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The Future of Mediation: Be Less Certain—and More Flexible

by Bernard Mayer
Bernard Mayer

An upfront confession— I have no idea what the future of mediation holds—and I don’t think anyone else does either.  I still can’t believe Ronald Reagan was elected President (or for that matter Governor of California), so I have no illusions about my ability to predict the future.  And that is a good thing.  If we learn only one thing from complexity science, it ought to be that no matter how much we analyze, study,  reflect, and dissect, we live in a chaotic world and all human systems are complex and nonlinear. Predicting the future or knowing the exact (or even general) impact of different decisions we take, or moves we make, is impossible.  Our goal therefore ought to be to take the wisest steps we can to be adaptable to a wide range of possible futures. 

The challenge we face is how to be adaptable but still focused and effective.  To meet this challenge, we need to remain clear about our fundamental purpose, to keep working on refining our skills and enhancing the range of approaches we can take to achieving those purposes, to commit to diversifying our field, and to maintain a clear hold on our values and ethical principles.  The biggest trap we can fall into that will interfere with our adaptability is to limit our purpose or goals to a particular approach, format, or set of tactical moves (however much “in vogue” this approach might  be).  We may be drawn to an evaluative, transformative, facilitative, or narrative approach.  We may choose to focus on a particular role in conflict – perhaps as mediators, coaches, system designers, or evaluators. We may believe that we should always caucus, never caucus, offer substantive recommendations, or refrain from such recommendations at all costs.  But if we think these preferences or choices define our essential professional identity, then we have lost the plot.  And if we think that the choices we make about tactics or specific approaches on such matters are not simply that—our choices—and instead view them as morally superior or particularly well grounded in reality, than we are deluding ourselves to the detriment of both our practice and profession. 

Different circumstances, different players, and especially the interactional dynamics of players and circumstances determine what is possible, what works, and what is ethical.  The better able we are to recognize and the more flexible we are in adapting to these interactional dynamics, the more successful we will be over time, and more to the point - the more useful a service we will provide.

Fundamental Purpose

I once participated in a panel organized by Bill Potapchuk called:  “If mediation is our position, what is our interest?”  Each of us, no doubt, would come up with a different answer – which is a good thing -  but for me it starts with helping people deal with conflict more constructively, which is to say more courageously, wisely, and with a long-term view.  I have never been personally motivated by the goal of settling disputes outside of court, or reaching as many agreements as possible, although trying to help people find common ground is often what I actually do. I have always felt that while too many conflicts end up in court, a certain percentage of them should.  While most strikes should be prevented, not all.  And while most workplace disputes should be resolved, some need to escalate or at least stay active. 

It doesn’t always make for easy marketing to offer my services to help people engage in conflict constructively—it’s much easier to hawk my intervention on the basis of a high resolution rate.  And finding resolution where agreement is possible and valuable is of course an important part of what we do.  But it is a means to an end, I think, and that end is to help people deal with the most important conflicts in their lives productively, wisely, effectively and ethically.  Since the bulk of our most significant conflicts will last quite a while, even though we may reach many agreements along the way, our focus on short term interventions needs to be reconsidered or at least placed in that context.

When we become clear about our essential purpose, we become more adaptable and effective.  It may be easier to sell a particular service (say mediation or coaching) in the short run, but over time, what will sustain us is our dedication to addressing  essential individual and societal needs, rather than a commitment to a particular tool for doing so.

Range of Approaches

This implies that we should develop a spectrum of approaches to dealing with conflict, and we have.  I expect (uh oh—now I am predicting the future) we will continue to broaden and diversify our approaches to working on conflict.  I say this because that is something that has happened over the past thirty years.   Consider:

