Metaphor in Mediation
Metaphor in Mediation:
Its Impacts on the Mediators and Parties to the conflict
by Ray Kerkmez LLM, MDR
In the process of daily cohabitation or co-mingling, with all the diversity around – religious, cultural, political – misunderstandings and nasty head on collisions frequently occur. Tensions brought about by the differences usually lead to disruptive conflicts, a period of instability and intense competitions. Conflicts interrupt a regular lifestyle and have also grave consequences.
However, not all who enter into mediation have their disputes successfully resolved. In some cases, all the parties involved end up feeling dissatisfied with the outcome. Take the case of what happened to the 2006 summit in Ivory Coast prior to the election then, for instance. Due to a question on the dynamics of mediation that did not work in that case, all “ended in disagreement”.  What they expected to happen eluded them. So, the likely troubles or disadvantages they hoped to dissipate remain.
Under that predicament, the most frustrated and disappointed of all is the mediator. That means failure on his/her part! Nevertheless, that often happens even to a very gifted and experienced mediator. Mediation is a very complicated task that requires the balancing of the components that must be assembled together to make it work successfully. And balancing the elements like the “psychological issues, negotiation dynamics, communication problems…body language”,  for instance, is not an easy job. Sometimes, the intricacy of the work makes some mediators feel handicapped, unable to cope. That holds true when the mediator feels unprepared to face up to the pressing “abstractly structured undertaking dependent upon assumptions and theories of other disciplines”,  simply known as mediation.
Nevertheless, it is good to remind all concerned that rough going along the way happens at times, in all aspects of life. Take note, the sun does not shine all day, sometimes bad weather comes by! The same holds true in mediation! Isn’t this just one good example of the “metaphor in mediation” being applied? That is plainly to make all stakeholders feel at ease!
Yet, despite the seemingly difficult job of mediation and the mounting frustrations that come with it, many are still challenged to proceed. One of those who is not easily intimidated and does not want to back off says, “The very complexity of the work is one of the things that make it appealing…For people who love challenge, mediation is a natural calling”.  When failure strikes, the “persistent, creative mediator”  is greatly challenged to explore the many irreconcilable unknowns; resort to less tried techniques; or may even try a new idea in mediation to do a better job. According to Norm Page, when my success rate at small claims mediation started to decline…I decided to look at ways to increase my influence in the process…I decided to focus on word choice, specifically metaphorical images.  That was the turning point when he started to use metaphors in mediation.
This insight of Page sparked my interest in how metaphor works and this will be the subject of my discourse in these papers. The objectives behind are three-fold: to find out whether the use of metaphor in mediation is indeed worthwhile or meritorious and to discover its impacts on both the mediators and parties involved while also hoping that by so doing an understanding of the relationship between theory and practice, as well as a sound knowledge on the dynamics of mediation or the facilitation model of mediation, is somehow conveyed, if not wholly at least partially.
The Concept of Mediation
Before proceeding to discuss the metaphors, it is good to dwell on mentally conceived thoughts about mediation since it is for the sake of a better mediation that the idea on metaphors came up. The many ideas expressed here are simply those shared by the authorities in professional practice of mediation. Lawrence Huerta, for one, defined mediation “as an effective means of dispute resolution for many disputes not requiring a judicial or third party determination”.  Tim Harnett, on the other hand, says it “is a process for reaching an agreement when two or more are at an impasse”.  In Resolve’s website, it is described “as a non-adversarial approach to addressing conflicts and disputes”.  Even though these came from authorities of diverse mindsets and professional trainings, their words signify only one thought about mediation. Mediation is a process or an approach! In simple language then, mediation is a means of settling conflicts between two parties affected with the assistance or guidance of the third party usually referred to as the mediator.
That is how the many authorities in mediation interpret the term. As such, many get to equate this term with the word facilitation and sometimes get confused that they could not make a distinction between these words. If the term mediation is always defined in a manner this word is usually explained chances are many would truly be perplexed about the concept. Facilitation to others is almost the same as mediation. It is for that reason “the difference between mediation and facilitation”  was also the subject of a talk posted on one of the websites concerned with this issue.
To dispel confusion it is much better to view the term mediation more as another type or “form of conflict resolution”  that can be resorted to by the parties to the conflict rather than to look at it as an effective means or an approach. Of course, those means, processes or approaches come with mediation. However, they are simply part of mediation. Mediation per se is not just a process or means. Mediation is more of a form that is built up or shaped by those processes or approaches. Without those approaches or processes, mediation will not come in concrete form, into actual operation and succeed.
