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Mediate.com

Mediation Styles

by Tony Belak, William Hymes
January 2015

It is with great interest that we at the International Center for Compassionate Organizations — a non-profit, public health, and public service group located at, but independent of, the University of Louisville — read Mr. Donal O’Reardon’s discussion of the need to include the transpersonal in mediation, and my colleagues and I enthusiastically accept his invitation to discussion. We wholeheartedly agree with Mr O’Reardon’s premise that the frontiers of innovation in mediation lay in the examination of the component parts that underlie the conscious mind. To that end, allow me to move from concept to model and introduce Compassionate Mediation, in the works for several years now, as a new style.

While there are differences in specific definitions and in the transpersonal models, we feel the basic framework is as conceptualized and described by Mr. O’Reardon.

COMPASSIONATE MEDIATION

Conflict is not unique to humans, but it can be said that the involvement of third parties in conflict, for better or worse, is a distinctly human activity and one that has been around since humankind began speaking and walking upright. Given this vast history, it is unsurprising that over time, innumerable styles, techniques and customs have come into play, and it is further unsurprising that the relative merits, and applicability of these techniques have become the topic of scrutiny, study and debate. Homo sapiens’ competitive nature cannot be repressed; if humans engage in a pursuit and recognize its value, it is inevitable that the question, “How can we do this better?” arises at some point. In the last 40 years we have seen an increase in interest, application and academic study of various mediation practices. “Facilitative,” “evaluative”, “narrative”, “problem-solving”, “transformative”, “holistic”, and other mediation styles have been added to our lexicon, conveying an aura of mystery and confusion.

Photo illustration by Ari Cowan. Used with permission.

Given this explosion of mediation styles and descriptors, it would seem that some classification of the various techniques would facilitate understanding of the strengths, weaknesses, and goals of the options available.

Faced with a need to effectively educate new mediators, in a classic 1996 paper, Leonard Risken, an academic godfather of mediation, proposed a framework for understanding mediation styles, based on the role and involvement of the mediator and the scope of the conflict being mediated. This framework remains the gold standard, although there is an explicit understanding that real-world mediation can be an elusive and abstract experience, it is not easily classified and frequently there is simultaneous activity on more than one locus within the framework.

Risken described two continua: the first starting just where arbitration leaves off, in which the mediator’s expertise and judgment are of prime importance, communication is primarily directed at the mediator, and the mediator essentially guides the settlement of the dispute (so-called “evaluative mediation” because the mediator is the evaluator of the parties’ arguments), and extending all the way out to roughly where one might expect multi-party therapy to begin, in which the mediator is more of a counselor taking a backseat in the process and facilitating direct communication between the parties who are encouraged to negotiate their own settlement and relationship (“facilitative mediation”). The idea of self-determination, upon which mediation rests, in minimalized in evaluative mediation and maximized in a more facilitative or transformative method, although settlement rates may be higher in a directed mediation.

The second continuum involves the breadth of the problem to be considered… narrow vs. broad. This continuum could be envisioned to extend from the most narrow of considerations of law and money between the two parties (think of Judge Judy or The People’s Court, in terms of their scope, although in terms of the third party involvement, those examples are best considered arbitrations) extending to the most broadly considered town hall meeting with involvement of all possible stakeholders and the impact of the dispute and its options for resolution on the community at large.

To illustrate Risken’s framework, we reproduce his diagram, with the diminishing decision making role and increasing transformative or therapeutic role of the mediator considered as abscissa and the increasing scope of the problem as ordinate:

(Fig. 1.) Adapted from Risken, L., Understanding Mediators’ Orientations, Strategies and Techniques: A Grid for the Perplexed.

