In mediation we are well used to focusing on feelings and dealing with emotional energy, commonly expressed as anger, frustration, sorrow, irritation or hopelessness. Turning this energy to good use in resolution, through empathy, is a core and very effective skill. When parties feel better through being listened to and understood at an emotional level, they become better disposed towards changing and agreeing a way forward.
Change, however, can come about in more than one way. While how we feel affects our cognitive processing and our behaviour, there is a three-way reciprocation effect – changing any one of the stances affects the others. So, thinking more usefully about something acts on the feelings we have about it, reduces stress and can result in different behaviour. Similarly, a change in behaviour can lead to a change in feelings which can lead to a change in thinking. Daniel Kahneman’s recent book ‘Thinking, Fast and Slow’ offers some interesting insights for mediators working on the cognitive side of resolution. He describes two systems of thinking. System 1 is emotional, gut-instinct and speedy. Its probably what we think of as ‘animal intelligence’ and can be very useful in situations where we need to react quickly. System 2 is rational, slower, and oversees System 1 reactions, providing a much more rigorous response. It is what we tend to see as ‘human intelligence’ and has undoubtedly been the type of thinking which has led to many of the breakthroughs in science, medicine, technology and philosophy. We use both systems but each has its drawbacks. System 1, being quick, jumps to conclusions on the basis of very little fact. It makes connections too easily where there may be no connections. As mediators we are familiar with parties discovering early in joint session how some assumptions they hold are incorrect. This changes the thinking which, in turn, changes how they feel, which in turn changes how they behave. This understanding of a wrong assumption is often the ‘lightbulb’ moment. Reality testing parties’ assumptions yields useful advances. But wait a moment ! Isn’t System 2 supposed to be watching the System 1 responses ? If so, how did these wrong assumptions survive ? The answer is that System 2 does act as censor, but its drawback is that it is lazy and all too often agrees with whatever System 1 suggests. The customs official simply waves through the holiday crowds, so to speak. This slower type of thinking takes effort and we are so very easily distracted. Kahneman’s book has considerable empirical evidence to support his views and one example is a study of eight parole judges and their decision-making. The judges spent all day reviewing applications for parole with an average time of six minutes on each case. It was found that approvals reached 65% shortly after the judges had a meal, but had reached close to 0% by the time that their next meal was due. It appeared that the default position adopted by the judges was refusal, and this was more likely to be the result as the judges became tired and hungry. The conclusion was not that hungry judges are vindictive, but rather that reasoning requires energy and the type of reasoning needed in hearing parole requests requires a good deal of energy. Note that this is physical energy (i.e. glucose) rather than just what we call ‘mental energy’. For mediators working on the parties’ cognitive stance, therefore, make sure to provide not only breaks but also energy boosts in the form of biscuits, fruit, chocolate and other nibbles such as jellybeans! Kahneman also refers to a simple puzzle to test our intuitive responses. Without thinking this through, what is your answer to the following puzzle ? A bat and a ball cost €1.10. The bat costs one euro more than the ball. How much does the ball cost? The lesson is that intuitive responses can often be wrong, while a more thoughtful response requires energy and a focus that we just may not be up to right now. For mediators, there is a rich vein of ore in the parties’ thinking which is worth examining in detail. What assumptions have been made, not just about the conflict but also about other matters – what responsibilities do you think employees have in the workplace, how do you think neighbours should live side by side, what do you think is the right thing to do when a marriage breaks down? Be aware also of your own situation as the mediator. Does your System 1 jump to conclusion too quickly about the parties ? Are your cognitive tasks (e.g. formulating the right question) too onerous and are you lacking in energy or rest ? Remember, the mediator can call breaks for themselves as much as for the parties. And, if you think of it, make sure to have a few jellybeans. by Brendan Schütte Brendan Schütte is a workplace mediator and consultant. He works in the U.K. as a Senior Resolution Adviser for the TCM Group, a highly innovative and leading conflict consultancy.
