This paper is based on a keynote speech delivered to the Nebraska Mediation Association on August 6, 2020.
Nearly 18 months ago, as the pandemic brought improbable yet real terror, mediation practice faced a transitional moment. Like other professional practices—ours was gripped by uncertainty, confusion, and even panic. In the space of a few days, and in order to continue our practices, we were driven to recast our work, reshape our approach, learn new technology, educate our clients, and reconsider our techniques and strategies. Those who did not have a Zoom account quickly subscribed. Conventional face-to face sessions were transformed in an instant to online dispute resolution. We learned, adapted, and adjusted. And, we succeeded. It has been an exceptional time for mediation practice.
As we gradually emerge from the dark cloud of the pandemic, conversations among mediators have shifted and we are now wondering whether we want to return to in person mediation, whether we will try a hybrid approach or whether we will continue to virtual mediation.
We are at a crossroad in the arc of mediation practice. In the coming weeks the future of mediation practice will be endlessly discussed and debated in formal and informal discussions, webinars, and blog posts. These are important conversations for each of us and for our profession. As we chew over these questions, I want to ask us to consider the future of our practices in the light of the past. I want to take us Back to the Future. We won’t be traveling via a flux capacitor in a De Lorean with Doc Brown and Marty. Instead, I want us to reflect on the future of mediation practice by looking back—at least as far back as my 43 years in mediation practice.
I realize the cliché inherent in this effort. The aging and cantankerous elder talking about the good old days, way back when we few audacious mediators were like Pioneers, bravely roaming the prairies of conflict, with only our yellow pads and pens, as we attempted to bring harmony to desperate souls in struggling with their conflicts.
As we slowly emerge from the strange and awful time of the pandemic, we are embarking on another of those unique moments in time when as a profession we can find insights and guidance from the past as we look forward. In order to see the Frontier of Mediation, we look backward to seek in our past lesson that will guide us. That may seem counter-intuitive or unnecessary, or simply the reluctance of an old mediator to let go of his own past. Over the next few minutes, I’ll explain why our past offers vital lessons for our future—lessons we had once learned but have allowed their influence to wane.
Knowing the Past
Let me begin with a two comparisons to help me make this point.
The manual typewriter has echoes in our modern computers (tablets and smart phones). Technology has transformed, improved, modernized the typewriter, but the essential elements remain—the “qwerty” keyboard that when touched by our fingers produces letters that are formed into words and sentences. Early cameras, large boxy pieces of equipment share the same principle as the cameras in our smart phones, using lenses to capture and convert light into stored images.
Using these as metaphors, let’s consider how we can ensure that current mediation practice echoes the past – the principles and approaches from the late 70’s when I began my practice. Improved over the years through innovation, testing, and experience, the essence of these principles remain at the core of what makes us mediators.
Let’s start with the basics. What is mediation? What are its goals? Because what we believe then determines how we act. As I began my career as a mediator, this is the description of mediation I learned and is what I believed about my role. Much, perhaps most of this will seem familiar to you — and not likely to be controversial.
1. Mediation is an interactional and interpersonal process.
2. An impartial person, without decision-making authority, helps people in dispute communicate effectively in order to:
3. One of the mediator’s goals is to help the parties express themselves accurately, candidly, and gather sufficient information on which to base their decisions.
4. Mediation works best when parties are able to listen attentively and thoughtfully to one another.
5. As a result of their exchange of ideas and information, parties reach a decision on the path forward.
What do you think of this definition? What do you hear that’s different from how you would define mediation? Is there anything missing? Is there anything you would question or challenge?
This is how I have viewed mediation since I began practicing many years ago. While my ideas about practice have evolved over that time, and I have learned new skills and strategies, these basic principles remained constant.
And, as you consider my definition of mediation, what do you imagine it might look like in action? How would I behave, what sorts of interventions would I be likely to rely on?