Despite the deceptive simplicity of the diagram, there are several important points to be highlighted. It can be seen that the bottom extreme is bounded by a scope so narrow as to deny the very existence of a problem, and the left extreme is confined by adjudication, while the right and top extend ad infinitum. Given the relatively ancient history of adjudication and the relatively recent advent of counseling, the gradual and progressive leveling of human social hierarchy, ongoing development of counseling techniques, and our improving understanding of societal interdependency and interconnectedness, it can be seen that the right upper quadrant is where the frontiers lie, at least from a mediation innovation standpoint.

Exploring the Frontier

Practitioners consider evaluative and facilitative mediation as “problem-solving mediation,” since they address methods of settling the dispute at hand but do not materially impact the parties themselves, i.e. an award can be made, common ground identified or a contract achieved, but the parties walk away from the process much as they came and with a short term investment. At times however, a fundamental change in the way disputants see themselves or the conflict may be necessary to achieve a fulfilling and durable outcome.

In 1994, Robert Baruch Bush and Joseph Folger published The Promise of Mediation, which outlined the framework for the practice of “transformative mediation.” They theorized that beyond addressing the immediate problem, mediation might be a vehicle for enabling disputants to achieve personal growth through empowerment and mutual recognition—essentially giving participants the tools they need to address their inevitable future conflicts maturely, respectfully and successfully. The United States Postal Service embraced this mediation style, in part, to change the culture, improve workplace relationships, and efficiently address claims of discrimination.

By enabling the parties to define their own issues and seek their own solutions, the parties are empowered by their ownership of and participation in the process, as opposed to being sidestepped and becoming passive observers, as in litigation. Empowerment, as Bush and Folger define it, is not power redistribution or balancing, but, rather, educating participants to articulate their problems and points of view and better negotiate their interests. Just as empowerment enhances each party’s participation, mutual recognition enables parties to respectfully acknowledge and accept the other’s point of view, while not necessarily agreeing with it, thus gaining an understanding that acceptance of another’s point of view does not necessarily weaken or invalidate one’s own. It does, however, lay the groundwork for collaboration, agreement, and resolution. The characterization of “transformation” is appropriate given the difficulty inherent in the parties gaining acceptance of responsibility for the process and acceptance and acknowledgement of their adversaries’ points of view.  Our culture thrives on the good versus evil narrative; we gain closure from stories of justice being done and visceral satisfaction from seeing an archetypical villain vanquished in the most dramatic and painful way possible. Justice is when the good guy wins and video games and movies repeatedly remind us that protagonists win and antagonists lose. Gaining the ability to relinquish this narrative and envision conflict as something other than a zero-sum survival struggle is truly a transformation.

First Summary

Transformative Mediation

Problem-Solving Mediation

Assumptions about conflict

Conflict is an opportunity for moral growth and transformation.

Conflict is a problem in need of a solution.

Conflict tends to be a long-term process.

Conflict is a short-term situation.

Ideal response to conflict

Facilitate parties' empowerment and recognition of others.

Take collaborative steps to solve identified problem; maximize joint gains.

Goal of mediation

Parties' empowerment and recognition of others.

Settlement of the dispute.

Mediator role

Secondary: parties are seen as experts, with motivation and capacity to solve own problems with minimum help.

Mediator is expert, who directs problem-solving process.

Mediator is responsive to parties.

Mediator directs parties.

Mediator actions

Mediator explains concept of mediation, but lets parties set goals, direct process, design ground rules. Makes it clear settlement is only one of a variety of possible outcomes.

Mediator explains goal is settlement, designs process to achieve settlement, sets ground rules. May consult parties about these issues, but mediator takes lead.

Mediator "microfocuses" on parties' statements, lets them frame issues themselves.

Mediator "categorizes" case, frames it for disputants.

Mediators allow parties to take discussions where they want them to go; encouraging discussion of all issues that are of importance to the parties, regardless of whether or not they are easily negotiable;

Mediators encourage mutual recognition of relational and identity issues as well as needs and interests.

Mediators direct the discussions, dropping issues which are not amenable to negotiation (for example, relational or identity issues) and focusing on areas "ripe" for resolution (usually negotiable interests).

