Mediation and Dispute Resolution – Contemporary Issues and Developments

Author: Tony Whatling.
Publ: Jessica Kingsley Publishers, London, 2021.

Mediation as a dispute resolution mechanism is not only a skill. It is also an art. And when practised as such, it has the potential of delivering its yet unfulfilled promise of becoming a truly transformative experience. This is something that all conflict has to lead to. Sadly, not many books in this field go beyond imparting the basic skills-known colloquially in the profession as showing someone how to use the tools in the toolbox effectively. Tony Whatling’s new book, Mediation and Dispute Resolution-Contemporary Issues and Developments, goes much further. It calls for greater reflection on the part of the mediator and provides practical strategies for mediators to use as mediation continues to evolve globally as a viable alternative to litigation and not merely as the proverbial stepsister.

The book starts with the transition a person has to make to become a good mediator. Often this is transitioning from an existing profession-typically a lawyer wanting to become a mediator as a complete change or to learn the skill as an adjunct to an existing legal practice. The ability or otherwise of making that transition satisfactorily is reflected in the type of approach a new mediator would take to the mediation practice. Lawyers tend to be more directive and hence the nature of their practice would be more directive than facilitative. Whatling sees the same tendency in counsellors and family therapists and shows in this book how in the early stages of the development of family mediation in the United Kingdom, mediation had to be defined more ‘negatively’ by what it was not, rather than positively, by what it was. In the process, as the book implicitly acknowledges, a great deal of approaches from other related professions that could have been of use were lost to this field. It can be argued that the time then was not propitious, but it has now arrived for greater reflection to be given to this issue which this book aims to do.

The book then discusses Supervising Mediation Practice and while highlighting some practical aspects, it also provides a historical background on why the need for greater supervision had arisen in the United Kingdom. Under Managing Observed Practice, the author provides a list of the core skills observed during mediation practice. These include engaging both parties, ensuring power balancing, and active listening skills.  What is interesting to note is that under Record of Observed Practice there is no punitive category of right or wrong. Instead, there are categories of Effective Interventions and What could be done differently.

Both these categories reflect the experience of a good teacher in not finding fault with a pupil but encouraging them to do things differently in order to become more effective. Whatling makes the point that mediation is not the proverbial ‘silver bullet’ and is not able to resolve all problems that arise and that mediators have to be flexible when they encounter an impasse and learn the art of active listening. He then explains what effective and careful listening entails  and makes the point that often deeper feelings underlie conflict and are not always discernible and that a large part has to be understood  through body language which constitutes some 83% of all  communication.

Whatling’s chapter on culture entitled Difference Matters is what makes the book unusual. It highlights, interalia, developing cultural awareness, sensitivity, fluency, and competence in multicultural mediation practice. While this chapter starts with an excellent definition from the work of Canadian Dispute Resolution specialists, Le Baron and Pillay( Conflict Across Cultures: A Unique Experience of Bridging Differences, Boston, MA 2006.p14,  and here we need to take  note what Whatling himself says about  there being  no shortage of definitions of ‘culture’) it does not elaborate some of the critical elements embodied in the definition – more particularly that “culture is the shared , often unspoken, understandings in a group. It is the underground rivers of meaning-making, the places where we make choices about what matters and how, that connect us to others in the groupings to which we belong.

Given the author’s unique experience as having been a lead trainer in the Ismaili Conciliation and Arbitration Boards’ global training programmes in family mediation for some 12 years, a great deal more could have been said on culture and what it entails, as the programme between 2000 and 2012 was conducted in some 25 countries of the world including Afghanistan, Pakistan, Syria , Iran. Tajikistan and countries of the Western world such as Canada, USA, United Kingdom, France and Portugal. Whatling encountered traditional dispute resolvers from the mountains of Afghanistan and Northern Pakistan and tribal elders in the Syrian desert as well as community leaders in countries of equatorial East Africa . Not much, sadly, is reflected of these experiences in the book. However, Whatling’s focus on the difference between generalisation and stereotyping, highlighting the biases that a good mediator has to be conscious of, and exhorting the willingness to listen, coupled with deep intellectual humility that is required, is a strong point of this book. Whatling’s role play which he refers to in the book as “The Greek Chorus” not only emerged as a practice in the Ismaili training programme but for years thereafter, became a pedagogic feature of the NCAB Training Programme globally.

A very sensitive cross-cultural mediation specialist, Whatling has always been critical of the existing Western model of mediation which he refers to as an individualistic, problem- solving and satisfaction-seeking one which does not always fit well with societies and cultures which are more relational- which most non-European cultures are. Here the book provides a more substantial idea of what aspects of culture a mediator should be aware of beyond the usual essentialising ones that often lead to stereotyping.

I find Whatling’s chapter on Apology and Reconciliation another very valuable contribution in this book. This is something not found often in general books on mediation training. Providing an actual real life case study of a fictionalised couple, he shows how a skilled mediator can help once-disputing parties to move beyond an impasse. Highlighting the attributes of a good apology and describing some of the vulnerabilities that the giver of an apology has to face and the difficulties that the potential acceptor of it has to grapple with, the book helps the reflective practitioner to go beyond the normal practice and help disputants make the leap from anger, hurt feelings and self-pity to a higher level of post-conflict understanding. As an experienced practitioner and a seasoned trainer, Whatling experimented with  this concept with the NCAB training programmes in Bombay and Montreal only to find that apology and forgiveness are very much a part of the culture of the communities where he was trying to introduce the concept and hence the approach found immediate receptivity.

The book deals with a range of practical issues that a mediator has to be aware of, such as co-mediating and the dynamics of relationship between the mediators themselves; which parties to bring into the mediating process and which to keep out and why, and the consequences of doing either. He also focuses on high conflict cases and explains how to deal with them. He does not provide immediate solutions but proposes approaches which, while giving the mediator an element of control over the process, allows them to ensure that the outcome remains the prerogative of the disputing parties themselves.

Finally, the book describes the potential effects of the coronavirus pandemic on peoples’ dispute resolution relationships which he categorises as either ‘constructive’ or ‘unconstructive’.  I found the last chapter of the book most illuminating where Whatling, as a seasoned mediator and policy advisor, highlights the attributes of a good mediator. He stresses that accountability is an important attribute and speaks of Best Practice as a “professional life long journey, not a final destination,” highlighting the need for constant review and updating of knowledge and skills in the light of new knowledge and development. He also speaks about the value of reflective practice.

This book by a person who has spent the better part of his life training thousands of mediators across different cultural divides, highlighting  best practice, reflective learning and above all, lifelong learning, is a very valuable book for all people who are interested in mediation. It is written in simple English, provides excellent case studies and is highly readable and enjoyable. It is a must read for all those who want to practice mediation as an art, as it is written by a person who through years of learning and application, has come to realise that just because a person is in conflict does not mean that they are brain dead. Through his practice, Whatling has been able to bring out the true humanity in each person and in the process has shown that mediation is a field of limitless remedial imagination. This book shows clearly how that potential can be realised.

A highly readable book it is available on Amazon.