I think most of us would agree mediation is an interactional process—that is that it involves communication between parties who, exercising self-determination, make choices regarding their dispute. It is a dynamic process that actively engages parties in a variety of ways. Yet, I sense that our work has become less interactional and more transactional, where the communications are largely if not exclusively focused on the outcome. With that emphasis comes certain strategies and interventions. For example, mediators in family as well as civil matters are now defaulting to use of private sessions that limit direct interaction between the parties. I don’t believe this form of practice is unique to Florida where I have practiced most recently. To be clear, I am not talking about the occasional and strategic use of caucus, but rather mediation conducted solely in private sessions, with the mediator shuttling between caucus rooms sharing the respective parties’ ideas, questions, and proposals.
I am not suggesting the use of caucus is a mistake. There are countless reasons why a private session enhances the mediation, or possibly protects the parties. I won’t enumerate them, except to identify a few obvious uses—situations where there has been a history of abuse, workplace bullying or harassment, a cooling off period when things get heated, when the mediator or parties need a break.
Before proceeding, and because some readers may suspect I believe that outcome should take a back seat to process, if indeed it matters at all, let me put your minds to rest. I am a pragmatist at heart. I believe people in conflict seek mediation in order to achieve a mutually acceptable agreement that satisfactorily addresses their dispute. They want a result, and as a mediator I want to help them achieve that explicit goal.
Does this match your mediation practice: is the mediator’s their role primarily or exclusively helping parties negotiate their differences—getting a deal? In your practice, do you attempt to identify other goals?
My concern with the state of mediation practice is that in emphasizing outcome, practitioners are likely minimizing, or at worst dismissing the possibility that parties in conflict may have additional goals, aspirations that are intrinsic to all of us as human beings. Unless parties specifically have the opportunity to acknowledge and express these goals during mediation, these aspirations will likely go unstated and therefore unaddressed.
Defining mediation as a process that emphasizes the deal is far too narrow. It disregards other possible interests of the parties, and in the worst case may lead to agreements that are incomplete, flimsy and unstainable. And, if we want to help parties successfully achieve a durable and effective solution to their dispute, we need to consider more than the terms of a settlement.
When I began mediating in the late 70’s, my colleagues and I took the view that mediation was an interpersonal and interactional process; meaning that our emphasis was on assisting parties to communicate authentically and effectively because we believed that through constructive communication, parties to a dispute would identify their extrinsic and intrinsic goals, gain insight into one another’s needs and interests as well as their positions. We believed that as they learned more from and with one another, they were better able to identify and clarify the questions and issues to be addressed and in doing so, they were then able to search for mutually acceptable outcomes that would effectively resolve their differences. I have always understood that parties seek our help because they want an agreement, settlement or resolution. I never ignored my commitment to helping them find a solution to their conflict that had eluded them. But, I viewed this search for resolution in a larger context of their possible intrinsic needs and interests.
Do you share this understanding of mediation? If so, how do you shape your mediation practice to meet these principles?
This is the essence of what I want to express, that we can be more effective, successful and resourceful as mediators and more helpful to the parties if we embrace the basic framework of mediation practice as it emerged 40 or more years ago.
In order to illustrate this point, and to consider the practical not just the theoretical nature of these ideas about mediation practice, I want to share two practice examples from early in my mediation career that illustrate the limitations of viewing mediation primarily as a transactional process rather than one that is relational and interactive.
The first story involves three partners in a real estate development project—a developer, builder, and architect. They sought my help when construction was halted by a local code official who identified a safety issue involving the design of balconies for the apartments. Two potential solutions were quickly identified in conversations among the architect, builder and code official. One option was less expensive but would require more time to implement because the materials were not readily available; the other option was more costly, but the fix could be made quickly. The partners couldn’t agree on which option was best, because they disagreed on who would bear the associated costs, including those associated with further delays in the project.
At first this seemed like a straight-forward transactional matter—certainly to the three partners, and to me. The dispute seemed to be about: what are the added costs and who pays? They began talking about these questions and quickly reached the same impasse and frustration that had brought them to me.
As the conversation developed, it was clear that while finances were a central issue, more than money was at stake for all of them. They had a successful working relationship that none wanted to disrupt; this was the second joint project they had undertaken. They were friends and were anxious that this one glitch would not undermine their friendship. Each of the partners an accomplished and respected professional. And, each was concerned to be viewed, not only by one another, but also by their professional colleagues, as competent, resourceful and professional. No one wanted to be “blamed” or be seen as at fault.