Mediators encourage an examination of the past as a way of encouraging recognition of the other.

Mediators discourage discussion of the past, as it tends to lead to blaming behaviors; focus instead is on the present and future -- how to solve the current problem.

Emotions are seen as an integral part of the conflict process; mediators encourage their expression.

Emotions are seen as extraneous to "real issues." Mediators try to avoid parties' emotional statements, or emotions are tightly controlled.

Mediators encourage parties' deliberation of situation and analysis of options; parties' design settlement (if any) themselves and are free to pursue other options at any time.

Mediators use their knowledge to develop options for settlement; can be quite directive about settlement terms.

Mediator focus

Mediators focus on parties' interactions, looking for opportunities for empowerment and/or recognition of the other.

Mediators focus on parties' situation and interests, looking for opportunities for joint gains and mutually-satisfactory agreements.

Use of time

Time is open-ended; parties spend as much time on each activity as they want to. No pre-set "stages" as in problem-solving mediation.

Mediator sets time limits, encourages parties to move on or meet deadlines. Mediator moves parties from "stage" to "stage."

Mediation: definition of success

Any increase in parties' empowerment and/or recognition of the other -- "small steps count."

Mutually-agreeable settlement.

Copied from "Transformative Approaches to Conflict," by Heidi Burgess and Guy Burgess with Tanya Glaser and Mariya Yevsyukova.

Compassionate Mediation

While a transformative mediator seeks to educate parties and focuses on changing their understanding of conflict, there have been efforts to develop a methodology in which a mediator seeks to change the parties understanding of themselves. Compassionate mediators begin with the recognition that parties involved in conflict are in distress simply from the presence of the conflict and seek to develop an appreciation of the parties’ underlying needs, wants, fears and alterations in power dynamics.

Compassionate mediation, sometimes referred to as “whole person mediation,” is an advanced form of conflict resolution that transcends and enfolds existing approaches to conflict management. Developed by theorist Ari Cowan and mediator Tony Belak, JD, this new approach incorporates Cowan’s evidence-based “Integrative Conflict Management Model” and Belak’s extensive experience as an attorney, mediator, and University Ombuds.

In addition to the fundamental elements of confidentiality, neutrality, active listening, clarifying questions, reframing, moving from positions to interests, and other essentials, Compassionate Mediation incorporates the following ten key elements.

  1. Empathy and Compassion…the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another. Empathy is the first step in engaging compassion, pity, or charity. It is an interpersonal attunement that can connect one person to another’s joy, excitement, inquiry, or suffering. When suffering is involved, empathy is the gateway to compassion and the first step to the compassion experience, a deep sympathy and concern for one who is stricken by misfortune, accompanied by a strong desire to alleviate the suffering. Compassionate action is the act of taking personal responsibility for alleviating and preventing suffering. Conflict can be viewed as suffering and mediation an act to alleviate that suffering. The compassionate mediator integrates these two concepts in his or her practice.

  2. The Five Bodies…are manifestations or “bodies” used to describe individual and collective human existence. The bodies are the physical, emotional, mental, environmental, and spiritual (also known as transpersonal).

  3. (Fig. 2) The Five Bodies. Used with permission.

