IMI Article

The Mission of the International Mediation Institute

The_Mission_of_IMI_article_by_Michael_Leathes_May_2015

Overview

“Professional Mediation Worldwide”. These three words summarize the Vision of the International Mediation Institute – IMI. Implementing such a Vision requires a focused Mission: to (a) set and achieve high mediation standards; (b) convene stakeholders and parties; (c) promote understanding and adoption of mediation among users and their advisers, and (d) disseminate skills for parties, counsel and mediators. Let’s dig deeper.

The Organization

IMI is the only organization in the world to adopt such a Vision and Mission internationally for mediation. IMI is a non-profit charity registered in The Hague, supported financially and practically by a group of corporate users and by a group comprising the main international ADR service providers. IMI is not a membership body, so it does not serve the wishes of a small number, but aims to address the needs of all stakeholders, starting with users – i.e. disputants. To deliver the needs of users, also means understanding the collective interests of the other players in the dispute resolution field, namely mediators and conciliators, law firms and others that advise users, adjudicators such as judges and arbitrators, service providing organizations, trainers and educators, and policy makers. IMI does not compete with any other body because it sells nothing and it provides no billable services. IMI is funded by donations. IMI’s physical office is in the NGO building close to the Peace Palace in The Hague but its main presence is on the internet, at www.IMImediation.org.

Setting Mediation Standards Globally

If mediation is to grow and be used by disputants, quality is absolutely critical. Almost everywhere, anyone can call themselves a “mediator” and mediation is not a recognized independent profession in any country of the world. IMI has set out to change that defect by establishing high competency standards backed up by transparency enabling users to know when they select a mediator that they are buying the services of a quality professional who is the right person to assist them in resolving their dispute. The IMI quality standards have been established and published, and are now maintained, by IMI’s Independent Standards Commission (ISC), a 70+ strong body of users, highly experienced mediators, leading judges, providers, trainers and educators from 27 countries. The standards are applied in practice by service provider organizations that are approved by the ISC to run Qualifying Assessment Programs (QAPs) to assess and qualify experienced and competent mediators for IMI Certification. There  are currently 31 QAPs in 21 countries, with more in the pipeline, and over 400 IMI Certified Mediators in 45 countries. All members of the ISC and all QAPs are listed on the IMI web portal at www.IMImediation.org.
All IMI Certified Mediators have Profiles arranged in a similar format that can be searched on the IMI portal. Users can key in their criteria, such as practice area, style of mediator, location and language and then compare the Profiles of IMI Certified Mediators that meet their requirements.

The IMI credentialing scheme not only sets high standards, but also makes those standards transparent to Users. This is done by requiring IMI Certified Mediators to collect feedback on their performance as a mediator from Users (disputants and their professional representatives), appoint an independent organization or individual to summarize it into a Feedback Digest, and include it in the IMI Certified Mediator’s Profile. In this way, the mediator’s ongoing competency is assessed and validated by the community they serve. Users can read a summary of what previous users have said about the performance of that mediator.

The Unique Value Propositions of IMI

The Mediator Feedback Digest is one of the unique value propositions behind IMI’s certification scheme. Increasingly, providers and policy makers are appreciating the value of transparency into skills and competencies in this field. For example, the Singapore International Mediation Institute, a non-profit body established in 2015 by the National University of Singapore, has adopted the IMI mediator credentialing scheme, including the Feedback Digest requirement. IMI actively encourages others to follow this example and to assist users to find the right, quality, mediators.

Not only is IMI the only body setting practice standards for mediators on a global scale, but it is also the only body promoting mediation as a dispute resolution and deal-making process globally. IMI has established a series of international task forces that help to drive mediation into new areas internationally, such as disputes between corporate and other investors and Sovereign States, which, until now, are only addressed by arbitration. Other IMI task forces are focused on standards in online dispute resolution (ODR), standards for trainers and skills assessors, and the development of an UNCITRAL Convention on the recognition and enforcement of mediated settlements.

IMI is the only mediation organization to hold Consultative Status with the United Nations Economic and Social Council ECOSOC, and IMI also holds Observer Status with the United Nations Commission on International Trade Law UNCITRAL.

One of the unique values of IMI is that – because it competes with no other body – it can convene service providers and provide a platform where that can work together on policy developments that will advance the development of mediation.

For that reason, IMI has launched the Global Pound Conference series (GPC) to take place around the world in 2016, the 40th Anniversary of the Pound Conference in the United States, which was the event that began the development of modern mediation.

The GPC will be held in numerous countries around the world where delegates – both present in person and participating online, will be able to vote on a number of propositions and questions. The results at each event will be instantly presented, and combined together will enable all stakeholders, led by users, to define the future of dispute resolution.

Stakeholder Value

The value of IMI depends to some extent on the stakeholder: Users:

Users:

For disputants (users), the widespread adoption of common high international standards in mediation facilitates the choice to use mediation both locally as well as in multiple jurisdictions. It means users can rely more on objective and proven quality standards and assessment criteria to make an informed decision on choosing a mediator rather than relying on word-of-mouth, hearsay, gossip, directory listings, self-proclamations by mediators and other notoriously unreliable methods. It means greater confidence in suggesting mediation to another party (or agreeing to a proposal) knowing that a high level of transparent professional competency will be applied. It also means a greater ability to trust choices of other parties (re-starting the relationship building process) based on the known element of IMI Certification (even if the specific individual is unknown).

Making suitable choices between a number of competent mediators is made much easier. Ultimately it means lower costs and risks and less time focusing on process aspects – leaving more opportunity to manage the conflict itself.

Mediators and mediation service providers:

For service organizations that qualify for QAP status, IMI standards raise their game. Experienced mediators accredited through their organization will be able to deliver better results for users which in turn builds the reputations of the mediators and their organizations. By improving the quality of mediators through IMI Certification, mediation becomes more trusted and widely used, translating to more business for mediators and service providers. The IMI search engine also extends the reach of mediators to a wider constituency of users. The search engine optimization techniques used by IMI mean that an IMI Certified Mediators’ Profile appears in the top three positions 86% of the time when a user enters the mediator’s name followed by the word “mediator”, and in over 50% of cases it appears top of the list.

Professional firms:

IMI standards make it easier for law firms and other professional advisers to suggest mediation as a viable tool for their clients. Sustainable solutions reached through mediation help legal advisers to be viewed by clients more as solution providers who strive for the best and fastest outcome to a conflict (in terms of risk, quality of result, reputation, relationships, costs, and time), rather than focusing on legal positions. Legal counsel accredited as IMI Certified Mediation Advocates will build further trust with clients, thereby distinguishing themselves from their competitors and leading to repeat business as the representative of choice proven to act in the best interests of the client.

Regulators:

When a profession is properly self-regulated, the regulator can focus on protecting users. In the case of mediation, this includes enshrining confidentiality and privilege in law, supporting and implementing ethics considerations, encouraging mediation in court  process and the enforceability of settlements. This enables a balance to be struck between the responsibility of the profession to self-regulate efficiently and the role of the Regulator in protecting the interests of users.

What else has been achieved?

IMI has published a Code of Professional Conduct for Mediators, which is backed up by a disciplinary process, similar to any other leading profession.

IMI has established criteria for IMI Inter-Cultural Certification (launched April 2012) and for IMI Certified Mediation Advocates.

IMI has developed several tools for users, which are available on the IMI web portal – for example, the online case analysis tool, called Olé, enables users and their advisers to analyze any case to determine objectively the most appropriate dispute resolution options. This highly advanced tool was adapted for online use as a result of a grant by the GE Foundation.

There is an online advice forum on the IMI portal that enables users to ask questions about mediation and secure a quick response from the IMI Certified Mediator community.

Mediation training materials are being made available to trainers and educators in countries where mediation is largely undeveloped.

IMI makes all informative materials and tools available to everyone copyright-free. There is an active Young Mediators Initiative that enables aspiring mediators to gain experience by assisting established mediators in real mediations.

The Future

Mediation has come a long way since the Pound Conference in 1976, but still has much further to go. Mediation must develop into a widely-recognized, independent profession otherwise mediation will not be accepted by users are the preferred and automatic way to resolve disputes when negotiations fail. This means that a single set of high-level competency and practice standards need to be adopted around the world. Mediation needs to be far better promoted if it is to be far better understood and accepted. It begins with competency standards but does not end there. Mediated settlements need to be internationally enforceable, like arbitral awards. Governments need to use mediation as the prime way to resolve disputes. Users need to see the value of using mediators to make deals. Providers need to be more transparent and to come together to expand the use of mediation. IMI sets out to achieve all these things, and more. It needs everyone in the dispute resolution field to support this Vision and this Mission.

Posted by Laura Skillen in IMI Article, 0 comments

F=T(Q+I)

F=The Future; T=Trust; Q=Quality; I=Information

The Future of mediation hangs on several factors. Probably the most important is Trust. If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes. Low trust can be traced to the belief that mediation is considered a legal process dominated by lawyers who are advocates and mediators. Sadly, there is strong empirical
evidence that, worldwide, lawyers are not highly trusted. Mediators and the mediation user community need to overcome this vicariously applied impediment. To do so, they need to collectively forge mediation as a free-standing profession, based on quality and information, which are the core ingredients of trust and respect. An inhibiting factor that surfaced at last year’s Convention on Shaping the Future of Dispute Resolution1 , was lack of familiarity with mediation. If trust can be reinforced by users recognizing that mediation is an independent profession, mediation use will likely increase exponentially.

