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Mediate.com

Claiming Mediation's Future

by Susan Dubow, Elinor Robin
December 2014

Our own article on the future of mediation focuses on emerging trends and untapped potential. In addition we decided to write a rebuttal to “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination” which was written by the esteemed Robert A. Baruch Bush, and Joseph P. Folger for Mediate.com in November 2014. We are not submitting this rebuttal in an attempt to change any one’s mind. Instead, as mediators we are generally fascinated with hearing, and telling, the rest of the story, so here it is…..

(This type face is the Bush/Folger article and this type face is our commentary.

For us and the colleagues we’ve worked with for many years, our first premise has always been that self-determination, or what we call empowerment, is the central and supreme value of mediation – a premise probably shared by many in the field. This is what we were struck by when we began, and believed was uniquely served by mediation. Empowerment is the heart of the mediator’s mission, and we value self-determination above all. We believe in the value of upholding party choice, and we also believe that increasing understanding, reaching sustainable resolution, and other goals all rest on the foundation of genuine party self-determination. Our views on this have been explained in many places.

Yes. We whole heartedly agree that empowering the parties to exercise self-determination is the central purpose of the mediation process and key role of the mediator. As we see it, a significant part of that role is performed when the mediator listens to the parties in order to understand what they want the end result of their mediation session to be. As such, we practice and teach our students to focus on the parties’ desired end-result and provide a process that empowers them to reach that result. (Mediation is a means to an end, not an end.)

At this point in the evolution of mediation, the question in our view is, what has happened to the mediator’s mission of supporting self-determination? There is no such thing as envisioning the future without understanding the past and present. In the case of our field, there are many metaphors to describe mediation’s current state, and how we got here. For us, as we reflect on the state of the field today, the most accurate metaphor is that mediation has been “captured”. But, captured by what?

Social science research and historical events -- from the Zimbardo experiment in the 70's to Abu Graib in this decade -- provide an important lesson: Environments change people more easily than people change environments – and mediators were apparently changed by the environments they worked in, especially courts and other authoritative agencies, adopting the case-settlement goals and practices favored by their “hosts” and forgetting about self-determination. Institutional pressures pushed mediation practice to a place that many of us did not anticipate and certainly did not want.

But is it really just the courts who became the captors of our field? No, it goes much broader and deeper. 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, applying their well-trained skill sets to accomplish wonders for eager clients who would otherwise suffer.

People in conflict will end up in a court house because they want the relief the courts provide - they want to be done with their case. In our experience, in the courts, the environment where the mediation process is most widely used, mediators focus on the parties’ intention for the mediation process and the parties’ desired end result. Isn’t that the definition of empowering the parties to exercise self-determination?

Are you saying that all court mediators are egomaniacal and intoxicated with power? Or just the vast majority? This is one place where we seriously disagree. Considering the available resources and limitations, court based mediators provide valuable services across the country (actually across the world).

ADR scholar Deborah Kolb reported in her study of mediator practices that for a majority of the mediators she studied: 

Questions become suggestions in the guise of a query…. These mediators frequently make suggestions on matters of substance… [using their] expertise as the touchstone of their efforts at persuasion and influence. They acknowledge that they make judgments about what is a good and bad agreement and try to influence the parties in the direction of the good…. [They] are strongly inclined to believe that without their substantive and procedural know-how, the parties would flounder and a good settlement would be elusive.

The key here is “They acknowledge that they make judgments about what is a good and bad agreement and try to influence the parties in the direction of the good….” Yes, we agree that some unethical and/or poorly trained mediators do in fact proceed in this direction. Yes, their process should be called Neutral Evaluation or some other name – anything but mediation. On the other hand, in order to make an informed decision (also known as exercising self determination) the parties need information. And, you are proposing that the mediator should not provide any information? How can the mediator allow the process to continue knowing that the parties cannot truly exercise self determination because they don’t have critical information? (For instance, should we support the notion of a divorcing couple deciding upon a child support amount when they have no idea what is acceptable under their state’s law? Would you “force” them to seek out some other professional consultation before or during the mediation process, even though the mediator can easily provide this information?)

Truly, this describes what has happened to our field: We were drawn in by the culture of helping, the drug-like “high” of reaching agreements (and even “wise” agreements), the “rush” of satisfaction in cutting Gordian knots, finding creative solutions, and protecting vulnerable parties. Along the way, the theory of the “wise negotiator” penetrated the mediation field, making the problem-solver role look even more attractive. So that the subtler, finer, and ultimately higher value of party self-determination was simply overwhelmed by the intoxication of the problem-solver role.

