Making the Case for Reflective Practitioner Groups for Mediators

By Andrea Treiber Cutter

The life of an attorney mediator can be somewhat lonely. Although co-mediation is occasionally used in domestic cases, most cases are mediated by one mediator. Many attorney mediators have a solo practice or practice in a small group setting. Even if an attorney mediator practices in a larger firm, the mediation practice is typically effectively segregated from the rest of the firm for practical and ethical reasons. Although some mediators ask participants to fill out an evaluation at the conclusion of the mediation, most mediators are left to wonder how the participants perceived them and whether their methods and techniques were effective. There is a trend in the United States to form “reflective practitioner groups” of mediators to help address these issues that can create a professional and emotional strain on mediators.

WHAT ARE REFLECTIVE PRACTITIONER GROUPS?
A reflective practitioner group is a small group of mediators who come together on a regular basis to discuss issues they have encountered in recent mediations. They may discuss ethical questions that arise during mediation, a particularly difficult party or advocate, how the matter was dealt with and share ideas for how the situation could have been dealt with better. Reflective practitioner groups are similar to the “reflective learning” process many experience during their mediation training. Although there are seminars, training sessions and bar meetings geared toward mediators that may partly fill in these gaps, the reflective practitioner group meets more frequently to provide support on an ongoing basis. The purpose of the groups is professional growth and improvement of its membership. A likely benefit may be reduction and/or management of the stress that often comes with a solitary practice.

The adjective “reflective” appears to be the result of the acceptance within the profession of the need for mediators to reflect on their own practice and techniques in order to continue to develop professionally. To accomplish this, mediators should “develop the discipline and practices of reflection. The ability to learn from each experience; to refine, adjust, and enhance one’s skills; and to respond thoughtfully to the unique and surprising events in professional practice can be achieved through the consistent, thoughtful, and intentional application of the methods and principles of reflective practice.”1 There are questions mediators can ask themselves soon after the conclusion of the mediation to facilitate self-reflection. The objective is that self-reflection becomes a habit, which ideally will help the mediator grow professionally. A few such questions include: 

• Was my theoretical approach helpful in dealing with the parties and the conflict?

• How was this conflict different from other conflicts? 

• Were there surprises, unexpected responses, unanticipated issues or curious or novel events? 

• How did I respond to those unexpected events? 

• Was I able to reflect in action? If yes, when, with what result and to what effect? If no, why not?

• What do I like about the way I handled the session or particular interventions? What seemed artful, responsive and effective? Why? 

• What additional information or skill do I wish I had? How and where can I learn that?2 

One of the purposes of reflective practitioner groups is to put similar practices into action in a group setting. Generally, there are three types of reflective practice groups forming around the country. The first is a formal group, wherein mediators meet in person with a facilitator who leads the discussion or moderates the discussion among the members. This type can be found in California.3 The second type is informal wherein there isn’t a specific leader or facilitator, and the topics therefore tend to be less planned and more free flowing. Examples of these groups can be found in Washington, D.C.4 The third type is telephonic wherein the members meet over conference call or via a web-based conference service. A benefit of this type of group is it is not constrained to a particular geographic region.5 There are also peer groups that are less intentional than reflective practice groups that can be found on social media platforms such as LinkedIn. These groups tend to be much larger and do not have defined meetings but may provide much needed support benefits for mediators that reflective practitioner groups do not provide. 

ETHICAL CONCERNS
Reflective practitioner groups can focus on a variety of issues including ethical issues that have or may arise during mediation, strategies regarding how much or how little to allow parties to vent and the advisability of holding a joint session among many other possible topics. In the context of these group reflections, it is important to share problems, solutions and/or advice while being mindful that the information gleaned during mediation is privileged and confidential.6 Furthermore, while online social platforms are a normal way for many folks to communicate and share ideas, it is very important that mediators, and attorneys, not “overshare” because to do so risks violating their duty to maintain privileged and confidential information. On social media especially, it is also very important for mediators to preserve impartiality. A mediator should not give an appearance of slipping into the role of an advocate for one side or another.

POTENTIAL BENEFITS FOR OKLAHOMA PRACTITIONERS
Based on an unscientific poll conducted of attorney mediators, it appears this trend has not yet made its way to Oklahoma. Although there are available training programs that focus on reflective learning exercises, programs through the Oklahoma Bar Association that provide support to attorneys generally,7 continuing legal education and other seminars and professional development opportunities, these do not meet on a frequent basis and are typically not intentional in assisting practicing mediators in a reflective learning process. 

There are numerous potential benefits of forming these groups in Oklahoma, not the least of which would be to promote the mental health and well-being of mediators. These groups have the potential to become like support groups for practicing mediators. There can be solace in knowing you are not alone and that other seasoned professionals face hurdles and challenges similar to your own. There is also the benefit of creating a form of apprenticeship. Some seasoned attorneys who are wanting to shift their practice to mediation later in their careers do not have the same level of litigation experience or level of experience as an advocate in mediation, as many with an established mediation practice may have. The more experienced mediators can provide guidance and insight to the ones coming up. There are also obvious networking possibilities. Fellow mediators can be possible referral sources in the case of a conflict or dispute that is simply outside the others’ area of expertise. There is also a benefit to mediation as its own industry to lift up all of its members. Increasing the quality of mediators generally helps everyone in the industry. 

1. Lang, M.D. & Taylor, A. The Making of a Mediator; Developing Artistry in Practice. San Francisco: Jossey-Bass, 2000, at 47-48. 
2. Id. at 140. 
3. Ava J. Abramowitz, Laura J. Sipanowich, Alexander Gorelik. “Reflective Practitioner Groups: A New Tool for Improving Ourselves as Practitioners?” American Bar Association. www.americanbar.org. Sept. 20, 2016. 
4. Id. 
5. Id. 
6. Okla. Stat., tit. 12 (1983) §1805. 
7. Through the Lawyers Helping Lawyers program, the Oklahoma Bar Association offers its members counseling, a crisis hotline and monthly meetings on a variety of topics faced by attorneys generally during their everyday practice.


ABOUT THE AUTHOR
Andrea Treiber Cutter practices law at Cutter Law Firm PLC in Tulsa. She has more than 22 years of experience litigating commercial cases in Texas and Oklahoma. She also mediates business and employment disputes.

Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 455 (March 11, 2017)

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