GfK Verein2 is a German non-profit market research think tank established in the 1930s that is internationally renowned for promoting the integrity and importance of market research. In May 2014, GfK published the results of a global study3 on the extent to which 32 professions are trusted in 25 countries in all continents, based on 28,000 interviews. The results of this serious research are disturbing and relevant to mediation. Healthcare professions and teachers scooped four of the top five trust rankings. Although mediation was not one of the professions whose trust quotient was measured – hardly surprising as mediation is not widely recognised as a profession – lawyers were. Lawyers were ranked in the bottom quartile, in 27th place, far behind public transport drivers (13th) and bankers (16th). Judges fared better than lawyers, in 15th place, but only one rung above the bankers. In the US, Brazil, Kenya and Nigeria, lawyers were ranked four from the bottom, in 29th place (politicians came bottom almost everywhere). In no country were lawyers even close to the upper quartile.

Mediation is a branch of negotiation, not law. Most mediators do not need to be lawyers. Nonetheless, because modern mediation developed in a legal context, a very high percentage of mediators are, inevitably, lawyers. There are no exact figures, and the proportion of lawyer mediators to non-lawyer mediators will differ from one field or practice to another. But when such a large international survey indicates such an abysmally low level of trust in lawyers, mediation will inevitably be tarred by the lawyers’ brush. In the absence of more data, we do not know how bad the situation is. But few should be surprised if new research proves the point.

1 http://mediationblog.kluwerarbitration.com/2014/11/05/the-urgent-need-for-data-are-the-needs-of-users-and-the-dispute-resolution-market-misaligned-2/
2 www.gfk.com 3 http://www.gfk.com/Documents/Press-Releases/2014/GfK_Trust%20in%20Professions_e.pdf

Most mediators, including most lawyer-mediators, will be dismayed at the situation, and rightly so. But the mediation field should not just shrug and muddle along, sleepwalking into an unexciting future, assuming that nothing can be done. Mediation needs to present itself as a separate, credible profession. This can be done very quickly, and at low cost, by collectively focusing on two connected areas: Quality and Information.

A separate profession

The late, great Harold L. Wilensky was Professor of Political Science at US Berkeley. In The Professionalization of Everyone?4 in 1964 he wrote: Any occupation wishing to exercise authority must find a technical basis for it, assert an exclusive jurisdiction, link both skill and jurisdiction to standards of training, and convince the public that its services are uniquely trustworthy and tied to a set of professional norms.
Mediation can do all these things if the players in the mediation market organize themselves to take collective action. The skills can be taught – in fact must be taught. Sophisticated high-level training criteria are now well-developed, enabling a reliable and objective determination about whether a person will make a competent mediator.

Quality can be asserted by credentialing people who meet the required criteria after independent assessment. The trust factor can be communicated to users by promoting how quality can be assured, and by enabling users to have transparency through properly-organised user feedback summaries. Better information can be given to users about how mediation works and why it is so successful. But none of this happens by accident or default. The concept needs vision, leadership, organization and determined effort.

Quality

High quality delivery of services is a central imperative in the growth of any profession. Few users can have confidence in any professional service if they are unable to trust its quality – knowing that high standards are established and applied via credentialing and that there is a tough and visible Code of Professional Conduct that is rigorously enforced. Some mediators disagree. The main argument in favour of having no quality standards is that users will quickly sort the good mediators from the bad, just like any other service. Some say that mediation is not a science but an art that negates the relevance of standards and credentials. These views are often expressed by successful mediators who are not particularly concerned about the growth of mediation since they have plenty of work for themselves. But their influence has, up to now, inhibited mediation progressing as an independent profession. These views also put infrequent users of mediation at a disadvantage because they do not have access to the collective experience of others. As a result, in almost all countries, anyone can still set up as a “mediator”. This needs to change, quickly, preferably by the field taking control of itself rather than by being subjected to Government regulation.

4
http://www.jstor.org/discover/10.2307/2775206?sid=21105678493323&uid=2&uid=4&uid=2129&uid=3738032&uid=70

Users are likely to react negatively when they have a bad mediation experience. They often bad-mouth the process and may not use mediation again. Users need and deserve better quality assurance if they are to trust the process and use it repeatedly. Supporters of quality standards argue that mediation happens behind closed doors, the mediators are usually sole practitioners, and word of mouth, gossip and innuendo are highly unreliable quality indicators. Moreover, they say that although larger law firms may know (or think they know) who’s who and what’s what in the mediation world, such knowledge often does not reside with disputants and advisers who rarely get engaged in mediation. And the general public, who may not be legally represented, are even more in the dark and are therefore skeptical and untrusting of both mediation and its practitioners.

Information

Mediation practice is also poorly understood. Some people have a vague notion of how it works, but often not why it works. The user is confused by as many definitions of the term mediation as there are institutions and practitioners offering their services. The mediation market is not homogeneous; in fact it is highly fragmented, often so balkanized by the severity of competition that many service providers rarely talk to one another. Users need more and better, and above all consistent and objective information about mediation and mediators. They need tools to help them assess their own problems and consider the spectrum of dispute resolution options, of which mediation is a key part.

F=T(Q+I)

The Future depends on the degree to which the Trust of users can be generated, in mediators and in mediation, which in turn hinges on Quality (professionalization, credentialing and transparency) and Information. The mediation field in each country needs to collaborate to apply this formula if mediation is to have a future worth striving for.

Michael Leathes and Deborah Masucci

January 2015

Authors’ Note
The International Mediation Institute (IMI) 5 is a global non-profit body that was established in 2007 to implement the F=T(Q+I) formula. IMI is funded entirely by donations, including professional dues paid by IMI Certified Mediators. The authors are both directors of IMI and can be reached at: https://www.imimediation.org/contact

5 www.IMImediation.org

IMI F=T(Q+I)

Posted by Deborah Masucci in IMI Article, 0 comments

Enabling Early Settlement in Investor–State Arbitration

ICSID OUP Article on Investor-State Mediation (Jan 2014) Von Kumberg, Lack & Leathes

Wolf von Kumberg, Jeremy Lack and Michael Leathes

Abstract—There is a growing recognition, among both companies and States, that conflict resolution through traditional adversarial rights-based methods is not only expensive and drawn out, but destructive for long-term relationships as well as crossborder social and economic progress. While the parties devote their attention to the court or tribunal, seeking to convince adjudicators to rule in their favour, they stop
communicating cooperatively, and the adversarial nature of these rights-based proceedings merely serves to escalate the conflict itself. This realization has prompted a resurgence of interests-based (as opposed to rights-based) dispute resolution methods—notably mediation—in both demand and supply

Posted by Laura Skillen in IMI Article, 0 comments

Expanding the Mediation Pie

NYSBA New York Dispute Resolution Lawyer | Fall 2009 | Vol.2 | No. 2 |  Pp 52/54

Editor’s Note: As the NYSBA Dispute Resolution Section embarks this year on a study of mediator credentialing, we thought IMI’s recently-launched web-based open access platform for credentialing international mediators would be of interest.

International Mediator Certification and Expanding the Mediation Pie[1]

By Michael Leathes, Director, International Mediation Institute

 

Over the years there has been a great deal of discussion about the pros and cons of mediator credentialing, a discussion which continues in various venues to date. However, there is a growing sense among many in the field that credentialing is critical if the field is to grow.  To foster the growth of mediation the International Mediation Institute (IMI) was set up as a foundation in 2007.[2]  IMI does not compete in the marketplace, is funded by donations, and its initial role is to credential quality mediators worldwide, enabling them to be easily identified through its search engine.  IMI launched its web based certified mediator data base, open to those seeking mediators without charge, in June of 2009. IMI’s wider mission is to promote and encourage the field and help the mediation pie to expand on a global basis for the benefit of all stakeholders.
Why do we need mediator credentialing?

Companies and professional firms, often do not fully appreciate the value mediation can deliver to them. It has been estimated that the total billings of all U.S. mediators in a single year approximates $500 million – roughly the same level of billings as the 50th largest US law firm.  Mediation is a small pie even in the country where its progress has been greatest. In my career as an in-house counsel, I have proposed mediation to many opponents. Most were rejected.  I estimate that only 1 in 50-100 proposals was accepted. The counter-parties just did not understand what was involved.  Mediators see the tail of cases that come to them; they rarely see or hear of those that don’t.

Mediators need to adopt and support the credentialing process and focus on the enlargement of the overall pie – mediation as a practice – and not merely on their own slice sugared by vested networks.  Although they compete head-to-head for business with the next mediator, if they fail to collaborate in the task of authenticating and validating the mediation field as a whole, their piece of the cake will not enlarge.

Qualifications are essential in the mediation field to foster the growth of the field. People can practice as a mediator almost everywhere without having been trained, possessing a licence, having to improve their skills or being independently tested or vetted, without being regulated and without the impetus to improve their own delivery.  Although the top mediators voluntarily seek to constantly improve their skills, their example is not followed by everyone in the field, robbing it of professional integrity.  As a result, the standards set by some – perhaps many – are often variable or opaque.

Around the world there are few Codes of Ethics or Codes of Conduct applying to mediators. Where they do exist, as they do in the United States, they are largely aspirational, unsupported by disciplinary processes and lacking real sanctions for the few unprofessional enough to transgress.

Another factor driving the need for certification is that some providers of mediation services in the international arena have low or undisclosed standards for admitting mediators to their panels and rosters.  This forces users of mediation services to rely too often on hearsay, reputation, word-of-mouth and gossip, backed up where available by references, to decide who in this field is a high quality provider or mediator.  The lack of a credible high-level qualification in most countries inhibits mediation being widely regarded as a true profession.

One reason that it has been difficult to achieve a consensus that credentialing is useful is that mediators have resisted defining their role. Many see mediation as a creative form that transcends categorization. Many think of themselves artists, magicians, free spirits, a unique case, and that there is no yardstick that can be applied to measure competency.    Mediator practices may indeed be widely divergent, but this resistance among mediators has resulted in mediation practice in most countries being balkanized into groups populated by competing providers.  Ironically, for people skilled in the art of convening warring parties and getting them to communicate positively, mediators often do not apply among themselves the very skills they employ with their clients to arrive at a credentialing process that works for a variety of mediation styles.

