Developing a distinct field and profession of mediation has been a goal of many practitioners for many years. As an unintended consequence, practice effectiveness has been compromised and the integrity of mediators as ‘honest brokers” has been undermined.
Specifically, mediators have sought to become more specialized in practice and become preoccupied with promulgating overwrought professional standards and ethical canons in order to seek legitimacy and acceptance on par with established traditional professions. In so doing, much of the core systemic perspective vital for competent mediation practice has been abandoned and the range of motion and creativity essential for a mediator to nurture agreements in difficult matters has been severely cropped and circumscribed.
My remembrances of things past—the reasons I found mediation practice so compelling many years ago— remain strong, but my enthusiasm for the emergence of a field, a distinct profession dedicated to conflict management, has waned.
Prior to law school I had worked in juvenile courts, mental hospitals and in the community. Law, attracted me as it did many of the 1960’s era, because it appeared to be the language of power that might allow me to be more effective in remedying the lacking of ‘the system’ to be responsive to people, families and children. I was then an admitted full bore ideologue soon to be tamed by reality: I knew I was right, but could not figure out why just being right was not enough? I would quickly come to learn that logic and reason were techniques that were insufficient to meet the challenge of persuading others. Law school, in retrospect, was a usefully strange experience for many unanticipated reasons. The first year was useful; you are preoccupied with trying to figure out the legal reasoning process and feel somewhat special. Bombarded with propaganda about how lawyers are supposed to think and why normal people can not understand the mysteries of the profession, I felt as though I was at the portal of a special, if not secret society. The third and last year was manageable if only because it offered the redemption of having the end in sight. The second year, however, as most who have endured legal education will attest, was torturously tedious. That middle year was a grind that caused me to seriously question the value and purpose of the whole enterprise of splitting hairs of meaning in irrelevant matters. The chasm between my romantic notions of legal practice fostered by Perry Mason or Rumpole of the Bailey, collided headlong with the study of dubiously relevant stuff like Wills and Estates, the U.C.C. (Uniform Commercial Code), Federal Taxation, and Corporations. While hindsight has forced me to grudgingly accept the validity and importance of understanding the business matters taken up by the study of such courses, my boredom at the time led me to simultaneously and surreptitiously enroll in Social Work School. There were few joint programs to speak of, and those that did exist—not unlike the present— were ‘joint’ in name only.
This dual course of study led to a few career clarifying, altering and defining realizations. First, people under emotional stress were likely to have legal and financial issues, and those embroiled in legal and business controversies were likely to be emotionally stressed. Second, such messy circumstances were not likely to be effectively managed by discipline bound professionals acting in a piecemeal fashion; the only viable approach required systemic and integrated disciplinary approaches. And, third, the professional education and training offered by each school failed to acknowledge, or worse yet, was downright hostile to integrated practice strategies and systemic thinking approaches. The unintended learning obtained in my graduate level course of study in the schools of law and social work was invaluable and helped explain much of what I had observed on the streets, as it were. This schism between the professional disciplines was—-and remains to this day—-the root of the reason so many clients fall between the cracks.
Because of the splintered approach they are taught to take toward complex issues, lawyers, doctors, counselors, financial advisors, and other professionals that minister to clients in difficulty, often become part of the problem and make the situation more confusing, complicated, difficult, and costly—not less. The law school courses in Juvenile and Family Law, was strictly limited in focus to the legal rights and responsibilities of children and families and remained wholly ignorant of and detached from any attention to the nature, make-up and dynamics of families or the developmental issues of the people involved. Conversely, the social work courses on families, abuse and neglect, youth crime, were disinterested in giving any attention to the legal ramifications of therapeutic intervention. The professional disciplines, not only appeared, but proudly presented themselves as two completely disconnected and parallel universes. To this day, lawyers will characteristically dismiss social workers and ‘touchy-feely, fuzzy thinkers,” and social workers can barely contain their disdain for lawyers who appear to place peoples’ rights ahead of their needs. Seldom do the professionals involved with the same business or family matter meet jointly and talk to, or even communicate with each other.
