Mediating Between the Mediation Models - Part 3

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At the mediation table we have two parties:  one that believes in the transformative mediation model and the other in the problem solving model.  In asking each party “please tell me what brought you here today” their “positions” become clear.  I learn that the transformative mediator insists that the mediator should not be agreement oriented and should facilitate the development of empowerment and recognition in the parties.  And when practiced in its purest form, this approach is best because it transforms the conflict itself, makes the parties stronger and has the power to create a moral shift in society.  The problem solver mediator states that parties come to mediation to have their conflict resolved and the job of the mediator is to facilitate their self-determined process to that end. It should be noted that Evaluative and Facilitative mediation, questionably lumped together by Bush and Folger, would differ in the processes engaged in to reach this end.  The problem solver continues, yes, it is important to address the relationship between the parties, but not instead of an agreement.  Furthermore, parties are empowered through the process of reaching an agreement and might not be empowered without an agreement.

Through some open-ended questions, I learn that both practices honor certain underlying principles but they manage the process differently.  The principles and values shared by both might be:  belief in a cooperative process over a competitive one, value in confidentiality,  exercise of impartiality, maintainance of neutrality, respect for the voluntary participation of the parties and the management of a constructive  conversation in a safe space.  I would reframe this as their common concerns. 

I might ask each party to take the perspective of the other, and having done so, ask what they each valued in the other’s approach. Going forward, what might they each envision as the best options for philosophical co-existence and practice?  One option that might surface, along with mutual respect for the other, might be for a flexible model with blended values and approaches. This model would incorporate those underlying values suggested by Bernard Mayer (2004) in Beyond Neutrality (p. 106) as: 

• Resolution is better than conflict (a possible compromise for the transformers).
• Cooperation is better than competition.
• Integrative solutions are better than distributive solutions.
• The coercive use of power is bad.
• Interests are important; positions are a problem.
• Communication among antagonists is desirable.
• Pressuring people to accept a solution is not helpful.
• Empowering disputants to solve their own problems is important.

It is notable that only the first item on the above might cause the transformers to pause. 

Use and applicability of a flexible model depend on a clear understanding about which mediator qualities, experience and knowledge are required to practice it and in what context it should be used.  It should be understood from the start in this discussion that training in both problem solving and transformative models would be critical.  But that alone, would not be enough.  Much experience of practicing the models would be essential.  Through trainings and experience, the mediator would hopefully find an authentic “self” as a practitioner.  Training in Emotional Intelligence for the mediator, with its focus on self-awareness, self-management, social awareness and social skills, would also be invaluable (Johnson, Levine and Richard, 2003, p. 153-155). The skillfulness of the mediator required in any model in dealing with their own emotions and those of the parties becomes particularly pronounced in the fullness of the flexible model.

There seems to be a dearth of research regarding which models work best and in what context.  Perhaps this is because the variables are unlimited and this makes research difficult to pursue.  Given that there are many formal mediation models already in practice and little study on what works best and where, the question of whether yet another model, a flexible model, contributes to the mediation field should be asked.  Logic tells us that most, if not all, conflicts involve relationships, emotions, and a shared interest in resolution.  Dealing with the conflict ideally needs to include addressing all these aspects and a flexible model would do so.  We know this is possible, because many experienced mediators, including those cited, choose to practice this way.

In other fields, hybrid approaches have yielded positive outcomes.  In international relations,  Joseph Nye (2009) at Harvard suggests the use of  “Smart Power” which he defines as the ability to combine hard and soft power into a winning strategy. Secretary of State Hillary Clinton agrees with this approach.  In her confirmation testimony, she states, “We must use what has been called “Smart Power” — the full range of tools at our disposal — diplomatic, economic, military, political, legal and cultural-picking the right tool, or combination of tools, for each situation”  (http://www.state.gov/secretary/rm).

