Mediation is an applied science. Perhaps more accurately it’s a craft. Either way, mediation is known and understood by doing it. A theory, however elegant, is only of interest to mediation if it advances the practice. Though most mediators will agree with these sentiments, in this article, I want to argue for a positive place for philosophy in the practice of mediation. I want to propose that in the course of their practice a thoughtful mediator is bound come up against ideas and experiences that philosophy can help explain and illuminate. In the following, I will explore four major philosophical concepts that lie at the heart of the mediation process. In each, I hope not only to show how philosophy can contribute to mediation, but how the practice of mediation is itself a form of philosophical reflection. Put another way, mediators can teach philosophy too. The first philosophers were, after all, people talking.
First Concept: Communication
Argument: Philosophy can help support a more full understanding of communication, beyond simply exchanging facts.
This is an obvious place to start, but let’s not be too hard on the obvious! Most mediators would probably agree that at the heart of any successful mediation is good communication. However, it’s when we’re pressed on the precise meaning of “communication” that matters can become more obscure. For many “communication” simply equates to the accurate exchange of facts. As such, their understanding has not evolved past a legalistic framework most associated with “discovery”. Philosophy teaches us however, that there is no fact free of interpretation. It is for this reason that philosophy has a whole sub-discipline called “hermeneutics” devoted to interpretation. Consider the number of times that a mediation you’ve been involved in has not centred on disputed facts but on the interpretation of the significance of these facts. For example, both party one and part two agree party one was smoking out the window of their shared condo building and the smoke went into party two’s apartment. However, party one views this as a responsible act to avoid breaking building regulations whereas party two interprets the act as hostile and anti-social. Same facts, different interpretation. Like philosophy, mediation is an interpretative discipline.
Regarding communication then, philosophy can help defend and support a more evolved understanding of communication, one that goes beyond exchanging facts. The German philosopher Jürgen Habermas argues that every act of speech not only raises questions as to whether it’s factually true, but also as to whether it’s also morally right and sincere (authentic). A meaningful act of communication is one which is not only factually correct but also ethically right and intended in full sincerity. If any of these three ingredients is missing from the acts of communication between parties in mediation, it is less likely to result in a so-called “wise agreement”. When a mediator is armed with such a robust, philosophical, understanding of communication, they can press parties to push past exchanging facts towards exchanging them in a spirit of cooperation (the rubric of authenticity) and with an aim that is morally acceptable to all (e.g. one party is not ultimately trying to crush the other party). For Habermas, and I suspect for most mediators, meaningful communication requires the kind of “reciprocal perspective taking” that precludes bullying and simple power-brokering. Philosophy can facilitate this higher level of communication by spelling out in precise terms why the simple exchange of facts is not enough to constitute “communication”.
Second Concept: Power
Argument: Power is unavoidable but “Hegemony” needs to be challenged.
You would be right in saying that I haven’t strayed too far from the obvious yet. However, when “power” is discussed in mediation it is usually done so in the context of “power balancing”, that is, assessing whether there an excessive surplus of power on one side, and whether it is appropriate to act in order to redress this situation. In philosophy this is called assessing “asymmetric relationships”. While this is an important question, philosophy can help us to understand that the issue of power in mediation goes deeper than that. The philosopher Michel Foucault devoted his career to the analysis of power in institutional and formal relationships and his ideas are compelling in this context. He contends that power is an absolutely inevitable feature of all relationships. It is as unavoidable as the air we breathe. The implications for mediation are profound. First, no matter how facilitative or non-judgemental the mediator tries to be, they are in a position of power. Not to admit this would be a classic example of what Jean-Paul Sartre would call “Bad Faith”. The challenge for the mediator then is not to avoid power, this is impossible, but to acknowledge that they have it, that it influences proceedings, and to work with this awareness in mind. The idea that power is dirty or simply not the purview of the mediator is the philosophical equivalent of saying that food is only for some people, but not for others.
There is a second and related sense in which philosophy can help illuminate the issue of power for the mediator. In the 1930’s the Italian philosopher Antonio Gramsci developed the concept of “hegemony” to describe the ability of one group to influence others to consent that an unequal distribution of power seems natural. While the mediator may feel that awareness of this phenomenon is at the heart of so-called “power-balancing” it is relevant to the very set-up of mediation itself. Mediation is premised on the assumption that conversational exchange can clarify if not reduce conflict. It therefore sees discourse as its primary tool (with all of its attendant skills such as active listening, and so on) and the natural device for conflict resolution. Many may agree and indeed argue that discourse represents some advancement over, for example, ritualised forms of dispute resolution such as stick fighting. While this may be so, it overlooks the fact that, in valuing discourse so highly, mediation will almost inevitably serve those who are best at it. This is hegemony. Because it seems “natural” that discourse is the best tool available, it is a very short step to seeing those who are best at it as “naturally” in the right. Philosophy can help mediators to identify hegemony when it is present and to reduce its negative influence in the mediation process.
Third Concept: The Person
Argument: The “Whole Person”, not just the mind, is at the heart of conflict resolution.