The history of the professions is revealing and helps to explain this rutted thinking. Law, medicine, psychology, social work, among others, began to be organized and formalized in accordance with a rational taxonomy of substantive knowledge and expertise toward the end of the Nineteenth and early Twentieth Centuries. Similarly, families and businesses were thought of in mechanical terms as merely groups of individual patients or clients, each with separate needs and respective rights and responsibilities. In many ways, the individuals concerned were considered to be interchangeable parts of the group. Later, the alternate systemic view began to emerge, suggesting that human groups are like organisms in their own right, the whole of which is different from the sum of its parts, and the loss or change of any person directly affects the whole group.
Systemic thinking has been somewhat accepted in theory, there remains a good measure of resistance to it in practice, especially by traditional professionals. Moving outside the settled boundaries of professional expertise, a systems perspective requires a more dynamic and fluid awareness of people and events. For example, looking at an issue, be it business or personal, strictly within the legal dispute management paradigm, without regard for the emotional considerations or business implications, is ineffective and quite possibly negligent.
Practice specialization disrupts the systemic perspective
Mediation practice has, over the years, offered me not only a workable practice approach but a viable theoretical model to bridge the gap between the traditional professional disciplines, which has been and remains deeply satisfying personally, professionally and intellectually. In mediation, clients remain directly involved, not merely the objects of professional expertise and treatment, and there is no bar to dealing with all of the dimensions of an issue or dispute. Mediation practice, by definition, requires an integrated and systemic formulation and thinking frame to effectively manage complex issues or disputes.
In addition to being a viable mode of conflict management, mediation serves a greater purpose as an alternative model of professional practice. A traditional professionals’ relationship with a patient or client is typically hierarchal with the lawyer, doctor or therapist is viewed as the repository of technical expertise and the designated problem solver charged with the complete responsibility of fixing, curing, or solving the matter presented. The mediative model suggests an interactive partnership with the professional as a consultant, not the final authority. The new professional borrows from mediative practice in that he or she, while not an expert in other disciplines, must have an integrated perspective and be aware of how all aspects of an issue, even those outside his or her immediate discipline, might impinge or affect good decision making. Thus, as a lawyer, no legal matter can be thought of as merely legal and just a question of money; or as a therapist, or as a therapist, no issue can be viewed as strictly a relationship or communications issue.’ More than merely being interdisciplinary in approach, a professional cannot just refer to other professionals when a matter crops up that is outside their primary focus, but from an integrated view has the duty to anticipate those matters and coordinate their management with practitioners in other disciplines. Simply slicing and dicing the matter presented to fit within professional practice boundaries is no longer sufficient. Systemically, all issues and controversies have legal, business, and personal dimensions that must be managed at the same time.
As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation. Those who practice “legal mediation” in the business or legal context tend to use strategies and techniques that are more familiar to traditional case settlement conferences where the focus is solely on the legal solution. That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit—or a rut—conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques. Similarly, to assume the mediation of divorce and family issues should be approached from a counseling perspective often minimizes the importance of the very real and compelling business and financial issues of a family in the throes of restructuring.
There will always be a need for a third party who can engage parties in a controversy sufficiently to broker a deal. However, as practitioners become preoccupied with specialization, they may find themselves less effective and the acceptance of mediation is being compromised. In many areas, mediation is increasingly being dismissed and viewed negatively as just another legal hoop to jump through. For their part, mediators appear to have become so pre-occupied with seeking the legitimacy brought about by having the field fit the image of the traditional professions that the original purposes of mediation have been lost. Mediation came about because the traditional professions, as they were conceived, failed to holistically and realistically address the issues people in conflict regularly faced.
Overwrought professional standards and ethical requirements restrict mediator range of motion
Throughout history, the best third parties are able to sell themselves as ‘honest brokers;’ they are able to garner a sufficient level of trust from parties at odds who otherwise distrust, if not hate, each other. They have gotten their foot in the door because of position but would not likely be able to stay long, unless they had the charisma and force of personality to elicit some confidence. Seldom, if ever, has this essential personal connection between a mediator and conflicted parties been created or even fostered by written rules. In fact, sometimes written rules serve more to confuse the process than aid it.