The best outcomes in both medicine and pyschology are the result of a hybrid approach.  In medical practice, a physician must integrate evidence based medicine (based on peer reviewed randomized double-blinded research trials) together with good clinical judgement.  The diagnostic approach combines both the “art and science of medicine” in order to provide optimal individualized care.  Similarly, a physician must select from a variety of treatment options which may include supportive care (such as counseling, rehabilition, or physical therapy), medications, percutaneous and/or surgical intervention.  The best judgement requires a doctor to first “do no harm” and perhaps start with a less invasive approach unless the clinical circumstances warrant otherwise. 

Perhaps more closely aligned to conflict resolution is the field of psychology.  A good example of a hybrid treatment model is multimodal therapy, an approach to psychotherapy founded by Arnold Lazarus.  Set within the framework of Cognitive Behavior Therapy (CBT), this approach is based on the idea that humans are biological beings that think, feel, act, sense, imagine and interact, and that each of these “modalities” should be addressed in psychological treatment (Lazarus, 1989).  Multimodal therapy embraces “technical eclecticism.”  Many different theoretical perspectives are included in this treatment orientation with value placed on individualized patient treatment. 

Making a case for a flexible model of mediation is not an attempt to devalue any of the salient models in use; rather, it is an effort to add to them.  It seems a waste of time for people in  the mediation field to bicker among these models over which is “best.”  The field might be better served to focus on trainings that encourage centering practices which can lead to what spiritual traditions call a relaxed and focused mind, so critical for the mediator.  As expressed earlier, trainings in Emotional Intelligence might also bring forward a more fully developed mediator.  In this sense it is less about the mediation model and more about the mediator.  It should be remembered that indigenous societies have successfully relied on the wise men, healers, and tribal chiefs to resolve their conflicts.  In these societies, the issue is not about the model used; instead, it is about the wisdom, respect, and trust engendered by the mediator.  Quality practice is also about full disclosure on the part of the mediator with regard to the model to be used and agreement from the parties to engage in the process. 

Transformational mediation is not being attacked here.  I find the emphasis on empowerment and recognition to be of great value at the mediation table and in society at large.  But the views expressed in The Promise of Mediation about its superiority and the desire to keep it exclusive of other approaches seems rigid to me.  Others, more experienced than I, have similar reactions.  I recall what the Buddha said: “To be attached to a certain view and to look down upon other views as inferior - this the wise call a fetter.” 

In closing, I think of a cartoon I have seen with a psychiatrist and a patient.  Above the patient’s head is a thought in a balloon: “I hope he treats the problem I have,” and above the psychiatrist’s head a balloon says, “I hope she has the problem I treat.”  In our field, it could read, “I hope he/she mediates the kind of conflict we have” and “I hope they have the kind of conflict I mediate!”  What I mean here is that there should be agreement between mediator and disputants that they can work together effectively.  And a final word on mediator practice might be summed up in Carl Jung’s (1953) statement, “Learn your theories as well as you can, but put them aside when you touch the miracle of a living soul. Not theories but your own creative individuality alone must decide” (p. 73).

A flexible model, one that blends both problem solving and transformative approaches, is both possible and desirable and responds to Jung’s wise advice.

A brief reflection on writing this paper:
As I responded to Bush and Folger’s firm stand on not mixing the models, I noted how rigid I thought their thinking was.  Later on, after rereading what I wrote, I saw that same rigidity in my own thinking. Bush and Folger want the integrity of their model kept pure because they believe it is most effective that way.   It is this effectiveness that represents their most significant underlying “interest.” It is not a news flash that beliefs can become rigidly held in the context of conflict, it is just that it is valuable to note my own rigidity. It is a reminder to me that I carry strong beliefs that can get “fixed” and that I can be judgmental.  Going forward, more self-awareness about this will be useful as I learn to be a “neutral.”

References

Bush, R.A.B. and Folger, J.P. (1994 - 2005). The promise of mediation: The transformative approach to conflict (1st and 2nd editions). San Francisco: Jossey-Bass.

Bush, R.A.B. and Folger, J.P. (1996). Transformative Mediation and Third-Party Intervention:  Ten Hallmarks of a Transformative Approach to Practice. Mediation Quarterly. 13(4), 45-60.

