Between Art and Science: Mediator Perversions and Predicaments
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The “art” of mediation is so centered on practice that it the makes any presentation of fundamental values a very nebulous experience. Most people who go through a forty-hour basic mediation training more likely associate fundamentals, principles and values with process steps rather than with necessary conditions. This is perhaps the most impotent approach that one can take to introduce mediation. Focusing on steps leaves the impression that anything goes as long as mediators perform the tasks of the step process. The connection is not made to fundamental values. Fundamental values are learned later, much later in the life of the mediator.
Two hundred years ago the field would have argued for a mechanical rationalistic process that categorically measured the utility and effectiveness of each mediator and participant. Interventions and outcomes would have been reduced to mathematical formulas and then graphed on the four quadrants. Conflict is to humans what friction is to objects. All are susceptible to the rational mechanical laws of the universe. Two hundred years later, the best we can do is to talk about what the “research” shows based on data compiled under social research methods. Apparently, someone has isolated significant factors to draw some conclusions. Does mediation really do all the things that it claims it does? How would one go about verifying that? It seems that mediation, the “art,” stemming from a sort of radical relativism would be unable to establish any claim.
People want to practice the art form, but at the same time measure the “empirical” effects. How can empiricism establish anything about such a subjective enterprise? What variables in mediation are consistent enough to anchor anything to measure outcome results in a meaningful way? So what is it, an art or a science? Or does it matter “as long as nobody gets hurt”? Unfortunately, change comes not only when people die, but only when the right people die. The AIDS epidemic is a classic example of this. The right people did not die at first.
Who can judge art? How do we know that it is good art or simply bad art? What is the objective standard? Income? Eccentricity? Utility? Art can be elitist and subjective, common and offensive. “One man’s trash is another man’s treasure.” “Beauty is in the eye of the beholder.” However, strokes, colors, forms, centrality, content have meaning. Like art, there are many who just don’t get it, but that’s okay because “mediation is very forgiving.” On the other hand, science embedded in a logical systematic thought process offers us an inkling of objectivity, principles, theories, laws, hypothesis, verifiability and paradigms. Where is mediation in all of this? How useful is mediation’s claim that there are as many practices as there are mediators? Can mediators hold a paradigm for a palette?
Insofar as I can tell, the real crisis in mediation is in its claims about values. It is said that mediation values are so divergent from style to style (or orientation to orientation) that they reflect incompatibility down to the roots. The logic follows that since the differences between styles (or orientations) and corresponding values are so significant that no possible representation can possibly be neatly packaged in a unified form or single mediation framework. The origins and the current practice of mediation are just too diverse to come up with an agreed upon set of values. If this is the case, then the question becomes, are there any fundamental values in the field of mediation? If not, then the question as to what “real” mediation is will never be answered and any reference to “the principles of mediation” or the fundamental values of mediation will be nonsensical, not to mention entirely subjective. The polite posture of the field is to accept and respect all practices so that if you are sick and vomiting, it is perfectly acceptable to either call the doctor for a consultation or a priest for an exorcism.
Have you noticed that mediation has no voices of dissent? It is all things to all people. Mediation is the elixir that cures all and has no side effects. Got melanoma, take mediation. Got a broken nail, take mediation. Got a migraine, take mediation. Beware of the snake oil salesperson.
Models
The term “model” in mediation is used throughout the literature and training in a very ambiguous way. The term is typically used to characterize “process,” “orientation,” “strategy” and “theory.” A “model” reflects process when it refers to the stages of mediation. It is an orientation when it becomes attached to a particular style or orientation such as transformative or problem-solving. The word becomes a strategy in “caucus model” and a theory (“the mediation model”) when speculating about general matters involving mediation. Mediators seem very comfortable proposing models. However, there has been little if any analysis on the use of models or model building in mediation. Most “models” act as recipes but provide insufficient explanations. They satisfy the how but not the why.
It may surprise mediators to find out that models can identify relationships and frame unique characteristics of processes, events, experiences and/or data. Models are not solely relegated to duplication or imitation. They can be used as instruments and can, in turn, interpret particular theory, practice, or data. Models can also be used for explanation, supposition, experimentation, prediction, innovation, and, dare I say it, learning. Sadly, most practitioners are not interested in this kind of modeling. Mediators use models bundle claims and assumption but not test or discover.