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Workplace Bullying Awareness Week |
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Mediation is a structured confidential process of informal positive dispute resolution. An impartial mediator assists parties in dispute to collaboratively resolve their concerns in a voluntary, confidential and non-judgemental way. There are several ways in which mediation can be employed to positively resolve dispute and conflict concerns in the workplace. Mediation is useful for disputes arising out of personal, interpersonal or inter-departmental issues, alleged bullying incidents, change management situations, contract negotiations and customer complaint issues. In fact, Mediation can be applied in almost every situation where conflict arises within a workplace setting to provide a collaborative settlement reached through mutual co-operation between parties.
The HSA recommends mediation as an informal route to proactively address concerns of bullying allegations at work (see extract below). The role of the Health and Safety Authority in respect of bullying at work is to monitor if employers and employees are meeting their obligations and duty of care under the 2005 legislation Act. Where complaints of bullying at work are made to the Authority it directs that the procedures of their HSA Code be observed and recommends mediation as an informal process for resolving complaints in the prevention and resolution of bullying at work.
Mediation fosters empathy and respect for deeper understanding of each other's concerns and the other's perspective of the situation. Personal concerns are heard and validated through the mediator witnessing and assisting parties mutually explore their concerns in a respectful manner. Negative conflict patterns of behaviour shift to positive conflict patterns that produce long term benefits and improved communications in the workplace. Improved communications lead to improved job performance and a happier workforce to produce a win/win result for both employee and employer.
by Yasmin McNelis
March 2015
(The following is a direct Extract from the HSA Code pertaining to the recommended use of Mediation for resolution)
- Section 5.3 ACCESS TO COMPETENT ADVISORY SERVICES 'Employers have a duty under safety and health laws to obtain the services of a competent person where necessary to help comply with such laws. There may be situations as regards bullying at work where an employer could benefit from expert assistance. This could be provided within the undertaking or sourced from outside. It could involve seeking help from an employer or other representative body which provides such advice or from relevant public bodies such as the Health and Safety Authority or the Labour Relations Commission. It could involve seeking the services of persons particularly qualified in mediation or counselling or training in this area.'
- 6.1.b INTERVENTION (extract from HSA code on Bullying in the workplaces). 'In following the informal process, steps to stop the bullying behaviour, where it has been identified, and monitor the situation along specified lines should be agreed with both parties. This may involve a direct or indirect approach and possible resolution through a programme to change behaviour. It may involve mediation* by an agreed mediator who is practised in dealing with bullying at work.'
The HSA recommends mediation as an informal route to proactively address concerns of bullying allegations at work (see extract below). The role of the Health and Safety Authority in respect of bullying at work is to monitor if employers and employees are meeting their obligations and duty of care under the 2005 legislation Act. Where complaints of bullying at work are made to the Authority it directs that the procedures of their HSA Code be observed and recommends mediation as an informal process for resolving complaints in the prevention and resolution of bullying at work.
Mediation fosters empathy and respect for deeper understanding of each other's concerns and the other's perspective of the situation. Personal concerns are heard and validated through the mediator witnessing and assisting parties mutually explore their concerns in a respectful manner. Negative conflict patterns of behaviour shift to positive conflict patterns that produce long term benefits and improved communications in the workplace. Improved communications lead to improved job performance and a happier workforce to produce a win/win result for both employee and employer.
by Yasmin McNelis
March 2015
(The following is a direct Extract from the HSA Code pertaining to the recommended use of Mediation for resolution)
- Section 5.3 ACCESS TO COMPETENT ADVISORY SERVICES 'Employers have a duty under safety and health laws to obtain the services of a competent person where necessary to help comply with such laws. There may be situations as regards bullying at work where an employer could benefit from expert assistance. This could be provided within the undertaking or sourced from outside. It could involve seeking help from an employer or other representative body which provides such advice or from relevant public bodies such as the Health and Safety Authority or the Labour Relations Commission. It could involve seeking the services of persons particularly qualified in mediation or counselling or training in this area.'
