Winning will depend on not wanting other people to lose
R. Wright. Nonzero. History, Evolution and Human Cooperation
The evolutionary process within the administration of justice leads to forms of Alternative Dispute Resolution (ADR). Using mediation, conflicts can often be resolved rapidly, economically and at an early stage, with a satisfying outcome for the clients involved. From the perspective of ‘game theory’ mediation revolves around a non-zero-sum game (‘win-win’), whereas a judicial procedure revolves around a zero-sum game (‘win-lose’). ‘Win-win’ means: you swim together. ‘Lose-lose’ means you sink together; ‘win-lose’ means: you swim and the other party sinks, and if the other party swims, you sink. (Schelling, 1960; Wright, 2000) Mediation can help to form or strengthen relationships encouraging trust and respect or, alternatively, to end relationships in as pleasant a manner as possible.
THE SOLUTION FOCUSED MODEL
The solution focused model was developed during the 80s by De Shazer, Berg and colleagues at the Brief Family Therapy Center in Milwaukee, USA. They expanded upon the findings of Watzlawick, Weakland and Fish (1974), who found that the attempted solution would sometimes perpetuate the problem and that an understanding of the origins of the problem was not necessary. Propositions of De Shazer (1985) are:
Building solutions is different from problem solving. According to the cause-and-effect ‘medical’ model, one should explore and analyze the conflict in order to make a diagnosis, before the ‘remedy’ can be administered. This model is useful where it concerns relatively simple problems, which can be reduced to uncomplicated and distinct causes, for example simple medical or mechanical problems. A disadvantage is that this model is problem focused. If the conflict and its possible causes are studied, a vicious circle may be created with ever increasing problems. The atmosphere becomes loaded with problems, bringing with it the danger of losing sight of solutions. “An analysis turns a focal point into a whole field by looking in detail at what has been focused upon and breaking down into even smaller areas each of which can become a point of focus…It must be emphasized that analysis is by no means the whole of thinking, and analysis by itself will not solve problems. In the past rather too much attention has been paid to logical analysis as the only required tool of thinking” (De Bono, 1985, p. 171).
LOOKING TO THE FUTURE
De Bono (1985) distinguished four dimensions in conflict thinking: is the action fight, negotiate, problem solve or design? In the fighting approach words of this idiom are used: it revolves around tactics, strategy and weak points. This is the language of the courtroom, where winning is the goal. The word party, as used in mediation, also stems from this idiom and is in solution focused mediation replaced by the neutral word client or participant. Negotiating suggests a compromise, whereby the possibilities are limited to what already exists, rather than envisaging something new. Problem solving concerns the analysis of the problem along with its causes. A disadvantage of problem solving is that when the problem is defined, the type of solution expected is also defined. With these three ways of thinking about conflict one looks backward at what already exists.
The fourth and best way in conflict resolution, the design approach, is solution focused and looks forward at what might be created. One possibility is to first determine the end point and then to see what solutions may get us there. Another approach is to simply jump to the end and conceive a ‘dream solution’. Its content can be illogical, because it concerns a fantasy. More importantly it can suggest circumstances in which the conflict would no longer exist: ‘Imagine the conflict resolved, what would you then be doing differently?’
Salacuse (1991) mentions a few rules to ensure that clients are ‘paddling the same canoe in the same direction’: first, precisely define the goal of the negotiations and investigate new possibilities for creative solutions that serve the interests of all clients. Also considered important are an emphasis on the positive aspects of the goal and of the relationship, and stressing those moments when agreements are (already) reached and when progress is (already) being made. Salacuse (2000) also discusses the importance of having a vision of the end result. Michelangelo could already see in a block of marble the magnificence of David, as Mozart already heard in his quiet study the overpowering strains of the Requiem. What clients seek is not just help but help with their future: ‘Whether an advisor is a doctor, a lawyer, a financial consultant or a psychotherapist, his or her mission is to help the client make a better future’ (p. 44).
Mnookin et al. (2000) note that lawyers and clients are so focused on wanting to be in the right that they tend to overlook solutions possibly lying outside the field of the original conflict. Frequently, these solutions have nothing to do with the formal conflict (compare De Shazer: the development of a solution is not necessarily related to the problem) and the agreement may be of an order that could never be envisaged in a courtroom. Furthermore, they state that lawyers (and clients) all too often despair of there being a possible positive outcome, and as a result do nothing.
Although these authors argue that mediation should focus on the future, it is surprising that so much attention and time is spent on the conflict’s past and present. Haynes, Haynes and Fong (2004, p. 7) state that a mediator can only mediate in the future tense. They propose that a mediator uses future focused questions to initiate change. ‘Most clients are highly articulate about what they do not want and equally reticent about what they do want. However, the mediator is only useful to the clients in helping them to determine what they do want in the future and then helping them decide how they can get what they want. It is difficult for the mediator to help clients not get what they do not want, which is what clients expect if the mediator dwells with them on the past’.
