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<xTITLE>Defining Mediation: Voluntary Assisted Negotiation</xTITLE>

Defining Mediation: Voluntary Assisted Negotiation

by Randy Drew
September 2014 Randy Drew

Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous.  However, the world is defining mediation with or without us.  Therefore, it is time for us to weigh in on the question: What is mediation?  Here’s what I propose.

I hope we can all agree that narrative, transformative, facilitative, and evaluative are all styles or genres, but they are all legitimately mediation.  Most of us probably use each, to a more or lesser degree.  Then, there are public mediations, such as public policy mediation, between community groups, contractors, NGOs, or government agencies for example.  There are private mediations, inner-communal circles of truth, and court-ordered mediations.  There are ongoing mediations, and there are temporary mediations that have a clear beginning and a well-defined end.  There are family mediations, environmental mediations, restorative justice mediations, community mediations, and limited and unlimited liability mediations, to name a few.  Maybe, mediation lives somewhere in the vacuum between law and psychology, but it’s more than that.

Definitions are dangerous, because they not only describe what something is, they also say what something is not, and – importantly – what is not that something.  There is an exclusionary component to definitions.  That may get to the heart of why it has taken this long to shore-up our borders and finally simply, clearly, and elegantly define mediation.

Mediators have resisted defining mediation, for a number of reasons.  There may be at least as many ways to mediate as there are mediators.  And American mediation has its roots in controversy, as the courts proved to be a poor solution for certain types of disputes, which we still face, today.  So mediators may be naturally skittish about defining what we attempt to accomplish in so many ways, in so many forums.  Further, it has been said that large systems have a way of co-opting things that work, stripping away what is best about them, and employing what is left in self-serving ways.  If it ever was, however, obfuscating what we do is not longer a deterrent to mediation’s systemic ingestion, for better or for worse.  The only people confused are The People.

As the field of mediation continues to mature, the need for a standard definition of mediation has become a pressing issue.  Many definitions of mediation are, if you’ll forgive the term, rambling ones.  Some are short, and almost all are wrong, in the sense that they either over or under exclude.  Google, for example, clearly under excludes with, “me·di·a·tion: mede'aSH?n, noun, intervention in a dispute in order to resolve it; arbitration.”  Wikipedia weighs in with, “Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects.”  That conjures a bit of fingernails on chalkboard, while not being completely terrible, but it then goes on for paragraphs, unnecessarily. 

When defining anything, it's important to mark the difference between defining characteristics and frequent and/or significant aspects.  There is an essential difference between a defining characteristic and a frequent and/or significant aspect.  Let's chat about what makes mediation unique, without excluding anything that can reasonably be called mediation. 

I propose, that which describes all things that are mediation and nothing that is not mediation is, “Voluntary, assisted negotiation.”

All mediations are voluntary.  I will spare you the long version of the logical argument, by hitting on the most likely objection.  Even if a mediation is court-ordered, the courts can penalize people for not showing up, they can effort that people participate in good faith, but they cannot mandate a mediated settlement.  Volition is a defining characteristic of mediation.

I assert that all mediation is assisted negotiation at its essential core.  All my attempts at arguing this point seem to either begin with, “I think, therefore I am”, or else they come out circular.  Maybe that’s a good indication of a fundamental truth; or maybe I need your help with that. 

Some mediations may not be confidential, and they may or may not contain some elements of confidentiality such as in caucus.  With public policy mediation, for example, there may be various components of confidentiality as chosen and agreed to by the participants.  However, for it to be mediation, no inherent privacy rules are necessitated.  A negotiation can be assisted utterly and completely within the public domain (without any privacy) and still be legitimately deemed mediation.  Therefore, confidentiality is both a common and a significant (or even critical) aspect of mediation, but it is not a defining characteristic.

Another term that is often used in a definition of mediation is “neutral third party”.  When it's time to discuss neutrality, as a matter of course, first stop: 'Beyond Neutrality', where Bernie Mayer asserts that “neutrality” is an inaccurate term that breeds distrust.  Second stop, Lawrence Susskind, whom counters that without neutrality, we are just consultants.  Instead of “Neutrality”, while I will settle for either “impartial” or “fair”, I prefer Chris Moore’s “multipartiality” or Ken Cloke’s “omnipartiality”.  But I digress.

At the Museum of Tolerance, I was told that there are two doors.  One of the doors is labeled “prejudice” and the other is labeled “non-prejudiced” (or something of that nature), and the door labeled “non-prejudiced” is always locked.  That’s a powerful visual and a reminder that, try as we might, we are all biased.  The important thing to remember is to monitor, control, and disclose our biases.  Omnipartiality is an ideal, but it is not a defining characteristic of mediation.

A “project”, as defined by the Project Management Institute (PMI), is "A temporary group activity designed to produce a unique product, service or result." An experienced Project Management Professional (PMP) will tell you that a project is temporary, because if it is ongoing, then it is “operations”.  And that got me to thinkin’ about mediation as either temporary or ongoing.  I propose that mediation, when temporary, is “dispute* resolution” (and a “project”, by that definition).  However, when mediation is ongoing without a well-defined ending, it is “conflict** management”.  Further, Bernie Mayor makes a strong argument that we need to stop equating progress with solutions, and think of mediation as constructively engaging with the conflict lifecycle.  Therefore, neither temporary (dispute resolution), nor ongoing (conflict management) are defining characteristics of mediation.

For reference, a manifold definition of mediation might look like this.
- Public Dispute Resolution: Temporary, voluntary, assisted negotiation.
- Private Dispute Resolution: Temporary, confidential, voluntary, assisted negotiation.
- Public Conflict Management: Ongoing, voluntary, assisted negotiation.
- Private Conflict Management: Ongoing, confidential, voluntary, assisted negotiation.

Ultimately, all things that are mediation are included, and all things that are not mediation are excluded, when we define mediation as: Voluntary, assisted negotiation. 

* Dispute: A disagreement, argument, or debate. 
**Conflict: A serious or ongoing dispute.

Biography


Specializing in the impossible (well, if I get to write it), L. Randy Drew is Co-Executive Program Director of Southern California Family Mediation, humbly serving the California, Los Angeles Superior Dependency Court, and in partnership with the University of Southern California Gould School of Law’s Judith O. Hollinger Dispute Resolution Program.  From Van Nuys, Los Angeles, California, USA, Randy is also associated with California State University Northridge, Pepperdine University, MBB, and SCMA.  In a former life, he resolved tens of thousands of consumer complaints, and serendipitously (as in, not by choice), spent the majority of his life inside some pretty impressive interpersonal conflicts and outside his comfort zone.

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