Humanistic psychologist Carl Rogers (1995:12) once said:
‘It is astonishing how elements which seem insoluble become soluble when someone listens. How confusions which seem irremediable turn into relatively clear flowing streams when one is heard.’
Mediation is peacemaking. It can be to resolve, reduce and prevent conflict; to rebuild relationships; or to reach agreement rather than engage in adversarial situations (such as litigation). Mediation is more about finding a way to positive communication than making agreement. It is the use of a third party to act as intermediary between two or more parties involved in a dispute. The mediator is on all sides, actively listening and supporting each party with their point and suggesting positive ways to communicate and reach agreement or to find ongoing improved communication that may later lead to agreement.
Mediation for midwives can take place between colleagues, clients, employers, regulators and in any situation where conflict requires resolution.
How does mediation work?
A mediator is a third party. This can be a professionally trained, accredited mediator or a person whom both parties trust to take on the role. Young school children have been trained to mediate playground conflicts, which has had great results (Peaceworks, 2016), demonstrating how peer support and inclusion are useful tools in self awareness to bring resolution.
By going through a mediator, the focus shifts from people to issues. Once the problem is identified, the conflict can be better understood, including what, if any, areas of agreement already exist. By reframing a conflict, it can be broken down, and by identifying that the parties actually want different things, they can then reach an agreement.
Agreement to mediate is in itself a valuable step towards reaching solution. By making one agreement, momentum can often be generated that leads to another.
Open, reflective questions are used by mediators in a way that is empathetic yet focused on positive solutions. When one party wishes to complain to the mediator about the other, the mediator will redirect the party to talk instead about what they would like. This shift in focus and language is a positive redirection that can be useful for the party to realise they have a choice to move from being stuck in negative conflict to finding positive solution. There is no specific technique that the mediator will use to bring resolution; rather, it is more about how they conduct their interactions that can bring calm. ‘What would you like?’ is a simple yet effective question to further conflict resolution.
Mediation can create a useful increase in communication between the parties, which can assist them with future conflict. Avoiding conflict is unrealistic, but managing conflict positively is realistic. Empathetic listening and giving participants a feeling of being heard create momentum to greater understanding and agreement.
What is expected of the parties?
Good-faith engagement in the process is necessary, but not always present. A genuine wish to resolve issues is helpful, and even initially reluctant parties often find surprisingly positive results.
The mediator will ask each party to identify what they see as the issue, and what they would like to happen. This is already a step towards resolution, as the process of identifying the problem and the solution with a empathetic meditator can itself bring clarity and even resolution. The mediator does this by asking open-ended questions with empathy, patience and active listening skills, then reflects and verifies information in a way that allows movement towards greater understanding.
Creative processes and agreements are easier in mediation than other formal settings. It is up to the parties to decide the topic for mediation and how it will proceed. The mediator can guide and facilitate the process, and set the parties up with realistic expectations. Co-mediation is also an option: this involves two or more mediators who can demonstrate greater balance, or who may represent different specialist areas of interest.
Venting emotions can be useful—therapeutic even—and may provide a release that allows a party to move on. However, it can only be engaged with the permission of the other party: a mediator is obliged by their professional code of ethics to keep the parties safe, and this includes emotional safety. How much venting the opposite party can tolerate will depend on the individuals, and the mediator can determine this in their pre-mediation assessment with the parties. Giving and receiving an apology can be a huge step forward towards resolution (and also therapeutic). Each party can even, if appropriate, apologise for anything they did that cause the other to feel hurt. This is not the same as saying they were wrong.
Compromise is useful but not always essential. To get what you want, you may have to agree something that the other party wants but you do not; however, reframing the issues to see what areas can be agreed may show that both parties that they can reach a mutually acceptable solution. One motivation to offer to compromise might be that there is a worse alternative, commonly litigation in court or a hearing with the regulatory authority, such as the Nursing and Midwifery Council (NMC). Therefore, it is worth weighing up the risks and benefits of the proposed compromise against with the worse alternative. In some situations, the benefits of litigation, such as clarity and gaining a judgement, may be worth it.
Mediation often provides future-proofed agreements, with consideration given to future scenarios, to avoid returning to mediation. The mediator will test the accuracy of what the parties state and propose scenarios that might present in the future. This future-proofing can help avoid conflict or returning to mediation.
The courts will recognise a mediated agreement that had the clear intention to be binding, even if it is unwritten. This was the situation in the case of AB & AB v CD Limited [2013], in which a judge ruled that an agreement that was reached between the two parties with the help of a mediator, largely over the telephone, should be recognised, despite the absence of a written and signed statement.
Confidentiality is not assumed but may be agreed by the parties. Transparent decisions without confidentiality may be preferred, although many mediations are confidential.
Mediation between midwives and staff
Professional relationships share much in common with personal relationships, although we may be more inclined to resolve relationships with friends and family than we are with work colleagues, whom we may hope to avoid.
Conflict is opportunity. Although it may not always appear so, in many cases, it only takes a shift in perception to find agreement. The adversarial nature of conflict, and going through disciplinary or regulatory processes can be distressing. When faced with the option of taking action against others or doing nothing, we may prefer to do nothing; however, mediation can be a positive and gentle way of resolving issues that leaves individuals feeling empowered with a greater sense of inter-relatedness.
‘Once the problem is identified, the conflict can be better understood, including what, if any, areas of agreement already exist’
Mediation between midwives and service users
Conflict in this area is often from misunderstanding, and can benefit greatly from mediation. The New Zealand College of Midwives Resolutions Committee provides a free service to women who wish to discuss concerns about their care (New Zealand College of Midwives, 2018). This was started by midwives and local consumer representatives to make the process for resolving concerns easier. Resolution is achieved with third-party clarification by a resolutions midwife, who is not involved in clinical care and who acts as mediator. If the woman feels listened to, she may be happy with an apology or another outcome. If not, then she can continue to the regulatory authority or an ombudsman.
In general, the mediator can make professional recommendations, such as education and training, but does not have disciplinary powers. It is the process of actively listening and following up with feedback to both parties by the mediator that facilitates resolution. This can be done as ‘shuttle mediation’, in which the parties do not meet each other, but instead meet the mediator, who shuttles between them.
The aim of NHS Resolution (2018) is to ‘Advise, Resolve, Learn’ from conflicts and to save public funds from expensive court proceedings. UK Midwifery can emulate the NZ model by using midwives as mediators in the first instance, which may clarify misunderstandings and adress hurt feelings. Midwives are often natural communicators: they are familiar with high emotion, fear and pain, which makes them potentially good mediators for resolving issues within midwifery. Postgraduate courses in mediation are available through Centre for Effective Dispute Resolution.