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Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination

by Robert A. Baruch Bush, Joseph P. Folger

For us and the colleagues we’ve worked with for many years, our first premise has always been that self-determination, or what we call empowerment, is the central and supreme value of mediation – a premise probably shared by many in the field. This is what we were struck by when we began, and believed was uniquely served by mediation.  Empowerment is the heart of the mediator’s mission, and we value self-determination above all.  We believe in the value of upholding party choice, and we also believe that increasing understanding, reaching sustainable resolution, and other goals all rest on the foundation of genuine party self-determination. Our views on this have been explained in many places. 1

At this point in the evolution of mediation, the question in our view is, what has happened to the mediator’s mission of supporting self-determination?  There is no such thing as envisioning the future without understanding the past and present.  In the case of our field, there are many metaphors to describe mediation’s current state, and how we got here.  For us, as we reflect on the state of the field today, the most accurate metaphor is that mediation has been “captured”.   But, captured by what?

Social science research and historical events -- from the Zimbardo experiment 2 in the 70's to Abu Graib in this decade -- provide an important lesson: Environments change people more easily than people change environments – and mediators were apparently changed by the environments they worked in, especially courts and other authoritative agencies, adopting the case-settlement goals and practices favored by their “hosts” and forgetting about self-determination.  Institutional pressures pushed mediation practice to a place that many of us did not anticipate and certainly did not want.

But is it really just the courts who became the captors of our field?  No, it goes much broader and deeper.  Mediators were captured, intoxicated by – and ultimately addicted to – the drug of the problem-solving culture, the culture of expert fixers, protectors, and problem solvers, who offer to take away the pain and frustration of unmet needs and tangled problems, applying their well-trained skill sets to accomplish wonders for eager clients who would otherwise suffer. ADR scholar Deborah Kolb reported in her study of mediator practices that for a majority of the mediators she studied: 

Questions become suggestions in the guise of a query…. These mediators frequently make suggestions on matters of substance… [using their] expertise as the touchstone of their efforts at persuasion and influence.  They acknowledge that they make judgments about what is a good and bad agreement and try to influence the parties in the direction of the good…. [They] are strongly inclined to believe that without their substantive and procedural know-how, the parties would flounder and a good settlement would be elusive. 3

Truly, this describes what has happened to our field:  We were drawn in by the culture of helping, the drug-like “high” of reaching agreements (and even “wise” agreements), the “rush” of satisfaction in cutting Gordian knots, finding creative solutions, and protecting vulnerable parties.  Along the way, the theory of the “wise negotiator” penetrated the mediation field, making the problem-solver role look even more attractive. 4  So that the subtler, finer, and ultimately higher value of party self-determination was simply overwhelmed by the intoxication of the problem-solver role. 

Intoxicating, not only because of what it seems to accomplish, but because of how it feels – to be one of the elite, the problem solvers, the experts who can do what common folks cannot, protecting people from their own inevitable bad choices and decisions.   Mediators are needed, valued, prized for their skills, their art – and also their wisdom.  Were we really expected to let go of all that for the self-effacing, minimalist task of “supporting party self-determination”?  Were we meant to exchange the role of star for the role of understudy?  For some of us the answer was a resounding yes, even though it meant giving up the expert spotlight.  We were once contacted by a TV producer seeking to do a “reality show” on mediation.  When he saw our videos, he told us that he couldn’t use us, because he needed to portray the mediator as the “star”, and our non-expert approach didn’t do that – as Dr. Phil does, for example.  Instead, that honor went to a mediator whose work was “Fairly Legal”….

