Recreating Mediation Practice and Theory Afresh – Saying Goodbye to Roscoe Pound and the Legal Profession

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It’s time for mediation to claim its place as a stand-alone profession freed from being just an alternative to the law and adversarial litigation.

Let the legal profession find its own way of engaging in our modern disruptive world.

Let it continue alone healing its dehumanised adversarial culture that the Dean of Harvard Law School, Roscoe Pound, described in 1906 as dissatisfactory with respect to delays, expense and game playing.

The problem is that mediation theories have grown out of trying to prove mediation is of equivalent value to litigation. Neutrality, balanced power, self-determination, just outcomes are reactionary theories linked to the law. They don’t serve mediation well.

They are static one-dimensional concepts that do not relate to the multidimensional environment of the mediation session. They are devoid of context which is fundamental to the practice of mediation.

Mediation can still be a light on the hill, a beacon, for the law to find its way out its dehumanized command and control approach to dispute resolution. But it should not define itself by such reference.

It is time to draw a line in the sand and start mediation afresh with theories and practice that are unique unto itself.

Let’s start with a new definition of mediation.

“A process of a mediator creating a venue where parties get close to each other in order to move an issue forward”

This contains the three basic elements of mediation.

• The venue forces parties to actually do something. To turn up, to be present and to actually deal with an issue.
• It’s built on human interaction. This brings in the huge complexity of human relationships.
• It recognizes the fundamental law of flow that guides all human activity. When the flow stops you die. It is about necessary endings and new beginnings.

I would start by keeping the basic mediation training model with its focus on facilitative role-plays. It fits the apprentice model of learning and is a good starting point.

The Elements of a New Theory of Mediation

I have set out below examples of a new approach that parallels mediations fluid nature.

Firstly, two institutes that model higher ordered ‘thinking’ grounded in the present over lower ordered ‘understanding’ grounded in the past:

• The Santa Fe Institute which focuses on the science of complexity. Its external professors are drawn from leading academics who agree to work in multidisciplinary teams outside their field of expertise. Two founding members can contribute to mediation theory. Murray Gell Mann on the importance of allowing things to emerge of their own accord and Stuart Kauffman on the value of making small incremental steps that are doable (The Adjacent Possible).

• The Tavistock Institute based on exploring human relations (Melanie Klein rather than Anna Freud).  Particularly the work of Thomas Ogden – that once we have completed formal training in a profession, we are continually in the process of learning to overcome what we have learned in order to practice it. And Wilfred Bion who warns against the attachment to our memories, desires and, most importantly for mediators, our need to understand. Both Ogden and Bion are about experiencing the experience of the moment with an uncluttered mind.

• Anthropology, particularly the concept of liminality – the state of transition between one stage and the next. It is a time of opportunity and change. The mediation session is a liminal event.  And the work of Marcel Mauss – the power of gift giving is universal and requires reciprocity. A small concession can have a big impact in a mediation.

• The sciences of the physical world we live in – physics, chemistry, geology and biology. Particularly the second law of thermodynamics that states that entropy, which is the concept of disorder, randomness and uncertainty always increases. And Adrian Bejan’s Constructal Law – that when continuous flow stops things decay and die. Mediation is fundamentally about flow based on necessary endings and new beginnings.

• The Cynefin Framework for thinking and sense making. How to think differently in an ordered situation (litigation) where you Sense -Analyse -Respond from that of a complex situation (mediation) where you Probe-Sense -Respond.

• Also, field ethnography where multiple stories are captured in real time through phone apps which are then self-interpreted by the storyteller. Mediation is the art of managing self-interpreted stories. How to move to more stories like these and less stories like those.

• Music, paintings, literature, poetry, haiku and the arts and all its forms. Humans developed art before language. The arts open you up to a higher order of thinking for complex issues as opposed to lower order tasks of describing, measuring and categorising. A mediator has to master all the subtleties of a Chekhov play.

• The 5,000-year-old Bhagavad Gita that refers to the qualities of being free from attachments of fear and desires. To transcend the field of duality of good/bad, right/wrong, Democrat/Republican because they are an illusion as each is made of the same element just in different arrangements. It’s about non-dualistic vision a key element for the practising mediator. Non-dualistic theories are also key. Kahneman is a serial offender in this regard. Systems One/Systems Two – Noise/no Noise- Bias/no Biases (presumably autism) are examples of dualistic theory.

• The mediator as a mirror – Jacqueline Morineau – Humanistic Mediation.

• Economists such as John Kay’s Obliquity Theory – outcomes are achieved by iteration, adaption, experimentation and discovery and that order often emerges spontaneously. Obliquity is the science of muddling through. And the Economist Charles Goodhart on the distorting effect of targets and measurement. Goodhart’s Law- When a measure becomes a target, it ceases to be a good measure as it distorts behaviour so as to meet the target. As an example, positional bargaining targets in litigation and mediation encourages consensual deceit and benign fabrications to try to alter the outcome. Roscoe Pounds game playing.

The problem with much of current mediation theory is that describing something is not the whole story and certainly not the most meaningful part. It seems to be just about naming the problem. That’s where it starts and ends.
It satisfies our need for simple answers to complex issues. It can be a psychological defense mechanism to deal with the uncertainty and unpredictability of life.

It is through letting go of the need to control and understand that allows us the freedom to go with the flow and experience each mediation afresh as if it is our first. It allows us to join with the parties in experiencing the experience of the moment.

Mediation theory should therefore be about questions not answers. ‘What is going on here?’ (John Kay and Mervyn King) and ‘Why is it so?’ (Prof Julius Sumner Miller).

It’s time for a refresh