Beyond “Half Full or Half Empty” – Getting the Right Glass

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There is an old engineering joke about the proverbial glass. Optimists see the glass as half full; pessimists see the glass as half empty; engineers ask “Who designed that glass?”

Reading the articles posted under ‘The Mediation Futures Project’ 1 it is clear that there is little agreement about our future – some of us are optimists and some are pessimists. Equally clear is that we do not agree on the core definitions of our field. In the confusion over what we are all talking about I struggle to be either optimistic or pessimistic. Instead, my hope for the future is that we come together to answer the question of “Who designed mediation?”

This latest project comes eight years after the Keystone Conference and the same debates are being had now as then1. Multiple tensions exist throughout the ADR field around how to make a bigger impact and be more effective. Some non-legal practitioners are concerned that lawyers might try to co-opt the mediation field. A few practitioners who make a living from this work worry the volunteer sector will undermine the market for ADR. Divisions persist on how the ADR field should be promoted to the public. Supporters and opponents contest the need for minimum standards to practice and what body would police those standards. Most, if not all stem from the same source – “What is it that we do?”

Randy Drew states “I hope we can all agree that narrative, transformative, facilitative and evaluative are all styles or genres, but they are all legitimately mediation”2. Robert A. Baruch Bush and Joseph P. Folger challenge us to “End once and for all the fiction that evaluative case settlement is mediation”3. Clearly there is no agreement on the most fundamental concepts in our field such as the definition of mediation. This ongoing debate is encapsulated in the statement from Peter Adler: “Mediation seems to be almost anything people want to claim it is, including me.”4

I agree with Randy Drew when he states that “definitions are dangerous, because they not only describe what something is, they also say what something is not, and – importantly – what is not that something.”2 To define something is to draw boundaries and therein lies the potential for winners and losers. The debate over core terms is highly-charged and oftentimes divisive because people’s livelihood, reputations, life-work, and futures are at stake. We have been debating these questions for decades without resolution so let us try a different tack.

The engineer asks “Who designed that glass?” which is a very different perspective from the one we are all familiar with – that the glass is half full or half empty. The engineer looks at the glass from a technical standpoint – the glass is the wrong size for the amount of liquid. It is the same glass and the same amount of liquid but these are two very different ways of describing the situation. Similarly, we have been debating at the definition problem from within our field and we might find a way forward if we look at mediation from outside the field.

For example, we need two different ways to use the word mediation: an everyday use of the word when communicating with the public, and another more technical use within the ADR community. Any descriptor of our services to the public must be in terms they understand. An overly complicated and technical definition is likely to confuse and put off prospective clients. Conversely, a loosely worded very broad definition of mediation is not really a definition at all and makes internal discussions difficult.

The differing uses of the same word shed light on the perennial cry to educate the public. We could spend time and resources to educate everyone on the difference between narrative, facilitative, transformative and evaluative mediation. The proponents of this marketing strategy hope it will increase the use of mediation and ensure the public makes informed choices. My view is the public does not want to be educated; they are too busy with their lives.

I think the wish to educate the public comes in part from our muddled thinking on what we are trying to say to whom. Does the public really need to know the differences between the various types of mediation? Most ordinary people do not understand the difference between arbitration and mediation. I suspect most people outside our field consider the terms narrative, facilitative, transformative, and evaluative to be mediation jargon. It is almost as if we are trying to transfer this definition problem to the public so we do not have to deal with it ourselves.

To summarize the current status quo; we cannot agree on the core terms of our field and have not managed to do so for decades. The fact that we are not agreed on our terms means we cannot be clear on our message to the public. Furthermore, the best option we have identified to expand the mediation field is a campaign to educate the public in mediation jargon.

It is time to step back and ask “Who defined Mediation?”

We can try to answer this question by revisiting the history of mediation but the history presented can be shaped by the view of mediation you hold. Mediation of various types has been practiced for millennia without having that label. Some may reference landmarks such as the Pound Conference and the “Getting to Yes” book. Others might point to definitions encapsulated in codes of conduct, theories and laws. Anyone can build a case to support any definition and so a historical line of inquiry does little to move us forward.

We have definitions of core terms and there are both ADR dictionaries and taxonomies. The issue is not the lack of definitions but rather the reverse: we have differing definitions for exactly the same word and for exactly the same practice. Furthermore we have differing ways of defining any particular term. The result is a lack of consistency in how core terms are used and no way for the reader to easily determine which definition the author intended.   

Again I return to the question of “Who designed the glass?” There are many forms and shapes of glass just like there are many practices and theories of conflict resolution. Some glasses are mass-produced and almost identical. Court-annexed mediation is headed in the same direction; where consistency and cost effectiveness is a priority. Some glasses are designed for one particular function. Collaborative law and conflict coaching are two examples of recent developments that draw from elements of mediation to meet a particular need. This leads me to the position that the definition of a core term cannot be separated from the purpose for which it will be used.

We need a way to handle the current different definitions so that we can readily identify them in context. We need technical jargon to conduct meaningful research and expand the theoretical underpinnings of our field but using that same jargon to communicate with the public will cause confusion. One area we could explore is to assign the definition of each core term to the purpose for which it will be used.

Agreeing on the appropriate definition for a particular application is not the only hurdle we must overcome. Existing core terms are defined in all sorts of ways including reference to basic principles, process steps, or key features. Mediation overlaps with other fields such as law, negotiation, and peacekeeping causing some to define mediation by placing it on a continuum within a larger scheme. In addition, we continue to create new ways to help people in conflict necessitating the creation of new core terms and associated definitions. The providence, format and structure of a definition have to be agreed as well as its meaning otherwise technical intra-field discussions will be hampered. A guide on how core terms should or should not be defined would increase our capability to be precise, minimize misunderstandings and foster closer alignment within and outside our field. A first step might be to categorize the existing definitions to make sense of them in totality and identify the gaps and areas of dispute.

We disagree over the essential hallmarks of mediation so there are some deep divides to bridge to find a consistent and coherent voice. Complicating matters is the desire to market the field of mediation to the public. We need a set of definitions that are suitable for different purposes yet draw from a common understanding. This endeavor is a big challenge but not an impossible task and it is noteworthy that as a community of conflict resolvers we have made little progress in bridging these divides. Perhaps we should follow the advice we give to others and seek-out a practitioner that can help us manage our conflicting views.

I am in favor of increasing the market for mediation and delivering the services the public needs. For everyone’s benefit inside and outside the field it is time we find the collective will to tackle these issues. I do not underestimate the difficulty of this endeavor since it cuts to the core of our beliefs, values and identity. I also believe we have the knowledge, experience and skills to break the impasse, find innovative solutions and transcend our predicament. This current project is a golden opportunity to define mediation and if successful we can fill that mediation glass to the top.

End Notes

1 Adler, P. S., Melamed, J. October 8-11, 2006 “Keystone Conference Final Report – Consolidating Our Collective Wisdom: Best Counsel and Advice to the Next Generation” www.mediate.com (accessed December 2014)

2 Randy Drew September 2014 “Defining Mediation: Voluntary Assisted Negotiation” www.mediate.com/futures/ (accessed December 2014)

3 Robert A. Baruch Bush, Joesph P. Folger November 2014 “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination” www.mediate.com/futures/ (accessed December 2014)

4 Peter Adler November 2014 “Predicting the Future of Mediation” www.mediate.com/futures/ (accessed December 2014)