- 6.1.b INTERVENTION (extract from HSA code on Bullying in the workplaces). 'In following the informal process, steps to stop the bullying behaviour, where it has been identified, and monitor the situation along specified lines should be agreed with both parties. This may involve a direct or indirect approach and possible resolution through a programme to change behaviour. It may involve mediation* by an agreed mediator who is practised in dealing with bullying at work.'
Mediation is a structured confidential process of informal positive dispute resolution. An impartial mediator assists parties in dispute to collaboratively resolve their concerns in a voluntary, confidential and non-judgemental way. There are several ways in which mediation can be employed to positively resolve dispute and conflict concerns in the workplace. Mediation is useful for disputes arising out of personal, interpersonal or inter-departmental issues, alleged bullying incidents, change management situations, contract negotiations and customer complaint issues. In fact, Mediation can be applied in almost every situation where conflict arises within a workplace setting to provide a collaborative settlement reached through mutual co-operation between parties.
The HSA recommends mediation as an informal route to proactively address concerns of bullying allegations at work (see extract below). The role of the Health and Safety Authority in respect of bullying at work is to monitor if employers and employees are meeting their obligations and duty of care under the 2005 legislation Act. Where complaints of bullying at work are made to the Authority it directs that the procedures of their HSA Code be observed and recommends mediation as an informal process for resolving complaints in the prevention and resolution of bullying at work.
Mediation fosters empathy and respect for deeper understanding of each other's concerns and the other's perspective of the situation. Personal concerns are heard and validated through the mediator witnessing and assisting parties mutually explore their concerns in a respectful manner. Negative conflict patterns of behaviour shift to positive conflict patterns that produce long term benefits and improved communications in the workplace. Improved communications lead to improved job performance and a happier workforce to produce a win/win result for both employee and employer.
(The following is a direct Extract from the HSA Code pertaining to the recommended use of Mediation for resolution)
- Section 5.3 ACCESS TO COMPETENT ADVISORY SERVICES 'Employers have a duty under safety and health laws to obtain the services of a competent person where necessary to help comply with such laws. There may be situations as regards bullying at work where an employer could benefit from expert assistance. This could be provided within the undertaking or sourced from outside. It could involve seeking help from an employer or other representative body which provides such advice or from relevant public bodies such as the Health and Safety Authority or the Labour Relations Commission. It could involve seeking the services of persons particularly qualified in mediation or counselling or training in this area.'
- 6.1.b INTERVENTION (extract from HSA code on Bullying in the workplaces). 'In following the informal process, steps to stop the bullying behaviour, where it has been identified, and monitor the situation along specified lines should be agreed with both parties. This may involve a direct or indirect approach and possible resolution through a programme to change behaviour. It may involve mediation* by an agreed mediator who is practised in dealing with bullying at work.'
March 2015
by Yasmin McNelis
The HSA recommends mediation as an informal route to proactively address concerns of bullying allegations at work (see extract below). The role of the Health and Safety Authority in respect of bullying at work is to monitor if employers and employees are meeting their obligations and duty of care under the 2005 legislation Act. Where complaints of bullying at work are made to the Authority it directs that the procedures of their HSA Code be observed and recommends mediation as an informal process for resolving complaints in the prevention and resolution of bullying at work.
Mediation fosters empathy and respect for deeper understanding of each other's concerns and the other's perspective of the situation. Personal concerns are heard and validated through the mediator witnessing and assisting parties mutually explore their concerns in a respectful manner. Negative conflict patterns of behaviour shift to positive conflict patterns that produce long term benefits and improved communications in the workplace. Improved communications lead to improved job performance and a happier workforce to produce a win/win result for both employee and employer.