In short, absence of recognition as a profession restrains the field’s growth.  This can be changed, but acceptance and support by mediators, who have so far hesitated to drive that change themselves, is necessary.

 

IMI Certification

IMI has stepped up to the plate to fill this need and provide a set of international standards for mediators. IMI’s credentialing function is a user-driven initiative.  It emerged from 18 months of consultations with hundreds of users, mediators and providers of dispute resolution services worldwide.  Patterns emerged that were remarkably common and consistent around the world – though different countries were inevitably at different stages in the mediation development cycle.  One of the most consistent issues to emerge was that IMI found that users want a reliable, impartial and credible mechanism to find quality mediators.  They also need more reliable information to guide them in selecting suitable mediators.  Providers and mediators want to give that information with the minimum bureaucracy and cost.  These needs – from the demand and supply sides of the field – were not linked up on a single international platform.  IMI’s scheme focused on addressing both needs, internationally.

IMI convened an Independent Standards Commission of over 50 international thought leaders.  The ISC is independent of the IMI Board and establishes the conditions, standards and criteria for IMI Certification.  It represents all stakeholders – users, providers, mediators, judiciaries, educators, trainers and regulators.  All dedicate their time and expertise pro bono. For a limited period, the experienced mediators on panels of carefully selected leading provider and professional bodies have been admitted to IMI Certification without undergoing a competency assessment.  Thereafter, mediators can only become IMI Certified by being approved by an assessment body having a program that determines competency based on criteria established by the ISC.  These criteria are applicable irrespective of a mediator’s preferred mediation styles and the techniques employed to mediate.[3]

 

IMI’s Wider Mission

IMI’s over-riding vision is to stimulate positive change in the dispute resolution field.  Establishing criteria for certifying the competency of mediators is an early element of the mission because without mediator quality at the delivery end, further change will be unattainable and not worth the effort.  But, given an established mechanism for determining minimum quality standards for mediators, there are other critical parts of IMIS’ mission that must be deployed:

Promoting to users (a) mediation, and (b) how to find competent mediators  IMI can use its position as an independently-funded non-profit body to promote both the practice and the professionals in credible ways directly with users and relevant user groups, professional bodies, government agencies and judiciaries, articles and editorials, interactive channels and other strong media.  This will help mediators and providers by growing awareness and understanding of mediation among more users and avoiding duplication of effort.  IMI will seek to promote mediation in collaboration with government and inter-governmental agencies, all of which can make a dramatic difference by being seen to support, encourage and fund a faster uptake while striving for high standards and quality.

An Inter-Cultural Mediator Certification is also being developed aimed at IMI Certified mediators involving advanced knowledge and skills for handling disputes and negotiating deals involving people and issues with different cultural influences.

Providing impartial guidance and information to users of mediation services, including links to IMI qualifying institutions (Providers, Trainers and other bodies). As IMI will not provide mediation services, or benefit from mediations, IMI can be a credible source of objective information of the field.

Making available informative downloadable material about mediation, assisted negotiation and dispute resolution to assist and inspire users.

Providing support for the creation and advancement of mediation bodies in countries where mediation is unknown or poorly practiced.

Encouraging experience-generation schemes for newly-qualified mediators and those with limited experience and untried skills – providing links to those schemes worldwide.

A Scholarship Program designed to enable aspiring mediators to be properly trained, gain experience and qualify for IMI Certification.

A convening function to help bring disputing parties together.  Because IMI will not itself deliver mediations, it is in a unique position to propose to parties whose dispute has become a matter of public record that they consider mediation

A leadership role to help drive mediation into new fields  Examples include deal-making and negotiation, the relationships between Regulators and those regulated, class action and mass tort mediation, the use of mediation in WTO disputes and other inter-nation disputes, and online mediation.

 

The Road Ahead

Mediation has come a long way, but still has a long way to go.  And in many places it really is on the starting blocks, with tremendous potential. Setting high, visible, credible and consistent standards, everywhere, is a vital step, already achieved by some institutions but not by all.  Once done and more widely appreciated, mediation will become more respected and its practitioners will accede to true, independent professional status as mediators.  The mediation pie will then expand.

Bringing mediation out of its closet is one of the most exciting and important developments of our time.  All stakeholders, including users, providers, mediators, judiciaries, educators, trainers and regulators, can play a critical role in this endeavour.  If they choose to do so, they will practice an important principle preached by Mahatma Gandhi: You must be the future you wish to see in the world.

 

Michael Leathes spent his career as an in-house lawyer for a number of multi-national corporations.  Over the past 20 years he has been a strong promoter of mediation for achieving business outcomes.  He retired in 2007 to assist IMI achieve the above goals.  All comments on this article are welcome. To comment, please click here

 

[1] Reprinted with permission from: New York Dispute Resolution Lawyer, Fall 2009, Vol. 2, No.2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

[2] IMI’s founders and fund providers are the American Arbitration Association/International Center for   Dispute Resolution, Netherlands Mediation Institute, Singapore Mediation Centre and Singapore International Arbitration Centre.  IMI is registered as a Foundation in The Hague.

IMI’s Chairman is Michael McIlwrath, Senior Counsel – Litigation, GE Oil & Gas.

[3] To view the Criteria for Assessment Programs qualifying Mediators for IMI Certification, please click here

Posted by Michael Leathes in IMI Article, 0 comments

Empowering the Growth of International ADR: The supply side and the demand side can do it together

Empowering the Growth of International ADR, article by Michael Leathes – Download

Empowering the Growth of International ADR

The supply side and the demand side can do it together

Michael Leathes [1]

In recent years, corporate users of ADR services have demanded greater transparency into the skills, experience and suitability of ADR providers and the adoption of stronger professional ethical standards and disciplinary processes.  These calls are turning into dissatisfaction.  The markets serving corporate client needs can, without great effort or cost, address the user demand quickly, effectively and economically worldwide.  This opinion piece suggest how that can be done and invites views via an online comment page for a follow-up piece.

In May 2007, Michael McIlwrath of GE Oil & Gas published an article [2] in Arbitration, the journal of the Chartered Institute of Arbitrators, entitled Grading the Arbitrator.  He proposed that, using a questionnaire, parties should give feedback to arbitrators on how they managed and handled the process.  He suggested that, in an appropriate way, that feedback should be publicly available as an aid to the notoriously difficult but critical task of selecting competent, suitable arbitrators.  Arbitrators claimed the quality of the feedback could be influenced by outcome bias, but Mr McIlwrath suggested that this could be overcome by a system of quality control[3].  In articles[4] in 2005 and 2006, Professor Catherine Rogers at Penn State Law had floated similar ideas, including a fee-based service to which parties could subscribe.  The arguments in favor of a feedback scheme extended beyond facilitating arbitrator selection and extended to improving the predictability, and therefore the reputation, of arbitration.

In 2008, the International Mediation Institute (IMI)[5] launched its mediator certification scheme, at the core of which is an independently-prepared Feedback Digest based on a Feedback Request Form and an identification of the Code of Conduct and Disciplinary Process to which mediators publicly subscribe.  About 400 mediators are now IMI Certified and there are 26 Qualifying Assessment Programs in 16 countries that enable ADR institutions and trainers to qualify mediators for IMI Certification, with more in the pipeline.

The past two years have seen further calls in international arbitration circles for greater transparency of key indicia of provider performance.  The Milan Chamber of Commerce, for example, has proposed “anonymized” arbitral awards to give users greater insight into the decisions taken in arbitrations conducted under the auspices of that institution.  The fact is that users need greater transparency and higher standards in the delivery of all ADR services.

The international mediation field provides useful pointers.  The IMI Certification Scheme, launched in 2008 by users in collaboration with international ADR providers, initially met with skepticism from the market[6].  However, the prominent presence on the IMI Board of international corporate users caused skeptics to think again.  About 400 mediators now fully IMI Certified with user Feedback Digests embedded in their profiles and a declaration of the Code of Professional Conduct and disciplinary process to which they subscribe.

As arbitration and mediation are both highly competitive and fragmented fields, it is hard for providers to act collectively.  Yet they must.  The only forums where arbitration organizations come together at an international level conferences of the ABA Section of Dispute Resolution, the Institute for Transnational Arbitration (ITA) and the International Council for Commercial Arbitration (ICCA).  Mediation providers have the annual UIA World Forum of Mediation Centers.  Industry structural change to address user demand rarely gets discussed at these events.

One recent exception was the ICCA Annual Conference in Singapore in June 2012, the theme of which was “International Arbitration – the coming of a new age?”  The keynote speech[7] was given by the then Attorney General of Singapore (now Chief Justice) Sundaresh Menon, a man with a distinguished career in international arbitration[8].  Mr Menon suggested that the “new age” of arbitration is, in fact, its golden age, implying that the field stood on the brink of decline, and urged arbitrators to “embark on a course of collective self-reflection…on what we as a community have done right, but more importantly, on what we could do better, and perhaps plant the seeds of change so that our industry will…continue to play a critical role in the global administration of commercial justice.”  Mr Menon highlighted how arbitration had suffered from growing complexity and “judicialisation” becoming more time consuming and costly, leading to a “growing frustration for users” and asked whether “these telltale signs of trouble signify the beginning of the end”.  He identified an increasing disconnect between the satisfaction of the arbitration community with the revenues they earned compared to the “growing dissatisfaction with [the] unregulated industry” by users.  Mr Menon urged the field to head off declining credibility and confidence by “charting a new course” and design and subscribe to an international self-regulatory regime involving greater efficiency, transparency and accountability.

