Ironically, Bush and Folger are Evaluative

by Sam Imperati
Sam Imperati
A) Introduction

This article rebuts “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination,” written by Robert A. Bush and Joseph P. Folger in 2014 for Mediate.com. 1 Their central position is that the mediation community needs to return to the original vision of mediation in order to preserve the sanctity of Self-Determination. They appear to argue that the transformative approach, as envisioned by them, was the original vision of mediation. They assert that the transformative approach is the only way to ensure Self-Determination. The Oregon Mediation Association Core Standards define “approach” as a term used to “signify the behaviors, philosophies, processes, styles, and techniques used by mediators to conduct mediation.”2 Bush and Folger’s argument actually undermines the Self-Determination of the parties, because it gives the parties no choice as to the approach that the mediator will employ. In order to ensure Self-Determination, the mediator needs to obtain the informed consent of the parties for the approach used in the mediation.

Bottom Line: Most mediators’ paradigms accommodate the transformative approach, but Bush and Folger’s paradigm appears unable to accommodate those who mediate differently. It is one thing to advocate for the benefits of transformative mediation; it is entirely another to assert that the rest of us are not even practicing mediation. If Self-Determination is mediation’s driving principle, why are Bush and Folger pre-determining that the parties want the transformative approach? I am advocating for a more inclusive and less divisive future for mediation. By the way, I consider my mediator approach as “hybrid,” moving through the spectrum of approaches with full disclosure and the parties’ informed consent.

B) Their Assertions Rebutted

This condensed version of a future article was 95% finished when I read Alan Gross’s article, “Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making.” 3 Gross eloquently addresses Bush and Folger’s assertions and makes three key points: 1) it can be and often is a good thing for mediators to have content expertise, 2) transformative mediation is not the one true form of mediation, and 3) assuring that the parties are given the opportunity to exercise Self-Determination can be achieved through a broad array of mediation strategies, including but not limited to, transformative mediation. I wholeheartedly agree with him. What follows are a few of my concerns with Bush and Folger’s positions and arguments. A more comprehensive rebuttal with an exploration of related issues will appear in a law review article, the editors willing!

I have quoted their assertions and proposed agenda (italicized) below, followed by my responses, which are firmly grounded in my “hybrid” approach.

1) Our first premise has always been that self-determination, or what we call empowerment, is the central and supreme value of mediation.

Bush and Folger advocate for Self-Determination in mediation, but only within the framework of transformative mediation. They leave no room for clients to select other mediation approaches. They seem to presume that transformative mediation is what all mediation participants want, or perhaps their view is that, regardless of whether the participants want it, transformative mediation is what they need.

There is nothing “empowering” about that. In a 2007 law review article, I wrote, “One thing is clear, ‘the public we serve’ will benefit only if they understand the various mediation options that are available to them…. If ‘Self-Determination’ is a cornerstone of mediation, then the focus should be on maximizing it at all stages of the process.”4 The key here is “all stages of the process,” which includes the first step of selecting the mediator and the approach that best suits the parties. The parties need to give their informed consent to the mediator’s approach. Doing so requires that, prior to mediation, the mediator describes the approaches and indicates where his or her own approach lies on the continuum. Restated, Full Disclosure allows the Informed Consent necessary for Self-Determination.

2)For us, as we reflect on the state of the field today, the most accurate metaphor is that mediation has been “captured.” (Emphasis added.)

Bush and Folger say that mediation has been captured, but from whom? It cannot have been captured from transformative mediators because it never belonged to them in the first place. Even if one could argue that mediation “belonged” to one type of mediator, it would not have belonged to transformative mediators (at least not for very long), because in 2003 “[t]ransformative mediation [was] considered one of the newer styles of mediation.”5

3) Institutional pressures pushed mediation practice to a place that many of us did not anticipate and certainly did not want. 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…. (Emphasis added.)

Bush and Folger decry the “institutional pressures” that have led to “wise experts,” but ironically, those “institutional pressures” led to the adoption of the REDRESS program, which mandates that in all mediations of employment disputes within USPS the mediator must use the transformative approach. Apparently, it is fine for “institutional pressures” to override the parties’ wishes regarding the mediator’s approach as long as those pressures are pushing for transformative mediation. Interestingly, Bush and Folger did not provide any examples of institutions that have adopted an absolute stance in favor of evaluative mediation or so-called “wise expert” mediation.