(The following is a direct Extract from the HSA Code pertaining to the recommended use of Mediation for resolution)
- Section 5.3 ACCESS TO COMPETENT ADVISORY SERVICES 'Employers have a duty under safety and health laws to obtain the services of a competent person where necessary to help comply with such laws. There may be situations as regards bullying at work where an employer could benefit from expert assistance. This could be provided within the undertaking or sourced from outside. It could involve seeking help from an employer or other representative body which provides such advice or from relevant public bodies such as the Health and Safety Authority or the Labour Relations Commission. It could involve seeking the services of persons particularly qualified in mediation or counselling or training in this area.'
- 6.1.b INTERVENTION (extract from HSA code on Bullying in the workplaces). 'In following the informal process, steps to stop the bullying behaviour, where it has been identified, and monitor the situation along specified lines should be agreed with both parties. This may involve a direct or indirect approach and possible resolution through a programme to change behaviour. It may involve mediation* by an agreed mediator who is practised in dealing with bullying at work.'
March 2015
by Yasmin McNelis
Ever thought of taking the law into your own hand?
Wouldn’t everyone like finding their own resolution for their own conflict?
As an honorable alternative within legal system we live in: we call it now Mediation.
In event of a dispute there are several aspects automatically taken off the scenario once we delegate the case to Courts.
Legal representatives wipe off all non-objective matters to make cases strong to stand in Court.
However, emotions, fears, requests, expectations may find correspondence and support somewhere in the dense and rich network of Civil Law codes, regulations and principles. Same chances they may have within the mare magnum of Common Law cases history and collections.
Keeping in mind that where each little detailed request gets under Court consideration, they may slow down the whole process of obtaining justice by final sentencing.
If all personal feelings stay out of the Court dispute, however, they seldom disappear from our day-to-day lives; if unheard, they last as long as the Court case ends. Or longer
Time.
Time is money.
Time is money to all: parties and representatives.
It is worth it to mention as well that each complaint formally brought to Court becomes public. As consequence, this choice impacts privacy and reputation: how valuable are they to the parties?
Quality of life and relationship are entirely at parties’ (i.e. disputants’) disposal: it is their own life quality at stake.
It is up to the disputants how to treasure their standards of quality.
Mediation process works on those values, considering them closely together with the real interests to be evaluated.
Expert and professional mediators facilitate the disputants’ pattern of clear communication. Assist along the whole process ensuring all requests and expectations are on the table to be heard and worked out towards an agreement.
Mediators are equi-distant o equi-close to both parties, rather than super partes.
Mediation stays neutral and non judgmental before and after a solid, valuable and professional initiative towards solutions the parties themselves may be well able to figure out, handle and finally manage.
Parties keep all the time control of their goals and mediation may save time, money and values after all.
Terms of an agreement may be reasonably reached before any external interference or order from Court. There is no need to publicly disclose their feelings. To any public.
Encouraged by professional mediators, bound to code of conduct, privacy and confidentiality, as a result, are guaranteed to the disputants by their own honorable agreement.
Finally I feel to add a priceless extra value: mediation process brings parties through a self-management of their mutual relationship.
A professional mediation helps all parties adapt their agreement to their own circumstances, creating reasonable solutions within legal frame.
It teaches how to better manage their wishes and values for life.
One own’s justice is a tailored suit: it fits better
By Debora Unali
Wouldn’t everyone like finding their own resolution for their own conflict?
As an honorable alternative within legal system we live in: we call it now Mediation.
In event of a dispute there are several aspects automatically taken off the scenario once we delegate the case to Courts.
Legal representatives wipe off all non-objective matters to make cases strong to stand in Court.
However, emotions, fears, requests, expectations may find correspondence and support somewhere in the dense and rich network of Civil Law codes, regulations and principles. Same chances they may have within the mare magnum of Common Law cases history and collections.
Keeping in mind that where each little detailed request gets under Court consideration, they may slow down the whole process of obtaining justice by final sentencing.
If all personal feelings stay out of the Court dispute, however, they seldom disappear from our day-to-day lives; if unheard, they last as long as the Court case ends. Or longer
Time.
