Mediation Going Forward: What Do We Know? What Can We Expect?

In pondering the future of mediation, I notice that I have been daunted by the increasing complexity of the human condition. Not only as a clinical psychologist who has seen over 10,000 families in conflict and pain over the past 43 years, or as a child custody mediator who has completed over 5,000 mediations over the past 38 years, but as an observer of human interactions systems over my life-time. The current complexity of our problems, at least in the U.S., is close to the point of overwhelm; for the individuals involved, for the governments that rule them, for the courts that adjudicate them, for the economic systems that support them, and because of the corrupted values that guide them.

Core Values. Mediation is an interpersonal methodology for conflict resolution. It requires people “separating their interests from their positions.” However, as the interests of individuals increase in complexity and are deeply connected to a multiplicity of hidden agendas on both an individual and systemic level, and insidiously driven by the omnipresent values of greed and power, the chances for revealed honesty of one’s real interests are seriously diminished. Thus, in doing mediation within the context of such an adversarial and complex society, we are often left seeing the pretense of interests presented, and reaching agreements that, over time, easily deconstruct back to positions. Winning is very important in a complex and competitive society as ours. Cooperating is not.

I remember Morton Deutsch (1973) eloquently outlining the essential differences between a cooperative and a competitive process. His comparative chart gave the blueprint for mediators to move from adversarial to cooperative methods. However, it presumed that disputants would follow suit; that has not necessarily been the case. In smaller communities, where there are manageable, important shared resources, where neighbors know each other and personal relationships and civility may still be valued (for the most part) and where the inter-dependency on one another is clearer, mediation of disputes can be useful and successful; the people in these contexts can more easily appreciate the benefits of cooperating that Deutsch envisioned. In contrast, in larger urban settings, with their more dense populations, neighbors (even in adjoining apartments) often don’t know each, competition over limited resources is more pronounced, and the attitudes of winning over others, rather than cooperating with them, tend to prevail.

In many important ways, mediation will have a greater appeal and greater success in collectivist cultures over individualist cultures. While core values of collectivist cultures include harmony, cooperation, and collaboration, core values of an individualistic culture focus more on maximizing one’s own power and resources over one’s neighbor, in a zero-sum game fashion. Our recent decade of rancorous, adversarial attitudes in our own Congress is a government-level example of an individualist, competitive culture run amok (see Eddy and Saposnek, 2012). As the U.S. increases its diversity of sub-cultures, the seemingly natural tensions between and among them that arise vitiate the potential success of cooperative approaches to conflict resolution, such as mediation. By any stretch of the imagination, we are headed toward increased diversity, and hence, increased conflict, and hence, an increased tendency towards competition, rather than cooperation.

When the core interests/values of disputants are focused on seeking money and power rather than on being appreciated, being loved, and on sharing, mediation stands nary a chance for widespread acceptance and success as a conflict resolution process. Such core values largely determine what methods of conflict resolution will be acceptable to the masses. Hence, projecting into the future suggests that, unless and until these core societal values change, disputants will continue to prefer fighting their battles in adversarial forums, where there can be a winner and a loser.

Mediator Skills: The Shift from Models to Modes. Past research that has explored the best approaches for successful mediation has largely been wedded to looking at and comparing major models of mediation (e.g. facilitative; evaluative; transformative; therapeutic). However, as we project into the future of mediation, we will need to begin looking at this in a different way. Just as it is known that experienced psychotherapists tend to work more similarly to one another (as artists, rather than as technicians) than do newer therapists (Korchin and Sands, 1983), the same appears true of mediators. Becker-Haven’s (1990) research demonstrated that experienced mediators, who have been working on their craft for over 20 years, seemed to practice in a flexible fashion that was similar to each other, whereas those who were new to the craft seemed to operate more strictly by their model of origin, and they practiced qualitatively differently from those working from other models. From this research, she proposed the concept of “Modes of Mediation.” Experienced mediators manifested four “modes” of intervention within every session: An Educational mode; a Rational-Analytic mode; a Normative (Evaluative) mode; and a Therapeutic mode. Within each session, most experienced mediators flexibly and responsively used each of these modes for different amounts of time and repeated in different sequences, depending on the needs of the clients. In contrast, newer Facilitative Mediators used Facilitative Mediation interventions during the entire session—the same with Transformative mediators, Evaluative mediators, etc. While more research is needed to expand this line of exploration, this research suggests that, in the future, we may need to move past the traditional models of mediation and look more at the actual processes of successful, experienced practitioners as artists, in order to see the best value of mediation (Saposnek, 1993; 2005).

