Evaluative mediation is the most settlement oriented of the three. The mediator in this model feels free to direct the process and make informal or formal suggestions to the parties as to the resolution of the conflict. These mediators “are concerned with legal rights of the parties rather than the needs and interests, and evaluate based on legal concepts of fairness” (Zumeta, 2000). They often “shuttle” between the parties and are often referred by the courts. Many, although not all, Evaluative mediators are lawyers.
Facilitative mediation is less directive than the Evaluative model but shares an interest in reaching agreement, although does not push to have one. The mediator in this model facilitates the self-determined process of the parties, supports a collaborative problem solving process, moves from positions to discovering underlying interests and needs, gathers information by using open-ended questions, reframes the conversation, reflects and summarizes. The mediator assists the parties in building an agenda, looks at options and reaches agreement if desired by the parties. He/she does not offer opinions or make judgments. This type of mediator manages the process but not the outcome (Zumeta, 2000).
Transformative mediation distinguishes itself from the others and shifts its goal to transforming the conflict interaction; it supports empowerment and recognition in the parties as discussed earlier in the transformation story. It is not agreement oriented. There are ten hallmarks of practice: it is disclosed that the process is focused on empowerment and recognition, it leaves responsibility for the outcomes with the parties, it is a non-judgmental mediation style, it maintains an optimistic view of the parties competency, it believes in the value of expressing emotions, it allows for uncertainty, it is responsive to past events, it maintains a focus on the here and now, it sees conflict as part of a larger story and it acknowledges small successes in the process (Bush and Folger, 1996).
Bush and Folger (2005) discuss how the three models interface with the four stories of mediation. They say that the Satisfaction Story is the story engaged in by the Facilitative and Evaluative mediators; the Transformation Story as that which is embraced by the Transformative mediators. Bush and Folger categorize Evaluative and Facilitative as the problem solvers and the Transformative mediators as transformers. These two categories themselves will be questioned later in this paper but for now will be used as defined by Bush and Folger in The Promise of Mediation. They state that the two different mediation models and their associated stories are informed by incompatible underlying ideologies.
These distinct ideologies set the trajectories for the different mediation paths. Bush and Folger (2005) state that the problem solvers orientation defines conflict in terms of problems that seek satisfactory resolutions. The conflict is centered around incompatible interests and unmet needs. The focus on addressing interests and needs leads these mediators to handle the conflict in specific ways.
Bush and Folger (1994b) describe how problem solver mediators pursue the path in practice. First, “mediators tend to search for and define problems that need to be solved or addressed” (p. 10). They then employ strategies to create mutually agreeable resolutions. They imply is that these mediators tend to ignore relational issues such as those of trust between the parties, self-esteem of the parties and past histories between the parties. They “drop concerns that cannot be treated as problems” (Bush and Folger, 1994b, p. 11). In their view, these mediators discourage the expression of emotions. Using this definition of conflict, they enhance their discussion by saying that this thinking is informed by an individualist ideology dominant in the US mainstream. This ideology “views the human world as made up of radically separate individual beings, of equal worth but with different desires, whose nature it is to seek satisfaction of those individual needs and desires” (Bush and Folger, 1994b, p. 13).
The Transformative mediation model defines conflict very differently. Bush and Folger (2005) see this model as “based on the theory of conflict as an interactional crisis…and the process of mediation as one of conflict transformation... the mediator’s role as supporting the empowerment and recognition shifts that change party interaction from destructive to constructive” (p. 237). Underlying the Transformative mediation story and practice is that of a relational ideology. They assert that there is a relational connection between the self and society. In contrast to the individualist ideology, this point of view does not simply honor the autonomy of the individual; it holds that the world contains interconnected individuals who have the capacity to develop “empowerment” and “recognition” and through this they find unity. Bush and Folger (1994b) feel that “in developing conscious awareness of other’s common humanity, instead of regarding others as things to be used for one’s own ends, the individual moves from a lower to a higher state of being” (p. 20).
In practice, according to Bush and Folger (2005), Transformative mediators focus on the conflict interaction, seek opportunities to cultivate empowerment and recognition, and avoid a direct course to agreement. They value expression of emotion and believe past histories are useful and necessary to include. They are oriented to the present moment and not future oriented as they claim problem solvers are. They encourage perspective taking between the parties. They are interested in fostering the moral growth of the parties. They don’t see settlement as a goal as they claim problem solvers do. Settlement is not necessarily a goal as they claim it to be for the problem solver mediators.
To understand better the critical conversation that arose after the 1994 publication of The Promise of Mediation and continues in the mediation community today, it is important here to look at Bush and Folger’s broad brushstroke “positions,” then to examine specific statements they use to support their positions and finally to evaluate these statements. The same attention will be paid to those with different “positions.” An attempt will then be made to mediate between these conflicting party views.
Bush and Folger (2005) take the following positions in The Promise of Mediation: the Transformation Story is superior to the Satisfaction Story; the practice of a transformative mediation model is better for the world than the problem solving mediation model; Facilitative and Evaluative mediators are basically the same; problem solvers are usually directive and outcome oriented; problem solvers do not value emotions whereas transformers see emotions as important to the process; and the models cannot be combined because they are informed by mutually incompatible ideologies.
