I have practiced ADR since 1992. I look back fondly and forward enthusiastically with great hope. In thinking about “what from our past has worked best and should be brought forward and emphasized,” I decided to review two law review articles I wrote early on in my career. What follows is a summary of what I thought then. It will be followed by summaries of two articles about what I think currently. This article will then conclude with my half-formed or mal-formed thoughts about the future. Ultimately, I recommend more mediation-specific research and a continuation of the robust collaboration and debate that has brought “our field,” dare I say “our profession,” to its rightful place as the most effective of the ADR (“Appropriate Dispute Resolution”) processes.
In 1997, I addressed mediator ethics and stylistic practices at the operational level and specifically examined the practical implications of the ABA, AAA and ACR Model Standards of Conduct of Mediators (Model Standards), as compared with other professional ethical codes governing mediation. (See, “Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation,” 33 Willamette Law Review 703 (1997).) The article explored ethical issues and practical questions that regularly arise in mediation, along with some possible answers. It also proposed an additional Model Standard, designed to ensure the parties and the mediator have mutually and clearly defined expectations.
At the time, none of the ethical codes examined completely encompassed the continuum of mediation models that highlight the dilemma mediators face when seeking ethical guidance. Thus, even if mediation participants are familiar with these codes, that familiarity in and of itself will not help them predict the mediator’s style. This is an additional reason the mediator should seek the informed consent of all parties because participants generally do not understand the various ethical codes governing mediators and the intersection of practice styles within the ethical codes. Thus, additional duties are imposed on the mediator to seek the informed consent of all participants because the parties do not understand the process.
As the mediation profession matures, it is important to remember that the purpose of mediation is to allow the parties to settle their disputes on their own terms. Parties to a mediation are more likely to be satisfied with the process and the outcome if they clearly understand what to expect during the mediation and the mediator fulfills that expectation.
As a practical matter, in the real world of conflict, each party, at some level, desires the mediator to be “facilitative” with them and “evaluative” with regard to the other side’s position. To resolve this dilemma, a mediator must explain the process of mediation in such a way as to conform the parties’ expectations to the selected mediation model.
It is time for the mediation profession to draw on its strength, the use of collaborative processes, to convene the various interests groups to explore and develop a practical code that encourages the parties to pick the mediation model that works for them. The Model Standards are a first step toward such a code that incorporates the complexity of mediation styles and ethical dilemmas. It would be inappropriate, however, to legislate one model to the exclusion of another.
In the interim, this author proposes the following amendment to the Model Standards in an effort to guide the mediator in helping the parties reach an informed collaborative decision on what will happen during the mediation:
The mediator has a duty to inform impartially all participants of the continuum of existing stylistic models and which model(s) the mediator practices. Additionally, the mediator is obligated to inform the parties of the mediator’s profession, the relevant ethical codes governing his or her behavior, and the practical impact of those codes on the specific mediation. Only then can a mediator reasonably expect the parties to possess enough relevant information to make an informed, self-determined decision regarding the most appropriate model of mediation for their particular dispute.
(1) The Model Standards do not endorse a particular mediation model. To appreciate the applicability of the various practices, participants should be fully informed and the mediator should fully advise the participants of the practical decision points that need to be made during the mediation.
(2) The mediator should understand that regardless of the participants’ preferences, evaluative mediation by its very nature requires a heightened ethical responsibility.
Without the proposed model standard, the confusion inherent in the status quo will continue. The risk of continued incongruity between the expectations of mediation users and mediation, as it is practiced, is the erosion of public confidence in the process. Ultimately, when the parties are not informed thoroughly of the ethical and practical aspects of mediation, it is not unreasonable to suggest that they may look on the one mechanism that offers the best hope of resolving future disputes – mediation – in the same negative vein as litigation. Mediation, as a growing profession, should seek to foster a reputation built not on perception, but on clear understanding of mediation’s great success in the resolution of disputes. Engaging the parties in a collaborative process to establish ground rules for the practical decision points during the mediation will help balance the tension between mediation’s aspirations and its actual practice. Only with such a process can we honor the fundamental tenets of mediation and the public it serves.