Entanglement
Lyrically, mediation lies between yes and no, where silence speaks and speech is silent. Words can act and actions speak. Eyes see words and words have eyes; eyes speak and words look. Tangible experiences use intangible words and the words create their own reality. Reality is what it is and what it is not. And somewhere in the middle of this, the mediator settles and removes the lid off the box. At the other extreme, words are evidence, outside of themselves, premeditated and calculated in meaning; eyes witness, talk is testimony, and truth and falsity belong to a natural universe with absolute and constitutional direction. Rights are right and crimes are wrong. In either extreme, the mediator tries to distinguish elements and forms of clear and self-contained discord. This mediator equips himself with instruments consisting of structured processes, social and interpersonal conflict theories, personal intervention skills and his very own satchel of beliefs, skills, biases, prejudices, values, morals, processes, misconceptions, naiveté, world view, and all the other baggage that come with being. It is four walls, a table and some temporal-linear process guided by this third party that brings perspective to this multi-dimensional experience. Or not.
Mediation becomes a fusion of thoughts processes, feelings, words, ideas, misconceptions, biases, values bounded by social relationship, cultural factors, family dynamics and individual idiosyncrasies. Mixed with all of this, we also encounter communication dimension, linguistic expression, body language, social protocol, personification of individual and institutional power, privilege, affluence, race, gender, age, beliefs, and all sorts of other differences and similarities. Add to the mix a particular set of circumstances that bind the parties in a conflict and we have ourselves a mediation. In short, the mediator is challenged with psychology, sociology, communication, law, philosophy, anthropology, politics, economics, finance, math and a few other disciplines. Or not.
Fundamentality
The ambiguity behind fundamentality comes form the way practitioners come into the field. Many people who first enter often hear about the principles or values of mediation, its premises, the styles, the process, strategies and the goals, but very seldom do they get the connection between and among these. The reason for this ambiguity seems to come from the very view that mediation is art and not science, and that learning comes more from doing and not at all from hypothesizing. Basic mediation training, for the sake of efficiency, primarily focuses on the steps of the process and seldom on the fundamentals. Generally, trainers put up a sparse comparative illustration of the differences between mediation, arbitration and adjudication, sprinkle a few words like self-determinism, neutrality and confidentiality and then they are done. This might be the extent of exposure to any semblance of fundamentals.
Typically, most people begin mediation practice out of this skeletal view. Learning about the craft comes in episodes and in pieces and although, this is not necessarily a bad thing in itself, the method of entry needs to do a better job of linking fundamentals, mechanics and practices. The way people learn a stage model and then add strategies, principles and premises along the way seems backwards. Mediators learn practical interventions based on a step process, which later on find that it is attached to some style that, in turn, is based on some ambiguous “principle” that assumes some removed premise. There is a great myth that the only requirement to be a mediator is existence. After all, we are all descendants of Homo Mediatus. The greater myth is the belief that all it takes is 40 hours of training. The greatest myth is that it really only takes 16 hours. Is this really the best way to introduce Sapiens into the field?
It is one thing to have as many practices as there are mediators, but it is another to have as many principles as mediators. The mediation movement can be pluralistic in outcome and purpose, but certainly not in principle. Otherwise, we are not talking about mediation but rather a whole host of different subjective processes. It seems to me that identifying principles or fundamental values can allow us to distinguish one dispute resolution process from another. Practitioners need to know whether they are practicing mediation or they are performing other alternative processes. Part of what the identification of principles will do is establish the very foundation of the practice.
The terms “premises,” “principles,” and “values,” are referenced with such isolated and loose meaning that it is often difficult to ascertain whether they really refer to anything meaningful or not. Many writers, trainers and practitioners often make reference to the terms, but they do so in such a way that the critical information resides elsewhere. For example, the expression “principles of mediation” is used on a consistent basis yet it is unclear what the principles of mediation actually are. The meaning of “principles” gets even more confusing when the term is used interchangeably with word “values”. The use of “principles” and “values” usually indicates that there is a real need to refer to some fundamental notion, but the analysis does not go deep enough.
The peculiar way in which mediation uses principles and values is to reference them as subjective elements. That is, mediators claim that the difference between one style or orientation and another is really the result of different values. The confusion surrounding the proper usage of “principles” v. “values” prevents any attempt to build models useful for analysis or comparison. Clearly, if we identified a set of principles in mediation, these would remain the constant no matter the practice, style or orientation. However, if we insist on holding “values” based on subjective criteria as the most fundamental element for the practice, then the consequences of this will prevent the field from forming any framework to analyze any theory or any practice. In the latter instance, the practice will always function out of an undetermined antecedent that will be satisfied by any subjective claim. If we consider “principles”, however, and assert that there is some set of fundamental beliefs driving the practice, then the next step is to look at how the construction of a model can possibly reflect that. Values can also play an absolute role and if this is the case, then values and principles hold similar meaning and more importantly exact interchangeable roles. If values are principles and principles are values, then it does not matter which one we use. What does matter is that we are pointing to some fundamental element that is necessary to justify the practice of mediation.
Practice makes perfect? Or just habit?