When mediation is understood as a form, then it becomes easy to see where facilitation stands by and what it should accomplish. When mediation becomes a form, then facilitation becomes simply a process or means, no longer on equal level with mediation. That way, mediation can be easily distinguished from facilitation.
One source says, “Mediation is a relatively new idea”.  Contrary to that belief, that idea of mediation can be found in the Old Testament. It was for that reason God assigned Moses to act as a mediator in the Israelites’ disputes with each other and in the Israelites’ conflicts with God. Hence, it is not truly a fresh idea that came out of the blue just recently. However, it is more accurate to say that there should always be something new about mediation. And there ought to be! Why? As a form of conflict resolution mediation, just like any other structure, has to be constantly modified to be more suitable or effective in conflict resolution cases. Models of mediation that are effective in some cases may not be efficient in others. What may be reasonable to parties affected in the past, or in some instances, may not be held as such at the present times or in others. Therefore, an adjustment or modification maybe necessary! Otherwise, this concept and all about it, as well as the mediator, may be hanging back in progress. And what is falling behind usually does not reach the end of the line! That is how mediation will end if in some aspects it does not change for a long time. It may not even survive to accomplish the very reason why it came to life.
Metaphors in Mediation
Mediation, to be effective and suitable, has to be altered in some ways in conformity with the constantly changing people and the world, in view of the technological advances coming by and in response to the growing complexity of mediation work. That is especially true and should be addressed directly to the practice of mediation because the professional practice of mediation calls for non-stop learning, a never-ending trial and error practice. Perhaps, it is due to that quest for a better means or an ambition to do a perfect mediation that the idea of using metaphor in mediation came to the mind of its pioneers. That was also the force that pushed Page to attempt to use metaphors in mediation.
Yet, before further discourse on metaphors, a plain and clear explanation of what metaphor is all about is necessary. This is how Page defined this word: “it depicts the sense of one thing in terms of another that rings with familiarity”.  Another expert in this field says, metaphors are “direct expressions of evaluation and are bound to occur whenever we have strong feelings to express”.  A good example of metaphor is this: “Mediation is a bridge”. 
According to Min, metaphors are of three types.  One, the Positive Metaphor: this heightens the possibility for strategic transformation. Two, the Neutral Metaphor: this is neither good nor bad. Three, the Negative Metaphor: this will not likely help settle the conflict. Sometimes, the negative affect type is good during a reality check situation. With that, the mediator can warn the client regarding the negative effects that may occur in case a cause and effect question leads to a bad result. For a desirable outcome, it is likely possible that the skilled practitioners do subscribe to the use of Positive Metaphor in their field practice.
Speaking of the use of metaphor, the mediators are advised to have “only one or two” metaphors appropriate to the “cultural and personal experiences of the parties”  every session.
Now, how does metaphor help in the mediation work? According to Smith, most mediators realise that metaphors seem to strongly affect the heart and provoke the mind to change thoughts quickly. Thus, metaphors activate the mind to get hold of a clear mental idea or understanding of the conflict that becomes recognizable and understandable to all through metaphoric expressions.  With an inspired imagination and induced creativity the subject matter of talk, or the conflict and its context, becomes appreciated; a lively interaction is generated; and a wider room for a favourable outcome in mediation is eventually set up.  If that is how metaphor works then it gets to assume the role that the “transformative model of mediation”  is hoping to achieve. The model’s function, by the way, is to restore the “inherent capacity” of the parties damaged by the conflict. Hence, metaphors are “critical for conflict transformation and peace building”. 
In a nutshell, metaphors come like mind-boosters that quicken or increase the power of the mind to recognise the real form or nature of the dispute, and all that comes with it, being tackled and make alive the session. Consequently, that will lead to a greater recognition of “the context, the process and the challenges of change”.  Due to its impressive influence, it was reported that the use of metaphors is even “more preferred in everyday thought”. But, that could likely be resorted only by mediators with a glib tongue for rhetoric.
