Bush and Folger’s book was based largely on their own personal involvement as mediation practitioners, trainers, and evaluators. Their academic fields of expertise are in law and communications. While their experience, credentials, and contributions are certainly outstanding in the field, mediation theory needs to be derived from a much broader perspective and theory of conflict. Because Bush and Folger claim that the promise of mediation involves moral growth, their conclusions need to be congruent with the sizeable amount of theory and research available on the subject of human development. Because they failed to make this connection, their work, while it may point toward some valuable concepts, rests on a rather weak foundation.
So far, the best published developmental critique of The Promise of Mediation has come from Jeffrey Seul, a lecturer at the Harvard Law School (see the Ohio State Journal on Dispute Resolution, 15(1), 1999, pages 135-172). He compares Bush and Folger’s explanation of transformative human growth to the phase model devised by Robert Kegan. Kegan’s model is based in his own research as well as that of Jean Piaget, Jane Loevinger, Lawrence Kohlberg, and Carol Gilligan.
According to Kegan (see The Evolving Self and In Over Our Heads), human growth occurs as people transition between increasingly complex understandings of their connection to other humans. While, for example, infants have no conception of the needs of others, older children are able to understand rules which protect them from others. Early adulthood is characterized by the Interpersonal phase or “balance” where one’s self is defined in relation to other people. In this phase, people generally have a great deal of difficulty making their own decisions because they are so highly concerned with coordinating their needs and desires with those of others’.
Growth out of the Interpersonal phase into the Institutional phase means that one accomplishes a definition of self based more on one’s own ideology and self-identity. While a person at this level is more empowered to confidently make their own decisions, they are still constrained by their own ideology and unable to understand that there are limits to that personal commitment.
The Interindividual phase is Kegan’s highest level where it becomes possible to let go of one’s self concept without losing it. It is at this point where people learn to feel safe with uncertainty and where they can act independently from their chosen ideology when the situation warrants. Kegan emphasizes that transitions between phases take years to accomplish and there are no shortcuts. Apparently, less than 6% of all adults actually reach Kegan’s highest phase.
Seul suggests that Bush and Folger are encouraging disputants to grow into Kegan’s highest phase whether they are ready for it or not. He argues that empowerment and recognition must have different meanings depending upon the phase of development any individual disputant happens to be in. If each disputant in a mediation is in a different phase, things really get complicated for a mediator desiring to be both developmentally supportive to each party and impartial.
Seul concludes that “the goals and techniques of problem solving are not necessarily at odds with those of transformation,” because many of the more traditional techniques used by mediators are exactly what are needed for the vast majority of disputing adults. Those who are most likely to be in need of a mediator are those who are also most likely to be either in, or transitioning through, Kegan’s Interpersonal phase. While journeying through this phase, it is in fact developmentally appropriate to “recognize” the other side’s needs primarily as a means of meeting one’s own needs, and it would be inappropriate (and perhaps counterproductive) to expect a person in this phase to “recognize” the other person to the much higher degree that Bush and Folger advocate.
Thus, there exists a rather well developed body of developmental theory that is most likely at odds with some current trends in mediation. As mediators, we need to pay attention to this kind of outsider analysis as we continue to push for professional legitimacy.