Mediating Between the Mediation Models – Part 3

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Read Part 1 and Part 2.

At the mediation table we have two parties:  one that believes in the transformative mediation model and the other in the problem solving model.  In asking each party “please tell me what brought you here today” their “positions” become clear.  I learn that the transformative mediator insists that the mediator should not be agreement oriented and should facilitate the development of empowerment and recognition in the parties.  And when practiced in its purest form, this approach is best because it transforms the conflict itself, makes the parties stronger and has the power to create a moral shift in society.  The problem solver mediator states that parties come to mediation to have their conflict resolved and the job of the mediator is to facilitate their self-determined process to that end. It should be noted that Evaluative and Facilitative mediation, questionably lumped together by Bush and Folger, would differ in the processes engaged in to reach this end.  The problem solver continues, yes, it is important to address the relationship between the parties, but not instead of an agreement.  Furthermore, parties are empowered through the process of reaching an agreement and might not be empowered without an agreement.

Through some open-ended questions, I learn that both practices honor certain underlying principles but they manage the process differently.  The principles and values shared by both might be:  belief in a cooperative process over a competitive one, value in confidentiality,  exercise of impartiality, maintainance of neutrality, respect for the voluntary participation of the parties and the management of a constructive  conversation in a safe space.  I would reframe this as their common concerns. 

I might ask each party to take the perspective of the other, and having done so, ask what they each valued in the other’s approach. Going forward, what might they each envision as the best options for philosophical co-existence and practice?  One option that might surface, along with mutual respect for the other, might be for a flexible model with blended values and approaches. This model would incorporate those underlying values suggested by Bernard Mayer (2004) in Beyond Neutrality (p. 106) as: 

• Resolution is better than conflict (a possible compromise for the transformers).
• Cooperation is better than competition.
• Integrative solutions are better than distributive solutions.
• The coercive use of power is bad.
• Interests are important; positions are a problem.
• Communication among antagonists is desirable.
• Pressuring people to accept a solution is not helpful.
• Empowering disputants to solve their own problems is important.

It is notable that only the first item on the above might cause the transformers to pause. 

Use and applicability of a flexible model depend on a clear understanding about which mediator qualities, experience and knowledge are required to practice it and in what context it should be used.  It should be understood from the start in this discussion that training in both problem solving and transformative models would be critical.  But that alone, would not be enough.  Much experience of practicing the models would be essential.  Through trainings and experience, the mediator would hopefully find an authentic “self” as a practitioner.  Training in Emotional Intelligence for the mediator, with its focus on self-awareness, self-management, social awareness and social skills, would also be invaluable (Johnson, Levine and Richard, 2003, p. 153-155). The skillfulness of the mediator required in any model in dealing with their own emotions and those of the parties becomes particularly pronounced in the fullness of the flexible model.

There seems to be a dearth of research regarding which models work best and in what context.  Perhaps this is because the variables are unlimited and this makes research difficult to pursue.  Given that there are many formal mediation models already in practice and little study on what works best and where, the question of whether yet another model, a flexible model, contributes to the mediation field should be asked.  Logic tells us that most, if not all, conflicts involve relationships, emotions, and a shared interest in resolution.  Dealing with the conflict ideally needs to include addressing all these aspects and a flexible model would do so.  We know this is possible, because many experienced mediators, including those cited, choose to practice this way.

In other fields, hybrid approaches have yielded positive outcomes.  In international relations,  Joseph Nye (2009) at Harvard suggests the use of  “Smart Power” which he defines as the ability to combine hard and soft power into a winning strategy. Secretary of State Hillary Clinton agrees with this approach.  In her confirmation testimony, she states, “We must use what has been called “Smart Power” — the full range of tools at our disposal — diplomatic, economic, military, political, legal and cultural-picking the right tool, or combination of tools, for each situation”  (http://www.state.gov/secretary/rm).

The best outcomes in both medicine and pyschology are the result of a hybrid approach.  In medical practice, a physician must integrate evidence based medicine (based on peer reviewed randomized double-blinded research trials) together with good clinical judgement.  The diagnostic approach combines both the “art and science of medicine” in order to provide optimal individualized care.  Similarly, a physician must select from a variety of treatment options which may include supportive care (such as counseling, rehabilition, or physical therapy), medications, percutaneous and/or surgical intervention.  The best judgement requires a doctor to first “do no harm” and perhaps start with a less invasive approach unless the clinical circumstances warrant otherwise. 

Perhaps more closely aligned to conflict resolution is the field of psychology.  A good example of a hybrid treatment model is multimodal therapy, an approach to psychotherapy founded by Arnold Lazarus.  Set within the framework of Cognitive Behavior Therapy (CBT), this approach is based on the idea that humans are biological beings that think, feel, act, sense, imagine and interact, and that each of these “modalities” should be addressed in psychological treatment (Lazarus, 1989).  Multimodal therapy embraces “technical eclecticism.”  Many different theoretical perspectives are included in this treatment orientation with value placed on individualized patient treatment. 

