Regulation Dehumanizes Mediation

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A Model of Human Nature

The original human being was evolutionarily trained to manage conflicts following patterns like kind greetings, friendly behavior expressions, grooming, close proximity, reconciliation rituals and pair bonding. The human species came to exist because we responded to evolutionary patterns for conflict resolution in societies. If humans had not followed these patterns, the species would be extinct.

So, the skills needed for conflict resolution reside in the genes of every human being. They are not acquired by formal education or in universities; we simply develop them during our lives. They can be improved with practice and training.

The original human used only body language to communicate and everyone was known personally. Dehumanization of the original human began when verbal communication arose and dehumanized even more when verbal communication disappeared entirely and the scripture was invented. Words began to have a value independent from the speaker and listener and misunderstandings in communication and uses of language prevailed. Complete dehumanization occurred in societies where not everybody was known personally. The anonymous human was born.

These three great and fundamental changes have combined to produce human contexts that inhibit evolutionary skills to solve conflicts. From the evolutionary point of view, the human race hasn’t had enough time to learn from this new human context.

Beliefs Underlying Third Party Decision Systems

Systems for conflict resolution wherein a third party decides the outcome of conflicts between other parties are new in our evolutionary history. They take for granted that the third party is unbiased and unprejudiced in evaluating the claims of the conflicting parties. The origin of this premise is found in Aristotle for whom, according to nature, some humans were born to obey and others to rule.

This assumption is false since all humans feel, see and think the world according to their life experience. All human views are biased and prejudiced.

Today the Aristotelian view is camouflaged by bureaucratic systems with rules and processes aimed at selecting people with competence to decide the outcome of conflicts. Judges and arbitrators are thought to be unbiased and unprejudiced.

Beliefs Underlying Mediation

In mediation, the mediator assists the mediated in working out their conflicting personal views and the solution is the agreement of the mediated. There are no rules in reaching the agreement and all are considered equals. Both the mediated and the mediator are recognized as biased and prejudiced.

The success or failure of mediation therefore is not constrained by rules or the exercise of power. There is always space for innovation and evolution.

Mediation has existed in all cultures and has its roots in practically all disciplines in life. Historically, human groups took their conflicts to the elders or people whose intuition and prestige empowered them to facilitate conflict solution. The trust inspired by the facilitator is crucial for the mediated.

Mediation empowers the mediated to control the conflict resolution process and its result. For this reason the certification of mediators by qualifying entities does not make sense. Additionally, mediators lack power to impose decisions and the mediation is not rule oriented.

In contrast, dispute process evaluation and certification skills for judges and arbitrators are an inevitable evil because their decisions are binding on the parties and based on the interpretation of rules. A regulatory approach to mediation with rules and certifications dehumanizes mediation and prevents creativity and progress. In any case, the best guarantee for satisfactory mediations includes converting it partially to a pacifist group culture.

In current human contexts, mediation as a free rule process for conflict resolution offers a promise of hope. Its development could mean unlearning the prejudices that block our evolutionary patterns for solving conflicts, as well as learning strategies for new contexts based on personal relationships.

In conclusion, mediation is a subversive activity because it subverts the use of rules and authorities for conflict solution.

Leslie Brown was kind enough to edit this article

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Diane Levin,   Boston	12/03/09
Luis, as someone possessed of a subversive nature who shares your distrust of authority figures, I salute you for raising questions about the wisdom of regulation of the practice of mediation. I myself for the present oppose public regulation of mediators - for now at least until I'm persuaded otherwise. However, I respectfully disagree with your conclusions and have questions of my own for you. I'm curious. What evidence do you have to support your argument that regulation will dehumanize mediation? The practice of medicine and the practice of psychology, for example, are regulated. So are many other occupations. Regulation is intended to protect the humans that these occupations are designed to serve. Regulation ensures that practitioners are adequately trained and prepared for practice by accredited institutions, have liability insurance in the event of malpractice, hew to standards of ethical practice, and that mechanisms are in place to rehabilitate, suspend, or discipline the incompetent. How do those things in any way dehumanize the practice of mediation? With all due respect, I would also question some of your premises. You write for example that "There are no rules in reaching the agreement and all are considered equals. Both the mediated and the mediator are recognized as biased and prejudiced." Considered equals? I'm not sure that some of the unrepresented complainants or plaintiffs I've seen in courthouse or agency corridors would agree - some feel disempowered and are no more trusting of the mediator than they are of the creditor or lawyer on the other side of the table. And in my time I've seen poorly trained mediators attempt to bully the unrepresented and the disempowered into bad agreements (which seems to me to be good reason for regulation). As far as both mediator and mediated being "recognized as biased and prejudiced", I'd ask, recognized by whom? Surely not by themselves. Most people, mediators included, are overconfident in their ability to be impartial and would reject the idea that their judgments are the product of bias or prejudice. Just ask the cognitive psychologists or the folks at Project Implicit. We'll have to come a long way before mediators and others are willing to recognize and own up to their own cognitive flaws. You also write that regulation of mediation "prevents creativity and progress". Again, might I ask where's your support for that claim? I'm having trouble seeing it and ask your help. Architects must be licensed, but regulation has not hampered their creativity. Regulation has not prevented lawyers from seeking innovations in the delivery of justice, such as collaborative law. And regulation has not deterred health care professionals in their search for cures to the diseases that afflict humankind. Please then help me understand why regulation would deter innovation among mediators. Luis, thanks again. I hope that mediators never lose sight of the "human factor" - as Dean Pound once described it - that stands at the heart of conflict resolution. And let us all continue to engage with the arguments on all sides of the debate over regulation. Add New Comment

Mioara  ,   Seabrook TX	12/01/09
I entirely agree with your statement. Mediation has to be an evolutionary systematic process. Add New Comment

David Bogan,   Auckland NZ	david@davidbogan.com      12/01/09
As usual Luis is concise, accurate and to the point, and I agree entirely with his sentiments. Mediation is meant to be about assisting the human condition to co-exist harmoniously, and if not that ideal, then at least co-operatively or collaboratively and we cannot assist in this process by resorting to rule bound structures as these mainly have the effect of diverting us from the 'function' to the 'form' of our profession. Thank you Luis and I look forward to your next article. Add New Comment

Kristine	12/01/09
I agree with your sentiments fully! Thank you. Add New Comment

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