For the Future:

Use of Mediation. In the future, in my opinion, mediation utilization will be increasingly bifurcated into: 1) an increased use in two-person or few-person interpersonal disputes, such as family disputes, neighbor disputes, civil disputes, etc., and 2) a decreased use in more complex, multi-party disputes, where adversarial approaches will be preferred, reflecting the increasingly adversarial values that are insidiously being promoted in our society, through our 24-hour news and media coverage that, by the self-interests of the media, promote high conflict (“If it bleeds, it leads”).

Family and Divorce Mediation. I believe that the specific area of family mediation has been well-crafted and well-researched enough so that we mostly know what works for what kinds of cases and with what methods. Because I agree with my colleagues that claim divorce is primarily a family problem, not a legal problem, I would like to see divorce taken out of the court system. I would like to see people who are going through a family separation and divorce process work out their issues in a free-standing facility like a “Family Resolution Center,” where mediation would be the primary form of intervention for helping them divide their lives and continue to share their children in ways that are sensitive and developmentally appropriate. Of course, there will always be a small portion of divorcing families with very high conflict behavior that will need some sort of adjudicative procedures to reduce harm; those families would be identified early in the process of triage that would be established as up-front screening in the “Family Resolution Center.” Extended litigation would not be allowed; the families with very high-conflict behaviors would be briefly assessed and provided therapeutic support services to work through the emotional pain that so often leads to high conflict behavior, prior to attempts to engage in longer-term family decision-making. After the high emotions of divorce are given time and support to calm down, mediation may still be an option for some of them; for the very small group of individuals and/or couples that do not calm down, adjudicative procedures may still be appropriate for them.

Training. If mediation is to continue as a valued profession, we will need to provide much more comprehensive training and licensure or certification for mediators, beyond the current 40-hour, generic training for mediators. The training would use a similar model to that required of licensed therapists (i.e. graduate school; full-year internships; on-going supervision over an extended period of time). As mediators gain more measurably standardized competence, the public will increasingly recognize and trust mediation as a profession. Simultaneously, we need to more selectively and actively educate the public, particularly in smaller units of population distribution (i.e. real and meaningful communities) to consider mediation for interpersonal disputes, while promoting trust in high-level training and standards for mediators. Also, I would expect that, as courts continue to be overwhelmed by their case-loads, they will more aggressively promote mediation as a first step in attempting to resolve many two-person disputes. I would also suggest that family disputes (especially divorce involving children) require specialized mediator training that is different from all other types of mediator training. The very nature of families, with an unrepresented third party (the child) requires the mediator to know a whole specific body of knowledge about family dynamics, divorce dynamics, child development, psychopathology, addictions, the effects of divorce on children, and more. This knowledge base is not currently emphasized in generic mediation training programs.

While mediation can be quite powerful when used as an intervention with the appropriate population, it does have its limitations. By keeping this reality in mind as we go into the future, we can avoid wasted efforts to overcome human limitations by over-idealizing this tool.

FOOTNOTES

Becker-Haven, J.F. (1990). Modes of mediating child custody disputes. Palo Alto, Calif.: Stanford Center on Conflict and Negotiation.

Deutsch, M. (1973). The Resolution of Conflict: Constructive and Destructive Processes. New Haven, CT: Yale University Press.

Eddy, B. & Saposnek, D.T. (2012). Splitting American: How Politicians, Super Pacs and the News Media Mirror High Conflict Divorce. Scottsdale, AZ: HCI Press.

Korchin,S, and Sands, S.H. (1983). Principles common to all psychotherapies,” In C.E. Walker (Ed.), The Handbook of Clinical Psychology. Homewood, Ill.: Dow Jones-Irwin.

Saposnek, D.T. (1993).The art of family mediation. In D.T. Saposnek (Ed.), Beyond Technique: The Soul of Family Mediation. Special Issue, Mediation Quarterly, Vol. 11, no. 1, San Francisco: Jossey-Bass.

Saposnek, D.T. (2005). The future of the history of family mediation research. In T. Jones (Ed.), Conflict Resolution in the Field: Assessing the Past, Charting the Future. Special Double Issue of Conflict Resolution Quarterly. San Francisco: Jossey-Bass, 2004. Also in: American Journal of Family Law, Vol. 18, No. 4 (Winter 2005)

                       

Donald T. Saposnek, Ph.D

Donald T. Saposnek, Ph.D., is a clinical-child psychologist, a child custody and family mediator and a national and international trainer and consultant in child psychology and mediation since 1977. He is the author of the classic text, Mediating Child Custody Disputes: A Strategic Approach, and co-author of Splitting America: How… MORE >