"Mediation - a way of conflict resolution that opens up new opportunities for disputants": a conversation with the former UN Ombudsman visiting - MRU

21 November, 2023
“Mediation – a way of conflict resolution that opens up new opportunities for disputants”: a conversation with the former UN Ombudsman visiting
Law School

Mediation is not a new invention, but an adaptation of something that has existed for a long time in different cultures. Conflict resolution, where a third party helps the disputants to resolve their dispute and come to a decision themselves, has probably been practiced since there were three people on Earth. It is therefore clear that mediation has its roots in almost all cultures, religions and beliefs. This week, the Mediation and Sustainable Conflict Resolution Research Laboratory at Mykolas Romeris University (MRU) is organizing a series of mediation events, starting with an international scientific conference "Overcoming the Mediation Paradox: Ideas, Challenges, Good Practice". The aim of the conference is to foster cooperation and scientific debate between researchers, practitioners and national policy makers in the search for effective measures to promote the use of mediation in EU Member States.

We talk to the keynote speaker, Giuseppe de Palo (Italy/USA), a renowned scholar, mediator and creator of the concept of the mediation paradox about this concept, the speaker's impressive professional experience as a United Nations Ombudsman in conflict resolution in the workplace and the significant activities of the MRU Mediation Lab in research, formulation, development and implementation of public policies in the field of mediation.

What is the paradox of mediation? Why is it that, although mediation is widely recognized as an effective, quick and cost-efficient way of resolving various disputes, it is still slow in practice in many countries?

Well, you just said it 😊.  Mediation is there, it works, and yet most people around the world do not engage in it … unless they are properly prompted to do it.  Rome poet Ovidius said it centuries ago: “I see the good, I approve of it, but then I make the bad thing”.  That being the case, proper mediation policies are the only societal remedy to the sub-optimal human predisposition. This is what the MRU conference is about, and why it is so important not just for Lithuania.

What results do you expect from the MRU conference, besides the fact that you will share your very valuable experience with colleagues from different countries around the world, where the cultural aspects of mediation are probably different?

MRU and this conference are the perfect places to continue to present the Sustainable Conflict Global Initiative (SCGI), which was launched recently by the Dialogue Through Conflict Foundation, whose board of directors I chair. The SCGI advocates for international consensus on the legal principle that serious and reasonable mediation efforts should be required in at least a minimum percentage of all suitable litigated cases. The SCGI emphasizes that increasing mediation use will contribute to the UN Sustainable Development agenda goals to ensure universal access to justice and achieve peaceful and inclusive societies.  As regards especially civil and commercial disputes, evidence has shown that mediation use can increase in countries with very different legal traditions and national cultures, provided conducive mediation policies are in place. Policies that have shown to work, and not to work, will be discussed at the conference.

The MRU Mediation and Sustainable Conflict Resolution Research Laboratory is one of the strongest and most recognized mediation theoreticians and practitioners in Lithuania, which through its scientific and applied research actively educates the public, and shapes, develops and implements state policy in the field of mediation. What is the real impact of these projects on society and to what extent do they help to overcome the mediation paradox?

As mentioned, there is empirical evidence that research-based and culturally savvy mediation policies work.  Hence, institutions such as MRU must, in my opinion, continue to act as thought leaders and present policy makers with evidence and proposals leading them to improve the mediation climate in Lithuania.

As UN Ombudsman, you have dealt with more than 2,500 disputes in the working environment of international organizations - giants such as UNDP, UNICEF, UNFPA, UN-Woman. What kind of conflict situations were there? How and how quickly were solutions found?

The organizational ombuds deals with internal disputes, mostly related to employment.  Even before that, the ombuds is the “internal outsider” of the organization, listening confidentially to everyone and being therefore in a privileged position to identify the root causes of dissatisfaction as well as disputes, and to suggest way to prevent them, with the ultimate goal to make the organization to be a better place.  As for the duration of the ombuds intervention, they greatly vary.  When they lasted long, it is because the litigants so wanted, being each of them free to withdraw at any time.

There are many conflicts in organizations in Lithuania. We hear a lot in the media about disagreements, bullying, harassment, and sometimes even suicides. What is needed to create a healthy climate in the organizational ecosystem? What advice can you give to responsible employers? How can we act preventive and prevent disagreements from escalating in the workplace? And what to do if conflicts have already escalated and the atmosphere in the organization is becoming heated?

Organizational conflict is unavoidable, as conflict in general. What is avoidable is dealing with conflict in the wrong way.  As mediation and other appropriate dispute resolutions mechanism become more known and available, including thanks to technology, no organization can call itself sustainable if it does not first engage in ADR. In fact, what motivation can such organization give to its members, shareholders, stakeholders or even voters, if we are speaking of an elected body, for wasting time and resources in formal litigation before trying alternatives that are faster, cheaper and can lead to better outcomes?

A very practical example is what five UN agencies, employing collectively over 50k people, did at the request of my office, when I was their Ombudsman, in 2021. They each pledged to always sit down for a meeting with the mediator, in suitable cases, if invited by an employee ready to bring a legal challenge. Ever since, the number of mediation has grown substantially. Also, even mediation participants who did not find an amicable resolution reported that they would recommend the process to colleagues.  Your government could commit to do this tomorrow if they want. It only takes a unilateral declaration – namely, a pledge.

Lastly, today there are tools putting effective dispute management tools in the pocket of everyone.  I will present one such tool during the conference.  Again, as this and similar tools become more widely available, nobody will be able to ignore them anymore.

The main purpose of mediation is to enable the conflicting parties to find common ground and resolve any problems without the need for judicial intervention. A mediator may face various challenges when dealing with conflicts in a work environment. These challenges may arise from the specific characteristics of the working environment, the complexity of the relationship and the emotional aspects.  What are the main challenges faced by a mediator in resolving disputes in the work environment? Which is more helpful for mediators - knowledge or personal qualities - to overcome them?

In my experience, the peculiarity of intra-organizational disputes is that litigants might continue to work together after the mediation. Among other things, that normally requires a successful settlement to be more than just a transaction – it has to be a process ensuring mutual understanding and respect for the parties to continue to interact better in the future.  For that to happen, a mediator’s persona is as much as important as their technical skills.

The international conference, organized by MRU, brings together a bunch of brilliant law students from more than a dozen law schools around the world. Share your secrets. Your career is spectacular. Reaching such heights requires not only knowledge, competences and skills, but also personal qualities such as excellent communication, listening, understanding, decision-making, analytical skills, empathy, ethics and integrity. What advice would you give to a young person or a student who is interested in mediation or is still looking into it? How do mediation skills benefit the modern lawyer? What advantages can a young person who has taken a mediation course gain in the job market?

You are way too generous.  I see myself as someone just very lucky to have met professors and mentors who inspired and guided me when the mediation market outside of the US was in its infancy. As many more young people than when I started would like to have a mediation career now, I can just tell them to be patient, which does not mean to sit and wait.  There is a lot they can do professionally as well as in their personal lives deploying the ADR techniques they have learned. This is especially true for young lawyers, as clients will spot immediately and appreciate their problem-solving skills.  Students should remain engaged in the mediation community, albeit part time, and keep abreast of both legislative and practical developments. Writing in the field of ADR will also help. Lastly, I would just suggest them to look around, and realize that conflict is a growth market, as the world population increases and increasingly interconnected markets lead organizations to look for customers, suppliers and employees all over the world. In the field of business, domestically and even more so internationally, those possessing and continuously honing their dispute resolution skills will do better, I am sure.