Maybe Self-Determination is the public choosing the “wise-expert” mediator over Bush and Folger’s brand of communications-based mediation. People in conflict often say they have a “communications problem,” and yes, that recognition is a first step, but the problem remains to be solved. Bush and Folger bemoan a “tide of problem-solving” experts, but what brought on that tide? Perhaps the tidal shift toward the expert mediator is not driven by an over-supply, as they seem to posit, but rather by public demand. Their sentiment that one should have Self-Determination as long as it is used to select the transformative approach is similar to those who support freedom of speech only when they agree with the speech.

If, prior to mediations, Bush and Folger asked parties whether they would prefer a mediator who focused on solving the problem or one who focused on helping the parties grow to their full potential, I doubt Bush and Folger would like the most frequent answer. They seem to forget that those who promote Self-Determination must accept the choices parties make, regardless of whether those choices align with their personal preferences. These debates should be explored from the perspective of the parties—not that of the mediators. Most of the parties I have had the pleasure of working with want me to be facilitative with them, be evaluative of the other side’s drivel, and transform their opponent into a reasonable person!

Bush and Folger’s article focuses on how substantive knowledge is not necessary, but are they implying that procedural knowledge is not necessary either? The OMA Standard indicates that Informed Consent “involves making decisions about process as well as substance….”6 If the mediator does not have procedural knowledge, how can she inform the parties about the options? What is next; a “tantric” mediation approach where the parties enter the room, sit silently with a mediator, and wait for a spontaneous resolution!

4)   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…. 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. (Emphasis added.)

I agree that people are truly extraordinary. “Great strength and great compassion” are very helpful, but they are not the only ingredients for resolution. Why can't those extraordinary people choose a problem-solving expert to mediate their dispute if they determine for themselves that an expert would be the best option? I am happy to say I have never met a mediator who holds the elitist pretension that Bush and Folger suggest those of us who think differently than them hold. If anything, their assertions suffer from elitism and pretension. Aren’t we all “ordinary” people who are just trying to do the best we can?

Bush and Folger opine, “When we articulated and then developed the transformative approach, beginning 20 years ago…. 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.”7 Are they actually saying they invented mediation 20 years ago? I find their claim strange, given that community mediation took off 40 years ago. Alternatively, are they saying community mediation is an example of “institutional pressures”? As Gadlin noted, “Clearly, labor mediators were on the scene long before the community mediation movement blossomed in the 70s, and diplomats and others were mediating international conflicts and managing business negotiations well before mediation became a career….”8 The roots of mediation are much deeper, given that “[m]ediation has been used as a method of dispute resolution in a variety of different cultures for more than 3,000 years.”9

C) Their Agenda Rebutted

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[.] (Emphasis added.)

Saying we are in an “intoxicating prison” is, at best, rhetoric. Bush and Folger do not have a monopoly on the truth any more than the rest of us “ordinary” mediators. What if I asserted that Bush and Folger are “inmates in The Matrix of their own delusions?”10 Both assertions, like “tantric mediation,” are just hyperbole.

  • End once and for all the fiction that evaluative case settlement is mediation. … 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? (Emphasis added.)

NO, we can’t agree! Arguing that evaluative mediation is not mediation is akin to saying, X religion is better than Y religion, and Y religion is not even a religion. While the transformative model is not a religion, Brown noted that the transformative proponents “seem to have an almost theological fervor in their belief system….”11

In the Oregon Revised Statutes (ORS 36.110(5)), mediation is defined as “a process in which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy….”12 The Oregon definition is broad enough to encompass the entire mediation approach spectrum. By baldy asserting the “’evaluative mediation’ is ‘an oxymoron,’” Bush and Folger are improvidently quarreling with the basic definition of mediation and its intended broadness. Instead, they should be advocating for the attributes of the transformative approach—not changing mediation’s definition to favor their preferred approach, which by the way, is an old litigation trick. In Oregon, we noted the OMA Core Standards of Mediation Practice,
“… should not be construed to favor or disfavor any particular approach.”13