We took not more than 15 minutes to talk about their working relationship—their partnership. I asked how they met and decided to work together, what other projects they had completed and whether there were plans for additional ventures.
As a result, the twin goals of a continuing relationship and maintaining their professional identities took precedence – temporarily – over finances, and by addressing those matters first, a relatively simple financial settlement was achieved. It was certainly possible to hammer out an agreement on costs without addressing the other—intrinsic goals—but in my view it would have left the partners with continuing uncertainty and possibly bitterness.
In the second mediation, a fired employee sought reinstatement. The company representative was resolute, he would not be re-employed. To support this position, she listed all the faults and failures of the employee that led to his dismissal. She offered a modest settlement (two months’ wages) to end the process. The employee rejected the offer and argued that he had worked for the company for more than 25 years, had been given excellent evaluations in the past, was promoted three times to supervisory and management positions. That history, he said should weigh in his favor; he shouldn’t be tossed out for violating policies that are routinely ignored.
The mediation continued with each of them repeating their arguments. One thing the employee said that got my attention was that he wasn’t sure what he could or would do as a middle-aged worker, could he find a job, in what industry, and who would hire someone at his age and experience. “What am I going to do, flip burgers at some fast-food joint”
His identity was connected to his job, to the people he had worked with, to what he saw as a life-long career, to being employed. I asked the company representative, “What can you say about his history with the company?” She gave a brief response. I asked again, “What sort of person was he as an employee?” She responded, “Jim was always viewed as a loyal employee. He was respected by his peers and his supervisors. He worked hard and was promoted several times because he was diligent, reliable and capable. The company always hates losing someone like Jim.” I turned to Jim whose gaze had softened. He seemed as though he wanted to say something but was hesitating. After a minute, he said, “That job meant so much to me, not just an income. I made a mistake. I don’t think it should have cost me my job, but I get it that the company sees things differently.”
Within minutes, the two were talking possible settlement terms. They agreed on a small cash payment as well as changing his separation date by 2 months to give Jim enough years to retire.
Mediators tend to think a deal, a settlement or an agreement equates with party satisfaction, and having a successful resolution always feels good to the parties (and to us as mediators). But as these two stories illustrate, satisfaction actually involves more than the outcome.
I learned about the Triangle of Satisfaction from Christopher Moore (2014) and Gary Furlong (2020). They deeply influenced my thinking, though I have made adjustments based on my experience. In their view, satisfaction involves substance (outcome, solution), process (well-managed and respectful of the parties), and psychological (parties being able to participate fully and with dignity). I want to describe these three elements in more detail in order explain their significance to parties in mediation.
Substantive satisfaction includes, and is more than, whether the terms of an agreement meet the parties needs and interests. For the parties it also includes matters such as:
Looking ahead, does it seem possible and likely to make the terms of the agreement work? Are these arrangements realistic, feasible, and practical? Was thought given to what will be needed to implement the terms of the agreement?
Did you consider the trouble spots–the way things could go wrong; and did you identify how you would address those problem areas?
Does the language make sense to you? Do you understand everything in the proposed agreement? Were all your questions asked, addressed and answered?
Were the standards or guidelines used to make decisions clearly identified, spelled out and agreed to? Did you understand these standards? Did those guidelines fit you and your situation?
We tend to think of process satisfaction as involving such aspect as: that the mediator was unbiased and even-handed, the rules of the process made clear and were they applied uniformly, and everyone was able to speak and be heard. Process satisfaction for parties also includes matters such as:
Were all parties encouraged to listen attentively? Did that happen? Did the mediator listen carefully to me and to the others?
Was there an opportunity to participate ways that made sense to you? Did you feel you had a voice?
Did the process encourage and support your ability to engage honestly; to express ideas, proposals and emotions? Was there a chance to react and respond to other people’s ideas?
Did the scheduling and pace suit you?
Were you able to gather information, thoroughly evaluate alternatives and come to your own decisions?
Lastly, what do I mean by psychological satisfaction. After all, mediation is not counseling or psychotherapy. These are some of the elements of psychological satisfaction that have meaning for the parties:
Were you treated as a responsible, attentive and thoughtful (by the mediator and the other parties)—not compromised, unqualified or disempowered?