A recent study (Byrd-Craven et al, 2008) shows that extensive discussions of problems and encouragement of ‘problem talk’, rehashing the details of problems, speculating about problems and dwelling on negative affect in particular, lead to a significant increase in the stress hormone cortisol, which predicts increased depression and anxiety over time. SOLUTION FOCUSED MEDIATION IN PRACTICE
Solution focused conversations revolve around four main questions: ‘What is your best hope? What difference would that make? What is already working in the right direction? What would be the next step’?
In a visitor-relationship the client is mandated. He is referred by others (judge, doctor, organization) and does not personally come forward in search of help. Those referring the client are concerned or have a conflict with him. The mediator will attempt to create a context in which the client may voluntarily ask for help. He may, for example, ask what those referring the client would like to see different in the future and to what extent the client is prepared to cooperate in this.
In a complainant-relationship the client is suffering emotionally, but does not (yet) see himself as part of the conflict and/or the solution. The other person or something is to blame and needs to change. The mediator acknowledges the client’s suffering and may give suggestions for reflecting upon, analyzing and observing moments when the conflict is or was there to a lesser extent or moments when (an element of) the miracle or preferred outcome is already happening.
In a customer-relationship the client sees himself as part of the conflict and/or solution and is motivated to change his behavior.
The solution focused mediator goes beyond the verification of commitment: he is trained in relating to the existing motivation and in stimulating change. Often clients will start mediation from a visitor- or a complainant-relationship. This early assessment of each client’s level of motivation is of essential importance for the strategy of the mediator and for the type of homework suggestions.
Indications and contraindications and a comparison between solution focused mediation and three forms of problem focused mediation (problem solving mediation, transformative mediation and narrative mediation) can be found in Conflict Resolution Quarterly (Bannink, 2008a). For an overview of differences between problem focused and solution focused mediation see Table 1.
Table 1: Differences between problem focused and solution focused mediation
|Problem focused mediation||Solution focused mediation|
|Conversations about what clients do not want (the conflict)||Conversations about what clients do want instead of the conflict (preferred future)|
|Focus on the conflict: exploring and analyzing the conflict||Focus on exceptions to the conflict: exploring and analyzing the exceptions|
|Conversations about the same and impossibilities||Conversations about differences and possibilities|
|Conversations for insight and working through. Conversations about blame en invalidation||Conversations for accountability and action. No invitations to blame and invalidation. Insight may come during or after treatment|
|Clients are sometimes seen as not motivated (resistance)||Clients are seen as motivated (although their goal may not be the goal of the mediator)|
|Client is sometimes viewed as incompetent (deficit model)||Client is always viewed as competent, having strengths and abilities (resource model)|
|Mediator gives advice to client: he is the expert||Mediator asks questions: clients are the experts. Attitude of the mediator is ‘not-knowing’ and ‘leading from one step behind’|
|Mediators theory of change||Client’s theory of change|
|Expression of affect is goal of mediation||Goals are individualized for all clients and do not necessarily involve expression of affect|
|Recognition and empowerment are goals of mediation||Recognition and empowerment can be means in reaching the preferred future|
|Interpretation||Acknowledgement, validation and opening possibilities|
|Big changes are needed||Small changes are often sufficient|
|New skills have to be learned||Nothing new has to be learned: clients are competent and have made changes before|
|Maybe feedback from clients at end of mediation||Feedback from clients at the end of every session|
|Long-term mediation||Variable/individualized length of mediation: often short-term mediation|
|Mediator indicates end of mediation||Clients indicate end of mediation|
|Success in mediation is defined as the resolution of the conflict||Success in mediation is defined as the preferred outcome, which may be different from (or better than) the resolution of the conflict|
SOLUTION FOCUSED CASE: MEDIATION WITH A TEAM
The team consists of six nurses in an institution for people with psychiatric problems. There has been a bad atmosphere within the team for two years. This developed following a severe accident involving a resident, due to accusations of negligence within the group, leading to a lack of mutual trust. Attempts to reinstate good cooperation within the team have failed. The director has spoken with all team members and has appointed a coach from within the institution. Since there has been no improvement, the director has sent the team to an external mediator. If there is still no improvement, dismissals are likely to occur. The nurses have agreed to mediation, albeit reluctantly.
The first meeting.
The conversation starts with preliminary introductions and the creation of a positive, informal atmosphere through agreeing to continue on a first name basis, with the mediator showing an interest in the clients’ working and private lives and giving compliments for the courage to start the mediation. Then follows an explanation of the solution focused mediation process: the conversation will not so much focus on the conflict itself, as well as on what they would like to see different: their preferred future as a team and on how that may be achieved. There is room for acknowledging their emotions and normalizing the frustration by reacting with empathy to the brief history of the conflict. The clients are given space to ‘say what definitely needs to be said’. Some make use of this by expressing the hope that these meetings will lead to a positive result. Following this, the mediator asks the goal formulation question: ‘What is your best hope’? And: ‘What difference would that make’?