Mr Menon proposed that the regulatory framework governing arbitrators should cover initial entry requirements, a competency certification system and practice standards for the conduct of arbitrators and also of international arbitration counsel, including a uniform global set of ethical standards and rules of professional conduct backed up by a disciplinary process.  He envisaged arbitral institutions being the functional equivalent of Bar Associations in this system, with a role in implementing the self-regulatory standards.  He drew a distinction between injecting greater transparency in arbitrator conduct, and the substantive issues in dispute (which are confidential).  He advanced the idea of an open-access database of information about arbitrators and their decisions under the auspices of a respected international body.  He concluded that this would aid “…parties in their selection of, or even their approach towards, arbitrators in future cases, moving away from glorified and often self-promoting curriculum vitae, to serve as a repository of useful and independently audited information on an arbitrator’s past cases, reasoned decisions (if necessary redacted to protect… confidentiality), the instances where the arbitrator ruled or dissented in favor of his appointing party, as well as complaints and feedback from parties.”

A few months later, Professor Rogers, who was mentioned as an authority in Mr Menon’s keynote and in Mr McIlwrath’s 2007 article, proposed an International Arbitrator Information Project (IAIP) to help correct the “gumshoe clue-hunting approach currently employed to select international arbitrators” which is “severely outdated and unduly expensive in an era of information and technological efficiency”[9].

Professor Rogers suggested that the IAIP would be a non-profit resource providing reliable, objective information about arbitrators, with each arbitrator having a dedicated space that in addition to biographical information would include links to publicly available arbitral awards and other data, including peer reviews.  It would also include objective appraisals of arbitrators’ case management skills, and behavior as an arbitrator based on feedback from users and users’ counsel.  She identified various legal and practical obstacles including confidentiality, how feedback would be edited responsibly and fairly, but said that these issues can be addressed[10].

A few additional relevant considerations are:

IMI is the only body in the international ADR field in which several of the leading arbitration institutions (AAA, BCDR, ICC, JAMS, SIAC) are collaborating with the express intent of helping to raise professional standards and deliver greater transparency.

A collaboration arrangement was announced in March 2013 between IMI and the Corporate Counsel International Arbitration Group (CCIAG)[11].  This collaboration will enable the user share of voice in international ADR to be more heard more loudly and clearly.

In February 2013, the results were published of a 2011 survey of the in-house dispute resolution counsel in 368 Fortune 1,000 US companies conducted by Cornell and Pepperdine Universities together with CPR Institute as a follow-up to a 1997 survey conducted by Cornell [12].  This survey was designed to identify trends among corporate users since 1997, surface emerging ADR policies and practices, and understand the drivers of those trends, policies and practices.  There is much useful data in this survey for both arbitration and mediation.  One of the most startling statistics is that there has been a significant decline in the use of arbitration in 8 out the 10 categories of dispute surveyed between 1997 and 2011.

An International Corporate Users ADR Survey was conducted by IMI between mid-January and mid-March 2013 among 76 corporate in-house dispute resolution counsel, mainly in North America and Europe.  Law firms and other outside advisers were not invited to participate in this Survey to enable the focused view of actual disputants to be captured.  The Survey raised a number of issues that earlier research by different organizations had not asked of corporate in-house dispute resolution counsel.  The results, which have recently been published[13] and are most revealing, though hardly surprising.  In summary:

1. Users want more information about both arbitrators and mediators.  They want evidence that their competency has been independently assessed, they want them to belong to professional ADR organizations that are not service providers, and to subscribe to rigorous Codes of Practice in ADR that render them subject to disciplinary processes, as any other mainstream professionals.

2. Past experience with arbitrators and mediators is seen as vital to selection decisions – whether that experience is the user’s own, or that of their counsel, or of previous users of the neutrals under consideration in independently-prepared feedback summaries.  A high proportion (76%) of in-house dispute resolution counsel completing the Survey say they want access to the feedback of previous users of both arbitrators and mediators.

3. Arbitration providers are now expected by three quarters of in-house dispute resolution counsel to be proactively encouraging parties to mediate their disputes, and almost half go so far as to want Courts and Tribunals to make mediation a compulsory step in both litigation and arbitration.

 

Action to Address User Needs

User demand for more information and higher professional standards in ADR is unequivocal.

An international institution is needed to address the global user demand, particularly in arbitration, conciliation and similar methods of resolving international commercial disputes.   That institution should preferably not be a service provider.

Ideally it should be a new entity, without an historical footprint, established as a collaboration of the demand and supply sides of the arbitration field – similar to how IMI is set up successfully in the mediation field.  It could be affiliated to IMI to share funding and overheads and secure an early momentum.  Funding could be drawn from all those with an interest in greater access to information and higher quality in ADR – meaning: users, ADR provider organizations, law firms and individual ADR practitioners.

Some may feel that this could be achieved by an existing entity established at global level that does not provide ADR services.  ICCA, a highly-regarded organization with a truly global reach and representation that does not administer arbitrations or act as an appointing authority, and has UN NGO Consultative Status on behalf of the arbitration field, seems to be the only realistic possibility.  However, ICCA’s Statement of Purposes focuses its role on conferences, publications and thought leadership, not acting as the field’s professional institution and self-regulatory authority.  Moreover, although ICCA’s 40+ strong Governing Board comprises distinguished arbitrators and conciliators, counsel and educators, it does not include any corporate users.

Easier and better, perhaps, to set up a brand new entity, with close ties to established and valuable existing institutions like ICCA and the world’s great ADR providers.  That entity would need to focus its core mission on: (1) setting and achieving the highest standards in arbitration and conciliation; (2) establishing a globally-applicable Code of Professional Practice linked to a disciplinary procedure credible to users; (3) improving the quality and depth of information available about arbitration and conciliation, and in particular about arbitrators and conciliators; and (4) promoting what users will regard as more practical, efficient use of ADR processes.

It is not a difficult thing to achieve. The supply side and the demand side should do it together.

Michael Leathes
April 12, 2013

 

In the hope that this article will encourage ideas and debate, the author has prepared a simple online comment page where views can be posted in response to four short questions. The comment page is at: http://fluidsurveys.com/s/imi-professionalizing-international-adr-through-transparency-survey/

 


 

Footnotes

[1] Michael Leathes spent 35 years as an in-house counsel with  Gillette, Pfizer, International Distillers & Vintners and BAT, managing international disputes.  He is a director of the International Mediation Institute.

[2] http://imimediation.org/grading-the-arbitrator

[3] These ideas and others are captured in the 2010 Fordham Papers in an article by Mr McIlwrath and his GE colleague, Roland Schroeder Transparency in International Arbitration: What Are Arbitrators and Institutions Afraid Of? a summary of which is at:http://kluwerarbitrationblog.com/blog/2010/10/18/anti-arbitration-a-modest-proposal-for-standardized-performance-metrics/

[4] C.A. Rogers, “The Vocation of International Arbitrators” (2005) 20 American University Journal of International Law 959 at pp.1009–1010; and “Transparency in International Commercial Arbitration” (2006) 59 Kansas Law Review 1301

[5] www.IMImediation.org

[6] http://www.cpradr.org/Resources/ADRTools/CPRADRBlog/tabid/116/articleType/ArticleView/articleId/422/Novembers-Alternatives-More-Arguing-Over-Credentialing-Nov-11.aspx

[7] http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_2012.pdf

[8] CJ Menon is a former Deputy Chairman of the Singapore International Arbitration Centre (SIAC), former Head of International Arbitration for Asia at Jones Day; and a former panel member of SIAC, the Beijing Arbitration Commission and the Korean Commercial Arbitration Board.  He was awarded the Global Arbitration Review’s Best Speech Award 2012 for his keynote at the 2012 ICCA conference.

[9] http://kluwerarbitrationblog.com/blog/2012/12/10/the-international-arbitrator-information-project-from-an-ideation-to-operation/.  Professor Rogers presented the IAIP to the Winter Forum of the Institute for Transnational Arbitration on January 25, 2013.  See also Professor Rogers’ article Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct (2005) 41 Stan. J. Int’l L. 53.

[10]  An earlier attempt to create a standardized form for feedback on arbitrator performance was carried out in 2007 by members of the OGEMID (Oil Gas Energy Mineral Investment Dispute) listserv operated by the thought-leader Thomas Walde.  See Elika Eftekhari, The Development of a Template Form for Providing Party Feedback to Arbitrators, TDM 1 (2009) (“During the first half of 2007, an informal Working Group consisting of international arbitration practitioners developed an evaluation form for parties to provide feedback to arbitrators regarding their perceptions of the conduct of the proceedings. The members of the informal Working Group included parties, academics, arbitrators, counsel, and institutions.”) The article and feedback form may be downloaded at:  http://www.transnational-dispute-management.com/article.asp?key=1322

[11] http://www.cciag.com

[12] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2221471

[13] A summary of the results of the IMI ADR Users Survey is downloadable at: http://imimediation.org/imi-international-corporate-users-adr-survey-summary

Posted by Laura Skillen in IMI Article, 0 comments

Certifying International Competency Standards for Mediators

Certifying International Competency Standards for Mediators (Article by Michael Leathes)

Download article here.

 

When you innovate, be prepared for people telling you you’re nuts
Larry J. Ellison, CEO, Oracle

Michael Leathes 
International Mediation Institute, The Hague, The Netherlands

Little did I know, after retiring from a career as an in-house corporate lawyer, that I would effectively assume a role as a new-age transformative mediator, balancing the needs and interests of users of mediation services with those of mediators themselves.  Here I am, doing just that, and being told by some mediators that the status quo should be left alone, or at best tweaked. But, as Laurence Peter asked in The Peter Principle, has the quo lost its status?

A year ago I was invited to lead the International Mediation Institute (IMI), a new public-interest foundation in The Hague designed to turn mediation into a true profession on a global scale.  IMI’s founders are leading non-profit dispute resolution institutions – the American Arbitration Association/International Center for Dispute Resolution, the Netherlands Mediation Institute and the Singapore Mediation Centre/Singapore International Arbitration Centre.  The core remit of the IMI sounds laudable – to establish a set of globally-applicable transparent standards for mediators, to help raise professional practice standards, to enable those who use the services of a mediator to establish that person’s professional competency in advance with a high degree of confidence, and to enhance the standing and therefore the value of professional mediators.  A side benefit is that such a voluntary, self-regulating system would head off government pressure to regulate mediators.  I accepted the invitation as I have experienced the need for mediation standards as an international user over many years.

