The Making of a Mediator: Developing Artistry in Practice

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The preface to this book is published with the consent of Jossey-Bass Publishers.

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Preface

Artistry is not a destination, a place where mediators can settle comfortably, secure in the knowledge that they have attained the highest level of professional competence. Rather, artistry is a journey, a process of exploring and testing the range and application of professional knowledge and skills. At times the journey is uncomfortable, such as when mediators experience the obstacles and challenges to excellence, when they bump up against the limits of their knowledge or skill, or when they fail. Other times the journey is sublime, such as when they experience the exhilaration of matching their skills and knowledge to the needs of disputants, when their work seems effortless, flowing, and intuitive. Above all, artistry is a mind-set-a commitment to curiosity and exploration, to excellence and learning.

When we started on our paths as mediators about twenty years ago, the field was in its early years and the questions about the nature and form of mediation practice with which we struggled then were basic. We were asking, How do we define mediation? What are the elements of the mediation process? What are the steps, stages, or phases of a mediation? How do people learn to be mediators? Although the field continues to grapple with these questions, new and more intricate issues have emerged.

Practitioners, researchers, and scholars debate the implications of facilitative and evaluative forms of practice, and vigorous dialogue has ensued over problem-solving and transformative approaches to mediation. The certification, or credentialing, of mediators has become a key issue for practitioners in many locales. Practice in a broad range of new contexts and arenas has evolved along with novel forms of intervention. Each area of practice has developed wonderful voices describing essential knowledge and skills and prescribing appropriate methods. Researchers, scholars, and practitioners have contributed to a large and valuable body of literature.

What, then, in this proliferation of ideas, models, and theories, unifies mediators? What can help them hold onto the essential aspects of mediation when each practitioner and each context represents differences in form, methods, strategies, and goals? To advance the field of mediation practice, mediators need to examine their assumptions and question their beliefs and practices in ways that help them make clear, thoughtful, and perhaps difficult choices about what is essential, what should be discarded, and what requires further investigation.

Unless mediators understand the underlying theoretical principles that influence and shape their practices, they are merely talented mechanics trying out one tool after another without understanding why a particular tool might be useful and what results are likely to flow. They are skilled mimics who apply techniques and interventions without fully considering the reasons behind the approaches, without understanding the likely consequences, without the ability to evaluate the success or failure of those interventions, and without the tools and resources to learn from each experience. When this occurs, mediators may be capable and frequently effective, but they will never achieve artistry, the highest level of skill to which they can aspire. Some assert, as one participant in a workshop did, that there is nothing wrong with mediocrity, that “good enough” is acceptable. Mediators need to hold out for something beyond mediocrity. They need to aspire to attain a level of competence, resourcefulness, and effectiveness that we have called artistry.

Our intent in this book is to broaden and deepen the thinking in the field by asking questions about the nature of competency in mediation practice. This book presents the principles that support the development of artistry and describes methods and practices that lead to excellence in professional practice. The book’s three major areas of focus-artistry, reflection, and interactive process-are synergistic. They need one another in order to develop. By thinking about them in the ways we present, you will change the way you think about your work, with the inevitable consequence that you will change your way of working. This will be true no matter what type of dispute you work on or at what level.

We want to change mediation practice by changing not what you think (the form or approach you use) but how you think about your practice. We begin by asserting that our approach to the development of excellence in mediation-artistry-is not limited to any one form of practice. We offer universally applicable methods and principles. We next ask you to make explicit that which is often implicit. By making your theories, beliefs, information, ideas, and knowledge more accessible, you will be better able to understand the choices you make as mediators. By developing the habits and methods of reflective practice, you will learn to make use of the experiences you have in your practice to improve the quality, relevance, and impact of your interventions. Through attention to and use of critical moments in mediation, you will learn to be intentional and focused in your practice. The ultimate outcome we seek is that by understanding your unique set of theories and their application to your practice, you will ultimately make more internally consistent and therefore more effective choices during the mediation process.

This book presents not an esoteric discussion of purely theoretical principles but a practical and necessary set of methods and approaches that will move you forward in your development as a mediator. The results of adopting the methods and principles in this book will be direct and positive consequences for your work with clients. In this age when mediators are increasingly held accountable for their services as dispute resolvers (whether in government agencies, courts, or community settings, or as privately paid mediators), the concepts we describe have a very pragmatic application. By being mindful in your approach and by solidly connecting your practice to your theories, you will start to practice more consistently and with greater focus and efficacy. You will find increased satisfaction in your practice, your mediations will reflect your competence and flexibility, and the disputants will have a constructive and highly effective experience.

Once you have identified and seen the effect of the beliefs, principles, and values that shape your practice, you will be able to make choices about retaining, replacing, or discarding these theories. By going through the processes outlined in this book, you will be able to retain the best of what your learning and experience have taught you, as well as to modify or replace those elements that seem inconsistent or unworkable. Creation is brought about by the interplay of conscious intent and receptive openness. Awareness of the principles that inform your practice, together with a beginner’s mind-open and receptive-will enhance your creative potential.

It has been said that the unexamined life is not worth living. We are inviting you to look through a new lens, to examine your assumptions and habits in order to make your actions more purposeful and effective. Exploring this terrain is a necessary first step in a journey that leads toward professional competence, and ultimately to artistry. This book is a guidebook as well as an invitation to walk that path.

We believe in the potential of each person who reads this book to experience artistry. Artistry is egalitarian, not elitist; it is available to everyone. There are many paths toward artistry. Whether and how artistry appears in your practice will be determined by whether you have the necessary core skills and knowledge and are able to use the methods and principles of reflective practice and interactive process. For each reader of this book, the path will be unique. At the same time, there are principles, methods, practices, habits, and skills that are useful to all of us on our journey.

As teachers, coaches, and trainers, we are deeply committed to helping mediators develop the habits and practices we describe in this book. We have great hope for our field; at the same time we are deeply concerned with the failure of mediators to continue to seek their potential. We believe in the potential of mediators to develop their knowledge and skills in ways that are personally fulfilling, professionally honorable, and worthy of great esteem.

Although this book embodies theories, practices, methods, principles, exercises, and ideas that we believe are vital to the future of our field, what has driven us to complete the book is our belief in our and your potential to be excellent, to deliver high-quality, competent, and resourceful services. At its core, the book is about the aspiration to achieve that potential.

How the Book Is Organized

This book addresses both a theoretical framework and a pragmatic approach to practice in order to provide both conceptual understanding and a practical methodology. We are practitioners who are deeply concerned with the applied aspects of theoretical material. We want to understand how theory can and does shape practice. We are also educators and trainers and we have a passionate commitment to exploring and understanding how our methods of practice reflect our beliefs and values. The connection between theory and practice, as tested and analyzed through research, is central to our inquiry into professional excellence, or artistry. This book describes the key conceptual notions that are the guideposts on the path toward excellence in practice, as well as the methods and skills that are the tools needed to make the journey.

As mediators and educators, we use questions to elicit ideas and awareness, to shape conversations, to encourage exploration, and to inspire discovery. We therefore begin by identifying many of the questions we asked ourselves as we developed our ideas for this book. We wondered, How do mediators learn to be effective at dealing with disputes? We wanted to understand not so much the criteria by which excellence might be measured, but rather the learning process that elevates professional practice toward competence and effectiveness. Although we have an interest in the content of curricula, we are mostly concerned with the process by which novice mediators learn to employ the knowledge and skills of a mediator, advancing through the stages of professional development to become competent and resourceful practitioners. We want to understand the path that mediators follow on their journey from novice to artist.

To begin answering this question, we created a model of professional development (see Chapter One) that describes movement along a spiral path, a continuum that begins with the novice and passes through the stages of apprentice and practitioner to artist. The model both explains the path of professional development and describes the learning tasks at each stage. The elements of this model will be familiar to those who have studied adult education. We do not claim that the basic principles are original; in fact, we know of other compatible models. However, we believe that our model contains important elements that we originated, and we believe that our application of the model is unique.

Having begun to explore the process of professional development, we next asked ourselves, What is this mysterious, transcendent, and some would say ineffable quality we have designated as artistry? What is the object of our aspiration?

In considering the nature of artistry, we wanted to identify hallmarks, behaviors that could be noted and identified, that would signal that artistry is present. Recognizing that artistry appears in different forms and guises, we sought concrete, observable phenomena that might mark the presence of artistry. Our exploration led us to identify the hallmarks presented in Chapter Two.

As pragmatists, we next asked ourselves, What practical steps will help a mediator achieve artistry? We wanted to understand what tools are necessary to make the journey. To achieve artistry requires knowledge, an understanding of the principles that support professional practice, an awareness of the traditions, beliefs, and mind-sets that characterize mediation. In addition, the mediator aspiring toward artistry must be skilled, must have the ability to manipulate a variety of practice techniques, and must be able to apply those techniques strategically. These elements-knowledge and skill-are fundamental.

Artistry represents an expression of excellence, a commitment to curiosity, learning, and exploration. Yet we have a growing concern that practitioners in the developing profession of mediation are not being encouraged to be curious, to be learners and explorers. We have a sense that mediators, and the field in general, are not achieving their potential. There is a lack of effort to assist mediators systematically and methodically to move from that early stage of professional development (what we have called the novice) to the role of accomplished, effective, and resourceful mediator (the artist). Training programs teach the novice a range of practice tools and their application. Novices do not, however, learn the conceptual grounding necessary for effective and competent practice. Without the ability to understand the reasoning behind intervention strategies and techniques, mediators invariably construct rigid and inflexible categories for characterizing disputes that frame issues narrowly, based on a set of prescribed problem sets. These mediators then apply skills without an understanding of how to assess whether their analysis of the problem is accurate, whether the application of the technique is suited to the situation, and whether the intervention is having its desired effect. The result may be adequate practice but it lacks the potential for artistry. Artistry requires more than an ability to apply techniques skillfully; it also requires a grounding in theory, the discipline of reflective practice, and the purposeful application of interactive process.