Bush and Folger ignore the “hybrid” approach, which “adapts to the evolving stages of a mediation….”14 The appropriateness of any approach depends on the situation. A typical divorce case helps to illustrate the point: “[A] facilitative approach may help the parties refocus on the issues involving the nurture and care of their children, while a more evaluative approach may be necessary for the substantive issues surrounding property settlement.”15

The distinction between evaluative and facilitative mediation is a lot less clear than Bush and Folger seem to think. “[T]he very label of a mediator’s behavior as evaluative may ignore the 98% of the mediation in which facilitation is the activity because of the 2% spent in evaluation, given as a last resort to impasse. Riskin recognizes this confusion may have resulted in the same mediator having been voted in 2002 as both best facilitative mediator and the second best evaluative mediator in a Wisconsin Bar Journal poll.”16

Brown noted that “evaluation lies on a spectrum” and if used appropriately it can “form a perfectly proper part of the mediation process.”17 Brown questioned those “who would seek to prevent mediators from questioning a party’s belief about the merits of his case, however distorted that belief may be.”18 Are Bush and Folger suggesting that “reality testing” is an inappropriate technique that has no place, regardless of the nature of the conflict? As Bernard Mayer put it, “None of us can practice across the entire spectrum, but all of us can push the boundaries of our own practice to increase our capacity to respond to a greater range of conflicts….”19

Finally, I do not think the mediation field agrees as to what actual tools and techniques are transformative, facilitative, or evaluative. I attempted to frame the differences in 2007.20 The transformative-based website of the University of Colorado 1997 Conflict Research Consortium did a similar comparison. It states its work was, “… directed by Joe Folger and Baruch Bush…”21

Heidi Burgess provided an interesting chart titled, “Comparison of Transformative and Problem Solving Mediation.”22 I wonder if Bush and Folger equate “evaluative” mediation with “problem-solving mediation” because if they do, then a problem-solving approach is not really mediation either—Wow!

I strongly suggest we all take a fresh look at these comparisons. I bet most mediators select from each column in their day-to-day mediation practice. I wasn’t shocked to learn that I regularly use techniques Bush and Folger claim to be in the transformative wheelhouse. Restated, when I mediate, I draw from both of her columns depending on what the participants want. The field and the users of our services would benefit from knowing which specific tools and techniques are “transformative” and which ones are not, even if commonly used by individuals who “inappropriately” call themselves “mediators.”

It would be helpful to agree on one chart so the users of our services have a better idea about what tool and techniques to expect from us. Enough of the philosophical differences—what does our rhetoric actually mean inside of an actual mediation?

  • 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(Emphasis added.)

Finally, Bush and Folger have provided an answer to the “who captured mediation” question. It was those thieving trainers. They should be rounded up and prosecuted for providing gateway drugs!

What is the basis for Bush and Folger’s bald assertion that “most mediators” are lured away by trainers from a true commitment to self-determination? Bush and Folger certainly have not attended “most” mediations trainings.23 In fact, one must question whether Bush and Folger have been themselves lured away from a true commitment to real Self-Determination. Real Self-Determination would allow the parties to select for themselves the approach that best suits them, regardless of whether that approach fits within Bush and Folger’s narrow vision of mediation.

They talk about supporting (not forcing) the parties’ mutual understanding and empathy, but that presupposes that the parties want mutual understanding and empathy rather than just a practical solution to their problem. Bush and Folger claim they are not forcing the parties to seek mutual understanding and empathy, but are they forcing the parties to adopt mutual understanding and empathy as their goals? Yet, Bush and Folger supposedly frown on the use of “shaping agendas.”

It is arguably the antithesis of Self-Determination for the mediator to focus on empathy and mutual understanding when the parties just want a quick settlement, because it would be a waste of the parties’ time and money to pursue those goals when the only person in the room who actually cares about such goals could be the transformative mediator. I acknowledge that some mediators can and do use Heresthetic Tactics, Rhetorical Tactics and Heuristics to “manipulate” the parties. However, this is not unique to evaluative mediators. Steve Maser and I explored three related paradoxes that afflict mediation in “Why Does Anyone Mediate if Mediation Risks Psychological Dissatisfaction, Extra Cost and Manipulation? Three Theories Reveal Paradoxes Resolved by Mediator Standards of Ethical Practice.” 24

Bush and Folger seem to believe that the mediator has almost no role in the mediation and that the parties should be left to resolve everything for themselves. However, if the parties were capable of resolving the issue between themselves, they would not have sought the services of a mediator. Letting the parties work through the issues themselves sounds great in theory, but in practice, Bush and Folger may prove to be overly optimistic.

