Mediating Between the Mediation Models - Part 1

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The thesis explored here is that a flexible model of mediation is possible and desirable.  A flexible model is defined in this paper as a model that incorporates both problem solving and transformative approaches in response to the expressed needs of the parties.  It suggests that experienced mediators often use a flexible model, consciously or unconsciously, and remain able to honor the underlying principles of mediation:  neutrality, impartiality, self-determination, voluntary participation and confidentiality (Frenkel & Stark, 2008).  As stated in Model Standards of Conduct for Mediators, 2005, “mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute”  (Class PowerPoint, February 16, 2012). 

This thesis is primarily a response to Bush and Folger’s argument against a mixed model in The Promise of Mediation (2005). Other prominent mediators respond and argue for a mixed model.  Both points of view will be examined to understand the feasability and desirability of a flexible model.  The dominant three models of Directive, Facilitative and Transformative will be discussed in relation to the four stories of the mediation process:  Satisfaction, Social Justice, Transformation, and Oppression. According to Bush and Folger, an individualist ideology supports the Satisfaction Story orientation and the relational ideology supports the Transformation Story orientation (2005). They argue that the two orientations are incompatible and cannot be blended in practice. In support of the value of a flexible model, other fields will be cited where an integrative approach has yielded quality outcomes.

It is necessary to summarize the four stories of the mediation process to understand how Bush and Folger see them as interwoven with the different mediation models in practice. The Satisfaction Story speaks of a process in which the party’s human needs are addressed and suffering is reduced. Because mediation is informal (not legal), voluntary and flexible, the mediators who operate within this story choose to “reframe a contentious dispute as a mutual problem” to be resolved (Bush and Folger, 2005, p. 9).  It is the dominant story in the mediation field and operates in many mediation settings such as child custody, small-claims, environmental disputes and public policy.  In short, mediation practice within this story is credited with easing court case burden and reducing public and private expense in resolving conflicts.

The Social Justice Story thinks of mediation as a way to organize individuals in a society around common interests.  It is particularly important for underserved minority groups that are often subject to exploitation.  Mediation in this story can “strengthen the weak by helping establish alliances among them” (Bush and Folger, 2005, p. 12). The Social Justice Story plays out in many mediation settings and areas such as interpersonal, neighborhood mediation, consumer disputes, environmental disputes where weaker groups might be exploited. For example, in land development disputes, organizing grassroots efforts can shift power imbalances and can serve to strengthen disadvantaged groups.

The Transformation Story shares some concerns with the two stories discussed but is distinct from them; its focus is to transform the conflict and the interactions of the parties involved.  It seeks to empower the parties with a stronger sense of “self-respect, self-reliance and self-confidence” (Bush and Folger, 2005, p. 13).  The other dimension in this story is that of recognition; each party can grow morally and increase their empathy for the other.  It is thought in this story that both empowerment and recognition will aid the parties in this dispute and make them more skillful conflict resolvers going forward. As a result, third party assistance will not be needed in the future.

The Oppression Story is the negative story of the four presented.  In essence, it is the opposite of the Social Justice Story and sees mediation as having dangers for underserved individuals.   It suggests that in actuality, mediation is often used to increase the power of the dominant members of society over the weaker. The informality thatthe Social Justice Story points to as an asset is seen here as a hazard; the lack of formal rules and regulations in mediation allow the mediator broad power and freedom in expressing biases. Leah Wing states her concern in her article “Mediation and Inequality Reconsidered:  Bringing the Discussion to the Table.” She expresses that there is a dominant paradigm is which mediation practice is set that does not address the inequalities that non-dominant social groups experience in mediation (Wing, 2009).  Fiss (1984) expresses a similar concern about mediation, and ADR in general, because it incorrectly “assumes a rough equality between the contending parties” (p. 1076).  

Part 2 will discuss the difference between evaluative, transformative, and facilitative mediation models.

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Dan Simon,   Saint Paul MN	Dan@twincitiesmediation.com      08/13/12
Self-Determination vs. Settlement
I very much appreciate Kathy Goodman's contribution to this conversation! I thought I'd add a few words, as I'm someone who generally agrees with Bush and Folger that it's very difficult to be both a problem-solving mediator and a transformative mediator in the same mediation. The confusing part is that parties often are able to do both, regardless of the mediator's orientation. But as for how the mediator can best contribute constructively, I believe the way to go is to remain utterly supportive of the parties' choices in each moment of the mediation. This orientation makes it most likely that any problem-solving that happens will genuinely solve the problem, as it will have arisen from the parties' self-determined choices. While a mediator might successfully lead, guide or nudge parties toward solutions, those solutions will necessarily be less grounded in the parties' desires, and therefore, likely less durable. Further, the parties' awareness that there will be nudging, guiding or leading from the mediator tends to make them more likely to stick to the defensiveness they came in with. They're already feeling at least nudged, guided or led by the opposing party. A mediator with a directive agenda naturally causes parties to focus on the mediator and less on each other, making it less likely that they'll shift in relation to the conflict or each other. Another way to understand the transformative orientation is that it values moment-to-moment self-determination above all else. A process that does that does not include directive moves by the mediator. All that being said, the realities of practice make this question more confusing. For example, as a pure transformative mediator, I don't find it inconsistent to gently list several options that I'm aware of, as long as I do so with the very clear intention that the choices are all the parties' and I'm not attached to anything I've said. This is a deep topic, and again, I appreciate Kathy Goodman's contribution. Add New Comment

L G Dobbins,   Homosassa FL	08/04/12
Transformative vs. problem-solving
There can hardly be any mediator who has successfully mediated highly-conflicted parties towards a settlement that doesn't feel the participants have indeed been part of the building of a new and more constructive relationship or understanding between them. Nevertheless, it is the problem-solving feature of mediation that gives it its legs to grow, however laudatory the goal of transforming peoples' relationships toward one another in a more positive way might be. Process and a defining purpose are at the very least, equally important. Said another way, if you don’t know where you’re going, how precisely will you know when you get there? Add New Comment

Ernest Treagus,   Melbourne, Vi	ernest.treagus@gmail.com      07/29/12
Myopic View Taken
Whilst I found Kathy Goodman's article interesting in that it espoused a flexible approach to mediation, I consider it limiting in that it completely ignored the Narrative approach to mediation. In some ways all the models that Kathy Goodman acknowledged are similar to some extent, even the Transformative model. Comparatively Narrative Mediation, as described by Michael White/ Winslade & Monk/ Sara Cobb, takes mediation into another dimension, which enhances the mediator's skills set dramatically and changes completely the services offered to clients. So if true flexibility is what is desired, then a Narrative approach is required. Add New Comment

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