If others are not acquainted or comfortable with it, the use of metaphors is not enforced anyway. A metaphor is simply one of the tools the mediators can use prior or after the session but not during the session or in the facilitation process. In the midst of facilitation, the mediators are not supposed to “comment, share views or opinions”.  Perhaps, prior to the session or during breaks the mediators can coach the parties to make use of metaphors when necessary.
Impacts on the Mediators and the Parties to the conflict
If metaphors bring about such big difference in the mediation process, certainly metaphors have striking influence too upon all individuals involved. To everyone, metaphors help sharpen conscious awareness or perceptions;  the parties get to read the mind of the others present, too; and all concerned acquire a clear understanding of the conflict and its context. Other effects of the use of metaphors on each one involved are enumerated below. Though the information may not be substantial, these make known the fact that metaphors create such notable impacts on each individual concerned.
To the Mediators:
Acquire more power to control and affect others 
Stir them to empathise with their clients’ thoughts and understanding 
Makes abstract matters simple and plain abstract matters 
Understands the clients’ more through the structure built up inside that brings up “unstated assumptions”  suggested by metaphoric images.
Makes it easier to form questions that will dig up the conflict and others that form part of the conflict 
To the Parties in conflict:
Direct their psychological make up to interpret the future outcome, as well as the internal or external intentions. 
Helps them become expressive and interactive 
A certain type of metaphor forces them to understand the cause and effect of the conflict thereby pushing them to decide quickly 
Of course, with these reported positive influences or effects, some negative feedbacks come in the surface, too. Others think it is much better to shun from its use “when attempting to be clear or evaluate the truth of an agreement”.  And that is plausible! Sometimes, metaphorical expressions are ambiguous. Their double meaning may confuse others, especially those who are not professionally trained in its use, and they may likely fail to get hold of the real message transmitted. The implied meaning may even come negative or destructive to the mediation process in the long run. Of course, others who are quick-witted may instantly make some clarification as to the true intent or message behind. But, not all are sharp and alert or in the mood to interact and their being passive about the ambiguity may not help at all in the resolution of the conflict and may even bring about a negative impact.
These reported impacts on each involved and to all as well, are simply revelations of the “very experience of human interaction”  which could be good materials for in-depth study on the “dynamics of human interaction”. Studies on the encounter process do furnish insights as to the likely result of the work of mediation. When the encounter process is positive, the impact on mediation will definitely be very good, too.
There is no doubt that the multidimensional job of mediation is an inherently difficult task. The intricate varying issues, the dynamics to be applied and the other problems associated are too heavy no amount of skill will suffice to balance the work of mediation quickly and rationally that all about it suddenly becomes ‘topsy-turvy’. Yet, this onerous job lies heavily on the mediator. The complexity of the work is enough ground for the responsible, committed mediator in the professional practice of mediation to search for more effective means or new methods, strive harder plainly to succeed.
It is up to the mediator to decide which strategy to choose. In case the innovative, skilled mediator picked the use of metaphor that does not mean setting aside all the others. Mediation, again, is a multifaceted job that requires the application of different effective timely strategies or skills to reach a favourable end result. The use of metaphor is simply added to those previously or habitually used in response to the increasingly heavy weight of mediation work. The motive could either be to make the whole session come alive or interesting, or to enhance influence. Whatever is the rationale behind its use is a prerogative of the skilled mediator. However, the mediator must be discriminating and sharp on what type of metaphor to use, under what circumstances, and how many times the metaphor will be used.
Of course, there is no strategy in mediation that will match or fit perfectly all the cases or conflicts at hand. In fact, though others get to recognise the merits of applying metaphor and speak highly of its use, others are against it. In special cases, the negative remarks are seemingly true. Nevertheless, to make use of metaphor in cases when deemed advisable will, in conflict transformation or peace building cases for example, provide more benefits than loss. It is for that reason those mediators with a gift for rhetorical language is encouraged to exert more efforts to use that skill when necessary.  In cases where it is suitable, the use of metaphor can be held as another effective, valid tool that in the long run may even be developed into a metaphorical model of mediation, of good service to all involved in mediation and to the work of mediation per se.