In 2007, the above thesis was further explored in “If Freud, Jung, Rogers, and Beck Were Mediators, Who Would the Parties Pick and What Are the Mediators’ Obligations?” (43 Idaho L. Rev. 643 (2007). I noted that mediation has become a very effective form of dispute resolution. However, the profession or field of mediation has also evolved into several distinct groups of practitioners who sometimes seem to speak different languages in describing the techniques, styles, models, processes and desired outcomes of their work. In fact, there is a fair amount of professional in fighting over which camp is the true guardian of mediation.
Speaking to this dynamic, Joseph P. Folger and Robert A. Baruch Bush have suggested the formation of different and parallel professional associations, much as the therapy profession has done less formally with those who follow the teachings of Sigmund Freud, Carl Jung, Carl Rogers, or Aaron Beck. Folger and Bush state, “The public we serve can only benefit from such attention to our own ongoing professional development.” Whether “different associations” is, the answer remains to be seen. One thing is clear, “the public we serve” will benefit only if they understand the various mediation options that are available to them.
Professionals in therapy have encountered the problems of communication with patients about the therapist’s approach for many years. In the first session, a therapist may begin by saying, “I am a Jungian. Let me explain what that means to you.” On occasion, professional therapists must make a referral when it is in the best interests of the patient if they suspects that their proffered approach is not what the patient needs. Some knowledgeable patients may make an appointment looking for a therapist with a particular orientation. Others may feel equally as well served by a Jungian as by someone following the teachings of Aaron Beck. The important thing is for the therapist to have an open and frank discussion with the prospective client about the options available to serve that client’s needs.
Perhaps more attention should be spent on exploring these issues from the perspective of the parties, and not the mediators. If “Self-Determination” is a cornerstone of mediation, then the focus of our field should be on maximizing it at all stages of the process.
At least one author, Bernard S. Mayer, suggested that mediators might be better able to help the participants by expanding their self-limiting role definitions. Has the field boxed itself in while trying to define and distinguish itself from other fields or professions? Would the parties object to an expanded role definition beyond the traditional role if their consent was fully informed and the mediator performed competently and consistently with their expectations? Mayer even goes so far as to suggest that the philosophical underpinning of neutrality may be self-limiting and not what the participants need so long as the multiple roles are not in conflict with each other. His work sets an interesting backdrop for this article.
The practice of mediation is “growing up.” By analogy, mediation has reached the stage where the practice of therapy has stood for some time with the followers of Freud, Jung, Rogers, and Beck offering different approaches. Each therapeutic approach has something to contribute to those seeking help. Better results are achieved when the approach meets the process needs of the patient, even if that approach would not work for the particular mediator being approached by the parties. So, what mediation approach are the parties seeking when they come to mediation? We believe the basic ethics of mediation mandate Self-Determination and informed decision-making by the parties. Clearly, prospective parties have the right to decide which approach to mediation is best for them, after being given all relevant information as to the options that are available, and not just those offered by that particular prospective mediator.
The research and analytical work done by Professors John Lande and Nancy Welsh have pointed the way to important insights into the mindset of the parties who approach mediation. Parties come seeking to be actively involved in the process — to have the opportunity for High-Quality Consent in all the decisions made in mediation. The perceived quality of the parties’ experience can be increased in direct proportion to the quality of the consent the parties have in the decision-process.
Moving toward the ideal of High-Quality Consent also moves the parties toward what research shows disputants also say they want and need—an experience of justice—an experience of perceived fairness and Procedural Due Process in mediation. Procedural justice research and theories show that the parties want and need the opportunity to tell their stories, feel that their stories have been considered, and believe that they have been treated in an even-handed, respectful, and dignified manner. Unfortunately, research also shows that much of mediation practice may be moving away from the elements likely to result in the perception of fairness and Procedural Due Process by the parties. This yearning for justice is the hope of the prospective parties who seek mediation.
In many ways, mediation is not delivering on its promise. Mediation stands on the threshold of change as it seeks to deliver on the parties’ desire for justice. They come to the mediator yearning for a high-quality experience of direct involvement in that justice. Delivering on this promise of perceived justice is the current challenge of every mediation professional. Is Bernie Mayer correct when he asserts that mediators may be better able to help the participants by expanding their self-limiting role definitions? Has the field boxed itself in while trying to define and distinguish itself from other fields or professions? Would the parties object to an expanded role definition beyond the traditional role if their consent was fully informed and the mediator performed competently and consistently with their expectations?
Anyone who has attended a conference of mediators cannot help but notice the “discussion” surrounding the competing approaches we offer to satisfy the desires of the parties. Forgetting the irony and the dissonance between the mediation field’s purported adherence to celebrating diversity and the frequent rancor between adherents to the competing approaches, these conversations tend to degenerate into fruitless exercises that divide us unnecessarily. We have all had experiences with mediators that claim to be disciples of approach X, only to behave consistent with approach Y, usually unaware of the dissonance. That incongruity aside, the discussion about these issues would benefit if we could move from the academic and philosophical underpinnings of each approach and, at least, agree on the behaviors commonly associated with each approach. Such a common understanding could assist mediators in explaining the practical differences and their ramifications, if any, to prospective mediation participants.
What are the differences between the approaches at the macro and micro levels? Do they matter? If they do, we must clearly explain the differences if we have an obligation to fully inform the parties so they can determine for themselves the best approach for them. How do we explain the differences? How context-driven is it? How can we use Riskin’s “New New Grid” to frame the conversations with the parties? As a practical matter, how do we go about explaining this subject to parties who do not view conflict resolution, its processes and approaches with the same background and common vernacular as we do? Do we need to explain the continuum every time we mediate? What about repeat customers? How will we know that the parties truly understand the differences and have selected wisely? Does the mediator have an obligation to ensure they have selected wisely? Is this good theory, but impossible to implement in the real world of mediation? We invite the discussion, first among ourselves, and then with the users of our services.
If, as Rodney King said, we all just cannot “get along,” can we at least stop the dithering and bashing? No one approach owns a monopoly on the definition of mediation if Self-Determination is the attribute that best distinguishes mediation from the adversarial legal system.
I ended the article with a poem on Self-Determination:
There once was a mediator named Stan, who had not an ethical plan.
So, he said to his fears, move over, I’ll try full disclosure.
Informed consent he found was great, now, the parties can mediate!
When musing about “what current promising approaches should be further developed,” I reflected on a recent law review article and one in progress.
In 2014, Professor Steven Maser and I wrote, “Why Does Anyone Mediate if Mediation Risks Psychological Dissatisfaction, Extra Costs and Manipulation? Three Theories Reveal Paradoxes Resolved by Mediator Standards of Ethical Practice.” (29 Ohio State Journal on Dispute Resolution (2014)). There, we noted that three paradoxes afflict mediation. First, if self-determination is a psychological need motivating the parties and the mediator, how can the parties and the mediator jointly satisfy their potentially conflicting needs? Second, if parties are having difficulty resolving their conflicting individual interests and incurring costs in the process, why would they invite a third party into the conflict who has his or her own interests and adds costs? Third, if it is impossible to guarantee that any collaborative decision making process can be immune to manipulation by one of the participants, including the mediator, why would parties expose themselves to the risks of mediation?
Three mutually reinforcing theories (Self-Determination Theory, Transaction Resource Theory, and Collective Choice Theory) reveal these paradoxes. The analysis is intended to demonstrate how professional organizations and states can resolve the three paradoxes by crafting and enforcing mandatory standards of ethical practice for mediators. We propose an affirmative answer by drawing upon theories from the fields of Psychology, Economics, and Political Science. However, these theories reveal the three paradoxes, leading us to question why anyone, including a mediator, would engage in mediation. If anyone does, we conclude, it will be because standards of ethical practice resolve the paradoxes.
First, from the field of psychology, mediators are called upon to help resolve a conflict among self-determining parties who choose their own dispute resolution processes and make their own substantive agreements. A mediator is also a self-determining actor with, among other things, a reputational stake in promoting her settlement prowess, a desire to “balance power,” or a desire to ensure the “right” outcome is achieved. Those interests may or may not be compatible with interests of the parties in any given mediation. Would this not give self-determining parties pause about participating in mediation? Indeed, would this not give a self-determining third-party pause about serving as a mediator?