Time is money.
Time is money to all: parties and representatives.
It is worth it to mention as well that each complaint formally brought to Court becomes public. As consequence, this choice impacts privacy and reputation: how valuable are they to the parties?
Quality of life and relationship are entirely at parties’ (i.e. disputants’) disposal: it is their own life quality at stake.
It is up to the disputants how to treasure their standards of quality.
Mediation process works on those values, considering them closely together with the real interests to be evaluated.
Expert and professional mediators facilitate the disputants’ pattern of clear communication. Assist along the whole process ensuring all requests and expectations are on the table to be heard and worked out towards an agreement.
Mediators are equi-distant o equi-close to both parties, rather than super partes.
Mediation stays neutral and non judgmental before and after a solid, valuable and professional initiative towards solutions the parties themselves may be well able to figure out, handle and finally manage.
Parties keep all the time control of their goals and mediation may save time, money and values after all.
Terms of an agreement may be reasonably reached before any external interference or order from Court. There is no need to publicly disclose their feelings. To any public.
Encouraged by professional mediators, bound to code of conduct, privacy and confidentiality, as a result, are guaranteed to the disputants by their own honorable agreement.
Finally I feel to add a priceless extra value: mediation process brings parties through a self-management of their mutual relationship.
A professional mediation helps all parties adapt their agreement to their own circumstances, creating reasonable solutions within legal frame.
It teaches how to better manage their wishes and values for life.
One own’s justice is a tailored suit: it fits better
By Debora Unali
One of the pillars of Civil Law rules and principles is the maxim “Nemo iudex in sua causa”.
This legal phrase comes from Latin, and its literal translation is: nobody may be judge of his/her own case.
It refers towards a major legal principle, which states that no person can judge a case in which he or she participates as a party (i.e. pursues benefits).
In brief words it means that nobody can judge on their own lawsuit, otherwise there would be no fair justice.
The goal of the law is to secure the delivering of fair justice.
As a student it fascinated me both for the sense of search of fairness and for the necessity of cooling off any case from feelings. Hey, I am Italian…
It did fascinate me and it still does.
My thesis, final work of my Bachelor Degree in Law pointed me there: a further chance to investigate amongst a deeper sense of justice.
“Hermeneutics within the judiciary context” my ambitious title: a broad and extended work, which allowed me to get a taste and a sense of Common Law system.
In Civil Law system, justice is acknowledged confidently as far as a written rule, principle exists prior to the dispute.
What if no trace of same complaints exist in codes, Courts sentences, Constitution or sovereign legal hierarchic database etc…?
From a Civil Law student’s perspective, best area to investigate into was international law disputes, mainly family and commercial cases.
I had finally found grounds to enlightening my own doubts and uncertainties.
If disputants are from different Countries, not only they may speak different languages, they are brought up with different believes, different expectations and occasionally they may behave differently even when they mean to reach a common goal.
Bingo: in those (legal) cases, discarding emotions to be expressed, exchanged, considered, heard and worked at, it would just lead to a superficial agreement with little chance to endure at long term relationship.
During my legal practitioner experience in Italy, where Civil Law rules, I privately questioned this approach of ‘Straight to the facts. Objectiveness as the best way to deliver justice’ every and each time I was hearing a client’s complaint at the lawyers cabinet I worked at.
As legal representative, my duty was to translate clients’ requests into legalities, i.e. facts that can be brought before Court. No feelings allowed.
Each story ended up into legal papers and/or appearances to Court spoiled of the emotions from both disputants.
Litigations often appeared to me as if they were about to fail and to cause further damages as consequence.
I was often tempted by and considered inviting counterparty legal representative to look for some pre-judicial agreement, getting the disputants involved as well.
That personal approach to ideal justice never left me.
Times were not mature, neither was Civil Lay system.
I moved then to Ireland where Common Law represented a total new ground to me.
