (ed.): Enhancing Creativity in Adult and Continuing Education: Innovative Approaches, Methods and Ideas. San Francisco, Jossey-Bass Publishers, 1999
[12] Knowles, M. S; Holton E. F.; Swanson R. A.: The Adult Learner. Gulf Publishing Company Houston, Texas 1998. p.p. 64-72
[13] As cited ibid p. 64
[14] ibid p. 54, later on his research was continued by Allen Tough.
[15] ibid p. 49
[16] ibid p. 43
[17] ibid p. 49
[18] See also: Benett, M.D. - Hermann M.S.G. : The Art of Mediation. NITA, 1999
[19] ibid p.47
Lábjegyzetek:
[1] A szerző PhD hallgató.
Visszaugrás