They support their positions by stating them as factual and by including statements by practicing mediators and existing texts that agree with them. A look at some examples follows. In support of their claim that problem solver mediators are directive and outcome oriented they quote a problem solver as saying, “Why shouldn’t I advise the parties what to do if I know what is going to work best in their situation? The whole reason I am here is to help them find a solution to their problem” (Bush and Folger, 1994a, p. 71). A response to this would be to quote many Facilitative mediators, included by Bush and Folger in the problem solvers category, who neither philosophically see their role to be this nor practice in this manner. In discussing how emotions are handled in settlement oriented mediation, which they equate earlier with problem solvers, they quote Christopher Moore in The Mediation Process as saying, “for a mediator to assist parties in reaching an agreeable solution, he or she must… minimize or neutralize the effects of negative emotions” (Bush and Folger, 2005, p. 239). The two primary strategies for doing so involve “venting emotions” and “suppressing emotions” (Moore, 2003, p. 173). After checking their Moore citation, it can be seen to be an incomplete part of a much larger discussion. Bush and Folger quote Saposnek, saying that these mediators ask questions that “imply to the parties that expressions of their feelings is irrelevant and counterproductive” and that the mediator is “interested in ideas for solutions to their problems” (Bush and Folger, 2005, p. 239). In response, while managing emotions is consistently discussed in mediation texts, minimizing emotions and their value in the mediation process is not the prescribed strategy. Managing is not the same as minimizing.
Of major significance to this paper is Bush and Folger’s discussion about the feasibility of a flexible model, that of a combined use of problem solving and transformative approaches to mediation. They say that it is impossible and that “integrating the two approaches presents enormous practical and conceptual difficulties... the core practices of each are inconsistent: it would be effectively impossible for mediators to employ both sets of practices together” (Bush and Folger, 1994a, p. 109). They close the door on the subject. But others open it and continue to seek an approach that sees mediation as an opportunity to both address the goal of reaching agreement as well as the transformation of the disputants.
Looking at the potential of a flexible model requires a critical review of Bush and Folger’s claim that it is not possible or desirable. What do other prominent mediators in the field say about a flexible model? Those who reflect on a blended model do not buy into Bush and Folger’s thinking that in conflict mediation the process is more important than the outcome. They see that the transformation can take place in the disputant’s relationship to the conflict itself and not necessarily to each other. This can happen in the course of reaching settlement. Carrie Menkel-Meadow (1995) clarifies this: “Why is individual growth process privileged over other processes…can’t relationships of people to their conflict be changed in mediation, without necessarily changing the relationship between the people?” (p. 237). She suggests that a polarized view of outcome versus process is seriously questionable and that mediators with such views are in danger of just the kind of either/or thinking that they want their disputants to rise above in the mediation process.
Others, including David A. Hoffman (1999), question how the principle of self-determination plays out in Transformative mediation: “How could we justify imposing our own view of what mediation should accomplish (personal growth and development) on parties who came to us for something else (namely, settlement)” (p. 1)? He also expresses concern with regards to the appropriateness of the transformative approach in many cases, such as business disputes. As a self-proclaimed problem solver, he chooses to acknowledge and respect the concepts of empowerment and recognition. But he believes that “an integration of transformative and problem solving techniques is not only possible, but in many cases essential” (Hoffman, 1999, p. 2). He suggests that transformative moments happen in all mediations and should be seen as opportunities while at the same time settlement should be pursued. Hoffman embraces the richness that the two approaches can yield when combined.
Ken Cloke (2007), a prominent author, academic and practicing mediator, sees the value of searching for “the hidden unities” that connect the diverse mediation practices (p. 2). This search would lead to a “holistic, pluralistic and eclectic approach to mediation styles” (Cloke, 2007, p. 2). It is notable that the inclusiveness, the choice to seek unities in the various models, is in sharp contrast with the Bush and Folger approach that is to seek the differences. Since what is sought can determine what is found, Cloke finds that the approach that best serves the parties is the inclusive one: all the approaches combined into a single whole have more power than any of the parts on their own. Ideally, he recommends a fluency in all the mediation styles and the ability to move among them as determined by the conflict itself, as well as in the moments that are presented in the course of any mediation (Cloke, 2007).
Michael Williams (1997), a mediator in Dublin, Ireland, rejects Bush and Folger’s argument that transformative and problem solving mediation orientations cannot be mixed. First he asks, do we have to choose between them? He concludes that we do not and should not. Like many, he says that in practice the two approaches often operate together. He cites mediations involving spousal separation to be cases in which both are often effectively practiced, resulting in satisfaction and transformation. Williams sees satisfaction as leading to transformation.
Finally, Frenkel and Stark (2008) join the chorus of the mediators quoted and say that they are “skeptical of the claim that transformation is inconsistent with problem solving,” and later in their text say that most effective mediators are flexible and adapt their mediating approaches in response to the clients, circumstances and context (p. 85). As this paper set out to make a case for a flexible model, it is important to acknowledge that mediators selected were those responding critically to Bush and Folger’s position against blending the models. It would have been equally possible to find many practitioners in favor of their point of view.