Mediation Policy: Theory Matters

Mediation policy-making appears to be a growth
industry. Numerous legislatures, state courts, agencies,
membership organizations and other institutions are
occupied with structuring their corners of the mediation
field, whether it is through the regulation of mediator
qualifications, referrals, training, ethics, confidentiality,
immunity, boundaries of practice or other issues. Consider
just these few policy initiatives that are currently underway.
The American Bar Association and the NCCUSL have
embarked on a joint project to draft uniform laws for
mediation. The CPR Institute for Dispute Resolution and
Georgetown University Law Center are collaborating on
the ADR Ethics Project, and have assembled a 65-member
Commission on Ethics and Standards of Dispute
Resolution Practice for lawyers. The Mediator Skills
Project, in cooperation with The State Justice Institute, is
trying to articulate operational definitions of mediator
skills, tactics and strategies in order to define “competence”
for court-connected mediators. The Academy of Family
Mediators is cooperating with the Mediator Skills Project
to develop the first written mediator certification test in the
nation, and in an unrelated project, is revising its training
standards. The State of Maryland is preparing legislation
and ethical standards to govern mediation. The State of
Virginia is considering standards to regulate mediation
training.

Each of these projects, and many others not cited, will
in some way shape how mediation is defined and practiced.
In most cases, some form of standardization of practice is
the goal. But a challenge facing each of these projects, and
in fact all policy efforts in the field, is how to accomplish
standardization when there is immense variation in
mediation practice. I believe the primary question is
whether standardization is desirable, let alone possible, and
suggest that differences in practice must be taken into
account by policy-makers. Differences matter, and it is only
by understanding where differences in practice come from,
and where they lead, that policy-makers can make informed
policy decisions.

“Difference” in practice and in policy

It is by now no secret that there are many different
approaches to mediation practice. The field has seen a
proliferation of adjectives that try to capture these
differences, including transformative mediation, client-
centered mediation, facilitative mediation, problem-solving
mediation, muscle mediation, med-arb, arb-med,
humanistic mediation, naturalistic mediation, evaluative
mediation, therapeutic mediation, rights-based mediation
and interest-based mediation (to name but a few!). While
these adjectives indicate a growing awareness among
mediators that mediation is not a single homogenous
process, policy in the field does not appear to have kept
pace with the adjectives.

Typically, policy statements simply address
“mediation” in the generic, as if it is a homogenous
process. Differences in the practice of mediation are being
ignored or minimized by policy-makers. With few
exceptions (e.g., DellaNoce, 1998; Toben, 1998), the field
has not addressed the question of whether the differences
among mediation practices are so fundamental as to require
different policy positions for different practices. This is an
important question, foreshadowed by Bush & Folger in
1994, when they stated in The Promise of Mediation that
mediator differences are deeply ideological, rooted in the
mediators’ fundamental beliefs about people and conflict,
and that these ideological differences have consequences
for practice and policy. As Toben recently put it:

I, for one, think that there are indeed fundamental
incompatibilities in our methods of practice, grounded
in ideology, and that this has enormous implications
for public policy. We’d better get a hold of these
implications before the regulators apply uniform
standards that make none of us happy. The key… is to
articulate our differences openly and precisely, so that
we can educate consumers to make informed choices
and so that we can help policymakers achieve the best
result.

The field as a whole is minimizing the importance of
difference. A notion has taken hold that differences in
practice are merely a matter of mediator “style.” The very
use of the word “style” implies that mediator practices are
no more consequential than a whim, and as easily donned,
shed, changed, and mixed and matched as the day’s
clothing. A corollary to this image is the notion that
mediators are the ultimate chameleons, able to sense the
style appropriate for any case, client, and context, and alter
their style accordingly. Such an argument can be appealing
for any number of reasons. It neatly sidesteps any issues of
best practice. It avoids the politically-charged definitional
arguments which are prevalent in the field, and appears to
claim a politically-correct neutral or “all-inclusive”
standpoint. Most importantly, it appears to be consistent
with the rhetoric of mediator neutrality, which has
somehow come to mean that mediators have no plan, no
values, no agenda, no goal, no premises, no theory, beyond
doing the clients’ bidding.

But, there’s always a theory, if we think of theory as
the explanation for what mediators do when they intervene
in someone else’s conflict. Some theories are highly
developed, coherent, and based on research, such as Bush
& Folger’s transformative theory (1994), Rubin, Pruitt &
Kim’s dual concern model (1994), and Pearce &
Littlejohn’s model of transcendent discourse (1997). Or,
practitioners may have their own intuitive theories-in-use
for what they do. Theories, no matter how sophisticated or
naïve, shape what the mediator attends to and ignores as
the parties interact, as well as the nature of the mediator’s
intervention. These theories are powerful and
consequential, because they are embedded in even broader
ideological assumptions about the world (or
“worldviews”): assumptions about what motivates people,
what causes conflict, how people should behave in conflict,
what people are capable of, what an effective or successful
resolution of conflict looks like, and what it takes to
resolve conflict (Bush & Folger, 1994). Mediator practices
vary a great deal as a result of the theories mediators rely
upon and the worldviews underlying their theories.
Worldviews, or ideologies, can be thought of as the
mediator’s preferred moral and social order. And, there is
little or no evidence that mediators change their
worldviews, or fundamental assumptions about people and
conflict, on the basis of the case, client or context.

