On Being Too Fussy About Values In Mediation: Consider The Hedgehog And The Fox


by Robert Benjamin

This is a revised version of an article that was previously published in "Peripheral Visions," Mediation News, Vol.19, No.2, Summer 2000. Academy of Family Mediators.

April 2001

Robert Benjamin

The origins of the mediation profession are anchored in the practical necessity of managing disputes. Conflict has typically been viewed as disruptive to personal relationships, an impediment to business and the good order of society that needs to be moderated. Historically, third parties served simply to facilitate the efficient settlement of disputes between warring parties. Most early mediators had no formal training and essentially functioned outside the established legal structures of a community. They were sought out because they seemed to make sense and were able to engender a measure of trust from all concerned. Early-on, mediators were largely unfettered by any purpose other than reaching some form of accommodation between parties to a dispute that allowed them to survive and maintain the semblance of good order. Back then, mediators had no higher aspirations, or ulterior motivations, nor were there ethical standards of practice or a prescribed best approach. Any strategy or technique that appeared to work was worthy of consideration--be it sacred or profane.

But mediators, as all human beings, have a need to imbue their work with special meaning--it is part of our evolutionary biology and psychology. Thus, as the formal profession of conflict management and mediation has developed in recent years, increased attention is being given to the design of value structures to support their work and to better minister to those in conflict. Many mediators approach practice as "value creators" and bring a certain value orientation and purpose to their work, as contrasted with the more traditional "value claimers", who merely view mediation as a means of allowing parties to obtain what they think is rightfully theirs and settle the dispute. For the creators, why and how they manage conflict is as important, or more important than the result. Undergirding practice with value structures can be beneficial and give greater focus and depth to our everyday work, but there are risks.

I have deciphered at least four value schemas that have been imported and superimposed on mediation practice:

1. Humanistic/transformative. This value schema ascribes to the mediative process a higher purpose beyond just settling disputes. The conflict affords opportunities for moral development; "...mediation's greatest value lies in its potential not only to find solutions to people's problems but to change people themselves for the better in the very midst of conflict." (THE PROMISE OF MEDIATION, Robert A. Baruch Bush and Joseph P. Folger, 1994) The primary purpose of the process is to allow the parties to obtain a level of "empowerment and recognition". Cooperative approaches are emphasized and competitive negotiation strategies discouraged.

2. Peace/Nonviolence and Social Justice- The mediation process is an opportunity to encourage dialogue and the nonviolent resolution of differences between people in pursuit of a more just and peaceful world. In the shadow of numerous school shooting incidents, teaching mediation to people in general and children in particular, to manage conflict more constructively is viewed as critical to reshaping our society's value structure.

3. Rational problem solving. The mediation process is construed as a prototype for a more highly evolved method of rational problem solving. Belief in the power of reason is virtually a religious tenet in our Western culture and mediation is viewed as an economical and rational way to minimize the capricious vagaries of the traditional legal system and to settle disputes analytically in accordance with objectively ascertainable principles of fairness. The emphasis is on accessing our capacity to reason and suppressing our emotional and irrational tendencies.

4. Personal freedom/autonomy and self-determination. The purposes of the mediation process is to preserve individuals' personal choice and freedom by allowing them the maximum opportunity to privately order their own agreements and exercise control over their own lives. In a sense, mediation is a subversive activity that counterbalances the intrusions on personal choice that have resulted from an increasingly regulated society. And, the preservation of personal freedom is integral to a democratic society.

All of the value schemas may overlap at some time or another, they are by no means exclusive and there are subsets within and between each of them. At the same time, we should recognize they can also operate at cross purposes. Thus, an inordinate commitment to humanistic and/or nonviolent values in mediation may preclude matters in which there is evidence of family violence from mediation, thereby denigrating the values of self-determination and rational problem solving.

Equally as troubling is a mediators' overzealous commitment or preoccupation with any particular value schema. The core purpose of the mediation process may be compromised and risks being morphed beyond recognition into another kind of activity altogether. For instance, for a mediator to pursue mediation as a strictly rational problem solving process may cause the process to look more like a benevolent form of arbitration where the parties circumstances are "objectively" analyzed and evaluated and a "best possible" solution suggested. Likewise, an over emphasis on humanistic values may unwittingly recast mediation into a quasi therapeutic process and, being too concerned with a peaceful outcome to a dispute may foster disregard of an important underlying conflicts rendering mediation a mere cosmetic exercise.

Protection from overactive value schemas.

For mediators to protect themselves and their clients from an overactive value schema that they may have strapped on to the mediation process, consider this internal check and balance system: First, reflectively clarify and monitor your own implicit or explicit value schema. Second, seek to understand how those value sensibilities may enhance or constrain your effectiveness as a mediator. Third, remain mindful of the impact of your values on the actions and decisions of the parties.

This is easier said than done; for some, their approach to mediation and value schema are one in the same and any internal questioning is taken as the compromising of their principles. The mediators' value schema is important and can be a helpful guide, but it is not sufficient in itself and cannot substitute for the rigorous reflection necessary for professional competency. Ironically, being pre-occupied or too fussy about values may choke the life out of the mediation process.

Foxes and Hedgehogs.

For practitioners, there is often only a thin line between a useful value schema in practice and a less helpful, overbearing vision of a more perfect world. The noted philosopher, Isaiah Berlin, in observing our human history, commented that there has been a deep divide in thinking between those he terms foxes, who know many things, and those termed hedgehogs, who know one big thing. That same divide is present among practitioners and theorists in the field of mediation. "Those on one side, who relate everything to a single central vision, one system less or more coherent or articulate, in terms of which they understand, think and feel---a single, universal, organizing principle in terms of which alone all that they are and say has significance---and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some defacto way, for some psychological or physiological cause, related by no moral or aesthetic principle..." (THE HEDGEHOG AND THE FOX, Isaiah Berlin, 1953.)

What hangs in the balance is the value, utility and integrity of the mediation process. In the end, the mediation of disputes may be too subtle and elusive a process to withstand the imposition of too much attention to any particular value schema. Leonard Marlow, a long time practitioner, has aptly noted: "Mediation is an imperfect process, that employs an imperfect third person, to help imperfect people, come to an imperfect agreement in an imperfect world." Mediation cannot and should not be practiced in a vacuum without a value orientation; at the same time, the process offers one of the few refuges in our society where people in conflict have the opportunity to consider what they need to do to survive and move on with their lives without being unduly burdened by others vision of a more perfect world.



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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Website: www.rbenjamin.com

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