In suggesting that mutual understanding and empathy are always the goals of mediation, Bush and Folger are taking a view that is too absolutist. What if the underlying interests of the parties are to quickly, efficiently, and inexpensively settle their disputes in a way that reasonably compares to what would happen in the courtroom, but without all the attendant fuss and mess? Bush and Folger would not respect these goals if they were pursued under the term “mediation.” By analogy, imagine a patient seeking a cognitive approach who is told by his therapist, “Your self-determined approach is wrong and is not even therapy, so don’t call it therapy as it offends my sensibilities.” A simpler and less divisive solution would be for transformative mediators to refer participants to a mediator with a different approach. Similarly, evaluative mediators should refer to transformative mediators when that is what the parties want.

  • 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…. (Emphasis added.)

WOW—so much for impartially exploring the issue. How about exploring the different effects of all mediator behaviors on the parties? Let’s do a peer review of Bush and Folger’s claim that the “research” shows: 1) no one mediates unless ordered to, and 2) non-transformative mediators are no different from judges, arbitrators, and settlement officers. Let’s talk to the Association for Conflict Resolution or some impartial research university to study these issues.

Apparently, the USPS still exclusively uses transformative mediation if the employee chooses to mediate. 25 The USPS website states that the employee may choose counseling or mediation, and if mediation is chosen, it will be transformative mediation. USPS-trained, specialized staff known as “ADR Specialists” monitored the mediators to ensure that they were implementing the transformative model. Mediators who were not using the transformative model were screened out. Interestingly, in 1999, half of the observed mediators were “screened out” for not using the transformative model,26 apparently without considering any objective measures of effectiveness or the parties’ satisfaction with those mediators.

The primary concern seemed to be ensuring that the process was transformative rather than ensuring that the process was effective. This sounds like those dreaded “institutional pressures.” It also sounds like “confirmation bias.” Confirmation bias is the “the propensity to collect proof that verifies preexisting anticipations, generally by stressing or going after proof that upholds such and at the same time, throwing out or declining to look for proof that contrasts such.” 27
Most states and mediation programs have practice guidelines to help regulate the inappropriate behavior of mediators. Are Bush and Folger suggesting states should now pass licensing legislation where only transformative mediators apply?

Finally, their assertion that “[u]nless ordered into mediation by courts or other agencies, people lack interest in mediation” would be news to the community, public policy, and private mediators who are helping countless appreciative individuals resolve their conflicts.

  • 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?(Emphasis added.)

I suspect that Bush and Folger are referring, at a minimum, to legal subject matter knowledge—that toxic fund of information that differs from expertise. Would they say that mediators should not be required to be culturally competent? No. They simply do not want the law to be a touchstone in any dispute. What if the case involves a thorny, intra-family dispute involving incest? I guess the mediator should know nothing about family dynamics, sexual abuse, and psychology, not even for context and the creation of a safe environment. Common sense indicates that the mediator should have some level of knowledge and competence regarding the subject matter of the mediation. Yet are Bush and Folger suggesting that mediators “just mediate matters that we know absolutely nothing about?” 28

Bush and Folger complain, “ADA mediators must practically become experts on disability law – statutes, regulations, and even court decisions!”29 What if the parties want the mediator to help resolve the problem and that requires understanding the legal and practical consequences of the potential outcomes? Although the mediator certainly should not be required to have a law degree, the mediator should at least have a basic understanding of the rights and duties of the parties under the law with regard to the subject of the mediation. Bush and Folger seem to believe that having less expertise is better.

Turning back to Self-Determination, it seems likely that, given the choice, most parties would select a mediator with more rather than less knowledge of the subject matter. This may be another example of Bush and Folger suggesting that the public should get what Bush and Folger think the public needs rather than what the public actually wants.

  • 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. (Emphasis added.)

This assertion, itself, is elitist. In essence, Bush and Folger are saying, trust us as we know more than you; you do not need anything beyond agency and empathy to solve your tax problem! They provide another bald assertion that popular culture is questioning the self-determined need for help from those with specialized knowledge. This is not a “deficit,” but rather a rational reflection that we cannot and do not know it all.