  4. The Karpman Drama Triangle…was developed by Stephen Karpman, MD. The Drama Triangle is a mental and emotional game in which the parties occupy and move from three relational positions…victim, persecutor, and rescuer. This is sometimes referred to as the “dance” in mediation.
  5. The Universal Field and Construct…is a key concept and illustrates how we construct our experience of reality from the rich and complex field of information that impacted our existence. By recognizing and working with the unique constructs, similar to the concept of “worldviews” of the parties, the mediator helps bridge and reconcile disparities and encourage dialogue.
  6. Affect Regulation Systems…is an important concept applied in Dr. Paul Gilbert’s work in Compassion Focused Therapy. The three types of affect regulation systems are (1) an incentive and resource-seeking system, (2) a soothing and contentment system, and (3) a threat and self-protection system.
  7. Power Dynamics…is another central concept in Compassionate Mediation where the mediator utilizes power swapping and power infusion. Replacing unhealthy power with healthy power stimulates a satisfying and fulfilling outcome in mediation and recognizes the individual.
  8. Interactive Mapping…is a process of grasping the topography of each of the five bodies to more effectively analyze the nature and depth of the intra and interpersonal dynamics of parties in conflict. By becoming attuned to each of the bodies, the mediator is able to enhance communications emanating from each body.
  9. Crisis Management…Compassionate Mediation practitioners identify and work with clients to meet the challenge of immediate crisis and its negative effects in the mediation environment.
  10. The Objectification Action Process…is applied when one or another party objectifies and applies negative power to another, such as demeaning, invalidating, discounting, ignoring, disrespecting, etc. The mediator skillfully guides the parties out of this process and back to and environment that is empowering and conducive to an acceptable resolution.
  11. Existential Self-management…Compassionate Mediators are aware of which “body” each of the parties gravitates toward when managing his or her conceptual structure and affect. The mediator can then guide parties to establish a grounding in a body that best supports an optimal outcome. Mirroring and metaphor, as well as other techniques, are applied to support effective outcomes.  

Early applications of this style have shown promise in obtaining satisfactory outcomes, but further study is needed.  It is expected that this style will give mediators additional tools and enhance their ability to achieve a transformational outcome.

Recap

In an attempt to allow parties to obtain a complete picture of their diversity, individuality, and construct Compassionate Mediation seeks to identify the use of power in the relationship between the two parties with particular attention to the use of “unhealthy power”, like violence, bullying and abusive behavior. Compassionate mediators will then assist parties in a “power swap,” a replacement of unhealthy forms of power with more positive forms of power. Examples of healthy power include: value, meaning, honesty, accountability, creativity, excellence, cooperation, compassion, responsiveness, determination, loyalty, reliability, belonging, and integrity. Mediators will also attempt to “power infuse” or continuously affirming a party's nonviolent intentions, directing attention to their expressions of healthy power, and supporting and reinforcing their experience of healthy and productive interaction. 

Compassionate mediation is characterized by:

  1.  A safe, structured and secure environment in which sensitive personal thoughts can be expressed.
  2.  A state of mind marked by calm consciousness, empathy, and an ability to truly listen.
  3.  Affirmation of the importance of the parties’ issues, emotions and interests.
  4.  A state in which the mediator is aware of his or her usual thought and behavior patterns, but is not bound to them or by them.
  5.  A high degree of situational awareness with particular emphasis on emotional awareness and the component parts of the individual that contribute to one’s state (the five bodies). 
  6.  Consciousness and acknowledgement of all emotions, one’s own and those of the conflicting parties, but also awareness that we all are motivated and influenced by them, and they play a central role in the conflict.
  7.  Sensitivity to the hurt and discomfort resultant simply from being in a state of conflict that has escalated to the point where there is a need for third party involvement. 
  8.   Diligence in investigating the use and misuse of power in the parties’ relationship and facility with the technique of “power swapping”
  9.   Recognition that good intentions often mask bad behavior, and thus there is always a healthy degree of skepticism as well.
  10. Neutrality, tolerance and an ability to remain nonjudgmental
  11. Patience…..patience….patience

In a similar way, Narrative Mediation relies on disputants alternately and progressively telling the story of the development of their conflict, buttressed by what the parties see as causal linkages, which establish motivation and causation. Invariably, the parties’ individual narratives are initially rife with primary attribution errors, but, as the interactive narrative proceeds, and it is modified and contested by the parties, alternative linkages in the story develop and mutually satisfying interpretations and resolution possibilities emerge. As in Compassionate Mediation, there develops recognition that there is no single objective truth and an accounting of an event or events is inextricably linked to one’s point of view.

