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Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making

by Alan E. Gross
April 2015 Alan E. Gross

Bush and Folger (hereinafter B and F) recently contributed an article to this “Mediation Futures Project” series that advocates strongly for “Refocusing on Party Self-Determination” but also suggests that mediators should conform to orthodox Transformative Mediation (hereinafter TM) practices as proposed in their influential book The Promise of Mediation and many related articles. Strict conformity to TM practice implies, and often explicitly requires, that mediators avoid other potentially useful choices/strategies for parties dealing with conflict.   

This partial rejoinder, while acknowledging the important contribution of the TM focus on self-determination to mediation practice, also recognizes the value of other mediation practices.  These include content expertise and allowing, or even encouraging, informed parties to consider mutual voluntary settlements.  By their insistence that the TM strategy is the best or only way to assist parties in helping themselves to achieve goals they have selected, B and F (and many of their TM disciples) paradoxically narrow party choice in important ways.  “One strategy fits all” and imposing that strategy is hardly responsive to party and problem differences.  When practical, mediators who fully support party choice can fully inform potential clients of a range of possible interventions, and then encourage the informed clients to choose the style/strategy best tailored to their needs and goals.  Of course mediators, like B and F, whose trainings supply mediators with particular hammers, are likely to perceive every case as a nail requiring only those hammers.

B and F write in part:  "Do away with the demands for mediator substantive knowledge and expertise as qualification for practice."  “Substantive knowledge” is roughly equivalent to the more common phrase "content expertise," which usually applies to a specific case or a series of cases within a content area of mediation, e.g. construction disputes.   B & F imply that the major or only reason for mediators to acquire such content expertise is to make decisions for the parties.  And in #4 of the 6-point agenda that they propose “for escaping the intoxicating prison that has entrapped us,” they opine that if mediators acquire content knowledge, they will necessarily use it to direct and influence the parties.  B and F write that "studies have shown" this last statement to be true; however they cite no such studies directly related to the mediation process.

B and F’s focus on the possibility for content expertise to diminish or even vitiate desirable self-determination is not the first time that mediation scholars have evaluated whether mediators should be selected for their relevant knowledge, or that they should learn about the content of a dispute after they are selected.   This earlier debate often centered on whether or not mediator process expertise was a sufficient qualification for facilitating any dispute regardless of whether the mediator was knowledgeable or even familiar with the content issues at hand.

Although I agree with many of the important B and F contributions to mediation practice and to this series, I have strong objections to their advice for mediators to avoid familiarity with content because their "intoxication" may result in inappropriate suggestion, direction or authority.  Au contraire! Content expertise often saves party time, and facilitates understanding -- a necessary foundation for successful mediation communication.

 A major reason for acquiring at least some relevant knowledge or familiarity with the subject matter of a pending or existing dispute that will be mediated is NOT to give advice or to direct, but merely to increase understanding of the issues in the conflict.   A trained and disciplined mediator, especially one who endorses and practices the significant value of self-determination (including party empowerment, greater likelihood of compliance and implementation of any mediation outcomes, recognition that the parties themselves determined whatever might have been agreed to, etc.), should easily be able to use content knowledge to facilitate rather than to direct the dialog among the parties.  Mediators who use their content knowledge mainly or exclusively to acknowledge/reflect/facilitate understanding,, rarely if ever display knowledge in order to convince or push parties in a given direction or even to demonstrate egocentric “star” expertise, as B and F’s polemical language implies.   For B and F to assume that all, most, or even many mediators will become so "intoxicated" (their pejorative metaphor) by content knowledge that they will not be able to inhibit themselves from solving problems or directing the parties, borders on the insulting. B and F diminish the potential of well-trained facilitative mediators to use knowledge appropriately to support the parties.