I have since received the most enthusiastic support for change from many constituencies around the world.  Not surprisingly, those who get into disputes and find themselves urgently needing the services of a mediator, like companies and their legal advisers, are passionate to satisfy themselves in advance that the person in whom they will invest their complete trust is an absolute professional, adheres to the highest standards, and, above all, really is a competent mediator.  Judges have the same desire, as they often direct warring disputants into the arms of mediators and want to be sure they are in strong and capable hands.  NGOs feel the same way, as do government institutions and educationalists.

Mediators respond less consistently. Some welcome IMI’s proposals with constructive comments (the draft proposals are now available for comment at www.IMImediation.org).  Some ignore IMI.  Others ridicule it, saying the initiative is overly ambitious.  Some openly oppose IMI’s ideas. Why does this spread of reactions seem to come only from mediators?

Let’s first be clear about the status quo and how IMI is proposing it should change.  Then let’s analyze the range of reactions, try to separate the issues from the emotions, and explore the realistic options for progressing this field into a true, independent, profession to benefit all.

Is Mediation a profession?

Unfortunately – no.  That is not to say mediators are not professionals, because most certainly are.  But they are mainly recognized as such in their independent capacities as attorneys, surveyors, psychotherapists and many other disciplines.  Mediation is a vicarious profession – it relies for its credibility on the separate professional standing of its practitioners.  Some would say it is an emerging profession.  Few claim it is a profession of its own.

To achieve true professional status in its own right, mediation needs to take on the mantle of the established, recognized professions.  Professional status is not something that can credibly piggy-back on other professions, particularly where, as in the case of mediation, practitioners come from many different backgrounds and by no means everyone has the special skills required of a mediator.  For mediation to be considered, by its users, as a proper profession, mediators need to strive for transparent high standards of practice, training, ongoing education and delivery as well as ethical conduct and have a clear disciplinary process.   And because, in this shrinking world, many of the big-ticket disputes are international in nature, those standards should be broadly shared around the globe.

This is not a new subject.  It has been thought about already.

In the US, where modern mediation began in earnest with the 1976 Pound Conference in Minneapolis, educationalists like Professor Sander at Harvard and NGOs like CPR Institute have led a focus on the subject for a long time.  In 2001, the American Bar Association’s Section of Dispute Resolution and the Association for Conflict Resolution (ACR) both convened Task Forces to study how mediator credentialing could be instituted nationally across the board in the US.  However, both concluded that implementing a national certification program for mediators faced significant hurdles, due mainly to the balkanization of the practice among various groups, such as commercial, family and community practitioners and the mediation programs of the various State and Federal Courts.

Canada, however, addressed the issue more successfully when a group of users – corporations and law firms – convened and funded the ADR Institute of Canada, a national non-profit organization, which has successfully set mediator standards throughout the country.

Across the Atlantic, the European Commission launched a European Code of Conduct for Mediators in 2004.  The current draft European Mediation Directive contains a specific provision urging the introduction of quality control mechanisms for mediators and mediation providers.  The Netherlands Mediation Institute has already done so in Holland. England & Wales created a Civil Mediation Council to credential mediation providers (but not mediators themselves), and Belgium has a Federal Mediation Commission with similar aims.  Scotland, however, maintains a Mediation Register for practicing mediators.

Australia recently introduced national practice and approval standards, a major development in a country gripped by this issue for several years.

But none of this activity is aimed at forging a true international profession of mediation.  It remains an emerging profession almost everywhere, with patchy credibility among users.

Proposing Change

IMI was created to enable users to be more confident about a mediator’s competence, enhancing the independent professional status of mediators and thereby encouraging greater use of mediation.  So IMI’s starting point is the user, the customer.  But in addressing users’ needs, IMI aims to ensure that the needs of mediators are also properly accommodated – and that their professional abilities are fully recognized and appreciated.  For users, IMI aims to be a tool for finding the right competent mediator.  For mediators, IMI needs to represent a remarkably good marketing platform for their skills on local and international levels.

To achieve this combination, IMI is suggesting a way of establishing competency based in significant part on actual user feedback converted over time into anonymised digests by independent parties using guidelines prepared by IMI.  Each Certified Mediator would have a regularly updated digest of feedback, which would be openly accessible to all users via IMI’s website.  Potentially, it could go further, with expert assessments included as well.

Of course, there needs to be a bit more to it than that.  Transparent summarized feedback alone is an insufficient measure of all-round professionalism.  Mediators need to be trained to specific minimum standards, because some training courses only last a day or two and barely scratch the surface of the treasure chest of tools and techniques mediators need to know how to use.  And, because this is a fast-developing field, proper continuing education principles need to be put in place, just as there are in any mainstream profession.  There needs to be a minimum standard for what goes into an acceptable code of ethical conduct, because some that are out there are just a few lines of vague generality.  And a disciplinary process.  But, essentially, that’s all IMI is proposing so far as mediator competency standards are concerned.

IMI is suggesting that experienced mediators who already have a certain number of feedbacks from parties whose mediations they have handled may apply to be “grandfathered” as Certified Mediators if they are willing to appoint an acceptable independent third party or assessor to prepare their feedback digest in line with IMI’s proposed guidelines.  Certified Mediators would pay no dues or fees to IMI; the idea is that IMI will be funded by users, not by the mediators who seek certification of their competency.

IMI’s draft guidelines for preparing feedback digests are quite simple and easy to follow.  They also deal with how negative feedback is to be handled – essentially, it is proposed that a negative comment from users about a Certified Mediator’s performance will be included in the feedback digest if that comment is repeated more than three times by parties in different mediations.  The will protect mediators from parties who occasionally misdirect at the mediator their frustration over achieving what they regard as a poor outcome – which may have little or no bearing on the mediator’s competency.

A Spread of Reactions and Views

Many mediators have expressed strong support for these proposals, while having a number of suggestions for improving the draft standards.  On the underlying principle, most have said that they recognize that high standards and transparency are vital to the goal of creating an independent professional status for mediators and heading off government regulation.  Most also accept that word-of-mouth recommendations and listings in directories are inadequate.  They agree that users need a reliable and objective insight into a mediator’s prior performance, while respecting the fact that mediations take place in private and more often than not even parties’ identities are confidential.  Many recognize that accumulated feedback, summarized into digests, builds into a fair indicator of a mediator’s competence, and forward-thinking mediators typically see the marketing value of having a really credible way in which their competency skills can come to the attention of a vast number of users. One commentator pointed to a famous line in The Peter Principle, the classic work in this whole area: “Competence, like truth, beauty and contact lenses, is in the eye of the beholder”.

Despite supporting the idea of competency certification and the general principles proposed by IMI, some leading mediators and educationalists feel they do not go far enough.  One key concern raised is that user feedback is often given by people unable to recognize real competence in a mediator, and what they are expressing on a feedback form is their level of overall satisfaction with the process or the outcome.  The way to overcome this, some suggest, is to require Certified Mediators periodically to be assessed by someone expert in evaluating real mediator skills – in live action (with the assessor present, but silent, during a mediation) or in simulated conditions in a roleplay performed by professionals who really test the mediator’s skills.  It is suggested that a suitable summary of the assessor’s evaluation is then included in the Certified Mediator’s website profile.  Those proposing this approach recognize that this involves greater cost and organizational consequences but feel that it is amply justified by the enhanced sophistication and quality of competency information available to users.

However, not everyone sees these proposals as a fundamental positive which has yet room for improvement.  Many are silent, or at best sceptical, unsure or nervous about changing the way things are.  They are waiting to see the final product before passing judgement, knowing that they can always apply to be IMI Certified at the appropriate time.  Some say that IMI’s proposals will, if implemented, create a barrier to those wanting to become practicing mediators, will make it harder to introduce an alternative scheme and say it will impede, not enhance, the emerging profession.

I do not feel that IMI’s proposals will act as any kind of barrier to entry, or make it harder to implement another scheme.  Other credentialing schemes can, will and should continue to exist and flourish – IMI does not seek in any way to compete with or to replace them.  There is already a profound barrier to entry that urgently needs removing; talented people aspiring to become mediators are often finding themselves effectively frozen out from mediating opportunities by the domination of a few with established networks. Certification would introduce a more transparent and straightforward path through the superficial layers of protective professional positioning and focus on clear standards and how well users (and, potentially, assessors) rate a mediator.  Far from being a barrier to entry, this will help lower the existing barriers and open opportunities to others – provided they are, in fact, competent.

Some claim that the proposed scheme is bureaucratic, complex and costly and that it is a one-size-fits-all approach that ignores different legal systems and the many ways in which mediation is practiced around the world.  They also point out that other professions do not have feedback schemes, so why should mediators?

I am passionately against avoidable bureaucracy and complexity.  A certain amount of rulemaking is inherent in any society with high standards, and that includes any profession.  The task will be to keep it as unencumbered as possible while minimizing the prospect of abuse and maximising the credibility of the standards.  There may be more scope for simplification, and specific ideas will be carefully considered.  There will be some cost in the generation of feedback digests because, for credibility purposes, they need to be prepared by an independent source.  However, that cost would be a tiny proportion of the value created – for both the user and for the Certified Mediator – and less costly than many conventional, less credible forms of mediator marketing.

Nor are IMI’s proposals a one-size-fits-all approach – quite the reverse, in fact.  They merely inject transparency into the frame and set high minimum standards of professionalism.  Mediators can have feedback digests irrespective of the forms or styles of mediation they choose to adopt or what legal systems sit in the background.  The fact that other professions do not require feedback summaries is irrelevant.  Comparable professions do not have to play catch-up in the credibility stakes.  If mediation is to emerge as a true independent profession, quickly, it needs something poignant, relevant and user-friendly to distinguish its practitioners on a pure competency level.  I understand that many professional people strongly dislike being appraised and have become unaccustomed to it.  Some may fear it.  But the demands of the world’s users are changing fast.  We need to detach ourselves from the cynical view that “all professions as conspiracies against the laity” as George Bernard Shaw claimed.  For mediators, IMI is an innovative and value-added way to do it.  I can think of none better.

Almost all those who have so far expressed opposition to IMI’s proposals claim to be in favour of standards for mediators and agree that there is a need for a scheme of standards that would work.  But none has so far suggested what would work better, and at best seem to propose tweaking the status quo rather than changing it substantively.  Some objectors have said that any standards should be driven, set and monitored by mediators, not by users.

I do not share the view that certification of competency should only be driven and monitored by mediators.  That would simply encourage the “conspiracy against the laity” supporters.  Users of mediation services, being the real market-makers, have a profound interest in this area.  They have a perfect right to help determine who is competent.  The fact that IMI is largely a user-driven initiative does not preclude a central role for mediators.  Indeed, IMI’s proposals on feedback digests enable mediators to appoint independent parties – generally other Certified Mediators and approved provider bodies and professional institutions – to prepare the feedback digests.  Actually, the system will largely be a self-managed voluntary scheme, though under the scrutiny of users.

So rather than view IMI as a threat, and dismiss its proposals with generalised objections and without suggestions for something better to go in its place, we need ideas for improving IMI’s draft proposals.  We are listening carefully to the many suggestions being offered about training and provider standards.  Also how feedback forms should be configured and arranged, and whether professional competency assessments should be included as an option or as a requirement.  All such comments are warmly welcomed and taken seriously.

Next Step

IMI prepared its current proposals following a five month global consultation process, details of which are summarised on IMI’s website.  IMI has convened an Independent Standards Commission of profound international expertise and embracing all involved constituencies.  Everyone with a view is invited to let us have their comments.  The Commission will review all comments received on the proposals and then improve them, recommending a final scheme to IMI’s Board for adoption by the summer of this year.  Hopefully, in the coming few months, all those impacted by this important issue will focus carefully on the details, will express their views to enable the Commission to consider them, and will thereby be able to influence the outcome.

If we reach out for it, we all – mediators, users, educationalists, trainers, service providers, adjudicators and others – have a unique opportunity to configure a global profession here and render government regulation of mediators unnecessary.  If we get it right, users will quickly gain more confidence in mediation, they will be able to find a broader selection of competent mediators more easily, and therefore the acceptability and use of mediation will increase.  Standards will elevate.  The profession will grow.

But this will not happen without joint effort.  The words of Peter Senge, director of the Center for Organizational Change at the MIT Sloan School of Management echo strongly:

“Collaboration is vital to sustain what we call profound or really deep change because, without it, organizations are just overwhelmed by the forces of the status quo”.

 

The Hague – February 2008

Michael Leathes is the pro bono executive director of the International Mediation Institute in The Hague, The Netherlands.  To know more about the proposed standards and express comments and suggestions for consideration by IMI’s Independent Standards Commission, see: http://181.224.143.12/~imimedia/

Posted by Laura Skillen in IMI Article, 0 comments

Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict

By Kenneth Cloke

We do not see things as they are. We see things as we are.”
Anais Nin

While people in conflict commonly refer to facts, behaviors, feelings, personalities, or events, for the most part we ignore the deeper reality that these are processed and regulated by the nervous system, and are therefore initiated, resolved, transformed, and transcended largely within our brains.

All conflicts are perceived by the senses, manifested through body language and kinesthetic sensations, embodied and given meaning by thoughts and ideas, steeped in intense emotions, made conscious through awareness, and may then be resolved by conversations and experiences, and develop into character, nurture a capacity for openness and trust, and contribute to learning and an ability to change.

To explain the etiology of conflict therefore requires us to gain a deeper understanding of how the brain responds to conflict. This should clearly include the ways distrusting personalities are formed, even among primates; the sources of aggressive character traits and the “fight or flight” reflex; the wellsprings of spiritual malaise and hostile gut reactions; and the neurological foundations of forgiveness, open-heartedness, empathy, insight, intuition, learning, wisdom, and willingness to change.

While conflict and resolution have yet to be reduced to a simple set of deterministic biochemical events taking place exclusively within the brain, research clearly demonstrates that basic neurological processes provide all of us with alternative sets of instructions that lead either toward impasse or resolution, stasis or transformation, isolation or collaboration. For these reasons, it will serve us well as mediators to understand more about the neurophysiology of conflict.

We have yet to examine communication and conflict resolution very deeply from the perspective of neurophysiology, though we know that the presence of an empathetic listener, particularly one who is skilled in mediation, can by itself create a significant shift in conflict dynamics, and alter, at a subtle level of awareness, the attitudes of parties in conflict. But why is this so, and what does it imply for conflict resolution?

For millennia, our greatest sages – particularly those from the East, including Lao Tse, Confucius, and Buddha – have sought to convince us that the universe consists of opposites that, at the deepest level, merge into a single, unified whole. Yet it has taken until the 20th century and the discovery of quantum mechanics – initially by Planck and Einstein, then by Bohr and Heisenberg – to establish scientifically that observers and the things they observe are part of a single interconnected system, and reveal how and why the act of observation, at a subtle level, directly influences the object or process being observed.

For all our immense progress in recent years in understanding conflict and discovering techniques that encourage resolution, until recently we have paid little attention to the physiology and internal operations of the brain, and the ways it perceives and responds to the complex, ever-changing experience of conflict.

I am not a trained neurophysiologist, but an avid lay reader, and have learned an immense amount of useful information regarding conflict resolution from reading scientific studies of the brain and how it functions. What follows is a brief synopsis of some of the more interesting and important ideas and news items I have read describing recent research and experiments in neurophysiology as they pertain to conflict and the mediation process.

What is the Brain?
Most conflicts are triggered by external experiences and information regarding them is conveyed to us by sensory inputs that have been gathered from our environment. Our conflicts therefore seem to us to take place externally, yet everything we understand about the meaning of what happened, and all of our responses to the actions of others are initiated and coordinated internally by our brains.

What, then, is the brain, how is it structured, and how does it typically respond to conflict?

First, the brain has been analogized to a massively powerful parallel processing computer, more powerful than anything we have been able to design or create. One hundred billion nerve cells make up the brain, each of which may create up to ten thousand synaptic connections, and together can form more than a million neuronal connections every second.

An average desktop computer is capable of sending 25 billion instructions per second, while a human brain can send 100 over trillion. An adult human brain, by some accounts, can make as many as 500 trillion synaptic connections per second. This, by itself, can explain what we commonly refer to as intuition, which is merely what we know that we don’t know that we know.

Second, the brain is divided into two halves or hemispheres that are largely separate, but connected at the base by a corpus collossum. Each hemisphere processes information regarding conflict somewhat differently: one side functions linearly and considers problems individually and in detail, while the other side works more holistically and considers problems collectively and as a whole. One side favors logical reasoning while the other side favors pattern perception; one works by linear thinking while the other practices emotional responsiveness. The right hemisphere, for example, has been shown to be more adept at discriminating between emotional expressions and processing negative emotions, while the left is demonstrably less so, and more involved in processing positive emotions.

Third, the brain is organized into regions, each of which processes different aspects of the information it receives related to conflict in specialized ways. For example, the ventral tegmental area reinforces the reward circuit; the prefrontal cortex allows for objectivity and logic; the nucleus accumbens, which is directly beneath the frontal cortex and is involved in the release of oxytocin, which is described in greater detail below; the hypothalamus produces testosterone; and, most importantly, the amygdala, an almond-shaped region near the brain stem, regulates immediate responses to conflict and change, especially anger and fear.

Neurotransmitters and Conflict
The brain is awash in chemicals, including hormones and neurotransmtters that accentuate or dampen its responses and influence its organization and operations. Neurotransmitters are chemicals that relay, amplify, or modulate signals that are sent between neurons and other cells. There are many different hormones and neurotransmitters, of which the most important are glutamate and GABA, which excite and modify synapses. With regard to conflict, the following compounds seem to be most active:

  • Adrenalin, which triggers the fight or flight response
  • Testosterone, which stimulates aggression
  • Oxytocin which instills trust, increases loyalty, and promotes the “tend and befriend” response
  • Estrogen, which triggers the release of oxytocin
  • Endorphins, which reinforce collaborative experiences with pleasure
  • Dopamine, which generates a reward response and fortifies addiction
  • Serotonin, which regulates moods
  • Phenylethylaline, which induces excitement and anticipation
  • Vasopressin, which encourages bonding in males in a variety of species

Many vertebrate brain structures involved in the control of aggression are richly supplied with receptors that bind with hormones produced in the endocrine system, in particular with steroidal hormones produced in the gonads. In a wide range of vertebrate species, there is a strong relationship between male aggressiveness and circulating levels of androgens such as testosterone, a hormone produced in the testes.

These aggressive behavioral patterns and the modulation of an animal’s tendency to fight or flee are controlled by a hierarchical system of neural structures. Many of these are found in the limbic system; a part of the forebrain that is involved in emotionally based behavior and motivation. These neural structures interact with biochemicals that are produced inside and outside the nervous system.

For example, it has been shown that serotonin injections cause lobsters and other animals to take a dominant or aggressive posture, while octopamine injections induce submissive postures, which favor cooperation. When serotonin levels are increased in subordinate animals, their willingness to fight also increases, and declines as they are reduced.

From fish to mammals, aggression levels have been shown to rise and fall with natural fluctuations in testosterone levels. Castration has been found to reduce aggression dramatically, while the experimental reinstatement of testosterone by injection restores aggression. Circulating testosterone also influences the responses and signals that are used during mating and fighting in many species. In stags, the neck muscles needed for roaring enlarge under the influence of testosterone, while in male mice, the scent of another male’s urine, which contains the breakdown products of testosterone, elicits intense aggressive responses.

In pregnant female mice, the scent of urine from a male that is ill can even induce the formation of antibodies in their embryos, and the presence of stress chemicals that are increased by fighting and are detected by females who are able to detect the smell of male urine can produce personality and behavioral changes in unborn offspring.
The experience of fighting has been shown to have a significant impact on brain biochemistry and therefore on brain structure, especially in the limbic system which is strongly associated with conflict. For example, among rainbow trout and lizards, dominant animals show significant transient activation of their brains’ serotonin systems, whereas subordinate animals display a longer-term elevation of these systems.

Researchers have shown in several vertebrate species that electrical stimulation of the midbrain and hindbrain elicits stereotyped, yet undirected aggressive behaviors, while stimulation of the hypothalamus and a nearby pre-optic region in the forebrain elicits well-coordinated attacks on other members of the same species. Lesions in these areas have also been shown to reduce aggression.

The hypothalamus and pre-optic area of the forebrain are also involved in the generation of coordinated aggressive behaviors that are produced in lower brain regions. This activity is modulated by the brain’s higher centers, including areas of the limbic system – in particular the septum, which lies above the hypothalamus and has an inhibitory effect on aggression, while the amygdala located deep in the temporal lobes has the opposite effect.
In a series of experiments, dogs and monkeys have been shown to respond negatively to favoritism and unfairness in experiments where certain animals have been given rewards without having performed, causing others to punish them or refuse to cooperate with researchers.

The lateral habenula has been shown to react strongly when expected rewards are denied or replaced by mild punishments. Dopamine neurons are inhibited by the habenula, and since dopamine contributes to learning by producing positive sensations in response to success, researchers now think the habenula may also contribute to learning by shutting off dopamine in response to disappointment, representing an internal form of the carrot and the stick. Some research suggests that the habenula is implicated in depression. It has also been shown that the orbitofrontal cortex (OFC), located at the front of the brain behind the eyes, is implicated in various aspects of decision-making and choice evaluation. The anterior cingulate gyrus then reacts to mistakes and internal conflicts between intentions and outcomes, and helps us alter our behaviors in response.

Researchers have established that the negative emotions we routinely encounter in conflict are triggered in more or less the following sequence:

  • Sensory information from primary receptors in the eye, nose, ear, and other organs travels along neural pathways to the limbic forebrain.
  • These stimuli are evaluated for emotional significance. Research by Joseph E. LeDoux has demonstrated that auditory fear conditioning involves the transmission of sound signals through an auditory pathway to the thalamus, which relays this information to the dorsal amygdala.
  • The amygdala coordinates a “relevance detection” process that is rapid, minimal, automatic, and evaluative.
  • Emotions are then activated in the subcortical thalamo-amygdala pathway and relayed from the thalamus to the neocortex for cognitive appraisal and evaluation.
  • In some cases, the same information is simultaneously sent to the neocortex for slower processing, creating a dual, two-circuit pathway that permits reason to override an emotional response.

Perception, Mirror Neurons and Suggestibility
The brain notices changes in its immediate environment predominantly by contrast or comparison against a relatively static backdrop of familiarity, expectation, desire, fear, and habit. Observing the contrast between what is moving and what is not is the way our minds attempt to simplify and predict what is likely to happen next. At a primitive level, for example, there is an immense evolutionary advantage in being able to notice a potential threat by contrasting the mirror symmetry of a predator’s face and eyes, or sudden movement against an asymmetrical, slower moving background. In a similar way, we are biased by evolution to credit threatening behaviors more than non-threatening ones.

A number of recent brain studies have revealed how perceptions and memories are profoundly distorted by emotions and by focused concentration, and how they can be reshaped by suggestion and subsequent events. Thus, areas of the brain that are linked with negative emotions and judging others are switched off, for example, when mothers look at photographs of their babies. Instead, the right prefrontal cortex lights up, not only in parents watching their children, but in lovers and Buddhist monks who have been asked to meditate on loving-kindness and compassion. In other research, memory and awareness have been shown to decline dramatically in the presence of stress chemicals that are released during periods of intense emotion.

It has also been revealed, in reverse, that the free expression through outward signs of an emotion can intensify it, while repressing or not expressing it, as far as is possible, can soften it. Thus, experiments have shown that if people are able to control their facial expressions during moments of pain, there is less arousal of the autonomic nervous system and an actual diminution of the pain experience.

In one delightful experiment, a significant percentage of people who were assigned to focus their attention on a single task, such as counting the number of individuals in a colored tee-shirt to whom a basketball was passed. When they did so, the participants completely ignored and even vigorously denied afterwards that an unusual or bizarre occurrence had occurred, in this case, the entry onto the basketball court of someone dressed in a gorilla outfit, who walked and pranced across their line of vision.

Scientists have begun to trace the development of empathy in primates, including human beings, leading to the discovery of “mirror neurons,” which fire in the brains of observers watching a given action, and replicate to some extent the experience of the one being observed. Similar neurons fire when we observe someone else suffering or frightened, reproducing those experiences in the form of empathy.

In one surprising recent experiment, “phantom limb syndrome,” in which a lost limb may experience itching or pain, has been shown to dramatically disappear when the subject is allowed to observe a false image of the lost limb by means of a mirror, thereby tricking the brain’s mirror neurons into thinking that the lost arm or leg had reappeared.
Several studies have shown that the brain is highly responsive to suggestion. In a series of remarkable experiments it has been shown that the performance of simple, seemingly unrelated tasks can be increased or decreased merely by placing a briefcase or sports equipment nearby, triggering unconscious associations with work or play.

In an interesting study, subjects were made happy or angry, then shown happy and angry faces and friendly and hostile interpersonal scenes in a stereoscope. Happy subjects perceived more happy faces and friendly interpersonal scenes while angry subjects perceived more angry faces and hostile interpersonal scenes.

In addition, it has been shown that relatively small favors or bits of good luck (like finding money in a coin telephone or getting an unexpected gift) induced positive emotion in people, and that these emotions increased the subjects’ inclination to sympathize or provide help.

At the same subtle level, a number of experiments have shown that behaviors can be modified simply by the introduction of background scents such as lavender, or the lemony odor of detergent, and that consumers of different products purchase different products more or less readily in the presence of certain scents.

Equally dramatically, test results can be predictably raised or lowered merely by asking people of color to identify their race beforehand, or by giving indirect racial or emotional cues, or by priming teachers falsely in advance of a test regarding the innate intelligence or stupidity of their students, producing conformance with expectations and a well-established “Pygmalion effect.”

In one remarkable study, when 12- and 13-year-old African American students were asked to spend 15 minutes indicating which values, such as friendship or family, they upheld, the achievement gap between them and white students decreased by 40%. Similarly, when female college students read passages before a test arguing against gender differences in mathematical ability, their scores increased by 50%.
At a very subtle level, Yale University psychologist John Bargh found that when volunteers were “primed” with words associated with the elderly, like “wrinkle,” they took significantly longer to walk down a hall than those who hadn’t. And interestingly, for conflict resolvers, Alex Pentland of the MIT Media Lab found that watching body language and tone of voice for only a few minutes allowed researchers to predict with 87% accuracy the outcome of subsequent negotiations between strangers.

This suggests that the brain can be re-programmed by consciously selected practices. It has been shown, for example, that the ventromedial prefrontal cortex (which is responsible for empathy, compassion, shame, and intuitive emotional responses to moral dilemmas) can be significantly strengthened by the practice of meditation, or merely thinking compassionately for a few moments about the well being of others.

Other experiments have demonstrated that men become more loving toward their female partners as their ovulation approaches, that women prefer different forms of male attractiveness at different stages in their menstrual cycle, and that women make decisions about male attractiveness based on chemical indicators in their sweat indicating that they have immunities the women do not, as measured by genes for the major histocompatibility complex or MHC. Other studies have found that men also prefer women with dissimilar MHC genes, specifically human leukocyte antigen or HLA genes.

An important recent study from Stockholm suggests that lesbian women have more asymmetric brains, like heterosexual men, and that gay men have more symmetric brains, like heterosexual women. Moreover, in heterosexual women and gay men the amygdala connects mainly to areas of the brain that manifest fear as anxiety, whereas in heterosexual men and lesbian women it connects more strongly to areas that trigger the fight or flight reflex.

It has also been shown that sweat from women who watched violent movies was accurately rated by others as stronger, less pleasant, and smelling more “like aggression” than sweat from women who had watched a neutral movie. In a recent study, researchers from Stony Brook University in New York taped absorbent pads to the underarms of 40 volunteers who went on their first skydive. In a double blind experiment, a second group smelled sample pads from them and from non-skydivers in an fMRI scanner, and showed increased activity in their amygdala and hypothalamus while breathing sweat produced under frightening conditions, indicating that humans may in fact be able to smell fear.

Oxytocin and Dual Pathways in Conflict
The physical basis for collaboration, altruism, trust, forgiveness, and interest-based conflict resolution techniques, has been clearly identified with the “tend and befriend” hormone oxytocin. Oxytocin was first synthesized by Vincent du Vigneaud in 1953, for which he received the Nobel Prize for Chemistry in 1955. It is secreted by the posterior lobe of the pituitary gland and can be made synthetically. Physiologically, it promotes the secretion of breast milk and stimulates the contraction of the uterus during labor. It cannot be ingested orally, but can be administered intravenously, sublingually, or by nasal spray, although its strongest effects last only for a few minutes.