Making a case for a flexible model of mediation is not an attempt to devalue any of the salient models in use; rather, it is an effort to add to them.  It seems a waste of time for people in  the mediation field to bicker among these models over which is “best.”  The field might be better served to focus on trainings that encourage centering practices which can lead to what spiritual traditions call a relaxed and focused mind, so critical for the mediator.  As expressed earlier, trainings in Emotional Intelligence might also bring forward a more fully developed mediator.  In this sense it is less about the mediation model and more about the mediator.  It should be remembered that indigenous societies have successfully relied on the wise men, healers, and tribal chiefs to resolve their conflicts.  In these societies, the issue is not about the model used; instead, it is about the wisdom, respect, and trust engendered by the mediator.  Quality practice is also about full disclosure on the part of the mediator with regard to the model to be used and agreement from the parties to engage in the process. 

Transformational mediation is not being attacked here.  I find the emphasis on empowerment and recognition to be of great value at the mediation table and in society at large.  But the views expressed in The Promise of Mediation about its superiority and the desire to keep it exclusive of other approaches seems rigid to me.  Others, more experienced than I, have similar reactions.  I recall what the Buddha said: “To be attached to a certain view and to look down upon other views as inferior – this the wise call a fetter.” 

In closing, I think of a cartoon I have seen with a psychiatrist and a patient.  Above the patient’s head is a thought in a balloon: “I hope he treats the problem I have,” and above the psychiatrist’s head a balloon says, “I hope she has the problem I treat.”  In our field, it could read, “I hope he/she mediates the kind of conflict we have” and “I hope they have the kind of conflict I mediate!”  What I mean here is that there should be agreement between mediator and disputants that they can work together effectively.  And a final word on mediator practice might be summed up in Carl Jung’s (1953) statement, “Learn your theories as well as you can, but put them aside when you touch the miracle of a living soul. Not theories but your own creative individuality alone must decide” (p. 73).

A flexible model, one that blends both problem solving and transformative approaches, is both possible and desirable and responds to Jung’s wise advice.

A brief reflection on writing this paper:
As I responded to Bush and Folger’s firm stand on not mixing the models, I noted how rigid I thought their thinking was.  Later on, after rereading what I wrote, I saw that same rigidity in my own thinking. Bush and Folger want the integrity of their model kept pure because they believe it is most effective that way.   It is this effectiveness that represents their most significant underlying “interest.” It is not a news flash that beliefs can become rigidly held in the context of conflict, it is just that it is valuable to note my own rigidity. It is a reminder to me that I carry strong beliefs that can get “fixed” and that I can be judgmental.  Going forward, more self-awareness about this will be useful as I learn to be a “neutral.”

References

Bush, R.A.B. and Folger, J.P. (1994 – 2005). The promise of mediation: The transformative approach to conflict (1st and 2nd editions). San Francisco: Jossey-Bass.

Bush, R.A.B. and Folger, J.P. (1996). Transformative Mediation and Third-Party Intervention:  Ten Hallmarks of a Transformative Approach to Practice. Mediation Quarterly. 13(4), 45-60.

Cloke, K. (2007). Let a Thousand Flowers Bloom: A Holistic, Pluralistic and Eclectic Approach to Mediation. ACResolution. 6(2), 26-30.

Fiss, O. M. (1984). Against settlement. Yale Law Journal, 93(6), 1073-1090.

Folger, J.P. and Jones, T.S. (Eds.). (1994). New Directions in Mediation. Thousand Oaks, CA: Sage Publications.

Frenkel, D. N. and Stark, J. H. (2008). The role of the mediator: differing approaches, fundamental norms. In The practice of mediation: A video-integrated text (61-89). New York: Wolters Kluwer.

Hoffman, D. A. (1999). Confessions of a Problem-Solving Mediator. Society of Professionals in Dispute Resolution News. 23(3), 1-4.

Johnson, M., Levine, S. and Richard, L.R. (2003).  Emotionally intelligent mediation: Four key competencies.  In Bowling, D. and Hoffman, D. (Eds). Bringing Peace into the Room. San Francisco: Jossey-Bass.

Jung, C. (1953). Psychological Reflections. New York: Pantheon Books.

Lazarus, A. (1989).  The Practice of Multimodal Therapy. Baltimore: The Johns Hopkins University Press.

Love, L. and Stulberg, J. (2007). The uses of mediation. In Kupfer Schneider, A. and Honeyman, C. (Eds.). In The Negotiator’s Fieldbook (67-74). Chicago: American Bar Association.

Mayer, B. S. (2004). The use (and misuse) of mediation. In Beyond Neutrality. San Francisco: Jossey-Bass.

Menkel-Meadow, C. (1995). The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices. Negotiation Journal. 11(3), 217-242.

Moore, C W. (2003).  The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed.). San Francisco: Jossey-Bass. 

Nye, J. (2009). Get Smart: Combining Hard and Soft Power. Foreign Affairs. Retrieved from: www.foreignaffairs.com/articles/65163/joseph-s-nye-jr/get-smart?

Williams, M. (1997). Can’t I Get No Satisfaction? Thoughts on The Promise of Mediation. Mediation Quarterly. 15(2), 143-154.

Wing, L. (2009). Mediation and inequality reconsidered: Bringing the discussion to the table.Conflict Resolution Quarterly, 26(4), 383-404.

Zumeta, Z. (2000). Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation. Retrieved from: www.mediate.com/articles/zumeta.cfm

 

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