Conclusion

It does not require much imagination to envision a form of mediation that addresses every psychological need or acceptable form of therapy. What is evident from the multitude of styles, however, is the range of mediation, encompassing everything from a narrow settlement conference to a much broader and profound understanding of the nature of conflict and our own nature as human beings. Obviously, such breadth and depth require a sufficient gravity of conflict to warrant such treatment and time investment, but one would expect to reap rewards in the durability of the resolution and ultimate satisfaction of the parties.

Mediation is not a science, nor is it an art form. It is the application of humanity’s rules of interaction (civility) to address an immediate need between or among individuals who lack good communication or listening capacity and with a low level of trust or concern for each other. Each situation or conflict is unique and may not require a whole person approach to bring resolution or understanding, but people bring their individuality to the mediation table and addressing the conflict and not the people may serve legal interests but not human needs. Compassion need not be separate from being professional but is a natural and living representation of people’s humanity. The compassionate mediator should be able to tap into the possibility of symbiotic positive relationships between emotions and reason, compassion and justice, and altruism and self-interest.

The author gratefully acknowledges the advice, mentorship and contributions of Center for Compassionate Organizations thought leaders Tony Belak, Ari Cowan and Lidewij Niezink. Mr Cowan’s illustrations are used with permission.

Notes:

  1. Hansen, Toran. “The Narrative Approach to Mediation.” Accessed November 24, 2014. http://www.mediate.com/articles/hansent.cfm.
  2. Risken, Leonard. “Understanding Mediators’Orientations, Strategies and Techniques: A Grid for the Perplexed.” Harvard Negotiation Law Review 1, no. 7 (Spring 1996): 7–51.
  3. Spangler, Brad. “Transformative Mediation,” n.d. http://www.beyondintractability.org/essay/transformative-mediation.
  4. Zumeta, Zena. “Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation.” Accessed November 24, 2014. http://www.mediate.com/articles/zumeta.cfm.
  5. Cowan, A. and Belak, A.B. “7 Keys to Successfully Working with People.” Accessed Nov. 24, 2014. http://www.compassionate.center/docs/7Keys_1SE.pdf
  6. Belak, A.B. and Cowan, A., Compassionate Mediation and The International Center for Compassionate Organizations. Accessed Jan 24, 2015http://www.compassionate.center/pgs/mediation/compassionate-     mediation-01.html
  7. O’Reardon, Donal “The Transpersonal is the Future of Mediation.” Accessed Feb. 10, 2015.  http://www.mediate.com/futures/article.cfm?zfn=OReardonFuture.cfm
  8. Burgess, Heidi, Burgess, Guy, Glaser, Tanya, & Yevsyukova, Mariya. (n.d.). Transformative Approaches to Conflict. Retrieved January 24, 2015, from http://www.colorado.edu/conflict/transform/

Biography



Tony Belak is the Ombuds at the University of Louisville, Associate Director of the Center for Conflict Resolution at La Sierra University, Riverside, California, associate director of the International Center for Compassionate Organizations www.compassionorg.net and the former Executive Director of the International Center for Collaborative Solutions at Sullivan University, Louisville, Kentucky, where he was also on the faculty of the Master of Science in Conflict Management program. He is a faculty member of the Department of Urban and Public Affairs at the University of Louisville and associate editor of the online Journal of Conflict Management at Sullivan University. He was the Senior Dispute Resolution Counsel for the Department of Veterans Affairs and is not only a mediator and arbitrator but also a teacher in basic, advanced, and specialized conflict resolution. He is recognized for his innovation in designing conflict resolution programs within the workplace.

William Hymes

Dr. Hymes has been practicing thoracic surgery in the Louisville, KY area since 1993, but still considers himself both a “recovering New Yorker” and a “recovering bully.”  Educated in New York, Massachusetts and Texas, he is now pursuing a masters degree in conflict management at Sullivan University in Louisville. 

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