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.
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:
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).
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.
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.
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.
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
Video on Transformative Mediation produced by Conflict Masters UK. What is transformative mediation and why it is often so appropriate for workplace conflicts. More information here: http://www.conflictmasters.co.uk/
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