For some people, mediation represents a process that is flexible enough to let them do whatever they think mediation ought to do or whatever their employer requires them to do. There is basically no link to fundamental values and no significant strategy in the intervention. For others mediation is a forum that allows parties to settle their disputes with the assistance of substantive and personal interjections. The link to fundamentals is attached to the particular expertise of the third party and the “informal” authority the mediator holds outside the mediation process. Strategies are primarily based on a problem-solving, gut-feeling approach. For a third group, mediation is an activity that involves linking strategies and goals to a set of fundamental concepts or premises. These fundamental concepts are not necessarily categorized as principles of the entire mediation discipline but rather fundamental to the particular approach or practice. For each of the groups, the “settlement” rates seem to remain relatively constant in terms of outcome percentages. What does it mean when skilled mediators, semi-skilled and unskilled mediations get the same results? The mere appearance of a third party seems to create a peculiar effect on the parties regardless of the third party’s intervention method. The question is, is this mediation? Is there a difference between the scribbled art of a third grader and the work of an impressionist?
There are two competing values at play here: Flexibility v. Self-Determinism. Flexibility allows the mediator to employ whatever intervention, including the ones that diminish self-determinism, "balance" the power and get parties to settle. Whereas, Self-Determinism, ideally restricts the mediator to intervene in ways that do not infringe upon the party’s absolute ability to decide what is best, fair or just for them. There can be a fine line between creating an environment where options are explores and railroading parties into settlement under the guise of testing reality.
On Cultural Issues in Mediation
What cultural issues? What culture?
Mediation Alchemy: Transforming conferences into session
The question in most people’s mind is how does this process distinguish itself from other third-party intervention systems, or more crudely put, how do we deal with the alchemists who want to turn closet arbitration or settlement conferences into mediation? What are the elements that distinguish one process from another? When compared side by side, mediation, settlement conferences and other dispute resolution processes can look remarkably the same. Fundamentally, however, these processes rise out of different assumptions about the nature of process, the nature of conflict, assumptions about the parties and the methodology behind intervention.
The reason that people don’t get it is that the way people are exposed to mediation. The preparation is brief, shallow and urbane. When we closely look at mediation, a comparative analysis presents us with a significantly different structural view. If one wants to show the differences between mediation and settlement conferences as one might attempt to show the difference between lead and gold, one needs to go beyond the immediate perceptions and into a different framework of analysis. If we talk about differences within the same worldview, that is, the universe consisting of four basic elements: earth, water, fire and air, then our arguments will accomplish little. Comparatively, lead and gold are both metals, weigh about the same, melt at about the same temperature and are equally malleable so from this view there is not much difference at all. Color is a big difference. Value and utility are the greatest differences, but they are not part of the actual elements that make up lead or gold. And because one has greater utility and value, we want to turn one into another, in this case lead into gold. All we need is a transformation method. Seems reasonable.
If we analyze gold and lead from a different point of view, however, say that the universe consists of not just four elements, but of molecules, atoms, electron, neutrons, and other infinitesimal particles, which are susceptible force, gravity and manipulation then the analysis is very different. It would seem much easier to show why lead cannot be easily be turned into gold. The observer is given a more sophisticated frame of reference that allows the piercing of the apparent similarities. Therefore, should we dare ask? What is the nature of conflict? What is the nature of the parties? What is the nature of the intervention? And why?
Mediation differs in structure. It values cooperation instead of competition. There are no natural adversaries in the process. Mediation values cooperation not just as a possible outcome, but as a fundamental concept, which is present even before the parties enter the mediation process.
Mediation values flexibility. Mediation values flexibility in that it lets parties determine what is most important. They can choose relationship over money, respect over rights or dignity over entitlement. Empowerment, relationship and settlement are not mutually exclusive. They can be accomplished in the course of the total enterprise.
Mediation values informality. Statements based on emotions are equally important. It is not just about facts. Parties do not have to nor should they be forced to adopt the protocol of procedure, wherefore all things considered, verbiage means everything. Informality and common use of language make it accessible to people. Rules, pre-mediation briefs, expert testimony, linguistic institutionalization, all diminish party voice.
Mediation values self-determination. The most important value that mediation upholds is the belief that people are rational, will do what is in their best self-interest and are endowed with the ability to decide for themselves what is right, truth, honest, fair, just and the opposite of these. This sure places the mediator in a position to have a lot of faith. This position is particularly hard for some of us who see human beings as generally deceptive, naïve, unenlightened, wretching, and continually self-absorbed.
In the complete analysis, the concept of self-determinism in combination with all the rest of the mediation values is what makes this process different from any other third party process. The degree to which these concepts and this process exist free from undue influence, coercion, cajoling, manipulated impression, intimidation, misrepresentation, ignorance, agendas and all other factors which diminish the principle of self-determinism including third party-status, style, process, strategies, institutional and/or personal oppression is the cornerstone of the mediation practice.
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