Restorative mediation: a progressive process for alternative dispute resolution in the Caribbean

October 2016  | SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

October 2016 Issue

October 2016 Issue


The Caribbean Training and Research Group (part of The Foundation for Entrepreneurial Participation (TFEP)) envisions an alternative dispute resolution centre in the Caribbean designed to advance all positive forms of dispute resolution while promoting and stressing restorative mediation as an effective, compassionate and meaningful way of resolving disputes. The centre would provide training for professional mediators, arbitrators and conflict coaches, and conduct scholarly research, as well as provide for ongoing conferences, trainings and continuing education programmes throughout the region.

Restorative mediation is a style of mediation that seeks to let the parties reach their own resolution in partnership with a trained neutral and to find ways to restore the relationship between the parties to a more balanced level of civility. In doing so, each of the parties should be able to move forward from the mediation with a renewed sense of purpose, inner peace and an understanding of their own humanity. Restorative mediation purposely engenders a sense of understanding, moves beyond wrongful assumptions and promotes civility. Parties are encouraged to move past the feeling of “well, at least that is over” to a more mature sense of forgiveness for the other participants and for themselves. In essence, it provides the opportunity for all involved to be fully recognised and, thereby, restore relationships to a higher level of acceptance, with deeper understanding and requisite respect. This is especially helpful with ongoing relationships, business goodwill, employment matters or divorce involving children.

Training restorative mediators combines the best elements of traditional mediation and restorative justice practices. The centre, based in the Caribbean, will build on the existing goal for alternative dispute resolution (ADR) growth and development in the region. It will be a catalyst for regional cooperation, economic development and harmony.

Chief Justice of Barbados, Marston Gibson, strongly opined that alternative dispute resolution was a necessity for the survival of our country’s judicial system in light of the massive case backlog crippling the court system. Indeed, casting our eyes to sister states across the region, burgeoning case backlogs have forced many Commonwealth Caribbean countries to take a harder look at the promotion of alternative dispute resolution techniques as opposed to litigation to solving disputes.

Restorative mediator attributes and characteristics

Across the spectrum of practicing mediators, one essential constant prevails; most mediators get better over time with experience and practice to the point of full competence. This is generally combined with formal education and theory, specific skills training, a variety of cases and a wide array of conflict situations. Depending on the forums in which restorative mediators work, they perform tasks that encompass an extensive list of activities: administrative functions; information gathering and provision; information clarification and relationship management; managing mediation environment and process; expanding the information pool; caucusing; providing emotional support and encouragement; problem solving; developing agreement; finalising; clarifying and reality checking for solution possibilities; and following up in subsequent sessions.

Mediator knowledge goes well beyond specific tasks to perform or the specific content of the subject at hand. It contains organisational, psychological and social underpinnings that contain some of the following: personal skills and limitations; ethical issues; alternatives to mediation; communication; interpersonal dynamics; solution and agreement formation; conflict; theories of change; problem solving techniques; cultural issues; mediation models; power and control issues; the ability to inform, disseminate, educate and teach; knowledge of resources outside of mediation; and knowing how to interact with involved people other than the primary participants.

There are several core skills necessary for effective restorative mediation. These include the ability to: listen deeply; analyse problems and frame issues; use clear, neutral language; be sensitive to strongly held values; be persistent; identify and separate one’s personal values from issues under consideration; understand power imbalances; and deal with complex facts.

No matter how diligent they are in relation to the task or knowledge, indicators for satisfaction among parties to mediation may focus on different variables. Often, the most frequently given party response for satisfaction with the mediation process depends upon how important the participants were made to feel during the mediation. Parties complimented mediation when allowed to present their views fully and when given a sense of being heard, while helping them to understand each other. Parties’ favourable attitudes toward mediation came from their perception of how the process worked, with two features in particular being most responsible; firstly, the greater degree of participation in decision-making that parties experience in mediation, and secondly, the opportunity to express themselves and communicate their views, both with the mediator and each other.

Conversely, when mediators denied parties real process control, party satisfaction levels were very low, to the conclusion that despite what we might have thought, parties to mediation do not place the most value on a process that provides expediency, efficiency or finality of resolution. Actually, the likelihood of a favourable substantive outcome is not most important to parties; rather, an equally or more highly valued feature of mediation is procedural justice or fairness, which in practice means the greatest possible opportunity for party participation in determining outcome, compared with the assurance of a favourable outcome, and for party self-expression and communication. (US Federal Mediation and Conciliation Service)

Party characteristics, traits and attributes are of equal importance to mediator traits for a successful outcome. Of most importance to parties in mediation are the following items, such that participants need to feel that: their own issues are important; they can present their views fully;  they are being heard; they understand each another; they are participating fully in the process; they can express themselves to each other and to the mediator; they can perceive fairness in the system; and they can achieve self-expression.

A centre for ADR located in the Caribbean, especially at a university, can be the focal point for research, publication, training, coaching, mentoring and resolution services. It would allow each jurisdiction to build on the work of the centre to develop their own unique systems of dispute resolution, exchange best-practices, be research based and provide their citizens and businesses powerful processes for resolving disputes and promoting harmony in labour-management, business-to-business, civil litigation, family business, and all disputes where mediation is available. When people in conflict are given the opportunity to participate directly in finding a satisfying ending to their dispute, it authenticates their relationship, if desired, encourages a lasting settlement, promotes justice and contributes to a civil society.

 

Tony Belak is the associate director general at the International Center for Compassionate Organizations (ICCO), Haldane Davies, is the vice president for Business Development and Innovation at the University of the Virgin Islands (US) and Dr Paul Quantock is chairman of the Caribbean Training and Research Group CARI-TaRG. Mr Belak can be contacted on +1 (502) 413 2123 ext. 2 or by email: tony.belak@compassionate.center.

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