Additionally, Bush and Folger should consider why the elitist helper/fixer/protector/problem solver mindset is so prevalent. Generally, when people have a problem they cannot solve for themselves, they seek out someone with greater knowledge or expertise. Nevertheless, Bush and Folger posit that the selected mediator only needs to “be [an] expert in supporting self-determination and the parties’ capacity to work through their own conflicts.” 30 Again, Bush and Folger are missing the mark by promoting their own vision of what mediation should be and disregarding the desires of the users of mediation services. Mediation is dispute resolution, but the transformative approach tends to lose focus on resolving the dispute and slips into the realm of therapy.

  • 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. (Emphasis added.)

As noted above,we learned Bush and Folger “developed the transformative approach, beginning 20 years ago….” That is true as The Promise of Mediation31 was published on November 9, 1994. Now, we learn how they “…originally envisioned the mediation process four decades ago.” Interestingly, Folger was earning a master’s degree in communication 32 and Bush was in law school four decades ago. 33 I guess it’s possible they came up with their vision of mediation way back then; but, even if they did, why should the entire mediation field conform to their vision?
      
Bush and Folger want all of mediation to return to the way they “originally envisioned” it, but don’t we want mediation to change, adapt, or take on new forms like other professions? Should we continue to practice medicine like we did during Hippocrates time? Ironically, they sound like members of the judiciary who adhere to “strict constructionism,” a philosophy in which the Constitution is interpreted based on a literal interpretation of its original understanding without regard to technological, cultural, and societal changes.34

Why does the rest of the mediation profession have to conform to Bush and Folger’s vision of mediation? What if their vision does not align with what the users of mediation services actually seek? If the parties desire a form of mediation in which they can come to a mutually agreeable resolution in a quicker and more practical fashion, are they not entitled to make that determination for themselves? In 2007, I asked, “Could it be that, as mediators, we are unconsciously blinded to our own prejudices, skill deficits, and market-share jealousies—in other words are we overly protective of the approaches with which we are most comfortable at the expense of the users of our services.” 35 This is an example of déformation professionelle, or the tendency to look at things in accordance with the conventions of one’s own profession, disregarding any broader point of view. 36

Conclusion Rebutted

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…. (Emphasis added.)

Who made the determination that the “true and unique” mission of mediation was to offer a “safe haven” from the culture of experts? Is this what mediators collectively believe or is this what Bush and Folger have asserted on behalf of all mediators? The self-determining participant in mediation who hires a lawyer and an evaluative mediator is not going to view the process as a “safe haven” from the culture of experts, but rather as a “safe haven” from his or her opponent.

There is no one-size-fits-all answer. Parties inevitably have varied goals and interests when entering mediation, but it would be foolish to assume that a quick, practical, and efficient solution cannot be one of those goals. That is why parties should have an opportunity to select which approach they want the mediator to use. If the parties want a transformative approach, it would be inappropriate for a mediator to adopt an evaluative approach, and Bush and Folger would be the first to decry any such attempt. However, what if it were the other way around? If the parties wanted the mediator to use an evaluative approach, but the mediator used a transformative approach, it would be equally inappropriate. I hope that Bush and Folger would agree.

In 2007, I suggested, “Mediators should educate participants about the continuum of mediation approaches and identify the approaches the mediator practices. Engaging the participants in a discussion to establish expectations about these approaches will help the participants give their Informed Consent to the approach best suited to their particular situation.”37 If the parties have no say in the approach, then right off the bat they have been denied one of the most important aspects of Self-Determination. If the mediator does not feel comfortable providing the approach requested by the parties, “the mediator should consider not serving and refer the parties to another mediator who may be more comfortable with the approach desired by the parties.”38 Doesn’t this represent a more robust version of Self-Determination? Comment 2 to the OMA Standard on Informed Consent provides strong support for this notion: “Mediators should disclose or offer to disclose the information reasonably necessary for each participant to make informed decisions about whether to use the mediator and whether to participate in a specific mediation process and approach.” 39

Parting Comments

Bush and Folger’s premise seems to be that they invented mediation, some miscreants stole it from them, they want it back, and if we all do it their way, we will reach mediation nirvana together.