  • The diversity of approaches to mediation that are being practiced, refined and taught.  We are way beyond the simplicity of a spectrum of transformative through facilitative to evaluative approaches.  We have narrative, therapeutic, restorative, hybrid, med-arb, insight, systems mediation, and the list goes on.  There are  many variations and combinations of each of these approaches.  None of us can practice across this 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, and this ever-broadening menu gives us some important tools for doing so.
  • The significant growth in mediation-related activities that have been nourished by the growth of mediation and that in turn have enhanced the practice of mediation.  For example:  restorative justice, public conversations, civic engagement, world cafes, on-line dispute resolution, ombudsman services, family group conferencing, policy dialogues, and again the list goes on.  We may be more polarized as a society but we are also increasingly reliant on well designed and facilitated consensus building processes to make organizations and communities work.  As a result third parties have an increasingly important place in corporations, government agencies, and the non-profit world.
  • The proliferation of ally roles that combine the important function of advocates with the skills and values of mediators (and whose practitioners often started out as mediators).   For example:  collaborative practitioners, conflict coaches, strategic conflict advisers, and collaborative negotiators.
  • The growth of systems design and training programs that utilize mediators and conflict practitioners more generally.  Corporations, schools, government agencies, communities, churches, international organizations, social agencies, medical institutions, the courts, in fact just about every significant institution in our society, are looking for systematic ways to handle conflicts more effectively. They are increasingly turning to people with experience in mediation and related activities to help design systems for doing this and to train people to handle conflict more effectively.  Were it not for this widespread appetite for training on how to deal with conflict, many conflict practitioners would have a hard time keeping a viable business going.

 

But let’s not be too optimistic or self satisfied with what we have accomplished.  There are some important caveats and warning signs here.  Its not clear that this proliferation in services has led to a significant positive change in the culture of conflict and decision making in general or even in the organizations who have most embraced these efforts.  Mediation practice per se has not significantlh grown, particularly outside rights based, evaluative, legal and corporate arenas.  There continues to be much more desire by practitioners to provide these services in actual conflicts than a demand from the public to receive them. 

And the broadening of the field has not necessarily been matched by its deepening.  By this I mean the development of our knowledge base, educational programs, and professional development processes. Furthermore,  our track record of interventions in intense and protracted conflicts has not been as impressive as the proliferation of new approaches would suggest.  In the long run, our intervention track record rather than the proliferation of approaches we create is what will determine the long-term viability of conflict intervention as an independent field of practice.

Becoming Diverse

Many of our professional organizations have made what I believe to be a genuine commitment to diversity, but the results have been at best mixed.  Most corporate mediators are older white males (like me).  Many of these older white males have a legal background. Family and community mediators are more likely to be female.  Court mediators are a more diverse group, but are mostly female.  Private mediators are mostly white.  Most dispute resolution conferences look largely white and increasingly old.  While there are many reasons to be concerned about this, one clear consequence of the lack of diversity is our diminished ability to adapt to an uncertain future.  The less diverse, the less adaptable and the less relevant we are. 

As a profession, we do not appear to be attracting significant numbers of new practitioners and teachers who are committing to conflict work as their primary professional orientation. We continue to train many people in conflict.  There is a proliferation of masters degree programs that often provide an excellent education in conflict and peace studies (I teach in one).  But it is still difficult to make a living in conflict work, and graduates of these programs mostly use this education within other career paths. From one perspective, that is just fine, but it does suggest that we are not growing as a field with a common focus and identity. The invited contributors to this series – varied though are views and backgrounds may be - are an illustration of this. We are not growing as a field.  We are aging.  And we are not very diverse.  This is not a good sign for our capacity to adapt to an uncertain future or to serve a broad cross section of the public.

Intervention Skills

It would be very interesting if there were a way to measure the practical skills needed to be an effective conflict specialist and to track the progress of mediators and other conflict interveners in developing these skills.  That could help us know what really helps to enhance mediators’ skills—e.g., training, experience, mentoring, peer supervision?  It could also help assess the relevance of different personal characteristics. I’m not sure we will ever find effective measures that are not reflective of the biases of the researcher and can reliably measure the skills that make a difference. Instead we measure what can be easily measured -  not what truly indicates effectiveness and skill. It’s not that we don’t have a pretty good idea of what skills are important, but measuring them is another story. 

But here is my impression—the skill level of practitioners on the whole is far higher than it was 30 years ago.  For example, it seems to me that the mediators I have worked with are better able to combine listening and problem solving, being mindful with being strategic, and empathy with reality testing, than we were as a group when I first started practicing.  We are also more aware of the cultural and gender dimensions of conflict.  We are less naïve about how big an impact we can make and more strategic about how to promote effective conflict work.  I also think that we have a broader sense of what constitutes effective work. 

I expect that we shall will continue as a field to become more effective on a practical level and more sophisticated conceptually.  But here again diversity concerns are paramount.  My fear is that we may be getting better and better at working with the same type of clients we have traditionally worked with - for example corporate clients, upper-level management and middle class families. We are not necessarily getting better at reaching out to or working with more vulnerable or underserved communities nor are we showing a growth in our capacity to work with more diverse populations. Our ability as a field to develop the skills necessary to work with a far broader range of people will be critical to our long-term adaptability, and that will require that we become more a more diverse field. 