I learned (hardly at first) that a judge sentence is law. Each case may potentially become new justice rule or principle.
Courts decide on contemporary basis, not on millennial principles.
How much clearly I appreciated my Mediation course and practices…
Here I experienced evidences and tangible scenarios where my long-term dug approach to justice resuscitated and made sense.
What if the disputants get the opportunity to better understand each other requests, expectations, feelings?
What if before any legalities and technicalities the parties clear off the air from matters they may understand, hear and get to agree to?
What if, given the best circumstances and the professional assistance, the dispute becomes more and more a communication meeting, a parties’ strategy meeting?
What if thanks to the mediator I am today, I can see only the most complicate legalities brought to Court, while the parties stay in control of their own relationship?
May each disputant feel and be Iudex in sua causa after all?
By Debora Unali
3rd February 2015
This legal phrase comes from Latin, and its literal translation is: nobody may be judge of his/her own case.
It refers towards a major legal principle, which states that no person can judge a case in which he or she participates as a party (i.e. pursues benefits).
In brief words it means that nobody can judge on their own lawsuit, otherwise there would be no fair justice.
The goal of the law is to secure the delivering of fair justice.
As a student it fascinated me both for the sense of search of fairness and for the necessity of cooling off any case from feelings. Hey, I am Italian…
It did fascinate me and it still does.
My thesis, final work of my Bachelor Degree in Law pointed me there: a further chance to investigate amongst a deeper sense of justice.
“Hermeneutics within the judiciary context” my ambitious title: a broad and extended work, which allowed me to get a taste and a sense of Common Law system.
In Civil Law system, justice is acknowledged confidently as far as a written rule, principle exists prior to the dispute.
What if no trace of same complaints exist in codes, Courts sentences, Constitution or sovereign legal hierarchic database etc…?
From a Civil Law student’s perspective, best area to investigate into was international law disputes, mainly family and commercial cases.
I had finally found grounds to enlightening my own doubts and uncertainties.
If disputants are from different Countries, not only they may speak different languages, they are brought up with different believes, different expectations and occasionally they may behave differently even when they mean to reach a common goal.
Bingo: in those (legal) cases, discarding emotions to be expressed, exchanged, considered, heard and worked at, it would just lead to a superficial agreement with little chance to endure at long term relationship.
During my legal practitioner experience in Italy, where Civil Law rules, I privately questioned this approach of ‘Straight to the facts. Objectiveness as the best way to deliver justice’ every and each time I was hearing a client’s complaint at the lawyers cabinet I worked at.
As legal representative, my duty was to translate clients’ requests into legalities, i.e. facts that can be brought before Court. No feelings allowed.
Each story ended up into legal papers and/or appearances to Court spoiled of the emotions from both disputants.
Litigations often appeared to me as if they were about to fail and to cause further damages as consequence.
I was often tempted by and considered inviting counterparty legal representative to look for some pre-judicial agreement, getting the disputants involved as well.
That personal approach to ideal justice never left me.
Times were not mature, neither was Civil Lay system.
I moved then to Ireland where Common Law represented a total new ground to me.
I learned (hardly at first) that a judge sentence is law. Each case may potentially become new justice rule or principle.
Courts decide on contemporary basis, not on millennial principles.
How much clearly I appreciated my Mediation course and practices…
Here I experienced evidences and tangible scenarios where my long-term dug approach to justice resuscitated and made sense.
What if the disputants get the opportunity to better understand each other requests, expectations, feelings?
What if before any legalities and technicalities the parties clear off the air from matters they may understand, hear and get to agree to?
What if, given the best circumstances and the professional assistance, the dispute becomes more and more a communication meeting, a parties’ strategy meeting?
What if thanks to the mediator I am today, I can see only the most complicate legalities brought to Court, while the parties stay in control of their own relationship?
May each disputant feel and be Iudex in sua causa after all?
By Debora Unali
3rd February 2015
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