Mediation from Coast to Coast… to far away coast!

*Simone Tielesh is a CoRe student board member who is on an exchange semester as a visiting student at Dalhousie University’s Schulich School of Law.

A few weeks ago I sat down with Professor Diana Ginn to speak with her about a great initiative that has been going on at Dalhousie University. In 2004 the Canadian International Development Agency (CIDA) agreed to fund a five year project between Dalhousie, and partner universities in the Philippines and Vietnam. The project was called Principles In Practice (PIP) – and is focused on a principled approach to coastal zone management.

All three countries have large coastal areas, and wanted to share insights about regulation and management options. The program started with an environmental and regulatory focus, but partners in the Philippines and Vietnam requested that an ADR component be added. Professor Ginn, and her colleague Professor David Blaikie joined the PIP team to bring expertise on ADR methods in North America.

Professors Ginn and Blaikie, worked with the PIP partner professors to identify goals and found there to be a lack of ADR resources available in these regions. Their work then focused on training the trainers through providing techniques for teaching ADR, the theory of conflict management (focusing on hypotheticals which were culturally relevant), and lecturing on conflict management.

CIDA funding ended in 2009, but the three PIP partners were left feeling that strong relationships had developed and more work could be done. Since then, Professors Ginn and Blaikie have worked to keep these connections strong, and with a grant from the Schulich Fund, will be going back this summer to teach more conflict management classes, aid in drafting a national policy for Vietnam on coastal zone management, and collaborate with professors from PIP partners in Vietnam and the Philippines on a book on conflict management in Southeast Asia.

There is a huge appetite for resources and teaching on North American approaches to conflict management in the partner institutions – but the learning has gone both ways! Professor Ginn came away with five take away lessons from her ADR experiences abroad.

-         First, we shouldn’t assume that there is one typically “Asian” way to negotiate or mediate, given the differences in culture and history between each Asian nation.

-         Second, the idea of ADR being ‘alternative’ to enforcement of rights in court does not necessarily apply where there is a lack of law and regulation (and so a lack of court protection), conflict management may be the only avenue to dispute resolution.

-         Third, in Canada we often think of ADR as between two individuals/corporations engaging in an individualized process. Generally, but specifically in terms of resource management, the disputes could be between community groups (ie. traditional fisheries and aquaculture) or between a community or individual on one side and the government on the other, rather than simply between individuals.

-         Fourth, the most frequent questioned asked by PIP partners was, do any of these principles work when there is an imbalance of bargaining power?? This is an issue we also grapple with in the Canadian context, but is exacerbated when neither the law, nor the money is available to balance the negotiation/mediation table.

-         Lastly, the political realities in both Vietnam and the Philippines, which have very centralized government with significant control, affect public and private dispute resolution and can imbalance the negotiation table.

One lesson was definitive, these countries were eager to learn North American approaches (like interest based negotiation and mediation) to ADR, and given the increasing levels contact between boarders and around the world – this field is going to grow, it’s just a matter of in what direction.

Mediation from Coast to Coast

*Simone Tielesh is a CoRe student board member who is on an exchange semester as a visiting student at Dalhousie University’s Schulich School of Law.

Hello CoRe blog enthusiasts!

The Schulich school of Law at Dalhousie University has two great mediation initiatives on the Halifax campus and some fascinating partnerships abroad. Within the law school there is a much sought after alternative dispute resolution (ADR) course, which considers the theory and practice of dispute resolution techniques in the fields of negotiation, mediation and arbitration.

Also, the Dalhousie College of Continuing Education has a ‘Negotiation and Conflict Management Program” for both students and interested community members alike. This program offers intensive several day courses, at both basic and advanced levels, which use methods such as roll play in front of coaches to develop participant’s ADR skills. Check out the Negotiation and Conflict Management Program website for more details, at:

http://collegeofcontinuinged.dal.ca/Continuing%20Management%20Education/Negotiation%20and%20Conflict%20Management/

If you are interested in traveling, living or working in Atlantic Canada, or just looking for some additional information on ADR programs locally and internationally, the Negotiation and Conflict Management Program offers some great resources:

Association for Conflict Resolution (U.S./International)
ADR Institute of Canada
ADR Atlantic
Family Mediation Canada
Program on Negotiation (Harvard Law School)
Public Conversations Project
Public Disputes Program (MIT-Harvard)
BothAnd Project
The Third Side
Beyond Intractability
Settle It Now Negotiation Blog
The Mediation Channel
The Peacemakers Trust
 see:
http://collegeofcontinuinged.dal.ca/Continuing%20Management%20Education/Negotiation%20and%20Conflict%20Management/Resources.php

Check back in a few days for a great story about how two professors from Dalhousie Law are working with practitioners in Vietnam and the Philippines in the field of conflict management!