Mediators, anxious for legitimacy as bona fide professionals, have exhausted themselves promulgating standards of professional practice with an eye toward eventual licensure or certification. In lieu of formal recognition, many practitioners seek the appearance of sanctioning allowed by being included on an agency or court panel of ‘approved mediators.’ Most presume, mostly wrongly, that being on such a list will lead to a steady flow of cases and payment for services. The qualifications set by the authorities in control are not necessarily people familiar with mediation practice. In most jurisdictions, therefore, requirements and qualifications are established that interefere with quality third party practice. By rule, for example, mediators are often obligated to describe themselves as ‘neutrals,’ sometimes the structure and style of mediation is pre-set, and mediators are assigned not for their practice skills but for their substantive expertise. Lawyers are presumed (by virtue of law school education?) to be better able to manage financial and business matters, whereas those with a counseling background are considered better able to manage family and divorce matters. Many issues are likewise bifurcated along traditional lines of linear thinking: in divorce matters, for example, the money and business issues are seen as separate and apart from the parenting responsibility (or ‘child custody’ sic) issues. This kind of segregation based on unfounded presumptions of competence based on professional discipline fundamentally misapprehends what mediation is all about. It pre-supposes the skill and strength of a mediator is associated with substantive expertise as a problem solver and not her acuity in managing conflict.
While the rules set by courts, agencies, and others who do not entirely understand mediation might be forgiven, many professional organizations have similarly given themselves over to specialization and professionalization. The systemic view, the hallmark of mediation practice, is reverting back to an emphasis on subject matter expertise as practitioners concentrate on either family and divorce, business/commercial, personal injury, organizational, workplace, environmental, health care, older adult issues, construction, securities, etc.. The Association of Conflict Resolution and many state and regional associations of mediators and conflict management practitioners, insist on separate practice sections dedicated to specialized dispute contexts. Each section is encouraged to set practice standards and training requirements for their particular niche in a manner that distinguishes them from other sections and emphasizes substantive differences as if they are wholly different from practice in other contexts. Often there are special fees for belonging to individual sections that can be costly and discourages participation in multiple sections.
Law Schools and Graduate Programs in Conflict Resolution, and even mediation training programs have likewise fostered the questionable focus on practice specialization. “Legal mediation” is distinguished from other kinds of mediation, suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in he shadow of the court actions are predominantly legal.
Some programs presume to endorse a particular style of mediation practice, such as “transformative mediation,” or “interest based mediation” to the exclusion of other approaches. The clear suggestion is that there is one approach which is suitable for all parties in all circumstances. There appears to be a dedicated effort on the part of some to imprint mediation with a particular ideological branding. Some practicing lawyers enjoy advertising themselves as “collaborative lawyers” and use their profession of being reasonable and non-adversarial as a marketing device in lieu of rigorous mediation and negotiation skill training. There is no end to the many and varied forms of specialization.
Different practice approaches, perspectives and styles contribute to a cauldron of creative thinking and should not be discouraged. Every dispute has nuances, and presents unique dynamics and special issues that call for technical expertise, that are sometimes context specific and need to be studied and appreciated by a practitioner. But formalizing those differences into strict specialties, especially by the mediator is questionable at best. A third party who presents him or herself as a substantive expert in a matter is already off balance and prone to being evaluative or expected to be by the parties concerned. Further, each dispute context does not require a separate mediation model or structure and the imposition of such structuring is often little more than a veiled attempt to limit and constrain the mediation process. Mediation practice in special education, termination of parental rights, and workplace, or ADA (Americans With Disabilities Act) matters, often press the mediator into the uncomfortable and professionally compromised role of being a de facto investigator or law enforcement agent. A mediator, trained and paid by the administering agency especially to manage such matters, can easily be drawn into the role of an apologist for the status quo and loose his bearing as an independent and honest broker of a dispute. The more the mediation process is institutionalized, the greater the risk of this consequence. The core systemic thinking process which includes an assessment of the reported and perceived sources of conflict and the effective assessment of the surrounding conflict terrain, and the practice strategies, techniques and skills of mediation, are all largely the same from one dispute context to another. Specializing mediators by style or substantive context essentially reduces them to being agents of the hiring authority with the larger context being ruled out of bounds. The larger context of a dispute can often be the source of the conflict and hold clues for its effective management. In a workplace dispute where there has been an allegation of race or sex discrimination, for example, many mediators take a narrow view and limit their role strictly to the presenting issue as they might in a court case. In doing so, they can easily miss the larger more relevant issues of how rules are set and enforced.