What about policy?

Differences in mediator practice, and in particular the
theories which shape those differences and the fundamental
assumptions upon which they are based, do indeed matter
for policy and policy-makers.

Referring again to the many adjectives used to
describe mediation, you can see they reflect a variety of
roles for mediators, from that of facilitator of the parties’
communication and decision-making process to quasi-
judicial roles. We cannot assume that the same policies
should apply to each of these processes. For example, there
may be sound reasons for confidentiality in a process which
encourages parties to communicate openly with each other
in an attempt to resolve their dispute, while those reasons
may be overshadowed by a need for outside review and
oversight in a process in which a mediator provides case
evaluations and legal opinions. Concerns about mediators
engaging in the practice of law will be paramount in
evaluative processes in which the mediator gives opinions
as to the best outcome or how the law would apply to the
case, but may be negligible in processes that emphasize
inter-party communication and informed decision-making.

Policy-makers, too, draw on their theories about
conflict and their own assumptions about human beings in
conflict as they shape policy. These theories and
assumptions, in turn, shape how mediation is ultimately
practiced. Seldom is it apparent that policy-makers examine
their theories and the assumptions upon which they are
based. This is especially true when we consider how
common it is for policy-makers to simply adopt a
“package” from another source, such as codes of ethics, or
standards for certification, or performance-based
assessment standards. A consequence of policies which are
built on unstated assumptions about the nature of mediation
is that the policies themselves make certain types of
practice normative, and others marginal. For example, there
are policies on mediation training which require mediators
to learn about “stages” of the process, which favor a linear,
directive form of practice over more organic,
communication-based approaches. There are policies
requiring mediators to possess and employ substantive and
legal expertise, which presume an evaluative or even quasi-
judicial role for the mediator and devalue process
facilitation. Questions of the wisdom of such policies aside,
the more fundamental question is whether the natural
consequences of such policies are deliberate. We will only
know if the assumptions upon which policies are based are
made explicit.

In conclusion, it is time for the differences in
mediation practice to be taken into account by policy-
makers. An important part of every policy conversation
should be a discussion of what “mediation” is, what
theories of practice are being (or should be) privileged,
what assumptions underlie those theories, and how those
assumptions will shape practice. This will probably require
policy-makers who are not fully informed about the various
theories of practice to consult with professionals in the
field who have such familiarity. It also speaks for the
importance of hiring consultants who can articulate their
own theory and are conversant with other theories in the
field. Beware the consultant who suggests that he or she
can build programs for “generic” or “normal” mediation in
a field abounding with adjectives. Such claims may obscure
difference, but they don’t do away with it. Ultimately,
thoughtful, fully-informed policy-making depends upon
acknowledging and dealing with the differences in the
field.


What are your experiences with policy?

In its effort to clarify the links between policy and
practice, the Practice Enrichment Initiative is asking
practicing mediators to share their experiences. Has a
policy adopted in your locality, area of practice or
membership organization caused you to change or
modify your practice? In what way? Would you have
made these changes if the policy had not been
adopted? What effect have the changes had on you
and your clients? Have you questioned the
assumptions underlying the policy? If you have an
experience you’d like to share, contact PEI Policy
Workgroup Chairs Paul Charbonneau and Dorothy
Della Noce, at pgcharbo@midcoast.com, or
dellanoce@ezonline.com, or by fax to Dorothy Della
Noce at (717) 728-0248. Thanks!

References

Bush, R.A.B. & Folger, J.P. (1994). The promise of
mediation: Responding to conflict
through empowerment and recognition. San
Francisco: Jossey-Bass.

DellaNoce, D.J. (1998). President’s message: Conflict in
the field is a challenge to be met.

Mediation News, 17 (3), pp. 1-3. Lexington, MA:
Academy of Family Mediators.

Pearce, W.B. & Littlejohn, S.W. (1997). Moral conflict:
When social worlds collide.
Thousand Oaks, CA: Sage.

Rubin, J.Z., Pruitt, D.G., & Kim, S.H. (1994). Social
conflict: Escalation, stalemate, and
settlement (2d Ed.). New York: McGraw-Hill.

Toben, S. (1998). Remarks on accepting the AFM 1998
Peace Award on behalf of the
Hewlett Foundation. Reprinted as “Hewlett foundation
officer speaks about future
of organizations,” Mediation News, 17 (4), pp. 12-13.
Lexington, MA: Academy
of Family Mediators.

This paper is part of a Working Paper Series prepared on behalf of the Practice Enrichment Initiative
(PEI), led by R.A. Baruch Bush and Joseph P. Folger, and funded by grants from the William and Flora
Hewlett Foundation and the Surdna Foundation. I would like to acknowledge the comments and
contributions of all members of the PEI, and in particular those of R.A.Baruch Bush, Joseph P. Folger,
and Paul Charbonneau.

Dorothy J. Della Noce and The Practice Enrichment Initiative, 1999. Reprinted with permission.

                        author

Dorothy J. Della Noce

Dorothy J. Della Noce, J.D., Ph.D., is a researcher, scholar and practitioner of conflict resolution who has participated in numerous cutting-edge initiatives to clarify the relationship between theory and practice. She recently completed a study on mediator profile information provided in court rosters. She has conducted a number of studies,… MORE >

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