So the story of how our field got to its present state is this:  Mediators were seduced (perhaps not unwillingly) by the expert helper “mission”, with the result that many were slowly squeezed out, disqualified by increasingly onerous training demands and qualification standards that demand the adoption of an expert role.  What have those demands and standards become focused on?  For one thing, substantive knowledge and expertise.  For example: ADA mediators must practically become experts on disability law – statutes, regulations, and even court decisions! 5 Another example: Family mediators in some states, like Florida, must become experts on not only family law but finances, accounting and pension funds. 6  The impact has been profound: when one of us did research on mediation practice in the late 1980s he interviewed a woman who was called the “mother of family mediation” in Florida. But she was no longer practicing, because under newly adopted standards, she was considered unqualified. Ironically, in a field that supposedly valued diversity, heightened standards have meant the exclusion of many minorities for whom acquiring the necessary expert qualifications was simply too costly. 7 Now this trend is moving to its logical conclusion.  We have just heard that in one country, lawyers who want to be mediators are told that they are exempt from mediation training. Legal knowledge in itself qualifies a third party to be a mediator.

But it is not enough to meet these kinds of qualifications.  Mediators must also undergo rigorous training in essential practice skills – but they are not skills that prioritize party self-determination.  In fact, the focus is on skills that involve controlling, managing, and directing the very clients who are supposed to be exercising self-determination in the mediation process.  Chris Honeyman’s work on the “common core” of mediator skills, the standard curriculum, documents how the skills of conflict control and management dominate the agenda of most training programs. 8 In one demanding program of training for mediators in Europe, two full days are spent solely on “reframing” what parties say to change their language into “better” terms more likely to produce agreement.  Mediators trained like this are truly captured, wedded to an expert problem-solver role that is almost impossible to deconstruct, much less escape.  Some potential mediators leave the field when they participate in this type of basic training, because they feel it is inconsistent with who they are and who they want to be in serving future clients.  They may or may not even know that there is an alternative mode of practice.

When we articulated and then developed the transformative approach, beginning 20 years ago and continuing ever since, we kept thinking that our fellow mediators – who mostly agreed with us that the developments sketched above were gaining ground and submerging the values we’d originally held dear –would join us.  Join us in stepping away from the atmosphere of the “fixer” culture of expertise and directiveness that was taking over, join us in returning to the original vision of self-determination and party empowerment.  And some have certainly done so.  But not nearly enough to overcome the tide of problem-solving expertise.  We’ve been swimming against the current for two decades and it has been challenging and at times profoundly discouraging.

We are asking our mediation friends and colleagues to redeem the pledge to place self-determination at the center of this unique and precious process.  Mediation could be a jewel in democratic cultures that reject elitist pretensions and instead maintain that the common ordinary citizen is not common at all, but truly extraordinary, capable of both great strength and great compassion, powers that surface from within and need not be supplied from without.  Mediation at its heart – in the principle of self-determination – expresses that democratic ethic perfectly.  But today we have lost our way in a haze of intoxication with the culture of expertise, which we began by rejecting when the mediation movement first got started.

We challenge you– to join us in rolling back the tide, to put down the mantle of expertise, to start giving up the wise-problem-solver role.  Begin reclaiming the job of truly supporting our fellow human beings who, when in difficult straits, need only modest assistance from us to find their own strength, their own solutions, and their own compassion for each other.  And who can learn from choices they make that are not perfect, or even don’t work out for them at all.

More concretely, we place before you an agenda that we’d like to see you adopt, a platform for escaping the intoxicating prison that has entrapped us, for returning to an original vision of the mediation field and making that our future