These debates over the “best” approaches are being looked at from the perspective of the mediators, but we should be looking at them from the perspective of the parties. We should be asking the parties what approach(s) they want and respecting their unique choices. That is real Self-Determination.

The ultimate irony here is that most mediators’ paradigms accommodate the transformative approach, but Bush and Folger’s paradigm appears unable to accommodate those who mediate differently. As Zumeta said, “There is room in mediation practice for many styles, including facilitative, evaluative and transformative mediation. Each has its usefulness and its place in the pantheon of dispute resolution processes.” 40 How could this be objectionable?

Unfortunately, I’m still saying what I said in 2007: “If we cannot all just ‘get along’ as Rodney King suggested, can we at least stop the ‘dithering’ and ‘bashing’?” 41 No one approach owns a monopoly on the definition of mediation if Self-Determination “is the central and supreme value of mediation.” 42

It is fitting to end with a poem in the hopes of shifting the focus to providing parties with the information that they need in order to truly exercise Self-Determination.

“There once was a mediator named Stan, who had not an ethical plan.
So, he said to his fears, move over, I’ll try full disclosure.
Informed consent he found was great, now, the parties can mediate!” 43

I debated much of this with Folger, and an “evaluative” mediator who was a former judge in Seattle, at the Northwest Dispute Resolution Conference many years ago. Folger asked the former judge, “Is mediation the practice of law?” Unfortunately, she said, “yes.” I wish I had asked Folger, “Is mediation the practice of psychology?” I believe the answer to both questions is, “no.” It is time to end the internecine warfare so we can say, “Mediation is the practice of mediation, an independent, interdisciplinary profession. I think it is time for another rumble. We can call it, “Mediators Gone Wild: The Great Debate!” When and where?

Thanks for reading my rant. I look forward to hearing from those that don’t agree with me. Let’s continue the exploration into what is best for the users of mediation, as broadly defined. Transformative mediators, please know I fully support your approach, but not, as your leaders suggest, to the exclusion of other approaches that the participants have selected while exercising their right to Self-Determination.

Endnotes

1* Sam Imperati, JD is the Executive Director of the Institute for Conflict Management, Inc., (ICMresolutions,) Portland, Oregon. Joseph Callahan is a third year student at Lewis & Clark Law School currently working at ICMresolutions, Inc. as an ADR Associate. www.ICMresolutions.com.
Robert A. Bush & Joseph P. Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination, Mediate.com, Nov. 2014 at www.mediate.com/articles/BushFolgerFuture.cfm.

2 OMA Core Standards at 1, 2005 available at www.omediate.org/docs/2005CoreStandardsFinalP.pdf.

3 Alan A. Gross, Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making, Mediate.com Apr. 2015 at www.mediate.com/articles/FuturesGross.cfm

4 Samuel J. Imperati et al., If Freud, Jung, Rogers, and Beck Were Mediators, Who Would the Parties Pick and What Are the Mediator’s Obligations?, 43 Idaho Law Review 643, 646–47 (2007).

5 Katina Foster, A Study in Mediation Styles: A Comparative Analysis of Evaluative and Transformative Styles, Mediate.com, Jun. 2003, www.mediate.com/articles/fosterk1.cfm.

6 OMA Core Standards at 2, 2005 available at www.omediate.org/docs/2005CoreStandardsFinalP.pdf.

7 Bush & Folger, supra note 1.

8 Howard Gadlin, Truths in Advertising, Mediate.com, Jan. 2015, www.mediate.com/articles/GadlinFutures.cfm.

9 History of Mediation, 6Rivers.org, available at www.6rivers.org/history.html.

11 Henry Brown, Musings on Mediators, Pizza-Makers, and Humanity, Mediate.com, Mar. 2015, www.mediate.com/articles/BrownFutures.cfm.

12 Or. Rev. Stat. §36.110(5) (2013).

13 OMA Core Standards at 1, 2005 available at www.omediate.org/docs/2005CoreStandardsFinalP.pdf.

14 Imperati, supra note 4, at 656.

15 Id. at 657.

16 Imperati, supra note 4, at 662 (referencing Jane Pribek, McDevitt: Master of Mediation, Wisconsin L. J., March 27, 2002, at 4).