Second, from the field of economics, parties negotiating a resolution engage in a costly mixed motive game that involves conflicting incentives to cooperate or compete. Bringing in a third party, the mediator, to assist them introduces a second, costly, mixed motive game: this one between the parties and the mediator, who wants the parties to settle to advance his or her own interests. Would this not give each party and the mediator pause?
Third, from the field of political science, it is not possible to design a process for translating individual parties’ preferences into a group preference that assures against the parties cycling interminably from one proposed agreement to another. Even if they settle on one, the parties, and the mediator could still have “manipulated” the process. Would this not give each party and the mediator pause?
Given these three paradoxes, the surprise is not that mediation works as well as it does. The surprise is that people mediate at all, even though mediation’s proponents believe it is much better than litigation in terms of satisfying the overall interests of the participants. That mediation happens is testimony to the mediator’s judicious application of ethical rules and rhetoric to serve the participants’—including the mediator’s—psychological needs for self-determination and for economizing on the costs of negotiating.
Judicious here means being ethical. The mediator who adheres to well-crafted standards of practice resolves the triple paradox, improving the parties’ confidence and willingness to engage in the process. Given the power inherent in the mediator’s role, everyone’s perception that the mediator will behave ethically gives force to, and trust in, the process.
We base this argument on three theories. Like mediation itself, they originate in different disciplines. They reinforce each other to expose common assertions about mediation practice that are arguably erroneous: A) parties own the outcome; mediators own the process, and B) mediators have no preferences over outcomes.
First, self-determination theory (SDT) explains the motivation for anyone to participate in mediation. In our application of SDT to mediation, it is not that the parties necessarily trust the mediator, who empowers and protects them so they can reveal information essential for satisfying their underlying interests. Rather, mediating helps the parties and the mediator satisfy their innate psychological needs for competence, autonomy, and relatedness, which are necessary conditions for their psychological growth, integrity, and well-being.
Second, transaction resource theory (TRT) explains the conditions under which parties will turn to a third-party to explore resolution. In our application of TRT to mediation, reaching agreement requires each individual to deal with contradictory pressures. They are: A) the costs of making concessions and complying with the terms of an agreement (militate against making an agreement) versus B) the benefits of reducing conflict and inducing others to cooperate (militate in favor of making it.) Mediators can supplement the resources parties exhaust in managing these pressures, even after accounting for the costs of introducing the mediator.
Third, collective choice theory (CCT) explains the impossibility of guaranteeing against someone manipulating the process when members of a group, such as two or more parties in conflict with the addition of a mediator, attempt to reach agreement be it on process or substance. In our application of CCT to mediation, a mediator’s involvement in defining the process and in framing or reframing arguments and proposals cannot avoid being manipulative. CCT identifies the conditions under which parties could condone this.
The paper then outlines the strategic “manipulations” that are tools of the mediator’s trade: A) Heresthetics (Politics), and B) Rhetoric (Persuasive Discourse). We discussed them in the context of SDT, TRT and CCT, and the applicable ethical standards. We then outlined recommendations to assist organizations setting out to create and revise their standards of conduct.
a. The following mediation field’s common assertions are arguably erroneous:
A) parties own the outcome; mediators own the process, and B) mediators have no preferences over outcomes.
b. Mediation works because of a mediator’s judicious (ethical) application of heresthics and rhetoric to serve the participants’, including the mediator’s, psychological needs for self-determination and efficient use of transaction resources.
c. Parties and a mediator who agree on ethical standards of practice satisfy their intrinsic needs, reinforcing self-determination; solve a divisible prisoner’s dilemma problem at low cost; and mitigate manipulation.
a. Mediators should create robust standards of ethical practice because that can resolve all three paradoxes.
b. Robust standards of ethical practice should require the mediator to engage the parties in a pre-negotiation exploration of the mediator’s tools and their potential impact on the process and the outcome.
c. Parties in mediation should inquire about and agree to the ethical standards to which the mediator adheres.
d. Mediators should make standards of ethical practice mandatory to encourage mediation. While mostly aspirational, current standards reduce the parties’ fears by establishing expectations of reasonable behavior.
e. Mediators should evaluate and implement meaningful enforcement mechanisms, which are not prevalent in the field, including the pursuit of disciplinary claims. Should we not hold ourselves accountable when we violate ethical standards? It is done in other professions. Thus, mediators who charge a fee should not be immune from malpractice, but instead, should be held to the typical professional negligence standard.