Cloke, K. (2007). Let a Thousand Flowers Bloom: A Holistic, Pluralistic and Eclectic Approach to Mediation. ACResolution. 6(2), 26-30.

Fiss, O. M. (1984). Against settlement. Yale Law Journal, 93(6), 1073-1090.

Folger, J.P. and Jones, T.S. (Eds.). (1994). New Directions in Mediation. Thousand Oaks, CA: Sage Publications.

Frenkel, D. N. and Stark, J. H. (2008). The role of the mediator: differing approaches, fundamental norms. In The practice of mediation: A video-integrated text (61-89). New York: Wolters Kluwer.

Hoffman, D. A. (1999). Confessions of a Problem-Solving Mediator. Society of Professionals in Dispute Resolution News. 23(3), 1-4.

Johnson, M., Levine, S. and Richard, L.R. (2003).  Emotionally intelligent mediation: Four key competencies.  In Bowling, D. and Hoffman, D. (Eds). Bringing Peace into the Room. San Francisco: Jossey-Bass.

Jung, C. (1953). Psychological Reflections. New York: Pantheon Books.

Lazarus, A. (1989).  The Practice of Multimodal Therapy. Baltimore: The Johns Hopkins University Press.

Love, L. and Stulberg, J. (2007). The uses of mediation. In Kupfer Schneider, A. and Honeyman, C. (Eds.). In The Negotiator's Fieldbook (67-74). Chicago: American Bar Association.

Mayer, B. S. (2004). The use (and misuse) of mediation. In Beyond Neutrality. San Francisco: Jossey-Bass.

Menkel-Meadow, C. (1995). The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices. Negotiation Journal. 11(3), 217-242.

Moore, C W. (2003).  The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed.). San Francisco: Jossey-Bass. 

Nye, J. (2009). Get Smart: Combining Hard and Soft Power. Foreign Affairs. Retrieved from: www.foreignaffairs.com/articles/65163/joseph-s-nye-jr/get-smart?

Williams, M. (1997). Can’t I Get No Satisfaction? Thoughts on The Promise of Mediation. Mediation Quarterly. 15(2), 143-154.

Wing, L. (2009). Mediation and inequality reconsidered: Bringing the discussion to the table.Conflict Resolution Quarterly, 26(4), 383-404.

Zumeta, Z. (2000). Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation. Retrieved from: www.mediate.com/articles/zumeta.cfm

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Alan Gross,   Pocono Pines PA	alanegross@gmail.com      09/20/12
Flexibility, Commitment, AND Self-Determination
The popular mediation mantra "Both/And" can be well applied here! Kathy Goodman's excellent summary of major models and stories has elicited some thoughtful responses from commenters, and at least one not unexpected defense of the pure transformative model. As a self-described facilitative mediator who also practices transformative mediation when beneficial for the parties and/or required by the Postal Service, I strongly endorse Kathy’s view that the value of self-determination includes providing the parties with a process that they determine, usually after some consultation/consideration/education. For example on the very rare occasions when all parties agree to ask me to decide an issue via arbitration, I comply with their wishes-- this usually occurs when the parties have reached serious impasse during mediation and wish to resolve the matter and move on. If the arb example is too extreme, Doug's comment here embraces a more general strategy choice appropriate for the likely differences between typical conflicts involving an important continuing relationship vs. a one-time deal. Some (including me) have suggested that parties can take away skills from mediation sessions that can be applied elsewhere. Despite advocating for mediation as a learning-experience, and in accordance with client self-determination for how they will use their session, I often ask for party permission before introducing a more general “lesson” during a session. Many mediators, including one commenter here, create a false division by characterizing all or most facilitative mediators as "leading" the parties to an agreement or resolution. A distinction between directive/evaluative and facilitative styles would be more on point. The facilitative style that I and many others practice focuses on self-determined understanding of each party’s options and goals, and how they are or are not compatible with the other party(ies). Sometimes this process leads to mutually acceptable outcomes, but other times the parties recognize that the instant problem or even the entire relationship is not amenable to finding common ground. Such an outcome -- i.e. intractability -- is often quite valuable to the parties and may lead them to useful actions such as career change, divorce, leaving a project etc. etc. instead of suffering continuing frustration. I am aware that a strong eclectic or flexible orientation does not easily lead to promotion of one's preferred style, specialized trainings and most importantly, to commitment to a process sometimes bordering on zealous promotion and "true believing". For those mediators who benefit and are energized (and whose clients sometimes benefit) from such limited strategy/tactics/philosophy, I wish them well in the same way as I tolerate and even endorse/support those whose life and relationships benefit from strongly held religious beliefs. Add New Comment