Looking for more exciting ways to be involved in mediation?

Mediators Beyond Borders (Partnering for Peace & Reconciliation) is a “non-profit, humanitarian organization of skilled volunteer conflict resolution professionals established to partner with communities in troubled locations worldwide to support them to build their conflict resolution capacity for preventing, managing, resolving and healing from conflict.” Current mediation projects are taking place in Liberia, Pittsburgh, Pennsylvania, USA, New Orleans, Louisiana, USA, Israel and The Middle East, Zimbabwe, Colombia, and Ecuador.

Check out their website at: http://www.mediatorsbeyondborders.org/ for more information on global mediation opportunities, join up as a member, or think about joining in on the Mediators Beyond Boarders Annual Congress.

The 4th Annual MBB Congress themed From Conflict to Peace: The Mediation Revolution will be held at UCLA in Los Angeles March 4-6, 2011.

http://www.mediatorsbeyondborders.org/what/congress.shtml

Mediators Beyond Boarders can also be accessed through their LinkedIn account at: http://www.linkedin.com/groups?mostPopular=&gid=2539171&trk=myg_ugrp_ovr  

The CoRe Challenge Announced!

CoRe will be welcoming teams of conflict resolution practitioners, mediators, lawyers, business professionals and students to a winner-takes-all game on Saturday June 4^th. The CoRe Challenge is inspired by the Amazing Race TV Show, but fear not – the challenges will reflect CoRe's focus on dispute resolution by testing each team’s ability to problem-solve instead of their ability to ingest odd foods. If you think you have what it takes to take home the big prize, register now! The winner will be announced later this spring at the CoRe Challenge Gala – more details on that event to come.

Each registering team of 4 is asked to raise a minimum donation of $500. Proceeds go to the CoRe Conflict Resolution Society, a registered charity that provides low cost mediation services to the community, as well as education and experience in dispute resolution for law students. You can find out more about CoRe and the CoRe Challenge on our website: www.coreclinic.ca

The deadline to register is May 15^th. To register, contact us at coreclinic1@gmail.com. If you don’t have a team of your own, we will gladly find one for you to join.

Agency in mediation

I am interested in mediation for several reasons, including the relevance of mediation skills beyond the obvious contexts of negotiation and mediation; the overloading of our court system and the need for lawyers (and law students!) to be part of the solution; and the strong potential of mediation to provide a more satisfying and societally healthy kind of resolution than that provided by the courts.  It also seems to provide much more room for personal agency.  In my first few months of law school, it is already becoming clear that the court system, while often helpful, is limited in some important ways.

As part of my graduate studies, I researched a dispute over land ownership.  One of the biggest problems hindering resolution of the dispute was a lack of common ground (excuse the pun).  The parties often talked past each other:  Each claimed the moral high ground; each pointed to the other's failures to adhere to the law; each felt that the other's goals were unfair, unreasonable and unrealistic.  The parties had chosen to try to resolve thier dispute face to face, though.  Although the situation is not yet resolved, I hold out much more hope for resolution outside of the court system than I do for success through litigation.  This is primarily because I believe that our court system is premised on ideas of justice that favour the status quo, meaning that there is a bias against weaker parties.  Legal norms and assumptions often preclude different ways of understanding a situation, and the courts' notions of justice are often narrow and inflexible.  Although the courts might be able to wade through the complicated dispute and would no doubt reach a verdict, I wonder whether it would leave the disputers with any useful sense of closure or satisfaction.

While the hope of a winner-takes-all solution may be appealing to people on both sides of a dispute, each believing their own point of view is the correct one, the world is not black and white.  Complexity needs to be acknowledged - and then sometimes it should be let go.  A lot of personal agency and empowerment falls by the wayside when the process is essentially directed by judges and lawyers.  Parties in a court case don't always get the remedy they're seeking, and the cases can drag on for years.  Many of the cases we've read in class provide no resolution at all because of a procedural slip-up.  Often all people really seem to want is a recognition from the other party of the problem - they're not necessarily after vast sums of money.  Mediation cannot be the solution to every dispute, but in an increasingly disconnected world, it seems like having people listening to each other is a really good place to start.

