Real Mediation


So this Jewish guy is stranded on a desert island for 30 years. When he is finally rescued he leads a tour around his compound. He has built an impressive house and a garden, a barn and so on. And two synagogues. The rescuers ask why he needed two synagogues, and the old guy explains, “This one I go to, and in that one I wouldn’t be caught dead!”


We seem to have a deep-seated need to do this, to separate the world into the right-minded, virtuous people like us and the benighted or deluded evil-doers like them. The same is true whether your allegiance is to a particular brand of politics or theology, a computer operating system or a college basketball team. It is also true in the field of dispute resolution. A sufficiently masochistic person could go from one conference to another continuously and do nothing but discuss whether this or that practice is real mediation.


The No Caucus people believe that true mediation takes place with everyone in the room. You might settle a case in caucus, they say, but you will never resolve a dispute. The Caucus Only people believe that having all the parties in the same room just raises the emotional temperature and confuses the issues. Far better to keep the parties separated so the lawyers can do their work. Retired judges believe in the judicial settlement conference model, which consists primarily of arm-twisting and head-banging. Transformative mediators believe in a process that looks more like psychoanalysis. Lawyers tend to value “client control.” Facilitative mediators believe in a process that respects party autonomy and self-determination in a way that makes those lawyers queasy.


The left side of the spectrum views the right as hide-bound, self-protective, and greedy. The right side views the left as touchy-feely, unrealistic and silly. I won’t rehearse the arguments here, they are likely to be familiar to anyone reading this. What I want to point out is that no one on any side of the controversy has any data to support their position.


What we have instead are prejudice and anecdote. People who were trained as facilitative mediators are familiar with facilitative mediation. They tried it, and they like it. If you ask them to explain how it works or why it is preferable to the other kinds, they will provide an explanation. People who grew up on a more evaluative, directive approach are familiar with that, and they like that. If you ask them for an explanation, they will provide one too. Mediators who used to be litigators will claim to have special insight. But no one will be able to point to a careful study that controlled for the variables and produced statistically significant, replicable results. They will make something up, or they will repeat what they learned in training. And they will argue for it vigorously.


Pete Lunn calls this the endian instinct, after the war between the Little Endians and the Big Endians in Jonathan Swift. Lunn has written a very good new book called Basic Instincts: Human Nature and the New Economics. It’s published by Marshall Cavendish in the UK and it’s hard to find in the US, but worth the effort.


I have my own views on this subject. That is, like everyone else I came to dispute resolution by one route rather than another. I have my own mediation history and my own psychological tendency to give myself and my like-minded colleagues the benefit of the doubt. In other words, I am subject to the endian instinct too. But that’s not the point I want to emphasize here.


What I want to emphasize is that arguments based on prejudice and anecdote – arguments based on the endian instinct – get us nowhere. The only way knowledge advances is through careful scientific investigation. Anecdote, intuition and introspection can suggest questions for science to examine, but only the scientific method can produce real knowledge. Until the terms in the field are unambiguously defined, hypotheses are clearly stated, and rigorous experiments are conducted under controlled conditions to test the claims of the various schools of mediation, all we have is arm waving and name calling.


For a brilliant, moving and funny talk on the subject of testing our intuitions, see Dan Ariely’s TED Talk at: http://tinyurl.com/cfyu2e


                        author

Barry Goldman

Barry Goldman is a Michigan-based arbitrator and mediator of workplace disputes. He is also an adjunct professor at Wayne State University Law School where he teaches courses in negotiation and ADR and the author of The Science of Settlement: Ideas for Negotiators, published by ALI-ABA in 2008. He can be reached… MORE >

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