There is a big distinction here. The mediator is not a problem-solver. The process, however, should be geared towards problem solving, as long as it is the parties' intention to solve their problem. Ask them what they want. As a general rule, they will not say that they want the mediator to solve their problem for them. Instead, what parties in conflict do want is to be given a process that will allow them to solve their problem. There is a fine difference that you seem to not be taking into consideration.

Intoxicating, not only because of what it seems to accomplish, but because of how it feels – to be one of the elite, the problem solvers, the experts who can do what common folks cannot, protecting people from their own inevitable bad choices and decisions. Mediators are needed, valued, prized for their skills, their art – and also their wisdom. Were we really expected to let go of all that for the self-effacing, minimalist task of “supporting party self-determination”? Were we meant to exchange the role of star for the role of understudy? For some of us the answer was a resounding yes, even though it meant giving up the expert spotlight. We were once contacted by a TV producer seeking to do a “reality show” on mediation. When he saw our videos, he told us that he couldn’t use us, because he needed to portray the mediator as the “star”, and our non-expert approach didn’t do that – as Dr. Phil does, for example. Instead, that honor went to a mediator whose work was “Fairly Legal”….

As we see it, mediation feels good to the mediator not because s/he is an elitist but because s/he has accomplished her mission – to shine light on the parties and their problem so that they can best see where they want to go and how to get there. The mediator provides the road map, the parties choose the path and the destination. If the parties had a road map prior to mediation, chances are they would not have needed the mediator in the first place. Yes, it is a wonderful feeling to know I had the right map, in my tool box, offered it to them, and they were able to use it to chart their course. Is that such a bad thing? Would you feel better if the mediator felt bad instead?

(BTW, while we all know Fairly Legal was an inaccurate portrayal of the mediation process, in its defense, it did bring the word “mediation” one step closer to the mainstream. And, isn’t that what we all want?)

So the story of how our field got to its present state is this: Mediators were seduced (perhaps not unwillingly) by the expert helper “mission”, with the result that many were slowly squeezed out, disqualified by increasingly onerous training demands and qualification standards that demand the adoption of an expert role. What have those demands and standards become focused on? For one thing, substantive knowledge and expertise. For example: ADA mediators must practically become experts on disability law – statutes, regulations, and even court decisions! Another example: Family mediators in some states, like Florida, must become experts on not only family law but finances, accounting and pension funds. The impact has been profound: when one of us did research on mediation practice in the late 1980s he interviewed a woman who was called the “mother of family mediation” in Florida. But she was no longer practicing, because under newly adopted standards, she was considered unqualified. Ironically, in a field that supposedly valued diversity, heightened standards have meant the exclusion of many minorities for whom acquiring the necessary expert qualifications was simply too costly. Now this trend is moving to its logical conclusion. We have just heard that in one country, lawyers who want to be mediators are told that they are exempt from mediation training. Legal knowledge in itself qualifies a third party to be a mediator.

We cannot address your comments about the ADA or the unnamed country, we have no knowledge of these matters. However, we can address Florida. (This was actually our motivation for writing this rebuttal.) Your comments about Florida are totally inaccurate. Mediators in Florida are not expected to be experts. To say otherwise is misleading. Dr Robin is not an expert in these matters and she has mediated thousands of divorces in Florida and trained thousands of Florida's mediators. Are you saying that it is wise to engage in any professional endeavor related to divorce, without understanding basic financial fundamentals? We strongly disagree. Without this knowledge it is impossible to ask key questions and follow the conversation.

As we see it, basic understanding and being an expert are two totally different things. There is a continuum of knowledge, with ignorant at one end and expert at the other. From our point of view, it is important that a divorce mediator have some level of knowledge about the financial, psychological, and legal aspects of divorce.

As to the "mother of mediation," we do not know who you are referring to. Under current and past rules, anyone who possesses good moral character can become certified by the Florida Supreme Court as a Mediator. However, even without certification, any person can mediate - as long as the parties agree to the mediator selection.

But it is not enough to meet these kinds of qualifications. Mediators must also undergo rigorous training in essential practice skills – but they are not skills that prioritize party self-determination.

Rigorous? In Florida, Family Mediator certification involves a five-day training program with lots of interactive exercises. The concept of empowering the parties to exercise self-determination is the foundation upon which the entire program is built. In addition, in order to become certified, the trainee must observe 6-8 cases at the local courthouse.

In fact, the focus is on skills that involve controlling, managing, and directing the very clients who are supposed to be exercising self-determination in the mediation process.

We do not teach that controlling/managing/directing are part of the mediation process. And, we do not confuse the mediation process with the process of neutral evaluation. So, we are at a loss as to where you are getting your information. While the mediation trainers in Florida might not agree on everything, we do all agree on this.