Watching for Hotspots

Dr. Herve's talk was, as predicted, really interesting.  He started off with a video clip of a woman, clearly nervous, relating a series of events, and then asked us if she was telling the truth or not.  If not for realizing that this might be a "trick question," I think all of us would not have hesitated to say that she was lying in various parts of her story.  But as explained in the rest of the seminar, it's important to keep in mind the "baseline" of the person you're talking to.  Are they usually kind of a nervous person?  Do certain topics cause them to communicate in a different way, regardless of whether they're telling the truth or not?  How do our expectations of "normal" social behaviour impact our assessment of a person's truthfulness?

The main message I got from the seminar was that although our observations of a person's behaviour and speech may display "hotspots" of unusual behaviour, those hotspots don't necessarily indicate that the person is saying something untrue.  It's important not to jump to conclusions about the trustworthiness of someone's version of events just because they are acting in a way that makes us feel like something odd is going on.  It's Although telling an untruth requires more cognitive effort than telling the truth, the fact that someone is finding something hard to remember may simply reflect the fact that the events were not particularly noteworthy at the time, and so were not assigned a priority space in their memories.

In a mediation context, of course, a professional mediator is expected in any case to avoid taking sides and prejudicing their assessment of a situation.  Another important thing to keep in mind when interviewing people is to say as little as possible.  Starting off by asking someone to "tell me what happened" is usually the best way to go.  Find out as much as you can using open-ended questions, and only ask for clarification when necessary.

While I was listening, I couldn't help but evaluate my own behaviour in terms of the indicators Dr. Herve was talking about.  Would it be possible to become a "better" liar by attempting to control the behavioural cues that indicate "hotspots" of possible untruth?  Would I be able to fake a more polite convincing smile if I remembered to crinkle the corners of my eyes?  Win a game of poker by avoiding nervous twitches?  Dr. Herve said that despite his increased training and ability to spot speech and body language cues in others, he hasn't gotten any better at controlling his own, and that this pattern holds in general.  So much for my professional gambling career, I guess.

Truth and Lies

We've all been in situations where our "gut feeling" tells us that someone is lying or, conversely, where we can "just tell" that they an honest person.  But what if those gut feelings are wrong?  Can we rely on intuition?

Apparently not.  Without training, someone's chances of differentiating truth from lies are little better than random guesses, regardless of her professional background.  This is interesting general knowledge and it's probably good to keep it in mind in everyday interactions, especially with people we don't know.  But surely it's especially relevant in the context of the legal profession.  Our justice system sometimes relies on a jury's assessment of whether the accused or the accuser is more believable.  A professional negotiator or mediator may be influenced by their perception of who is more 'at fault' in a given disagreement.  Making a strong argument in court is really all about trying to sound more logical, correct, or 'right' - concepts strongly linked to truth.

The education process as I've experienced it is often just as much (if not more) about learning what I don't know than actually acquiring new knowledge and skills.  "Facts" are inevitably based in perspective, and "truth" is always laden with pre-conceptions and cognitive filters that help us to simplify the world into something we can understand and manage.  Relying on instinct is a mental shortcut we all take much more often than we even realize, and it's often a very useful one.  But making snap decisions about who's telling the truth isn't always a good idea.

In my first month in law school, I'm quickly finding that the pattern continues.  I have managed to find another field of knowledge and practice in which I'll always be presented with new questions and interesting dilemmas.  Happily, there's always someone out there who knows way more than I do, so I can still feel like I'm making progress in tackling the ever-growing list of things I never knew I never knew.

This leads into the shameless advertising part of my post:  The first event in the CoRe Speaker Series will occur on October 27.  Dr. Hugues Hervé, a registered psychologist, partner and director with the Forensic Alliance, will give an introduction on evaluating truthfulness, including an overview of the popular myths and barriers to the accurate assessment of truthfulness, current research in the field, the relation between interviewing and credibility assessment, and an introduction to an empirically-based practical approach to evaluating truthfulness.  The talk will conclude with a discussion of how to apply this approach to the mediation context.

Interested in learning more on this fascinating topic?  Details are here!