Understanding, which for me and many others  (e.g. G.Friedman & J. Himmelstein,  2009, Challenging Conflict: Mediation Through Understanding. Chicago: American Bar Association), is a central and basic goal of many mediations, can almost always be achieved with good facilitation.   Understanding of one's own motives/goals/interests and (with more difficulty) understanding of what the other party(ies) -- sometimes an adversary -- bring to the table, are the bedrock upon which party decisions, responses, and actions can intelligently and voluntarily be made.  As I have written elsewhere  (http://www.mediate.com/articles/GrossA3.cfm), such understanding among parties certainly need not lead to an agreement.  For example, a clear understanding of issues, options, possibilities for actions, etc., can lead reasonable parties to understand that no mutually acceptable agreement will benefit them, and that they might consider other options or BATNAs such as quitting a job, getting divorced, moving to a new location etc.

Understanding is not always related to mediator or party expertise, especially in relatively simple common disputes in which the parties themselves have sufficient knowledge and experience.  However, when specialized knowledge is necessary even to understand the meaning of what is being considered, then the mediator can save the parties the time they might have spent decoding and explaining concepts and language.   In addition, when the mediator better understands the meaning of the party dialog, he/she can occasionally intervene to determine whether the parties understand what each other is intending to communicate, especially when it appears that understanding might be impaired.  An uninformed mediator would not be able to credibly check in with such interventions as "Did you understand what X meant when he/she just said ________." I am aware that such an intervention could be used to direct or suggest, but with adequate discipline, training and experience such interventions could be used to enhance clarity (a principal goal of TM) and nothing more.  Certainly TM and other trainers can empower new and even experienced mediators to achieve this kind of discipline and to use their knowledge solely to enhance clarity and party understanding.

I have no doubt that most appropriately trained mediators are capable of learning about party issues, especially the language in which the parties describe them, without using such expertise to direct.  A rare exception can occur when reasonable direction is explicitly requested by the parties. B and F concede that some parties may bring conflicts to the table for which TM is not the preferred process that the parties themselves want or need.  Although B and F prefer to apply labels other than “mediation” to non-TM processes, such as early neutral evaluation, no matter what labels are used, party choice and appropriateness for the instant problem are important considerations in the broadly defined field of conflict resolution.

Only twice in my more than 20 years of mediation practice, have the parties themselves, after lengthy attempts on their own to reach resolutions or to resign themselves to an impasse, asked me to make a decision for them.  In those two cases (one related to financial responsibilities for divorced co-parents; the other a landlord-tenant dispute), I re-explained that mediators do not make judgments or decisions, as I had already laid out in my opening statement.  When those parties persisted and explained that mediation was not working for them, but that they wanted a resolution in order to move on with their lives, I acceded to their wishes, asked them to read and sign an arbitration agreement, checked with them to assure that they understood elements of the agreement, e.g. that no appeal was possible, encouraged them each to present testimony/issues/evidence, and issued a decision which they implemented, and later reported satisfaction with the results. 

For me and more importantly for the parties, this was indeed self-determination, viz: they chose a process that worked best for them.  Disclosure:  I also have an arbitration practice, including FINRA, AAA, attorney fee disputes etc., and in most of those arbitrations the parties are encouraged to talk with each other, sometimes in mediation settings, before returning to arbitration if they are unable to resolve the issues by themselves.

More generally, mediation and neutral resolution are not always the preferred alternative for all parties in conflict.  As Bernard Mayer has eloquently described in his influential book Beyond Neutrality (2004, San Francisco:Jossey-Bass pp.15-17),  parties sometimes want to win or even seek vengeance instead of resolution.   Zealots who advocate one “TRUE” form of mediation may only practice self-determination within the paradigm they choose to administer to their clients.  And in their trainings, they appear to seek religious followers who will not deviate from the proclaimed orthodoxy.  Because all problems, conflicts, and participants are not the same, it is often more effective for the parties to match strategies and methods to the problem at hand and the proclivities and preferences of the parties.

Here are a few examples, mostly from my own practice, to illustrate how at least some content knowledge can facilitate communication without directing outcomes.