Chris Honeyman’s work on the “common core” of mediator skills, the standard curriculum, documents how the skills of conflict control and management dominate the agenda of most training programs. In one demanding program of training for mediators in Europe, two full days are spent solely on “reframing” what parties say to change their language into “better” terms more likely to produce agreement.

Producing an agreement is just an added benefit. As we see it, what the mediator is doing when s/he reframes is moving the parties away from the reactive processing that is occurring in their reptile brains and limbic systems, and into the reasoning, logical part of their brains (the cerebral cortex) so that they can use their own reason and logic in order to exercise self-determination. Much of the violence and conflict we see on the nightly news is perpetrated by people in reactive fight or flight states. We wish there were more people trained to facilitate and reframe conflicts. Until that happens we will be left with people who, in the throes of conflict, make angry remarks that fuel the fire. Sometimes this leads to violence, sometimes to ruined relationships. Either way, without someone to help angry people reframe (or redefine) their conflict, things get said that can never be taken back. You cannot unring a bell.)

Mediators trained like this are truly captured, wedded to an expert problem-solver role that is almost impossible to deconstruct, much less escape. Some potential mediators leave the field when they participate in this type of basic training, because they feel it is inconsistent with who they are and who they want to be in serving future clients. They may or may not even know that there is an alternative mode of practice.

Again, there is a big difference between the mediator being an expert problem solver and the mediator having a level of knowledge that allows him/her to provide a problem solving process. Additionally, mediator styles fall along a continuum, with different certain styles being better fits for different kinds of cases.

When we articulated and then developed the transformative approach, beginning 20 years ago and continuing ever since, we kept thinking that our fellow mediators – who mostly agreed with us that the developments sketched above were gaining ground and submerging the values we’d originally held dear –would join us. Join us in stepping away from the atmosphere of the “fixer” culture of expertise and directiveness that was taking over, join us in returning to the original vision of self-determination and party empowerment. And some have certainly done so. But not nearly enough to overcome the tide of problem-solving expertise. We’ve been swimming against the current for two decades and it has been challenging and at times profoundly discouraging.

We hear your frustration. Sadly, it seems almost ironic. Maybe the mediators and the public have in fact exercised self-determination with their choice of a process.

As you know mediation models also fit along a continuum from most to least directive. And, most professional mediators will agree that mediation does not involve a directed outcome. We (the authors) believe that mediators who identify as facilitative mediators are generally focused on empowering the parties to exercise self-determination and offering the parties a problem-solving process that allows them to reach their own best solution (even if it is no agreement). You seem to be saying that the only options are either a purely transformative mediation or some evaluative/directive approach.

We are asking our mediation friends and colleagues to redeem the pledge to place self-determination at the center of this unique and precious process.

We already do, as facilitative mediators.

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, powers that surface from within and need not be supplied from without.

There are egomaniacal practitioners, who attempt to bully and control, in all professions, crafts, and trades. Mediators are no different, some get it and some don’t. But, mediators are dealing with people in conflict. And, recent advances in neurobiology have shown that people in conflict feel threatened, and the perceived threat shuts off their thinking brains. It falls upon the mediator to create an environment that is perceived as safe so that the parties in conflict can switch gears, leave fight or flight, and come back to think things through.

Mediation at its heart – in the principle of self-determination – expresses that democratic ethic perfectly. 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.

We challenge you– to join us in rolling back the tide, to put down the mantle of expertise, to start giving up the wise-problem-solver role. Begin reclaiming the job of truly supporting our fellow human beings who, when in difficult straits, need only modest assistance from us to find their own strength, their own solutions, and their own compassion for each other. And who can learn from choices they make that are not perfect, or even don’t work out for them at all.

We challenge you – to look at the lessons the last 20 years of practice have taught. What does the public want and need? How can we mediators stop bickering over semantics, finally carry the message forward, and bring mediation into the mainstream?

More concretely, 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.

We believe in evolution. Let’s not go back but continue to evolve.

  1. End once and for all the fiction that evaluative case settlement is mediation. Call it settlement conferencing, or something else similar – but not mediation. Language has consequences, and impacts, and “evaluative mediation” is indeed “an oxymoron” that simply confuses both mediators and clients. 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? Call the train back! If we take a united stand on this it will open eyes and minds, get attention, and invite further changes. It will meaningfully and publicly reassert the mediation field's commitment to self-determination as the core value of our work.

Using techniques that allow the parties to evaluate the strengths and weaknesses of their case is mediation. Performing the evaluation or directing them to an outcome is not. There is a difference.

  1. 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? If not, why are they at the core of training programs? Indeed, once trained in these methods, mediators are programmed in a way that makes it almost impossible to support party choice and let parties talk through issues for themselves. Instead of these skills of control, we can and should train mediators in the skills of supporting and not supplanting party deliberation and decision-making, supporting but not forcing parties’ mutual understanding and empathy. It’s not too late to redesign mediator training. And without doing that, mediation will remain captive to the culture of expertise.

