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Bond Dispute Resolution News Volume 18 October 2004
The writer as mediator has used a problem-solving model of mediation on most occasions for 17 years. However, all models of “helping” overlap and have both strengths and weaknesses. (See G. Egan The Skilled Helper (California: Brooks/Cole, 1994); see the notable absence of a list of weaknesses of various “transformative” models of mediation in R.A. Bush and S.G. Pope, “Transformative Mediation”, Ch 3 of Divorce and Family Mediation eds J. Folberg, A.L. Milne, P. Salem (NY:Guilford, 2004)).
It is a useful exercise to reduce client and self-deception to be able to specify some of the weaknesses of every, and especially of a favoured, mediation model.
For general diagnostic weaknesses of negotiation and all forms of mediation for the disputants, see J Wade “Don’t Waste My Time on Negotiation or Mediation; This Case Needs a Judge” (2001) 18 Mediation Q 259; and for society, see D. Luban, “Settlements and the Erosion of the Public Realm” (1995) 83 Georgetown L.J. 2619. Here then are some of the potential weaknesses of problem-solving, or facilitative models of mediation:
1. Problem-solving needs some analytical skills – how useful for highly emotional or non-analytical people?
2. Problem-solving analyses are difficult for people who are feeling overwhelmed or intimidated. Some degree of assertiveness is necessary by a person, representative or tribal member.
3. Problem-solving requires a person to be articulate – to what extent is it a “middle/upper-class” model?
4. Problem-solving involves time, information and transaction costs.
5. Problem-solving works on assumptions that humans know what is “good” for us; and how to achieve those “good” goals and needs. These assumptions are clearly false for some people most of the time; and for all people some of the time.
6. Problem-solving still requires reasonably accurate (expensive and often elusive) information or guesses about “rights”, the various forms of “power”, and “market rates”. Wise decisions require some knowledge of alternatives or fall-back outcomes.
7. Some busy or budget-conscious clients want one stop shopping – process/respect/communication and information and advice.
8. Problem-solving encourages some people with weak “rights” and “power” to talk endlessly in the hope of creating sunk costs and concessions. (Such tactics may need responses of expert advice, case appraisal, market forces, or judicial decision).
9. Problem-solving requires counter-intuitive skills. There is a shortage of skilled problem-solving mediators available.
10. The labels of “facilitative” or “problem-solving” (or “transformative”) are misleading as the actual practice is advice-giving “settlement” or “evaluative”.
11. Some problem-solving mediators are over-regulated, over-legislated, rigid and indoctrinated with their learned model (eg in parts of UK). This is unhelpful as flexibility is needed.
12. Problem-solving negotiation or mediation usually involves four key hurdles (unless done with great skill – see Pruitt and Kim Social Conflict 2003): - loss of information (“We need information swaps to make wise offers and decisions. But you may use this information ‘against’ us”)
- loss of image (“I need to preserve my image as a ruthless positional negotiator, as I make money from that image in many future transactions”)
- loss of position (“Merely by being open to problem solving, I convey the coded message that I am willing to shift off my last position”)
- counter-intuitive skills such as patience, listening, acknowledging, reframing, summarising and packaging (“I do not want to sit around and hold hands with a bunch of difficult people”)
13. Even a highly competent problem-solving mediator will remain unemployed if waiting for referrals from repeat users (eg some lawyers and insurance adjusters), who have never sat in upon and experienced a successful problemsolving mediation. These repeat clients have their own complex reasons for preferring evaluative or hybrid mediators.
John Wade is an Emeritus Professor of Law at Bond University and a practicing lawyer. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one French and four US law schools. He has led over 250 courses in mediation and negotiation for law firms, government and industry in UK, Hong Kong, NZ, USA, Indonesia and Australia. John was one of the founding editors of the Legal Education Review and pioneered the postgraduate teaching of educational methods and theory to new law teachers. He has published over 100 books and refereed journal articles.
Mediation practice. Since 1987, John has mediated hundreds of disputes in areas of family property, organisational, succession, insurance, and child disputes. He has developed a specialty in family property conflicts. In 2011, John was named by the International Bar Association as one of the top nine commercial mediators in Australia. In 2013, John moved to Vancouver, Canada with his family, and continues his mediation practice and teaching there.
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