1. In US Post Office workplace mediations (The USPS   program has adopted TM as their preferred and only style of mediation,), when parties frequently use postal acronyms and form numbers, the mediator might unnecessarily intervene and take time to ask the meaning unless he/she already is aware of the meanings of these special terms.  Although I am not an orthodox follower of TM philosophy, I was trained by two experienced TM disciples, and attempt to assiduously follow TM strategies when I mediate for the USPS as required by REDRESS.  On one occasion during a USPS mediation, I must have strayed from the orthodoxy and offered a very slight interpretation/reflection after one of the parties spoke.  A Post Office employee, who had been observing the mediation for REDRESS immediately interrupted the session, called me out of the room and mildly critiqued my intervention.  This has not happened again; however, I must admit that my usual flexibility in responding to parties and specific situations has been somewhat inhibited by USPS insistence on TM as the only appropriate means of dealing with conflicts.

2. Similarly, when dealing with United Nations issues, the parties often use extensive acronyms which they may assume a knowledgeable mediator will already know.

3. Mediators working within or across different cultures might find themselves unfamiliar with many terms, including geographical locations, tribal names, slang or argot (sometimes used as insults!), rituals, and , including body language, eye-contact, shaking hands, etc.   For example, I discovered when working in a West African country that it was typical to begin a session with two prayers, one Muslim and one Christian; I now use that knowledge to initiate mediation sessions and mediation trainings in accord with their cultural tradition.

4. Even across generational cultures, some familiarity with language can be helpful to save time and increase understanding.   I have on occasion consulted the Urban Dictionary or with adolescent informants when mediating with younger/ teen parties.   A danger here, of becoming “over-informed” would be attempting to speak in teen lingo and being seen more as a poseur than an expert.  Of course, mediators can display unnecessary knowledge in other settings as well.

As an extreme example: no mediator whose sole language was English would reasonably attempt to facilitate a session where the parties preferred to speak another language and where no interpreter was present.  It may be possible to extend the concept of "interpreter" as expert in fields other than language.   In some arbitrations and court cases, experts, such as accountants and scientists, are utilized to interpret and clarify some technical issues.  It is possible to conceive of such experts as enhancing understanding (if they are disciplined to not express opinions) in mediation as well.

These examples largely deal with language but sometimes substantive knowledge, especially when the parties do NOT have such knowledge, is important.   Here is a "legal" example from divorce mediator Don Simkov:  
http://yourdivorcemediator.com/self-determination-by-the-parties-well-almost/  
In this kind of situation, where the mediator might become aware that the parties are tending toward an agreement or action that will not work or would even violate law or regulations, the mediator does not, and perhaps should not, play the expert role here, even if he/she is an expert, such as an attorney.   Another option is to refer to an expert.  It is very common in divorce mediation to suggest to the parties or even require them to hire review and/or drafting attorneys to make sure an MOU or informal agreement is transformed into a legal document acceptable to a Court, and to the parties and their attorneys.     Such referrals need not be limited to legal issues.   Mediators who become aware of party knowledge gaps can refer them to other experts such as architects, accountants or even therapists.  Such referrals should be voluntary. One choice for the parties would be to continue without such expertise and therefore accepting possible risks, disadvantages or even disaster.

In addition to the risks for mediators of not serving parties well by avoiding relevant information or even feigning ignorance, a second major problem with the B and F argument is their dictum that mediators should not become problem solvers.  As DuBow and Robin (http://www.mediate.com//articles/RobinDubowFuture.cfm) note in their recent excellent rebuttals to some B and F points in this series, mediators are often helpful in supporting parties’ desire to resolve whatever problems they bring to the table, especially when they have been referred to mediation by a Court.  I add a strong YES to their rhetorical question “Isn’t that the definition of empowering the parties to exercise self-determination?”

One way that mediators may assist parties to reach their own goals, and to resolve a problem that is scheduled for trial, is to help potential adversaries to self-understand, mostly via questioning, the strengths and weaknesses of their own case and probable outcomes.   Sometimes it is useful for zealous adversaries to understand that an outcome at trial cannot be predicted with certainty.  

