The thesis explored here is that a flexible model of mediation is possible and desirable. A flexible model is defined in this paper as a model that incorporates both problem solving and transformative approaches in response to the expressed needs of the parties. It suggests that experienced mediators often use a flexible model, consciously or unconsciously, and remain able to honor the underlying principles of mediation: neutrality, impartiality, self-determination, voluntary participation and confidentiality (Frenkel & Stark, 2008). As stated in Model Standards of Conduct for Mediators, 2005, “mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute” (Class PowerPoint, February 16, 2012).
This thesis is primarily a response to Bush and Folger’s argument against a mixed model in The Promise of Mediation (2005). Other prominent mediators respond and argue for a mixed model. Both points of view will be examined to understand the feasability and desirability of a flexible model. The dominant three models of Directive, Facilitative and Transformative will be discussed in relation to the four stories of the mediation process: Satisfaction, Social Justice, Transformation, and Oppression. According to Bush and Folger, an individualist ideology supports the Satisfaction Story orientation and the relational ideology supports the Transformation Story orientation (2005). They argue that the two orientations are incompatible and cannot be blended in practice. In support of the value of a flexible model, other fields will be cited where an integrative approach has yielded quality outcomes.
It is necessary to summarize the four stories of the mediation process to understand how Bush and Folger see them as interwoven with the different mediation models in practice. The Satisfaction Story speaks of a process in which the party’s human needs are addressed and suffering is reduced. Because mediation is informal (not legal), voluntary and flexible, the mediators who operate within this story choose to “reframe a contentious dispute as a mutual problem” to be resolved (Bush and Folger, 2005, p. 9). It is the dominant story in the mediation field and operates in many mediation settings such as child custody, small-claims, environmental disputes and public policy. In short, mediation practice within this story is credited with easing court case burden and reducing public and private expense in resolving conflicts.
The Social Justice Story thinks of mediation as a way to organize individuals in a society around common interests. It is particularly important for underserved minority groups that are often subject to exploitation. Mediation in this story can “strengthen the weak by helping establish alliances among them” (Bush and Folger, 2005, p. 12). The Social Justice Story plays out in many mediation settings and areas such as interpersonal, neighborhood mediation, consumer disputes, environmental disputes where weaker groups might be exploited. For example, in land development disputes, organizing grassroots efforts can shift power imbalances and can serve to strengthen disadvantaged groups.
The Transformation Story shares some concerns with the two stories discussed but is distinct from them; its focus is to transform the conflict and the interactions of the parties involved. It seeks to empower the parties with a stronger sense of “self-respect, self-reliance and self-confidence” (Bush and Folger, 2005, p. 13). The other dimension in this story is that of recognition; each party can grow morally and increase their empathy for the other. It is thought in this story that both empowerment and recognition will aid the parties in this dispute and make them more skillful conflict resolvers going forward. As a result, third party assistance will not be needed in the future.
The Oppression Story is the negative story of the four presented. In essence, it is the opposite of the Social Justice Story and sees mediation as having dangers for underserved individuals. It suggests that in actuality, mediation is often used to increase the power of the dominant members of society over the weaker. The informality thatthe Social Justice Story points to as an asset is seen here as a hazard; the lack of formal rules and regulations in mediation allow the mediator broad power and freedom in expressing biases. Leah Wing states her concern in her article “Mediation and Inequality Reconsidered: Bringing the Discussion to the Table.” She expresses that there is a dominant paradigm is which mediation practice is set that does not address the inequalities that non-dominant social groups experience in mediation (Wing, 2009). Fiss (1984) expresses a similar concern about mediation, and ADR in general, because it incorrectly “assumes a rough equality between the contending parties” (p. 1076).
Part 2 will discuss the difference between evaluative, transformative, and facilitative mediation models.