For a long time philosophy was associated with “the mind” which, for a cluster of reasons that were almost catastrophic, was seen as disassociated from the body. Happily the reunion is continuing apace and it is thanks to one school of philosophy in particular that this has happened. When “phenomenology” was first developed by the German philosopher Edmund Husserl, it caused a sensation in the philosophical world. In particular it focused its attention on how the human person, as an individual with a body and not just a mind, made sense of the world around us. In other words, the body became a priority again and was seen as having a vital role in the task of interpreting the world. We are not abstract minds, we are whole embodied beings. This opened the door for philosophy to talk to biology, neuroscience, psychology and even to psychotherapy. Indeed Husserl was deeply influenced by the work of the pioneering psychologist Franz Brentano. We might say that phenomenology did a lot to humanise philosophy and in particular to focus its attention beyond the mind and into the world of emotions, intuitions and even what the lay-person might call “hunches” and “gut-feelings”. Many of us take it as a truism that our emotions have physical effects in ways that are much more direct than ideas (as the very phrase “gut-feeling” suggests. Are there “gut” thoughts?)
While it is helpful in mediation to disassociate from the conflict and consider it in abstract terms, it is not only people’s minds that enter the mediation situation but all of them including their emotions, memories, hopes, resentments, ambitions, idiosyncrasies and so on. As a general motto I like to say that it is the whole person who undertakes mediation. And the person assesses the adequacy or inadequacy of a statement, an argument or a point of view, not only with their mind but with all their senses. Phenomenology, with its inclusive picture of the person as more than a disembodied mind, can remind mediation of the importance of speaking in a manner that is intellectually honest, but not exclusively intellectual. If the source of a conflict is not purely intellectual, then the language of conflict resolution must also be inclusive beyond the intellectual. As such, phenomenology can also help mediators remember that at the heart of a conflict may not lie an intellectual problem to be solved but a relational problem to be addressed. Experiments in so-called “restorative justice” already operate from this premise: It is not enough to admit that a law has been broken, one must also address the fact that a relationship has been ruptured. (However, not only is it the “whole person” who undertakes mediation, it is also the whole person who mediates. As such, it is incumbent on the mediator to take their own advice here and listen to their own gut and emotions).
Fourth Concept: Value
Argument: “Values” are more than interests and it is impossible to be “value-free”.
It is conventional in mediation studies to distinguish between so-called “positional” and “principled” bargaining. The former is considered to be power-based in the most pejorative sense (I make this qualification because from the above I hope it is clear that all mediation is power-based in some way). The latter is considered to be a question of competing “interests”. However, as with all terms in philosophy, it is when we examine this concept that things get a little tricky.
It is notoriously difficult in philosophy to get a handle on the precise difference between an “interest” and a “value”. The German philosopher Jürgen Habermas has suggested that an interest is a value that is “generalizable”, that is, applicable to all. However, this does not cast too much light on the matter. It is unfortunate too that, when talking about values, we tend to think about a set number of domains, for example personal morality or the lessons our parents taught us and so on. This is unfortunate because it restricts the domain of “value” to a rather narrow spectrum. In fact, many philosophers would argue that all statements or claims are evaluative. To take just one example, the statement “I hope it doesn’t rain today” is evaluative in at least two senses. First, it comes from a person’s picture of how they would like the world to be. Secondly, in even making the statement, the person is communicating with someone, an act they consider valuable or they would not even have bothered to make the statement in the first place. This rather silly example is offered to make the point that all positions taken up in mediation (and this includes the one adopted by the mediator) are positions of value. They come from an understanding of what will best serve the individual taking the position and they articulate a hope or strategy for a specific outcome. To deny this, by calling values “positional” or to try to dilute values by reducing them to their constituent “interests” may give temporary convergence between parties, but it will not speak to the cause of the conflict. Value, in other words, is far too important to be explained by “interests”.
But value is core to mediation in another sense. There are many honourable practitioners of the craft of mediation who understand their role to remain “value-free” or “non-judgemental” in the process. Philosophically, this is a deeply problematic approach. The philosopher Hans Georg Gadamer threw a huge rock in the philosophical pool by questioning the very possibility of being “value-free”. Prejudice, he argued in his book “Truth and Method”, is a necessary and unavoidable aspect of being human (or as philosophers would say, of “human agency”). We “pre-judge” all situations. For example, if living in LA, I give good time to get to my destination when driving. I have “pre-judged” the situation. The idea that we should remain “value-free” comes from the mistaken idea that to judge (unavoidable) means to be judgemental (avoidable condemnation). When mediators maintain that they are remaining “value-free” or “non-judgemental”, it creates a problem if it means that they feel unable to admit to their own values and their own judgements in the course of the process. Even those mediators who claim to be disassociated from the outcome are knee deep in values. They place huge stock in the ideal of neutrality, itself a robust value. Philosophy can reassure us that, as values are unavoidable, it is not necessary for us to try to lose ours. Rather as Voltaire says “you should cultivate your garden”. In this context I take this to mean that we should develop an awareness of our values, allow them to guide us when necessary, and allow other influences to play out when the situation does not impact our values so fully.
There are many more concepts that could be discussed here, for example the subconscious, belief (religious and otherwise), honesty, ethics and so on. The above though are, I think, the most pertinent in many, if not all mediations. Mediation can listen to philosophy, not only as a student willing to be guided by it, but also as a friend, willing to teach and correct it. Philosophy, the love of wisdom, needs reflective people at the coalface of conflict to teach it how well its ideas are doing. Philosophy, needs mediation to help to keep it honest.