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Ray Kerkmez; MDR, LLM
Ray Kerkmez has in-depth experience in the Corporate, Commercial and Retail sectors including franchise disputes, and this has given him a deep and penetrating knowledge of problems that can arise for business people which enables him to understand the issues in Commercial Disputes so that he can assist parties to reach a resolution of the issues in a dispute while eliminating the need to waste time, money and resources fighting it out in court. His major milestones include accountability for a broad range of business and legal functions, capturing problem related issues, facilitating smooth-running operations and achieving long-term growth objectives. Successfully worked on many small and multi-million dollars deals negotiated affiliate contracts worldwide, establishing operational excellence within culturally diverse environments, developed and implemented policies and strategies and overhauled and combined agreements and processes. Successful in mediating matters related to Corporate, Commercial, Retail & Franchise that comprise private and institutional investors, debt-holders and investment bankers. The fundamental strength of Ray Kerkmez’ practice addresses and solves challenges, by first understanding the client’s distinct situation, and then offering comprehensive strategies tailored to address each client’s unique requirements. A skilled tactician, negotiator, conciliator and deal maker successful at capturing cost reductions, facilitating smooth-running operations and achieving long-term growth objectives. Unique blend of expertise. Skilled at dealing with property owners, investors, bankers and engineering consultants. Critical Thinker, successful at building corporate value and leading a sophisticated manufacturing and service organization. Effective decision making under unfavorable conditions. Proficient in all four levels of Core FPD Competencies. Education Completed Postgraduate Studies at the University of Technology Sydney (UTS) and has been admitted to the degree of: Master of Laws (LLM) completing a Double Major in: International Law and Corporate & Commercial Law Master of Dispute Resolution (MDR) Other Studies Bachelor of Business Administration (BBA) Fulfilled the requirements for BSB51915 Diploma of Leadership and Management. Fulfilled the requirements for TAE401110 Certificate IV in Training and Assessment. Philosophical Ethics (University of Sydney). IT & eCommerce (University of Sydney). Successfully completed the requirements for the Advanced Collaborative Practice at UTS Mediation studies and has been Accredited under the National Mediator Accreditation System. Honors Globalization and International Economic Law (High Distinction) Crisis Negotiation (High Distinction) Competition Law in a Global Context (Distinction) Dispute Resolution in Commerce (Distinction) Dispute Resolution in Civil Practice (Distinction) Independent Coursework Achieved through studies and Creation 200+ Research Papers Written Globalization & International Economic Law Conflict in the Middle East Ethics Dispute Resolution in Commerce International Human Rights Philosophy Competition Law in a Global Context Role of Economics in Competition Law Postmodern Ethics Negotiation Crisis Negotiation Metaphor in Mediation Management Skills ADR In the Context of (WTO), (GATT), (FTA) & (RTA) Dispute Resolution in Civil Practice Workplace Dispute Resolution Dispute Resolution Socio-Legal Research Legal Writing Literature Review Comparative Approach Law Family Dispute Resolution Using Mediation in Workplace Dispute Mediation Membership and Organization International Association of Coaching (IAC) Association for Coaching (AC) International Ombudsman Association (IOA) Resolution Institute – Combining LEADR and IAMA Law Council of Australia (LCA) Collaborative Professionals (NSW) Inc. The Royal Society of New South Wales Professional Affiliate Australian Psychological Society (APS) Experience and Contribution Strategic planning based on analysis including political, economic, social and technological, i.e. (PEST) analysis and (SWOT) analysis Plan courses in consultation with the staff, arrange course timetables and coordinate and supervise teaching assistants to conduct classes Provide professional consultative services to government and industry Responsible for choosing the syllabus and the books that are suitable for each learning level Keep tracking of the students’ progress Develop and maintain job descriptions and KPIs Develop and maintain position profiles Apply staff selection processes using interviewing techniques Develop training plans for staff to meet identified skill gaps Identify suitable sources of training support Arrange training programs to reduce skill gaps for all staff Agree on KPIs with each staff member Plan and maintain review dates and data collection to enable performance management Set appropriate remuneration levels for job accountabilities Initiate incentive schemes using KPIs that are within the control of staff Research and write a syllabus which covers everything to be taught in a course Interpret training packages, prepare lessons and produce resources such as typed notes, diagrams, demonstrations and model patterns for use in teaching Teach students in classrooms or workshops, providing theory and practical training through lectures, discussions, practical demonstrations and supervision Assess students by setting and marking exams and assignments and evaluating completed projects Assess students and staff members of the contracted industries to make sure that resources written addresses their needs Counsel and advise students with career and pathway to further education, and refer them to counsellors if needed Attend meetings and liaise with the community and industry to address gabs skilling for their staff
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