Doug ,   Cohasset MA	09/14/12
Just came upon this interesting and thoughtful piece. Like to add two perspectives. I believe the debate between the transformative and facilitative (aka problem-solving) approaches could be viewed as largely a false one if the frame is expanded. Why not focus on the interests and needs of the parties? In some cases (e.g., parties who will continue a long-standing relationship of some kind) creating conditions that foster empowerment and recognition may well be just what is indicated. In other circumstances (e.g., a car repair gone bad), parties may just want an efficient process aimed at exploring whether or an agreement is in their collective interest. Why should mediators impose some construct on the parties? Is it not better to explore where they want to go and help them get there, whatever that might be? Second point. I think the list of potential agreement areas between the differing mediation stylists is good but somewhat reinforces what can be a misreading of "Getting to Yes" i.e., "interests, good; positions bad." We need both in mediation. A process which focuses only on positions is likely to hit impasse and lack creativity; one that focuses only on interests risks stagnating. Basically the Susskind idea of creating value (in part through exploring interests) and then claiming value (in part through taking positions). Add New Comment

Ellen ,   Pittsburgh PA	08/15/12
I think Dan's comments were well put. One way that I understand why one cannot mix tranformative and facilitative (transatiional) models is this. The models are orientations. The primary difference is not the tools that one uses, but the focus. Transactional mediators guide the parties through a process the end point of which is agreement. Transformative mediators do not control process. They follow and support the parties to help them go where they need and want to go. The end point may be agreement or something else. One cannot follow and lead at the same time, and if as some people suggest, mediators can switch part way through, then they had an eye to leading all along. Add New Comment

Dan ,   Saint Paul MN	08/13/12
Rigidity
Hey Kathy,I think you're being a little hard on yourself about your rigidity. To me it makes sense to have some clarity about your role as mediator, and to be committed not to deviate from your principles. Bush & Folger (and I try to be, too) are rigid about their commitment to party self-determination in each moment of the mediation (the extremely rare exception, say if physical violence breaks out, which hasn't happened in my 14 years, is understood as a time when a mediator might make an intentional choice to deviate from the rule). One reason that I find it only helpful to remain firm in that commitment, is that it also happens to seem to me to be the most effective way to allow settlements and problem-solving to emerge. One widespread misconception is that the transformative mediator's agenda is to cause empowerment and recognition. The mediator can't cause those, but the fact that the mediator remains purely supportive allows for empowerment and recognition, and there's a great tendency for parties to take advantage of that opportunity. But the transformative mediator has no intent to force either of those things.As I see it, Bush and Folger were merely saying that in a well-supported conversation, those are the inspiring results that often emerge (just as settlements and problem-solving also emerge). It's that unwavering constant commitment to supporting the parties' decision-making that leads to all of the results we all like about mediation: empowerment, recognition, settlements, win-win solutions. As I see it, it's simply the persuading, leading and manipulating that I was tempted to do when I was outcome-focused, that Bush and Folger have helped me overcome. I believe my process-focus has made my clients more likely to experience all of the wonderful outcomes that mediation can help create. Add New Comment

Kenneth Cloke,   Santa Monica CA	kcloke@aol.com      08/11/12
Excellent article Kathy, congratulations! Ken Add New Comment

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