  1. End once and for all the fiction that evaluative case settlement is mediation. Call it settlement conferencing, or something else similar – but not mediation. Language has consequences, and impacts, and “evaluative mediation” is indeed “an oxymoron” that simply confuses both mediators and clients.  Can’t we all agree that this, at least, is not mediation at all, and shouldn’t be simply “accepted” because the train left the station? Call the train back! If we take a united stand on this it will open eyes and minds, get attention, and invite further changes.  It will meaningfully and publicly reassert the mediation field's commitment to self-determination as the core value of our work.
  2. Undertake a fundamental redesign of mediator training.  Mediator training is the “gateway”, the enticing place where most mediators are first captured and lured away from a true commitment to self-determination.   We need to make major changes in the contents and goals of the required basic training.  We should reduce the attention given to reframing, to setting mediator-imposed ground-rules, to techniques for shaping agendas and managing or venting emotions, to probing for underlying needs and interests, to leading parties through a set of phases that are aimed at reaching agreement as the only valuable outcome of the process.  Do any of these really support party self-determination?  If not, why are they at the core of training programs?  Indeed, once trained in these methods, mediators are programmed in a way that makes it almost impossible to support party choice and let parties talk through issues for themselves.  Instead of these skills of control, we can and should train mediators in the skills of supporting and not supplanting party deliberation and decision-making, supporting but not forcing parties’ mutual understanding and empathy.  It’s not too late to redesign mediator training.  And without doing that, mediation will remain captive to the culture of expertise.
  3. Publicize widely the research that documents the pervasiveness of mediator directiveness (even coerciveness) and its devastating effects on party self-determination.   Educate policymakers and institutional clients on what that research shows:  Unless ordered into mediation by courts or other agencies, people lack interest in mediation – and that is because mediation never delivered the new and different experience it promised.  It was only more of the same thing that courts, arbitrators, settlement officers, had been doling out forever – but worse, because mediation lacked any oversight or protections against abuse by the third party.  Why would anyone be seriously interested in it, unless ordered to participate?  Recent studies confirm that mediation is underutilized – and this will continue to be so until the process offers the real opportunity for self-determination that makes it unique. 9
  4. Change the requirements on mediator qualifications.   Perhaps most important, do away with demands for mediator substantive knowledge and expertise as qualifications for practice.  If mediators are really not decision makers (more a myth than a reality today), why do they need substantive expertise? And if they are required to acquire it, mediators will use this expertise to influence and direct the parties, as studies have shown.  So don’t make us experts in the first place!  Let us be experts only in supporting self-determination and the parties’ capacity to work through their own conflicts. 
  5. Join the larger culture critique that questions the elitist helper/fixer/ protector/problem solver role itself – a role based on a “deficit” view of our fellow human beings – and reaffirms belief in universal human capacities for agency and empathy that need no infusion of wisdom from elites, professional or otherwise.
  6. Reach out to the wider society, finding and telling stories that illustrate how mediation exemplifies this positive view, with parties directing and working through their own conflict conversations, and mediators supporting but never supplanting them.  These stories can present the ideal of self-determination realized in actual practice – as we originally envisioned the mediation process four decades ago.

Before it is too late, before we are too far “gone” to even remember what self-determination looks like and why it matters to the people we serve – let’s realign our goals and practices with the early roots of the field and leave our problem-solving pretensions behind.  No matter how attractive and enticing they may have seemed, they have lured us away from our true and unique mission – offering a “safe haven” from the culture of experts, in which parties can act with true self determination, showing that they are the real “stars” of the conflict resolution experience, and we are merely “supporting” actors.  We need to make a strong, public statement that marks a new beginning for the field, its organizations and its clientele.  The field needs a public turn-around so that our organizations can once again flourish, and our stakeholders and clients will turn to us once again for a service that can be immensely valuable.  

ENDNOTES

1. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: THE TRANSFORMATIVE APPROACH TO CONFLICT (2ND ED. 2004); Robert A. Baruch Bush, The Centrality of Empowerment, in TRANSFORMATIVE MEDIATION: A SOURCEBOOK (J.P. Folger, R.A.B. Bush, and D.J. Della Noce eds., 2010).

2. See THE STANFORD PRISON EXPERIMENT, at http://www.prisonexp.org.

3. Deborah M. Kolb and Kenneth Kressel, Conclusion: The Realities of Making Talk Work, in WHEN TALK WORKS: PROFILES OF MEDIATORS 459, 471-74 (1994).   

4. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (1980). On the impact this theory had on the mediation field, see Robert A. Baruch Bush, Staying in Orbit or Breaking Free: The Relationship of Mediation to the Courts over Four Decades, 83 UNIV. N. DAKOTA LAW REV. 706, 720-24 (2008).

5. See, e.g., ADA Mediation Standards Workgroup, ADA Mediation Guidelines, Guideline III.A. (ADA Mediator Training Contents), at http://www.mediate.com/articles/adaltr.cfm.