Overall, did you feel composed, confident and hopeful?
Were you in charge of how I engaged and reacted?
Were your concerns viewed as genuine and your points of view treated as legitimate?
As a result of participating in this process, did you experience a relative decrease in your levels of stress and unease?
Did each person, and especially the professionals, listen to your concerns, ideas and perspectives?
Did participation in the process bolster or affirm your sense of self-confidence?
Do you feel you were respected?
What do you think about the triangle of satisfaction? Can you think of mediation situations in which these principles would apply? If you were to implement this approach, what strategies and techniques would you use?
A colleague, Tzofnat Peleg-Baker has a related view of mediation practice, namely that mediators – and in fact the parties themselves—primarily focus on the extrinsic elements of the dispute. Facts, events, data, finances. While key intrinsic concerns are less often addressed, frequently overlooked and even dismissed. She says that “Mediators help parties navigate their disputes within dynamic, fast-paced circumstances in which they are constantly dealing with novel and unpredicted situations. They serve various clients positioned in a difficult place clouded by intense, negative emotions. Research confirms that parties and negotiators are highly interested in attending a wide array of social-psychological issues beyond tangible ones, including implicit goals like their feelings about themselves, relational matters, and process.”
Dr. Peleg-Baker has created an instrument – Structured Reflective Instrument — to assist mediators in identifying and then attending to the full range of goals, extrinsic (outcome) and intrinsic (process, identity, relationship). She joined with me in facilitating a reflective practice group where we are introducing and testing her instrument.
We need to acknowledge that among parties to a conflict there are differences in the extent of and priorities for their extrinsic and intrinsic goals. In some instances, a singular focus on outcome will dominate and parties may be less concerned (if at all) with other elements of satisfaction. That is of course their choice and wholly consistent with the principle of self-determination. We should honor their goals and not attempt to shift their attention to other matters. That doesn’t mean we ignore process and psychological issues; we still look for and respond to any hint (or overt statement) from either or all the parties, that issues of process or psychological satisfaction may be present. Others may care little for the details of a settlement and instead seek a process that supports and encourages a thoughtful, authentic exchange of ideas, experiences, and needs.
Seeing the Future
What does all this suggest for mediation practice as we consider which path we will follow?
The two stories I presented, supported by abundant research suggest the following:
Focusing on all elements—substance, process and psychological—represents excellence in practice. It’s ethically responsible. It’s also the best way to help parties determine a mutually acceptable response to their dispute, to find the best way forward, to create an agreement that is implementable and durable. What I suggest may seem counter-intuitive that the path to a successful outcome is improved when we pay attention to and invite parties to identify their non-substantive goals. But, to do otherwise, leaves 2/3 of the conflict unrecognized and unaddressed.
Here’s the path forward.
1. Mediation, no matter the content or circumstances, is an interpersonal and interactional process. It encompasses but is not solely a transactional process.
2. Authentic interactions between parties involving supported communication helps guide them to clarify the dispute, identify possible solutions, and make the best possible choices they are able to make.
3. Parties have both intrinsic and extrinsic goals. We must be curious about the full range of possible goals by asking questions that invite parties to identify the full variety of their goals
4. Concentrating on the outcome limits the focus to one element in overall party satisfaction. Parties seek, to varying degrees, satisfaction with the process and satisfaction with their experience in that process.
5. Practice a participant-centered approach—it’s about their goals, needs and interests, not about our being resourceful and clever.
6. Be patient; problem-solving will happen in its own way and its own time. Do not rush to the exit.
7. Pay attention to detail – practice the power of noticing
8. Allow uncertainty and ambiguity to emerge; they are a rich wellspring of ideas and information, not a threat to solutions.
Finally, and as many might expect from me, holding to and practicing these principles and methods requires a commitment to maintaining the highest quality of practice—a commitment that can best be achieved through a steady process of learning from and through your practice experiences. Reflective practice is an ideal means to that form of learning. Join a group, start a group. Further information about reflective practice and how to organize a reflective practice group, is available on my website: https://www.thereflectivepractitioner.com
I have chatted with many children whose parents are in the throes of a divorce where one parent had little to do with them before the separation. The other parent...By Gary Direnfeld