We tend to think of skills in very practical, behavioral terms—e.g., framing, active listening, creating a safe negotiating atmosphere, responding to power plays, or identifying underlying interests.   But there are at least two other kinds of skills that are critical to intervention capacity—emotional and conceptual skills.  We tend to be more attuned to the importance of emotional skills (e.g., emotional intelligence, knowing our button pushers, comfort with emotionality in others) than to enhancing our conceptual and analytical skills, but these too are critical to effectiveness and adaptability.  In this area, our progress is less impressive.  We need more solid, empirical research, a greater commitment to reflective practice, and a greater willingness to systematically evaluate our most cherished frameworks and beliefs.  It sometimes seems that the basic tenets of our work remain those articulated 30 years ago by Fisher and Ury in Getting to Yes.  While this still provides solid practical advice (up to a point), it is not a powerful or sophisticated enough conceptual framework (for example, in relation to the impact of identity, gender and race) to provide the foundation for a substantive and adaptable field of practice. 

Even when we do push our conceptual frameworks, we tend to take a mechanistic approach — that is, we want to know what a framework suggests for tactical intervention, rather than how it can help us understand the nature of conflict and the dynamics of intervention.  We often adopt frameworks developed in other fields as our new guiding star rather than as a contribution to our own body knowledge.  For example, there has been a great deal of excitement about the relevance of insights from brain science to our work (and I too find this fascinating).  But this is at best an area that contributes to our increasing understanding of conflict dynamics—I don’t believe it can or should be the central organizing framework.    If it could, we would be practitioners in the field of applied brain science.  As conflict professionals we are something other than that. 

We need to draw on neuroscience, evolutionary biology, political science, economics, systems theory, psychology, sociology, law, organizational development, and other areas of knowledge as we work to increase the sophistication of our own body of knowledge and conceptual skills.  This may be the area that provides the greatest challenge to our capacity to adapt, but perhaps also our greatest opportunity.

Values

Our professional and personal values and our ethical commitments are the most important defining force of our identity as practitioners—and the most crucial to our long-term adaptability.  Our commitment to empowerment, deep democracy, equality, justice, diversity, and self-determination are what make us who we are. Our success in turning these values into a practice reality is what makes us effective and relevant.  I don’t see a diminishment of our intellectual commitment to these values, but as different institutions and professions have taken over larger chunks of our practice, I fear a weakening of our capacity to realize our core values in practice. 

For example, the more court mediation programs limit the time and resources available for mediation, the more it seems that mediation turns into a power play to pressure people into agreements.  The domination of the legal profession in many arenas of mediation risks the dominance of a rights based, settlement conference orientation, despite the fact that this narrow focus may contradict some of our espoused values (such as client empowerment). 

There are many reasons why the legal profession has come to play such a central role in dispute resolution practice – and there are many legitimate reasons why sources of funding want immediate results. But these developments do raise some significant questions about our future and suggest that we may be facing a significant narrowing of our scope of work.  One road we might take is to reconsider our foundational values and adapt them to this narrowing – results-oriented, efficiency-emphasis - scope.  If so, we will be a very different (and to my way of thinking, far less significant) field of practice. Or we can hold fast to our values and take a much broader and more flexible view about how to put them into practice. 

I think we are engaged in an ongoing and probably long term struggle between these two approaches to the tension between the market reality we face and the values we espouse.  Our long term relevance as an independent field of practice will be defined in no small measure by the ongoing viability of our fundamental values and their relationship to what we actually do in practice.

To me this is both exciting and frightening.  Frightening because I don’t particularly want to think about what kind of world it would be where these values are not relevant.  Exciting because it suggests just how important our work is to struggling for the kind of society I hope we are building.

Biography


Bernie Mayer, Ph.D., Professor of Dispute Resolution, The Werner Institute, Creighton University, is a leader in the field of conflict resolution.  Bernie has worked in child welfare, mental health, substance abuse treatment, and psychotherapy.  As a founding partner of CDR Associates, Bernie has provided conflict intervention for families, communities, universities, corporations, and governmental agencies throughout North America and internationally for over 35 years. Bernie’s latest book, The Conflict Paradox, Seven Dilemmas at the Core of Disputes, is just out (January, 2015).  Earlier books include: The Dynamics of Conflict, Beyond Neutrality, and Staying With Conflict.


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Additional articles by Bernard Mayer