On Being Too Fussy About Values In Mediation: Consider The Hedgehog And The Fox

The origins of the mediation profession are anchored in the practical necessity
of managing disputes. Conflict has typically been viewed as disruptive to personal
relationships, an impediment to business and the good order of society that needs to be
moderated. Historically, third parties served simply to facilitate the efficient settlement
of disputes between warring parties. Most early mediators had no formal training and
essentially functioned outside the established legal structures of a community. They
were sought out because they seemed to make sense and were able to engender a
measure of trust from all concerned. Early-on, mediators were largely unfettered by
any purpose other than reaching some form of accommodation between parties to a
dispute that allowed them to survive and maintain the semblance of good order. Back
then, mediators had no higher aspirations, or ulterior motivations, nor were there
ethical standards of practice or a prescribed best approach. Any strategy or technique
that appeared to work was worthy of consideration–be it sacred or profane.

But mediators, as all human beings, have a need to imbue their work with special
meaning–it is part of our evolutionary biology and psychology. Thus, as the formal
profession of conflict management and mediation has developed in recent years,
increased attention is being given to the design of value structures to support their work
and to better minister to those in conflict. Many mediators approach practice as “value
creators” and bring a certain value orientation and purpose to their work, as
contrasted with the more traditional “value claimers”, who merely view mediation as a
means of allowing parties to obtain what they think is rightfully theirs and settle the
dispute. For the creators, why and how they manage conflict is as important, or more
important than the result. Undergirding practice with value structures can be beneficial
and give greater focus and depth to our everyday work, but there are risks.

I have deciphered at least four value schemas that have been imported and
superimposed on mediation practice:

1. Humanistic/transformative. This value schema ascribes to the mediative process
a higher purpose beyond just settling disputes. The conflict affords opportunities for
moral development; “…mediation’s greatest value lies in its potential not only to find
solutions to people’s problems but to change people themselves for the better in the
very midst of conflict.” (THE PROMISE OF MEDIATION, Robert A. Baruch Bush and
Joseph P. Folger, 1994) The primary purpose of the process is to allow the parties to
obtain a level of “empowerment and recognition”. Cooperative approaches are
emphasized and competitive negotiation strategies discouraged.

2. Peace/Nonviolence and Social Justice– The mediation process is an opportunity
to encourage dialogue and the nonviolent resolution of differences between people in
pursuit of a more just and peaceful world. In the shadow of numerous school shooting
incidents, teaching mediation to people in general and children in particular, to
manage conflict more constructively is viewed as critical to reshaping our society’s
value structure.

3. Rational problem solving. The mediation process is construed as a prototype
for a more highly evolved method of rational problem solving. Belief in the power of
reason is virtually a religious tenet in our Western culture and mediation is viewed as an
economical and rational way to minimize the capricious vagaries of the traditional legal
system and to settle disputes analytically in accordance with objectively ascertainable
principles of fairness. The emphasis is on accessing our capacity to reason and
suppressing our emotional and irrational tendencies.

4. Personal freedom/autonomy and self-determination. The purposes of the
mediation process is to preserve individuals’ personal choice and freedom by allowing
them the maximum opportunity to privately order their own agreements and exercise
control over their own lives. In a sense, mediation is a subversive activity that
counterbalances the intrusions on personal choice that have resulted from an
increasingly regulated society. And, the preservation of personal freedom is integral to
a democratic society.

All of the value schemas may overlap at some time or another, they are by no means
exclusive and there are subsets within and between each of them. At the same time,
we should recognize they can also operate at cross purposes. Thus, an inordinate
commitment to humanistic and/or nonviolent values in mediation may preclude matters
in which there is evidence of family violence from mediation, thereby denigrating the
values of self-determination and rational problem solving.

Equally as troubling is a mediators’ overzealous commitment or preoccupation with any
particular value schema. The core purpose of the mediation process may be
compromised and risks being morphed beyond recognition into another kind of activity
altogether. For instance, for a mediator to pursue mediation as a strictly rational
problem solving process may cause the process to look more like a benevolent form of
arbitration where the parties circumstances are “objectively” analyzed and evaluated
and a “best possible” solution suggested. Likewise, an over emphasis on humanistic
values may unwittingly recast mediation into a quasi therapeutic process and, being
too concerned with a peaceful outcome to a dispute may foster disregard of an
important underlying conflicts rendering mediation a mere cosmetic exercise.

Protection from overactive value schemas.

For mediators to protect themselves and their clients from an overactive value schema
that they may have strapped on to the mediation process, consider this internal check
and balance system: First, reflectively clarify and monitor your own implicit or explicit
value schema. Second, seek to understand how those value sensibilities may
enhance or constrain your effectiveness as a mediator. Third, remain mindful of the
impact of your values on the actions and decisions of the parties.

This is easier said than done; for some, their approach to mediation and value schema
are one in the same and any internal questioning is taken as the compromising of their
principles. The mediators’ value schema is important and can be a helpful guide, but it
is not sufficient in itself and cannot substitute for the rigorous reflection necessary for
professional competency. Ironically, being pre-occupied or too fussy about values
may choke the life out of the mediation process.

Foxes and Hedgehogs.

For practitioners, there is often only a thin line between a useful value schema in
practice and a less helpful, overbearing vision of a more perfect world. The noted
philosopher, Isaiah Berlin, in observing our human history, commented that there has
been a deep divide in thinking between those he terms foxes, who know many things,
and those termed hedgehogs, who know one big thing. That same divide is present
among practitioners and theorists in the field of mediation. “Those on one side, who
relate everything to a single central vision, one system less or more coherent or
articulate, in terms of which they understand, think and feel—a single, universal,
organizing principle in terms of which alone all that they are and say has significance—and, on the other side, those who pursue many ends, often unrelated and even
contradictory, connected, if at all, only in some defacto way, for some psychological or
physiological cause, related by no moral or aesthetic principle…” (THE HEDGEHOG
AND THE FOX, Isaiah Berlin, 1953.)

What hangs in the balance is the value, utility and integrity of the mediation process. In
the end, the mediation of disputes may be too subtle and elusive a process to
withstand the imposition of too much attention to any particular value schema.
Leonard Marlow, a long time practitioner, has aptly noted: “Mediation is an imperfect
process, that employs an imperfect third person, to help imperfect people, come to an
imperfect agreement in an imperfect world.” Mediation cannot and should not be
practiced in a vacuum without a value orientation; at the same time, the process offers
one of the few refuges in our society where people in conflict have the opportunity to
consider what they need to do to survive and move on with their lives without being
unduly burdened by others vision of a more perfect world.

                       

Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >