Article by Glynne Davies, a mediator at Oliver Fisher Solicitors, on Shuttle Mediation.

Article by Glynne Davies, on Shuttle Mediation

Shuttle Mediation: Mediating on the back foot?

 

Glynne Davies, a mediator at Oliver Fisher Solicitors, discusses the use, effectiveness and rising popularity of Shuttle Mediation

This article was originally published in the Family Law Journal in February 2013

Tags: OPINION PIECE, Dispute Resolution, Mediation, Shuttle Medation, divorce, domestic violence, contact, finances, separation

Table of Contents

1. Introduction

2. Shuttle Mediation – A Case Study

3. Marketing Shuttle Mediation

4. Disadvantages to Shuttle Mediation

5. Possible Reasons for Shuttle Mediation’s Growing Popularity

6. When is Mediation, in Its Many Forms, Suitable?

7. The Importance of Process

1. Introduction

When I started out as a mediator in 2003, shuttle mediation, mediation where parties attend the same venue but don’t meet face to face, allowing the mediator to act as a go-between (useful where there may be domestic violence issues, for example), for family work was practically non-existent. Rejected by conventional mediators, if it was mentioned at all, it was set aside in the major textbooks and reduced to an insignificant paragraph next to another equally insignificant paragraph about caucusing, (a less formal mediation process which allows parties to go to a private space and think about negotiation, consult with mediators and lawyers and even take some time out to regroup from a stressful chat). If I am honest, I still do not fully understand what the difference is supposed to be.

Back then it seemed to be a universal truth that if two parents could not imagine ever sitting in the same room, then mediation was not suitable. There has been a shift; not a great one, but a shift nevertheless. Over the past year I’ve been looking into what appears to be a significant increase in the use of shuttle mediation: some possible reasons for it; some of the pitfalls associated with it; why family mediators still view it with suspicion; whether there is an argument that in some limited cases it could actually be the model of choice; and if you do decide to offer shuttle mediation, when and how to approach it. This is not a practical ‘how to do it’ manual. I am neither advocating it nor damning it. I do, however, think it is here to stay, and as such is worthy of discussion.

2.  Shuttle Mediation – A Case Study

It is Monday morning. I arrive in my office in a relatively happy mood, pick up my files for the day and glance through them: three MIAMs (Mediation Information and Assessment Meetings, used to see if mediation is a better alternative for parties than court), one ‘All issues’ mediation, and some PPC work (Professional Practice Consultant duties, where experienced mediators guide and support junior mediators). No surprises there then. But … just as I thought it was safe to go into the mediation room, it happens.

A voice from deep behind the admin desk says: ‘By the way, Ms X phoned in. She says she’s looked at the website, and she’s decided she wants shuttle mediation.’ A groan leaves my lips. Well, actually it was an expletive but this is a prestigious publication. I look through the file: nothing on there that would indicate shuttle is necessary or preferable: no domestic abuse issues, no out of the ordinary power-balancing needed. I start my regular rant to no-one in particular which goes something like:

‘We do need to be aware of how we market shuttle mediation. If it appears on a website, we need to be saying it will probably take longer/cost more (especially if they want to do financial disclosure). Should we be thinking of offering longer sessions, possibly looking at whole day sessions that follow the civil/commercial model? Do we need to train our admin staff to be able to deal with the growing requests for shuttle mediation?’

At the moment there seems to be a mismatch of expectation from the client who sees shuttle mediation as an attractive choice from a list of options and the mediator who sees it as … well, as I saw it on that Monday morning.

Back to the immediate problem of Ms X. I call her, and try to discover and address her concerns but by the end of the phone call she remains of the opinion that shuttle mediation is her model of choice. So, I am now faced with the prospect of calling up her ex partner to explain the situation, knowing that the likelihood is that he will (not unreasonably) want to know why she is able to call the shots (and what has she said about him that makes me feel that he cannot be trusted to be in the same room with her). Often in these situations I get the impression that the party who requests shuttle mediation has somehow gained the moral high ground. So – a few pointers.

3. Marketing Shuttle Mediation

It is not that I am without sympathy for Ms X and her request for shuttle mediation. Most of us (including mediators; including me) avoid conflict where possible. It is an alluring image: the idea of a safe, clinical environment where the mediator moves seamlessly between the parties, slowly but surely narrowing the issues until, hey presto, they reach lasting agreement and live amicably ever after without having to darken each other’s doors again. The trouble is, it does not often happen. Statistics taken from a survey done in 2002 for Family Law show that of the family mediators interviewed, 58% said that they did use shuttle mediation, but of those 58%, 85% said they did not like it or used it reluctantly. That equates to 42% never using it, and 49% saying they used it reluctantly/rarely, with only 9% presumably using it regularly and willingly.

From my own informal research done over the last year or so, interviewing colleagues from the services where I work, and from other services, this reluctance continues. There is evidence that the outcomes for shuttle mediation are not good, and it is certainly not the preferred model for most family mediators that I know.

It is not surprising. The vast majority of family mediation follows a ‘facilitative’ or, straight forward, model, which does what it says on the tin. We are there to help start a conversation between two people, and to help them communicate with each other to find their own solutions and choose their own outcomes. We are not there to judge them, weigh their arguments, or to impose an outcome. Many of the earlier family texts (Lisa Parkinson/Marian Roberts) either fail to mention shuttle mediation at all, or mention it in passing. The first detailed description seems to have come from Rogers and Theobald, in 1995 at p232:

‘A process whereby a mediator acts as a conduit between disputing parties by transferring messages from one to the other for the purpose of facilitating [easing] a negotiated settlement.’

It is not a description which sits comfortably within the facilitative framework; it seems to miss the point of what we do, and somehow reduces us to a ‘he said; she said’ role.

4. Disadvatanges to Shuttle Mediation

There are also concerns expressed by many mediators that shuttle mediation, in which the mediator is 50% of the room as opposed to 33%, inevitably increases the risk of placing the mediator in a position where we may have to evaluate information, with the very real possibility that we are seen by the parties as arbitrators.

Apart from the (possibly) academic arguments about shuttle mediation being client-led, or the ‘wrong model’, there are many well catalogued practical disadvantages with shuttle mediation:

•        Non-verbal cues and meanings are lost to the mediator and the parties, with little or no chance of ‘seizing the moment’.

•        There is a risk of things being ‘Lost in Translation’ as messages are delivered through a third party.

•        It is more prone to abuse by one party managing to mislead the mediator/delay the inevitable because the other party is not there to challenge what is said.

•        It is astonishingly time-consuming and rarely if ever fits into the bog standard 90 minute session.

•        There is a chance that one party will relay confidential information that compromises the mediator or the process.

5. Possible Reasons for Shuttle Mediation’s Growing Popularity

Yet despite the disadvantages and historical misgivings on the part of many family mediators, there seems to have been an explosion over the last few years in the number of mediation cases that are ‘shuttled’. I am not talking about those cases where there are break-outs to cool off or check for understanding, but cases where shuttle mediation is the model adopted at the start and continued, usually at the insistence of one party, from start to finish. Why is this? Possible reasons include:

•        Increased awareness that it is available. Solicitors (and therefore clients) no longer see the phrase ‘I don’t want to be in the same room as XXX’ as a bar to mediation. Websites are offering it to clients as an alternative, and to many it makes the difference between refusing point blank to engage in the process, and feeling that they are at least able to give mediation a try.

•        Indirect communication is here to stay. Clients are familiar with texting and emailing. Social media sites provide a brave new world where communication without non-verbal cues is rife. We can argue that these methods of communication often generate more heat than light, but for many clients they were the chosen methods of communication during the relationship, so it is unlikely that things will change in the future.

•        Mediation is evolving: as we move closer to being a uniform profession of which family mediation is just one branch, civil and workplace mediators converting to family mediation bring their skills set to the table, and shuttle mediation is often the norm for this type of work.

•        Mediators are evolving, dragging themselves kicking and screaming into the technological age and adapting to remote mediation via Skype where, such as in cross-border mediation, there is no alternative.

So if shuttle mediation for families is here to stay (as I suspect it is) how can we the mediators maximise its chances of success?

6. When Is Mediation, In Its Many Forms, Suitable?

Whatever the model of mediation, traditional, co-working, remote, child-inclusive, mediation in general, has to be suitable. Whatever the model of mediation: traditional, co-working, remote, child-inclusive, mediation in general, has to be suitable. (I realise I said that twice, but with due reverence to the quip made by Kryton in Red Dwarf many years ago I feel that it is such an important point that it bears repeating.) I wonder how many times shuttle mediation fails at this first hurdle, doomed from the start because mediation was unsuitable. Instead of asking ourselves:

Q: ‘Is it suitable for mediation?’

A: ‘Yes, but there are some features of the case (poor communication skills, power-balancing issues, vulnerability) that would indicate shuttle mediation would help.’

I sometimes wonder if what we actually ask is:

Q: ‘Is it suitable for mediation?’

A: ‘No, because the power balance is unfixable/evidence of coercion/unwillingness to negotiate/ no agreed agenda/subject matter non-negotiable/ third party interest (I could go on).’

But instead of stopping there, we go on to say:

Q: ‘What about using shuttle mediation then?’

A: ‘OK then; let’s give it a try.’

That is where it all starts to unravel. I have heard the complaint on numerous occasions: ‘It was never really suitable for mediation but they had nowhere else to go.’ To quote Bernard Mayer:

‘One of the worst situations mediators can find themselves in is in the middle of a dispute that is not appropriate for mediation and with all the key parties committed to going through the process.’

I am not saying that suitability is always black or white; on the contrary it is always several million shades of grey. It is just worth being aware that in many cases shuttle mediation is offered in cases where suitability is borderline at best, and so it becomes a self-fulfilling prophecy that the outcome is likely to be poor. Yet there are situations (and I am grateful to those people who attended the training courses for pitching in with suggestions) where there are positive indicators for offering shuttle mediation, not just as a safeguard where there are misgivings, but as a first choice. Those include:

•        Any situation where neither party has a need for direct communication, eg lack of any intimate relationship (one night stand or short lived relationship, historic relationship, extended family mediation, arranged marriage).

•        Circumstances where mediation is suitable, but where the parties are nervous about the process, or where one party feels that the simple presence of the other will leave them unable to speak (to quote Susan Cain: ‘There’s zero correlation between being the best talker and having the best ideas.’)

•        Single/narrow issue mediations where the parties are basically in agreement but fall into a pattern of contradicting each other on principle because that is the way it has always been (a bit like the Monty Python argument where regardless of the point, the only responses were ‘Yes it is’, or ‘No it isn’t’).

In cases such as these, shuttle mediation offers a humane alternative to people who really do not need to be in the same room, and do not foresee a need to communicate directly, now or in the future. Over the years I have had some notable successes (and many more spectacular failures) using shuttle mediation. But when I think about what made the successes (apart from suitability) I am minded of a quote from my friend and colleague, Ann Rooney, ‘The process is your ally and your co-worker.’

The one common factor in my relatively short list of successes was that I stuck like glue to the process: we established an agenda and a timetable; I afforded the parties equal time throughout; we agreed at every stage what could be shared and how it should be shared; neither party abused the process; the outcome statement was drafted in the room and agreed by all parties before ending the session.

7. The Importance of Process

This is never more important than in shuttle mediation, where you are vulnerable by virtue of being alone in the room with the client. The majority of broken down shuttle mediations fall into the category of ‘unsuitable from the outset’, but there are a number of cases where the break-down is due to other factors, and these are mainly where the mediator has allowed the process to derail, eg by allowing one party to delay unreasonably, or to dominate the agenda, or to convince the mediator of the merits of his/her case, or simply by taking the lion’s share of the time.

I will leave you with a final analogy. In my spare time I indulge in a bit of dressmaking. I have an all-singing, all dancing sewing machine that has an attachment for everything. Some are very rarely used (like my 7 groove pin-tuck foot), but on the rare occasion that I use it, the results are very pleasing. However, for it to work effectively, the fabric, the thread and the pattern all have to be suitable for pin tucking, and I have to make sure that I feed the fabric through evenly and at a suitable speed; if just one of those elements is missing or wrong, I end up with an unfixable mess.

And for those of you that would like to hear the end of the story, Mr and Ms X did come for mediation. After three sessions they had completed financial disclosure and taken options to their solicitor. I never managed to get them in the same room and they never returned to draft the Memorandum of Understanding. Ah well.

Author Information

Glynne Davies, Oliver Fisher Solicitors

Email: glynne@oliverfisher.co.uk

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