Do you think that all training programs are the same and all trainers are the same? They are not. We can only speak for our training programs. We teach trainees that empowering the parties to exercise self-determination is the key to the mediation process. And, if someone cannot exercise self-determination mediation must cease. It may be presumptuous to assume that all other trainers are providing a bastardization of the process.

  1. 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 – but worse, because mediation lacked any oversight or protections against abuse by the third party. Why would anyone be seriously interested in it, unless ordered to participate? Recent studies confirm that mediation is underutilized – and this will continue to be so until the process offers the real opportunity for self-determination that makes it unique.

It does not benefit the mediation process to bad mouth it. It does not help anyone to imply that all mediators are doing it wrong. Millions of people have had positive experiences with mediation. And to say otherwise would be untrue.

As we reflect on the state of the field today we wish mediation had in fact been captured by the public. See our article at http://www.mediate.com//articles/RobinE1.cfm for a discussion of the reasons why the process is still underutilized and has not gone further into the mainstream.

  1. 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? And if they are required to acquire it, mediators will use this expertise to influence and direct the parties, as studies have shown. So don’t make us experts in the first place! Let us be experts only in supporting self-determination and the parties’ capacity to work through their own conflicts.

We have already addressed the misconception regarding mediator expertise. Do you propose we stop learning and growing in order to mediate? Or just mediate matters we know absolutely nothing about?

  1. 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.

Again, this appears to be black-white thinking. There is no one size fits all. Are we all either elitists or questioners? Do you see anything in between? It should be noted here that even the most capable person is not at his/her best functioning when they are triggered and in the throes of fight or flight.

  1. 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.

Yes, we agree. Instead of more debate about mediation models we should be spending our time promoting the process, in our communities and in the media; as well as by lobbying the legislature.

Before it is too late, before we are too far “gone” to even remember what self-determination looks like and why it matters to the people we serve – 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, and we are merely “supporting” actors. We need to make a strong, public statement that marks a new beginning for the field, its organizations and its clientele. The field needs a public turn-around so that our organizations can once again flourish, and our stakeholders and clients will turn to us once again for a service that can be immensely valuable.

We don’t see a need for a turn-around. We need to continue to evolve, recognize and learn from our short comings, celebrate our strengths, and create flexible models that empower the parties as well as assist them in problem solving.

The bottom line is people end up with mediators when they have a problem. (No one goes to a mediator without a problem.) People in conflict don’t care what tools and techniques the mediator uses. They don’t care about semantics or mediation models. They just want to be free of their problem. The paradox is that the mediation process can give them that freedom, the mediator cannot. If we can keep that in focus, we will be fine.

Biography


Susan Dubow

Susan F. Dubow, a pioneer in the field of Alternative Dispute Resolution served as the Director of the Court Mediation and Arbitration Program, the ADR Division of the 17th Judicial Circuit, Broward County, for over 22 years. She is a Florida Supreme Court Certified Mediator and Primary Mediation Trainer and a member of the Florida Supreme Court's Mediator Ethics Advisory Committee.  Susan is an Adjunct Professor at Nova Southeastern University's Shepard Broad Law Center, President and CEO of Mediation Training Group, and  a Past-president of both The Association of South Florida Mediators and Arbitrators (ASFMA) and The Florida Academy of Professional Mediators (FAPM.)

 


Elinor Robin, PhD.  has mediated thousands of divorces, workplace disputes, and family conflicts in the courts and the private sector.  In 2007, she incorporated her knowledge of the psychological, cultural, and legal aspects of divorce to create A Friendly Divorce®, a network of mediators who provide one-stop divorce mediation and document preparation services to couples who want to move through the process of divorce without using attorneys.  As a Primary Mediation Trainer with Mediation Training Group, Elinor has taught mediation to over 12,000 professionals, nationally and internationally, to rave reviews. 

Elinor's credentials include Certification from the Florida Supreme Court as a Mediator and Primary Mediation Trainer, Licensure as both a Mental Health Counselor and a Marriage and Family Therapist, and Certification as a National Certified Counselor (NBCC) and a Board Certified Coach (CCE). She is an appointed member of the Florida Supreme Court's Mediator Qualifications Board, a Past-president of the Association of South Florida Mediators, and an Advanced Practitioner member with the Association for Conflict Resolution (ACR). She blogs for the Huffington Post (http://www.huffingtonpost.com/elinor-robin-phd/) and her quotes and articles have appeared in various publications and media. Elinor's new book "The Professional Woman's Guide To Conflict Management" can be purchased at Amazon or Packt Publishing.
 

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