17 Brown, supra note 11

18 Id.

19 Bernard Mayer, Be Less Certain-and More Flexible, Mediate.com, Feb. 2015, www.mediate.com/articles/MayerFutures.cfm.

20 Imperati, supra note 4, at 693–96.

23 By the way, I attended a REDRESS mediator skills training.

24 Samuel J. Imperati and Steven M. Maser, Why Does Anyone Mediate if Mediation Risks Psychological Dissatisfaction, Extra Costs and Manipulation? Three Theories Reveal Paradoxes Resolved by Mediator Standards of Ethical Practice, Ohio St. J. on Disp. Resol. 223, 223 (2014).

25 All You Need to Know About REDRESS, USPS.com, https://about.usps.com/what-we-are-doing/redress/programs.htm.

26 Lisa B. Bingham & Tina Nabatchi, Transformative Mediation in the USPS REDRESS Program: Observations of ADR Specialists, 18 Hofstra Labor and Employment Law Journal 399, 404–05 (2001).

27 Psychology Dictionary, Pscyhcologydictionary.org, www.psychologydictionary.org/confirmation-bias/.

28 Susan Dubow & Elinor Robin, Claiming Mediation’s Future, Mediate.com, Dec. 2014 at www.mediate.com/articles/RobinDubowFuture.cfm.

29 Bush & Folger, supra note 1.

30 Id.

31 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994).

34 “Strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.” http://dictionary.law.com/Default.aspx?selected=2028

35 Imperati, supra note 4, at 667.

36 See Alexis Carrel, L'Homme, cet inconnu, Chapter 2, p. 43, Harper & Brothers, 1935.

37 Imperati, supra note 4, at 672.

38 Id. at 696.

39 OMA Core Standards at 2, 2005 available at www.omediate.org/docs/2005CoreStandardsFinalP.pdf.

40 Zena Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation, Mediate.com, Sept. 2000 at www.mediate.com/articles/zumeta.cfm.

41 Imperati, supra note 4, at 708.

42 Robert A. Bush & Joseph P. Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination, Mediate.com, Nov. 2014 at www.mediate.com/articles/BushFolgerFuture.cfm.

43 Imperati, supra note 4, at 708.

Biography


Sam Imperati, JD, is a North-West based, national provider of ADR services. Sam has been highly effective in resolving complex disputes, facilitating public policy issues, mediating multi-party cases, managing intense emotions, and training groups to help them navigate the intersection of logic and emotion. 36-year attorney. Appears in 2006 through 2016 editions of Best Lawyers in America. OSB and OMA Lezak awards for mediation excellence. Martindale-Hubbell’s AV Preeminent rating. Served as a Judge Pro Tem, Chair of the OSB ADR Section, member of the OSB Ethics Committee, Executive Committee member of the Portland Neighborhood Mediation Center, and currently serves on OMA Standards and Practice Committee. Plaintiff and defense, trial and appellate experience. Nike Assistant Corporate Counsel and private practice. Four mediation law review articles and engaging keynote speaker. Taught at Willamette University’s Atkinson School of Management and Lewis & Clark Law School. Mediation, Negotiation, Ethics, and Decision-making. BA, magna cum laude, University of Santa Clara; JD, UC Davis. Law Review. Judicial Intern - Ninth Circuit. 

Sam has taught decision-making, negotiation, and leadership at Willamette’s MBA Program, and environmental dispute resolution at Lewis and Clark Law School. He has provided numerous interactive decision-making, mediator skills, advocacy, dispute resolution, and diversity trainings. He is also an engaging and informative keynote speaker, who has written four law review articles on mediation. As a seasoned mediator/facilitator, Sam is accustomed to being a guest at the parties’ negotiation, working under deadlines, and collaboratively developing meaningful public involvement processes. His specific skills lie in his ability to organize a mass amount of information in a short period, synthesize it, present it clearly, and facilitate/mediate large, diverse groups of sophisticated and passionate stakeholders. He displays a tireless work ethic, models impartiality, has boundless energy, and gets the job done.

Sam graduated magna cum laude from the University of Santa Clara, and from the University of California at Davis, where he was a law review, volume editor. He co-authored two law review articles on environmental issues, was co-founder/editor of Environs, and was a judicial intern.



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