We have organized the book into three parts. In Part One we respond to a number of questions about artistry-its importance in professional practice, its nature and sources, and the hallmarks that evidence its presence in practice. We also consider whether artistry can be learned, and the methods by which instructors and coaches can help practitioners develop the discipline and mind-set that lead to artistry. In Chapter One, we provide a context for understanding the path that leads from novice to artist by presenting our dynamic four-stage model of professional development and by discussing the methods, principles, and practices that assist mediators along that path. We also discuss the relationship of artistry to intuition. In Chapter Two we present the hallmarks of artistry, the characteristics that identify artistic practice. Chapter Three concludes the section with examples that illustrate the methods by which practitioners can be taught to develop the habits, skills, and mind-set that will help them advance along the path of professional development toward artistry.

The chapters in Part Two present our beliefs about reflective practice and the methods that lead to competent practice. To engage in reflective practice, mediators must first identify their working assumptions-the beliefs, values, and habits that shape their practices. In Chapter Four we explain the nature and function of formulation-the effort to construct meaning out of experiences, events, and interactions. We consider not only the process by which formulations arise but also why they are vital to effective mediation practice. We present methods for making explicit what is essentially tacit. Becoming aware of these assumptions allows mediators to be intentional in their professional work.

Chapter Five introduces the concept of a constellation of theories, the idea that everyone has a number of principles that function as lenses through which they view and make sense of their experiences. Mediators have and use theories, though generally randomly and not purposefully. By becoming aware of the constellation of theories on which their intervention decisions are made, mediators can become deliberate and resourceful, using their theories intentionally to guide their application of strategies and techniques.

The principles, practices, and mind-set of the reflective practitioner are described in Chapter Six. Developing the habits of reflection, both while engaged in practice and subsequently, and being able to form working hypotheses and test them through a process of experimentation are hallmarks of the reflective practitioner. We also explain the methods for and goals of reflective practice. Finally, we explore how reflective practice opens the mediator’s range of options, and present methods that develop artistry in mediation.

The chapters in Part Three illustrate that implementing a reflective approach requires awareness of the patterns of interaction that arise and extend throughout the mediation. In Chapter Seven we present the concept of critical moments, or choice points, during mediation. To develop artistry in practice, mediators must be able to sense when during the events and circumstances of the mediation the parties are at a juncture that invites the mediator to intervene in order to implement some strategy or technique. Critical moments present challenges and opportunities that require the mediator to make decisions that will affect the subsequent path of the mediation process.

Chapter Eight looks at interactive process. Each action of a participant or the mediator influences the behavior, attitude, and responses of the other participants. We want mediators to become aware and to make effective use of the aspects of interactive process to reflect on their strategies and interventions and to make choices while understanding the potential impact of those choices on others.

Finally, in Chapter Nine, we consider flow, the sense of moving effortlessly with clients. Flow is a state of being, an experience that cannot be created, but mediators can enhance the likelihood of achieving this state by attending to those behaviors that support or block flow. Artistry is reflected in the experience of flow.

Finally, in the concluding chapter we draw together the theories and practices described throughout the book and present ideas for their application in mediation training programs, in courses of graduate study, in coaching and supervision, and in the development of methods and criteria for assessing mediator competency.

We invite you to explore this book. We have organized it in a way that mirrors our approach to teaching the principles and practices we present. We are not prescriptive teachers, so we will not insist that you read each chapter in order. In our teaching, and in this book, we acknowledge that each learner is unique and will proceed along her own path. We have provided a number of exercises and other materials that will assist your exploration of artistry. We recognize that the journey from novice to artist is distinctly individual. We invite you to follow the path toward artistry-to take your own journey.

Acknowledgments

We want to acknowledge the many contributors and supporters who have helped us on our way from concept to manuscript. Although we are duly proud of the ideas and methods we have developed, we acknowledge that we stand on the shoulders of many scholars, researchers, and practitioners whose work has stimulated, supported, guided, and advanced our work-particularly the seminal work of Donald Schšn, whose books have inspired, informed, and at times perplexed us.

The methods we have developed, particularly the elicitive coaching model, grew out of extensive experience in supervising interns, training mediators, and coaching practitioners. Examples from these sessions fill the book. Without the opportunity to learn with and from our students, these ideas would be little more than our own untested musings.

Many friends and colleagues also contributed to the book through their review of portions of the manuscript, in extensive conversations over coffee at professional meetings, and as co-trainers. Listing all of them would require a separate chapter. We hope they will find suitable acknowledgment and appreciation in these few words. We specifically want to acknowledge five colleagues who read and commented on the final version of the manuscript: Lynn Jacob, James Melamed, Sylvia McMechan, Richard McGuigan, and Robert Benjamin.

Books are the aspirations of authors brought to life by their editor, who patiently nurtures the authors’ ideas into a publishable form. In that regard, we are deeply indebted to Leslie Berriman for her critical reading and nurturing presence.

Finally, and most important, as two busy practitioner-teachers we could not have even considered the idea of writing this book without the patience, support, advice, and assistance of our families. To them we offer our appreciation and our love.

February 2000 Michael D. Lang

Pittsburgh, Pennsylvania

Alison Taylor

Hillsboro, Oregon