Today’s post is the first in a two-part series on mediator competence and self-awareness. It is our good fortune to have guest blogger, Kari Boyle, Executive Director of Mediate BC Society, share some of her thoughts on what just may be one of the most interesting – and challenging – topics for mediation practitioners today:
Last month I attended the most recent educational session hosted by the CoRe Conflict Resolution Society. Veteran trainer and mediator, Lee Turnbull, led a fascinating discussion about ethical issues in mediation. The focus was on four key topics: party competence (including mental capacity); mediator competence; impartiality; and confidentiality. The topics clearly hit a chord with the audience.
In terms of the party competence and impartiality issues, Lee provided a helpful reminder of the need for mediators to be constantly curious rather than jumping to conclusions, assumptions or judgments. When we are confronted by a party who appears inebriated (for example) we need to stop, caucus and ask some probing questions to determine the extent of his or her incapacity, if any. When we are confronted by our own negative reaction to a party’s position we need to be sufficiently self-aware that we can pause and identify our own “stuff” so we can move it to the side and then focus on the needs of the parties. All great reminders.
It was the part about mediator competence that I wanted to reflect on a bit more. What does “competence” mean in this context and how is it measured? The Standards of Conduct of Mediate BC Society say:
5.1 A mediator must acquire and maintain knowledge, skills and abilities sufficient to provide competent mediation services, and provide services only for cases where he or she is qualified by experience or training.
8.2 A mediator must be alert to the need to recommend independent legal advice, particularly to unrepresented participants, and to the need to make the participants aware of the value of consulting other professionals in order to make fully informed decisions.
These provisions don’t comprehensively define what mediator competence is but they do imply that mediators need to be self-reflecting and self-aware. Lee reminded us that mediators need to be clear about their own knowledge, skills and abilities and to assess whether they have the necessary knowledge and experience to act as mediator in a particular case. This is an ongoing responsibility as new issues and aspects can arise in mediation practices. Lee suggested that the key was, again, self-awareness. It can be surprisingly easy to find oneself overstepping one’s own competence.
For example, if I am conducting a family mediation and a question comes up that involves complex international tax issues, I need to stop, pause and reflect. Is this something that I am qualified to deal with (for me the answer would clearly be no!)? What help do I need? What other resources can I bring in to assist the parties? Many issues such as this will have surfaced during pre-mediation preparation and outside resources rallied as necessary. But sometimes things can surprise us and we need to have our curiosity poised and be ready to modify the process. The onus on the mediator is arguably greater when one or more clients are unrepresented.
Clients should not expect mediators to have all of the answers, particularly on complex substantive issues and, ideally, parties will have their own counsel to advise them. They do appreciate someone who can identify the red flags as they arise. Particularly for unrepresented parties, without the necessary qualifications obtained through experience or training a mediator might miss an important red flag and deprive clients of the opportunity to obtain advice.
So exactly how does a mediator improve self-awareness and competence? I will tackle that important issue in my posting next week.