In addition, some mediators, more than the parties or even their attorneys, because they are less emotionally involved in the instant dispute, are able to maintain greater distance and objectivity than parties who may be consumed and biased by emotions like anger.   This useful ability does not imply that mediators possess superior wisdom.  In fact, they usually will have less information or expertise than parties about the current problem or situation.   However, mediators (and attorneys) can elicit valuable perspectives.  This, sometimes useful mediator style, is often labeled “devil’s advocate” or “agent of reality”.  These styles can certainly be (mis)used to suggest specific solutions or directions, but they also can be used consistently with self-determination to assist the parties to  reach voluntary resolutions which may benefit them.

B and F bemoan that their vision for self-determination delivered via TM rules has somehow been “captured” primarily by the court-influenced goal of case-settlement.   However, mediators are not simply pawns to be manipulated by courts and other environmental factors.  As a social-psychology professor for more than 20 years, I am certainly aware that environments often influence us.  However, all of that situational influence is not imposed on undiscerning mediators, as in the extreme conditions of the Zimbardo prison study B and F cite.  On the contrary, many individuals, including intelligent and dedicated mediators and their clients, are able to sift ideas and goals provided by institutions and individuals and to decide for themselves which, including those proposed by TM, might work best for their clients. 

One size seldom fits all in any field, and that clearly applies to mediation where clients bring many diverse issues and problems to our tables.  Clients deserve to be listened to AND educated and consulted about what might work best for them, instead of imposing any strategy on them, no matter how well intended.   TM is hardly the only philosophy/strategy capable of benefitting parties.   Let us give ourselves and our colleagues credit for our own ability to listen to and evaluate ideas and theories according to how well they work for, and satisfy, our clients.  We are an evolving field of practice, not a set of rigorous beliefs demanding devotion. Let many flowers bloom, and then select those that flourish and satisfy client goals.   I do not mean to derogate those colleagues who have accepted the orthodoxy of TM. If their practice satisfies them and works for their parties, we might tolerate them just as we do those who seek satisfaction and purpose from the practice of various religions.  It is even understandable how those with strong TM convictions and beliefs (sometimes supported by empirical research and data) become evangelists for their “cause.”  Such evangelism is acceptable when it is offered as a suggestion or alternative, but not when it is touted as the only true and effective practice.  However, what B and F offer here is more a sermon than an invitation to dialog and collaboration.

While it is apparent that many courts, especially those that are understaffed or whose dockets overflow, favor reasonable measures, including mediation, to reduce heavy case loads and delays, B and F write that mediators have become intoxicated and addicted to the “drug of the problem solving culture.”  Even if one is able to ignore the pejorative metaphor comparing mediators to drug addicts, it is not easy to accept a description of (non-TM) mediators as motivated only by elevating or maintaining their status as experts, and driven only by the “rush of satisfaction… in finding creative solutions.”  Surely there are mediators who are acting as facilitators of a process that is at least partly chosen by the parties, and one that informs and empowers them to participate in reaching whatever goals they choose to reach. 

Here is a quote demonstrating B and F’s disdain for the practices of their non-TM colleagues:  “Intoxicating… because of how it feels to be one of the elite (problem-solvers)… protecting people (parties) from their own inevitable bad choices and decisions.” That B and F have chosen to use trash talk like this and adjectives like “elitist,” “pretension,” “star” and “egotistic” to describe their “competition,” is anti-intellectual and does little to advance colleagueship within our field.   Many of the fine settlement-oriented mediators that I have observed in Florida and elsewhere are excellent facilitators who endeavor and often succeed in supporting parties in evaluating and choosing from a set of options possible for them.  At one extreme this “problem-solving” process can result in a mutually acceptable settlement that often avoids time consuming and expensive litigation.  At the other extreme, the informed party-driven result can be an impasse, complete with thorough understanding that no settlement is likely or possible, and that the parties must decide to continue to another forum, probably litigation.