6. See Supreme Court of Florida, Mediation Training Standards and Procedures, Part 3.02 (h) – (k), at http://www.flcourts.org/core/fileparse.php/262/urlt/AOSC10-51.pdf.

8. See, e.g., Christopher Honeyman, The Common Core of Mediation, 8 MEDIATION Q. 73 (1990); see generally Robert A. Baruch Bush, One Size Does Not Fit All: A Pluralistic Approach to Mediator Performance Testing and Quality Assurance, 19 OHIO ST.J.DISP.RES. 965, at 972-73 (2004).

9. See, e.g., Giuseppe dePalo, Voluntary Mediation: Apparently, the False Prince Charming at http://www.mediate.com//articles/PaloResponse.cfm.  In a study by one of the authors of the present article, participants in court-ordered mediation reported they would be unlikely to use the mediation process again, because it was not that different from small claims court. 

Biography


Robert A. Baruch Bush

Hofstra Law's Professor Baruch Bush's primary scholarly and teaching interests are in the areas of mediation and alternative dispute resolution (ADR). He is one of the originators of the transformative approach to mediation, as explained in his best-selling book, The Promise of Mediation (1994, 2d ed. 2005), which has been called one of the most influential works on mediation in the last decade. He has practiced, taught and written about mediation for nearly 30 years, authoring over two dozen books, articles and chapters on mediation and ADR; and he is regularly featured as a lecturer and trainer at conferences, seminars and workshops around the world. Professor Bush is a Founding Fellow and President of the Institute for the Study of Conflict Transformation, Inc., at Hofstra Law School. The Institute is a nonprofit research center devoted to furthering the understanding and practice of mediation and related processes.

Over the past two decades, Professor Bush has directed several major research projects on mediation, and he has served as consultant on dispute resolution to state court and school systems and to the Hewlett Foundation's Conflict Theory Center Program. He led a team that helped the United States Postal Service design a nationwide program for mediating workplace conflicts.

At Hofstra, Professor Bush teaches several courses on mediation and ADR, including a survey course on ADR, seminars on mediation and negotiation, and a skills course in mediation practice. He also regularly teaches the first-year course in Torts. He is a graduate of Stanford Law School, where he was a member of the Order of the Coif, and of Harvard University, from which he graduated magna cum laude and where he was a member of Phi Beta Kappa. He also worked as a Research Fellow at the Center for Comparative Judicial Studies in Florence, Italy, and at Yale Law School.

Joseph P. Folger

Joseph Folger is a Professor of Adult and Organizational Development at Temple University in Philadelphia, Pennsylvania. He is co-founder and current Board President of The Institute for the Study of Conflict Transformation. His work at the Institute has included assisting with the design and delivery of the United States Postal Service REDRESS mediation program, as well as conducting assessment and benchmarking research for numerous organizations and mediation agencies. He has worked extensively as a third party intervener in organizational, community, court and small group disputes. He is also the co-founder of Temple University’s Conflict Education Resource Team – a peer mediation program for Temple University students.

Dr. Folger has been an advisory board member for the National Conference on Peacemaking and Conflict Resolution and was the Program Chair for the conference. He has delivered keynote addresses at conferences held by the Academy of Family Mediators, Mediation UK, Mediator’s Institute of Ireland, National Mediation Conference of Australia, Universal Forum of Cultures - Barcelona Spain, Congreso Mundial de Mediación and the Congreso International de Mediación, the Rakmo Institute of Slovenia, and IMAB in Sao Paulo Brazil. He won the Peacebuilder of the Year award from the New York State Dispute Resolution Association in 2006.

Professor Folger has published extensively in the areas of communication, conflict, mediation, and third party intervention processes. His books include the award winning volumes, Working Through Conflict: Strategies for Relationships, Groups and Organizations (7th edition, with M.S. Poole and R.K. Stutman) and The Promise of Mediation (with R. Bush, 1st and 2nd editions). He edited (with R.Bush) Designing Mediation: Approaches to Training and Practice within the Transformative Framework and most recently he edited (with R. Bush and D. DellaNoce) Transformative Mediation: A Sourcebook -- Resources for Conflict Intervention Practitioners and Programs.

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