If nothing else, we hope that this article will generate more discussion about what mediators should understand before they mediate and what parties should know before they agree to mediate “on faith.” So, what are we going to do to improve the wonderful field of mediation? At a minimum, mediators should critically explore the dissonance between what we say at conferences/trainings and the ethical and practical impact of what we actually do in the field. This requires self-reflective, and dare we say, “transformative” training to transparently operationalize the core principles of mediation.
In 2015, Barry Anderson, Les Swanson, and I wrote “Veils and Cloaks of Ignorance: Under-used Tools for Conflict Resolution” (30 Ohio State Journal on Dispute Resolution (2015). In his A Theory of Justice (1971), John Rawls had introduced the concept of a veil of ignorance as a device for encouraging the fair and unbiased judgments required for decision-makers to move toward sound principles of social justice. Rawls asked his readers to assume that decision-makers planning an ideal society would be operating as in an original position of equality, behind a veil of ignorance as to their actual positions in life.
We hope to demonstrate in this paper that the same device has much greater application than has yet been realized as a practical tool for day-to-day mediation. Veils can be a very effective way to encourage the parties to a conflict to think more fairly and thus to move more rapidly toward a mutually satisfactory resolution. We also demonstrate that cloaks are even more effective than veils.
Our analysis begins with an overview of Rawls’s ideas and a consideration of supporting psychological research that bears on the importance of fairness and the importance of veiling irrelevant and potentially biasing information. We then consider psychological research that points to the weakness of veils, as Rawls described them; and then add the concepts of cloaks and thick veils to the thin veils described by Rawls. Next, we consider applications of veils and cloaks in current practice, and then consider practices in mediation generally, in the law, and in decision analysis. Finally, we conclude with suggestions for recognizing opportunities to apply cloaks and veils, with some ethical caveats.
In summary, both philosophical analysis and psychological research point to the importance of fairness in conflict resolution and to the appropriateness of excluding potentially biasing information as a means to fairness. Potentially biasing information can be excluded from consideration by means of thin veils, thick veils, or cloaks. A thin veil consists of instructions to disregard information that is known and already in consciousness. A thick veil makes it more difficult for information that is known but not in consciousness to be brought to consciousness. A cloak withholds information that is not yet known. Opportunities to apply cloaks and veils of ignorance arise in fact conflicts, value conflicts, and interest conflicts. To maximize effectiveness in applying cloaks and veils, preference should be given to cloaks over thick veils and to thick veils over thin veils.
The use of cloaks and veils of ignorance raises important ethical concerns. Cloaks and veils reduce transparency, and transparency of facts, values, and interests an acknowledged goal of mediation. Indeed, open information has been identified as one of the four dimensions of organizational justice.Therefore,cloaks must be used with care and Informed Consent of the participants should be obtained in advance. We suggest continued exploration of the issues raised and the creation of a standard of practice to further the growth of our profession while providing the flexibility and creativity necessary to optimize the celebration of the parties Self Determination. The result will likely be more richer and durable “resolutions” and fewer “settlements” where everyone walks away unhappy.
I was asked to explore, “what would I like to see the mediation field look like in 20 years?” I hope that a few of the ideas proffered by my colleagues and me in will have survived, and that other lesser ideas we proffered will have died on the vine in place of better ideas. As I will then be 83, I hope that some kind soul will speak into my good ear and tell me what happened!
As to, “what specifically should we now do to get there,” we strongly recommend:
A) more mediation-specific research,
B) cross-discipline collaboration,
C) a continuation of the robust collaboration and debate that has brought “our field,” dare I say “our profession,” to its rightful place as the most effective of the ADR (“Appropriate Dispute Resolution”) processes, and
D) the codification of our learning into the standards of mediation practice that transparently guide us and the users of our services.
Mediate.com, thank you for spearheading this great project. As always, you provide an unrivaled service to the wonderful world of mediation!