B and F suggest that many “elite” mediators attempt to influence decisions and agreements because they feel they are wiser and more expert than their clients, and more expert than the attorneys who sometimes represent parties  (in court-ordered mediations.)  However, many of these mediators are capable of facilitative actions that can and do support the parties.  For example, questions and even suggestions can stimulate parties to consider options available to them.  When this is done in a non-authoritative manner, the parties themselves are encouraged to choose what is the best option for them (consistent with their interests) and eventually via dialog to attempt to arrive at a solution or agreement that is mutually acceptable to all parties. Mediator questions are not necessarily directives or even suggestions in disguise.  They can function effectively to assist the parties in focusing on their own goals and interests, or in broadening the range of choices open to them, and/or to be suggested by them to other parties/adversaries.    Questions can support parties in diagnosing the situation that encouraged them to seek mediation, and in evaluating for themselves various options for solution. 

That some mediators are gratified when they help to find creative solutions, to protect vulnerable parties etc., does not need to be framed negatively.  Well-trained facilitative mediators can easily share or reflect their suggestions and still support party self-determination.  Some mediators have popularized the phrase “both-and” to contrast with a forced “either-or” choice.   That mediators and others clearly have the ability to both support party choice and to occasionally make soft suggestions and elicit alternatives should be obvious.  

The alternative is the orthodoxy proposed by B and F, which not only champions party choice but critiques other often useful themes, values and practices. The goal of case-settlement need not be antithetical to the goal of party self-determination.   Many parties facing expensive litigation prefer to reach a settlement and may be receptive of suggestions for achieving a workable mutual agreement.   Some parties who come to the table seek expert opinion, perhaps from a retired judge, to evaluate the likely outcome of their case.   If parties request such an evaluation (sometimes labeled ENE, early neutral evaluation), don’t they deserve to make that choice and shouldn’t we mediators be prepared to support them, or if we are not qualified to do so, then to refer them to other professionals?

Bill Marsh’s article in this series, titled  “Who’s running the show,” responds to B and F’s plea for a return to purist TM, but also acknowledges others who recognize the value of mediator knowledge and input.  Marsh wisely challenges mediators, parties, advisors and even regulators to listen to each other and to collaborate.  See:
http://www.mediate.com/Futures/article.cfm?zfn=MarshBbl20150109.cfm

B and F have made important contributions to the practice of mediation even for those who do not religiously follow TM practice.   Self-determination is alive and well and has been adapted to almost all areas of mediation practice with the exception of some forms of evaluation.  This “rejoinder” celebrates their many contributions to our field, but requests that B and F adopt a more tolerant/ accepting stance toward other obviously useful strategies, including content expertise and assisted problem solving.  Content expertise and promoting party empowerment are not mutually exclusive; there is no need to eliminate one strategy to enhance another.  And when they request that their colleagues return to an “original vision” it is not “the” vision, it is “their” vision, and does not need to be universally required or embraced. They may well own the label “transformative mediation,” but they are hardly qualified to confiscate the broad term “mediation“ to describe only their particular focus.  In addition, TM does not own “self-determination” which, as B and F partly acknowledge, is a value that many non-TM mediators share.

fn.1 Thanks for helpful comments on an earlier draft to Sarah Davies and Kathy Goodman.

 

Biography


Alan Gross, Ph. D. has mediated, arbitrated, facilitated, and trained for over 20 years at many venues in the Northeast US where he served as Senior Director, and 9/11 Family Mediation Coordinator for the Safe Horizon Mediation Program in New York City.  That work with 9/11 victims was recognized with a US Department of Justice Volunteer for Victims Award. He has also been appointed as ombudsman for the American Psychological Association, as arbitrator for AAA, FINRA, and as mediator for the US Postal Service and the US Army.   

Gross holds MBA and Ph.D. degrees from Stanford University and was formerly Psychology Department Chair at the University of Maryland. He is a Fellow of the Association for Psychological Science, and the author of a textbook and more than 50 chapters and papers related to conflict resolution and social psychology. He is the recipient of the 2011 ADR Achievement Award from the Association for Conflict Resolution, Greater NYC Chapter, and currently teaches graduate courses in mediation skills at the NYU Center For Global Studies. As a Founding Member of Mediators Beyond Borders, he has trained Liberian refugees, Ghanaian attorneys, UN staff in Sierra Leone and Peace Network in Iraq.



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