All team members indicate that they would like to cooperate in a pleasant manner again, with a restoration of mutual trust. This would help in greater pleasure in being part of the team. The mediator inquires into concrete behavior and how that would manifest itself: ‘How could you tell that the level of trust between you was increasing?’ What would you be doing differently?’ Due to most team members initially thinking others rather than themselves need to change (assessing motivation: complainant-relationship), the mediator asks: ‘What would you personally do differently, assuming that the behavior of others was more in line with the desired direction?’
The mediator asks: ‘What is already working towards your preferred future’? ‘And what else’? Then the progress is scaled: ‘On a scale of 10 – 0 (10 = pure cooperation and 0 = pure conflict), where would you say you are right now? The nurses mention marks between 2 and 5. The scale of 10 – 0 is drawn as a vertical line on a flip chart and the marks are applied to this. The mediator asks every member how they have already succeeded in reaching that mark and gives compliments. In addition, the mediator asks the team members which mark they would like to attain: which mark is ‘good enough’? All would like to achieve at least a 7 or 8. The next questions are: ‘What will one mark higher from now look like and what would you then be doing differently? How might you reach this mark? What would be the next step’? And: ‘How would your colleagues notice that you have achieved one mark higher?’ The team members are also asked how their patients and their director would notice that they as a team are progressing towards a 7 or 8.
The mediator gives feedback: compliments for the willingness to improve the team atmosphere and the concrete steps mentioned to reach one mark higher. At the end of the meeting all team members are invited to pay attention until the next meeting to the moments when the team has already (for a while) reached one mark higher, so that next time this can be discussed. The final question is: ‘Do you think it is useful to return?’ The team members specify the scheduling of the next appointment.
The second meeting.
The opening question, ten days later, is: ‘What is better?’ The team members say that things are going slightly better. They talk more to each other and the air seems to have cleared a little; they also greet each other again in the corridor. They are invited to give details about how they were able to do this and the mediator compliments them with the achieved result.
Using scaling questions. The marks are a little higher: ranging from a 4 to a 6.5. Again the marks are recorded on the flip chart. The team members explain how they have reached these marks. The team meetings are becoming more constructive, because they do not interrupt each other and listen more to one another. The next questions are: ‘What might one mark higher from now look like? What would be the next step? What would you be doing differently? What can you do yourself and what do you need from the other team members’?
At the end of this meeting the feedback consists of compliments from the mediator and the suggestion: ‘When you work together in the weeks to come, act as if you are already one mark higher and take notice of what difference that makes. Do you think it is useful to return and if so, when should the next appointment take place?’
The third meeting.
The opening question in the final meeting, four weeks later, is: ‘What is better?’ All indicate that it is going fairly well. Marks range from 5.5 to 8. Again they are recorded on the flip chart. The mutual trust has to some extent been restored. They have become more interested in each other; and increasingly enjoy each other’s company. Included in the settlement agreement is the intention to work as much as possible as a ‘dream team’. Should, despite their best efforts, a new dispute arise, they will again attempt to find solutions through mediation. To conclude, the mediator compliments the team with the achieved result. Following this meeting the settlement agreement is signed by the team members. They decide to have dinner together as way of celebration. Three months after signing the agreement, a follow-up by telephone finds that the team – and the director – are satisfied with the result.
In mediation the measure of success is not so much whether a client wins at the other client’s expense, but whether he gets what he wants because he enables the other to achieve his dreams and to do what he wants (Wright, 2000). Mediators could be trained to help their clients in designing their dreams and solutions and to assist them in the motivation to change. Clients can be motivated to work hard to achieve their goal. As a result the mediator also has energy to spare at the end of the day.
Research has shown that solution focused conversations have a positive effect in less time and that they satisfy the client’s need for autonomy more than problem/conflict focused conversations (Stams et al., 2006). The solution focused model has proved to be applicable in all situations where there is the possibility of a conversation between client and professional, in (mental) health care (De Shazer, 1985; De Jong & Berg, 2002; Bannink, 2006, 2007; Bakker & Bannink, 2008), in management and coaching (Cauffman, 2003), in solution focused organizations (Stam & Bannink, 2008), in education (Goei & Bannink, 2005), in working with mentally retarded people (Roeden & Bannink, 2007) and in mediation (Bannink, 2006ac, 2008ab). The solution focused model can help clients and mediators create their future with a difference.
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This is the complete interview by Robert Benjamin with Michelle LaBaron, a leading expert on cross cultural dispute resolution issues, filmed as part of Mediate.com's "The Mediators: Views from the...By Michelle LeBaron