Oxytocin is widely believed responsible for prompting empathy, compassion, trust, generosity, altruism, parent-child bonding, and monogamy in many species, including human beings. Oxytocin has been dubbed the “bonding” hormone, primarily as a result of research involving voles. Prairie voles in the U.S. are largely monogamous and the males provide care for the young. Montane voles, on the other hand, are polygamous and the males are less caring of their young. Experiments have deprived prairie voles of oxytocin and provided it to montane voles, causing a dramatic reversal of these behaviors.

In one extraordinary study, participants were given a small amount of pretend money and encouraged to invest it with a stranger. On average, they initially invested only a quarter to a third of the money they possessed. But after four sniffs of the neurotransmitter oxytocin, their trust levels skyrocketed, and without hesitation they became willing to invest 80% more. Here is a summary from the original study:

“Human beings routinely help strangers at costs to themselves. Sometimes the help offered is generous—offering more than the other expects. The proximate mechanisms supporting generosity are not well understood, but several lines of research suggest a role for empathy. In this study, participants were infused with 40 IU oxytocin (OT) or placebo and engaged in a blinded, one-shot decision on how to split a sum of money with a stranger that could be rejected. Those on OT were 80% more generous than those given a placebo. OT had no effect on a unilateral monetary transfer task dissociating generosity from altruism. OT and altruism together predicted almost half the interpersonal variation in generosity. Notably, OT had twofold larger impact on generosity compared to altruism. This indicates that generosity is associated with both altruism as well as an emotional identification with another person.”

[Zak PJ, Stanton AA, Ahmadi S (2007) Oxytocin Increases Generosity in Humans. PLoS ONE 2(11): e1128. doi:10.1371/journal.pone.0001128]

Several experiments have shown that positive emotion facilitates creative problem solving. One study, for example, showed that positive emotion enabled subjects to name more uses for common objects. Another showed that positive emotion enhanced creative problem solving by enabling subjects to see relations among objects that would otherwise have gone unnoticed. A number of studies have demonstrated the beneficial effects of positive emotion on thinking, memory, and action in preschool and older children.

A recent study by a group in Zurich, Switzerland showed that oxytocin improves recognition and memory of previously presented faces, which were more correctly assessed as being “known,” but the ability to recollect faces that had not been seen before was unchanged, and there was no difference when recalling images of houses, landscapes or sculptures. The researchers argue that “this pattern speaks for an immediate and selective effect of the peptide [oxytocin in] strengthening neuronal systems of social memory.”

There is a considerable body of research that has linked oxytocin with collaboration and creative problem solving, and these with the release of endorphins, the brain’s version of morphine. Creative problem solving has also been shown to increase with diversity, and a mathematical proof has been offered purporting to demonstrate that more diverse groups predictably experience greater creativity, success in problem solving, and satisfaction as a result.

Thus, the brain possesses not one, but two systems for responding to conflict, and is capable both of adrenalin-based “fight or flight” responses, and of oxytocin-based “tend and befriend” ones. Just as, in biology, there are evolutionary advantages to aggression and “selfish genes,” there are also advantages to collaboration and altruistic efforts that aid others.

There are two bundles of nerves, for example, that connect the eye and other sensory organs with the brain. One travels directly to the amygdala where fight or flight responses are initiated, while the other proceeds to the neocortex where logical explanations can be discovered, allowing us to override costly adrenalin-based responses.

As we learn, develop language, mature, and accumulate long-term memories and experiences, these dual pathways to the amygdala and the neocortex become more developed and integrated, and we become able to process events in either or both pathways at the same time.

This duality allows the amygdala pathway to specialize in processing information that may require a rapid response, while the neocortex pathway specializes in evaluating information that may be important in forming cognitive judgments or developing complex coping strategies. Duality also allows us to by-pass the amygdala’s initiation of the fight or flight response and consciously choose the less aggressive option of tend and befriend.

Moreover, the brain not only dictates how we respond to changes in our environment, it is actually shaped and molded by those changes. The brain requires sensory stimulation in order to develop, and repeated stimulation creates physical connections between neurons that strengthen the pathways and networks responsible for thoughts, feelings, and behaviors.

These stimulations have been shown to produce profound attitudinal changes. Indeed, several experiments have demonstrated that countless previous experiments on laboratory mice and rats over the course of decades have been profoundly influenced by whether the animals were raised in rich or impoverished environments.

The environment in which a young animal is raised also has a profound effect on whether and how it fights as an adult. These environmental factors are not always directly related to social experience. For example, mice that are deprived of food during their early development become particularly aggressive as adults. On the other hand, environmental effects on the development of aggression may depend on social interactions in contexts other than fighting; for instance, mouse pups that have been roughly handled by their mothers are more aggressive as adults. Similar results have been found in a range of species that have been reared in social isolation.

More surprisingly, physical tests have revealed that babies are able to rewire their mothers’ brains in utero, and that some of the genetic material and cells of each remain in the other and may influence a variety of behaviors, including a tendency to aggression or collaboration.

Is Aggression Inevitable?
Clearly, aggression and war are “hard-wired” into the brain, but so are empathy and collaboration. Recent research has emphasized the cooperative aspects of warlike behavior, which forms a core element not only in gangs, but sports teams, organizations and nation states, which use internal cooperation as an aid to external competition. Indeed, modern warfare can be seen as requiring a high level of internal collaborative activity.

Yet it has also been shown, for example by researchers at the University of Edinburgh, that men in war simulations tend to overestimate their chances of winning, making them more likely to attack and behave aggressively, and leading to unnecessary losses that a more sober calculation might predict.

It has recently been argued by evolutionary biologists at the University of New Mexico, based on data from 125 civil wars, that cultures become more insular and xenophobic when diseases and parasites are common, perhaps in an effort to drive away strangers who may carry new diseases. By contrast, cultures with a low risk of disease are more open to outsiders. They argue that when the risk of infectious diseases fell in Western nations following World War II due to antibiotics and sanitation, these societies became less hostile and xenophobic.

In one interesting experiment, cricket players on the Caribbean island of Dominica experienced a surge in testosterone and aggressive behavior after winning against another village, but did not experience the same surge when winning against a team from their own village. Similarly, it has been shown that an increase in testosterone typically experienced by men in the presence of a potential mate is muted if she is in a relationship with a relative or friend.

This suggests again that building empathy and “identification with the enemy” will prove useful as techniques for countering aggressive behavior. There is also research suggesting that whereas women may be better at brokering harmony within groups, men may be better at making peace between groups. These techniques suggest that it may be possible to identify more precisely which approach will work best in a given setting to reduce warfare and aggression.

Implications for Conflict Resolution 
These are just a few of the more dramatic conclusions that have emerged from countless studies and experiments, from which I have culled those that seemed most interesting and significant based on my experience as a mediator. What, then, does all this research suggest for conflict resolution?

In the first place, it reinforces the idea of brain “plasticity,” indicating that the brain is not fixed but evolving, learning, and producing new synapses all the time, even among those who were previously considered elderly and incapable of doing so. Among other things, this gives us hope, and explains why it is possible for people to switch suddenly from aggression to collaboration.

Second, it suggests that a variety of techniques might be useful in reducing adrenalin, increasing oxytocin, and stimulating collaboration and trust. One clear example is research that involves what we call “mirroring,” but in scientific literature is called mimicry, and sometimes included under the heading of persuasion. It has been demonstrated, for example, in human subjects, that mirroring body language after a two second delay (so it is not recognized as mimicry by the subject) improves the outcomes of negotiations and encourages collaborative behavior.

In reading each of these studies and experiments, we can imagine a number of subtle ways we might go about encouraging a shift in the attitudes of disputants toward problem solving and collaboration. For example, it is clear by hindsight that a number of very common simple techniques, such as welcoming, introductions, reaching agreement on ground rules, caucusing, summarizing, and securing small agreements, will predictably reduce the release of adrenalin and stimulate the release of oxytocin. This may cause us to wonder: what deeper results might we achieve by better understanding how the brain processes and overcomes the fight or flight response?

Even basic information about neurophysiology can lead us to technique, for example, by allowing mediators to work directly with different hemispheres of the brains of conflicted parties, not only presenting information in ways that are more accessible to one hemisphere or the other, but by focusing attention, for example, on the eye that feeds information to a particular hemisphere that may be more receptive to it.

Other quite subtle techniques might also have an impact on the brain chemistry of conflict, including the introduction of scents that remind people less of fear than of social connection, serving chocolate to stimulate the production of dopamine, placing objects that stimulate positive emotions inside the mediation room, asking questions about values to orient people to their highest standards, using body language to trigger mirror neurons, or offering positive acknowledgments regarding something each party did or said.

None of this is meant to suggest that oxytocin should be administered in large and continuous doses to parties in mediation, or that we should slip into clever, yet inevitably crass forms of physical manipulation. Rather, it is to say that we have been working with brain chemicals unconsciously for years, and it is now possible for us to begin thinking about conflict resolution more scientifically and using the information we gather to encourage more positive responses, being careful to build transparency, empowerment, and authenticity into the process.

Conclusion
Perhaps the most extraordinary thing about the human brain is its capacity to understand and alter the world, starting with itself. We have begun a period of rapid, perhaps exponential increase in understanding how the brain operates, and a growing ability to translate that knowledge into practical techniques. But without an equally rapid, equally exponential increase in our ability to use that knowledge openly, ethically, and constructively, and turn it into successful conflict resolution experiences, our species may not be able to collaborate in solving its most urgent problems, or indeed, survive them.

All of the most significant problems we face, from war and nuclear proliferation to terrorism, greed, and environmental devastation, can arguably be traced to our brain’s automatic responses to conflict. Out of the last few years of neurophysiological research has emerged a new hope that solutions may indeed be found to the chemical and biological sources of aggression. These solutions require not only a profound understanding of how the brain works, but a global shift in our attitude toward conflict, an expanding set of scientifically and artistically informed techniques, a humanistic and democratic prioritization of ethics and values, and a willingness to start with ourselves.

Posted by Laura Skillen in IMI Article, 0 comments