Many mediators, seeking to be professional, enjoy describing themselves as ‘impartial’ or ‘neutral.’ This conjures a connection between their role as a mediator and the rationalist notion of mediation as a reasoned problem solving process pursued through civil dialogue where the mediator is an objective, “above the fray,” dispassionate problem solver who is disinterested in any particular outcome. Mediators, like doctors, lawyers, or counselors, can disclaim any bias or vested interest in any particular outcome. Curiously, however, while this serves well as a canon of professional responsibility, does not allow mediators to do their best work. In managing the most difficult matters, is not their neutrality, but rather their active and tenacious involvement with all parties concerned in brokering an agreement. This requires that the mediator personally and strategically fashion an entreaty to each of the disputing parties in a manner that incorporates their individual circumstances to the extent necessary to allow them to back away from their defensive posturing. This seldom fits with the role or demeanor of being removed and neutral and is often confused with being biased or partial. Being neutral, as the dictionary defines the word, and the standards promulgated by many professional mediation associations dictate, effectively means being neutered and ineffectual. Mediators presuming to be professional neutrals may be neutralizing themselves out of business.
The practice of mediation, in some form or fashion, will continue as it has since humans have seen fit to collaborate. There will invariably be rough spots that arise in negotiations that are usefully smoothed by the presence of a third party. This specialized form of negotiation remains an essential skill-set ordained by human evolution and neurobiology. It is practiced not just by humans, but in varying rudimentary forms by all animal species. The question is the nature, form and delivery of those mediation services.
As the practice continues to be specialized, professionalized and institutionalized, does it become further removed from its’ original purpose, intention and value? Is mediation, as it becomes more formalized, to follow the path of arbitration which began as an usefully informal mode of conflict management, only to become encrusted with so many rules that it has largely lost its’ cost effectiveness and efficacy? Is mediation to become, as it already has in some regions, merely another cog in the legal machinery to be avoided or endured? Has mediation become so widely and thinly applied—as Peter Adler suggests, “a mile wide and and inch deep”—that it no longer can, if it ever could, be regarded as a field? For many, mediation has already garnered a negative reputation as being ineffectual and an additional cost to be endured before a matter can be tried in a ‘real’ court.
The value of studying and practicing the skill in a disciplined manner is not in question and remains more important than ever. Unfortunately, however, the competency, effectiveness and acceptance of the craft of mediation is being retarded and inhibited by the pursuit of formal professional status. Being more specialized and professionalized does not lead to greater professionalism. The practice of mediation, which came about because of the limits of the traditional professions to effectively minister to the complex needs of clients, should not be forced into the constraints of a professionalized practice as they have been defined in a past era.
Selected Additional Readings:
Adler, Peter, “The End of Mediation,” http://mediate.com//articles/adlerTheEnd.cfm, April, 2009
Benjamin, R.D., “On Being Too Fussy AboutValues In Mediation: Consider The Hedgehog And The Fox, “http://mediate.com/index.cfm, April, 2001
Benjamin, R.D., “Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict,” http://mediate.com//articles/guerilla.cfm, August, 1999
Benjamin, R.D., “The Risks Of Neutrality – Reconsidering The Term And Concept,” http://mediate.com//articles/benjamin.cfm, January, 2001
Benjamin, R.D., “Character Traits Of Working Dogs And Conflict Mediators: ‘Systematic Intuition’ And Tenacity,” http://mediate.com//articles/benjamin25.cfm, February, 2006
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