This article rebuts “Bush and Folger on Reclaiming Mediation’s Future” written by Dan Simon, Dusty Rhoades, and Vicky Rhoades for Mediate.com in 2015.1 2 Their article attempts to rebut my 2015 article, “Ironically, Bush and Folger are Evaluative,” 3 which was itself a rebuttal to the 2014 Bush and Folger article, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination.” 4 There’s a whole lot of rebutting going on!
In his last monologue, Jon Stewart 5 warned that “Bull$&^! is everywhere.” 6 He called on his viewers to fight back against the bull$^!& and left us with these parting words, “I say to you tonight, friends, the best defense against bull$^!& is vigilance. So if you smell something, say something.” 7Well, in reading Simon and the Rhoades’ article, my ADR Associate, Joseph Callahan, and I smelled something and we are going to say something in the style of Jon Stewart and Stephen Colbert 8 who was on Stewart’s last show. To be clear, the offensive odor was not the transformative approach itself, but the tiring rhetoric of superiority. Particularly troubling is the claim that Rhoades and Simon’s brand of transformative mediation best insures Self-Determination even though it robs the parties of the benefits of other approaches. – Imperati
Stewart: Oh, that’s right … all Bush and Folger want is a “fundamental redesign of mediator training” and the “return” of the field to their “original vision.” 9 Let’s not forget their design of the US Postal Service’s (USPS) REDRESS program in which all employment disputes must be resolved using their transformative approach if mediation is selected, 10 and the pesky fact that Simon trains mediators for that program. 11
Colbert: Now Jon, let’s not let facts get in the way of the truthiness of what Simon is saying. It does not matter if it is actually true, it only matters if it feels true and my gut tells me that it feels true to Simon.
Stewart: Well, that’s awful big! I guess one could answer the phone with, “I am a transformative mediator … though shalt work with me … it is self-determined!” I wonder whether Simon fully informs the caller as to the techniques and approaches that are taken off the table when they use him. Does he even say, “No Coke – Just Pepsi?”
Colbert: First off, I need to point out that fully informing people is downright un-American. Second, little known fact, the 11th commandment was actually, “thou shalt only mediate with the transformative approach.” To be fair, the reason this fact is little known is because it is not actually true.
1.“They decide where to sit…” and “When the participants sit down at the table, they know what they are getting and what they are not getting.” – Rhoades
Stewart: Well, as long as you are letting them decide where to sit, you are truly allowing them to exercise Self-Determination even if they cannot decide what mediator approach or techniques will be used. But, do the parties really know what they are getting? Webster defines mediation as an “intervention between conflicting parties to promote reconciliation, settlement, or compromise.” 12 The Maryland code defines mediation as “a process in which parties work with one or more impartial mediators who assist the parties in reaching a voluntary agreement for the resolution of a dispute or issues that are part of a dispute.” 13 These definitions are quite different from what Rhoades promotes because his focus “is not on resolving the dispute.” 14
In their article, Bush and Folger claim that “‘evaluative mediation’ is indeed ‘an oxymoron,’” but it seems that Rhoades’ definition of transformative mediation, if not an oxymoron, stretches the definition of mediation almost beyond recognition. The common and legal definitions clearly include an attempt to resolve a dispute. Are all of Rhoades’ clients fully aware he is not focused on that goal?
Colbert: Rhoades’ clients do in fact know what they are getting because they, like my viewers, come from a long line of it-getters. They get it Jon, you don’t. The wordanistas like you want to force us to use words in the way people understand them to mean, but we’re Americans, and we use words the way we feel like they mean. Commonly accepted definitions be damned, as you are, Jon.
2. “[W]e do believe that many mediators actively undermine party self-determination.” – Simon
Stewart: Well, I understand you believe that because you have firsthand experience. You promote your brand of transformative mediation so zealously that all outside techniques are excluded. You don’t even give the parties the option of selecting or requesting facilitative or evaluative techniques because you have decided for them that they shall not have them, and making that decision is a clear example of undermining party Self-Determination.
Colbert: I am all for fervently following a set a beliefs, but you have to be careful; it is all too easy to be led astray by logic and practical common sense.
3. “Sam seems to be advocating for mediator self-determination, while Baruch and Joe were talking about party self-determination. I can understand Sam’s frustration at being told that he shouldn’t play the expert when mediating, or that he shouldn’t use other directive techniques. He like our clients, doesn’t want his autonomy undermined.” – Simon
Stewart: Simon’s attempt at VECS-ing Sam or reframing his argument as advocating for mediator Self-Determination is pure Bull S^!&. It is not about undermining Sam’s autonomy; it is about undermining the autonomy of the parties he serves. Simon, is the one pre-determining that parties cannot use certain techniques and approaches. What is most irritating is the lack of intellectual integrity … go ahead; cite specifically where Sam advocates for mediator Self-Determination.
I know that your leaders, Bush and Folger, argue that mediators should not play the role of problem solvers or experts. However, their argument is based on their own philosophy – not what many parties actually want. Sam argues that there is nothing wrong with playing the role of problem solver or expert, if that is what the parties want. While Bush and Folger focus on what they believe mediators should do, Sam sought to shift the focus to the parties. He actually said, “These debates over the ‘best’ approaches are being looked at from the perspective of the mediators, but we should be looking at them from the perspective of the parties. We should be asking the parties what approach(s) they want and respecting their unique choices. That is real Self-Determination.” 15
Colbert: I don’t trust books, and even though articles are shorter, I don’t trust them either. What I do trust is my gut, and my gut tells me that respecting people’s unique choices is hippy talk. If Simon wants to cling to his rigid philosophy without regard to what the parties actually want, then I support him. No American should be forced to respect other people’s unique choices.
4.“In Sam’s article, he said participants TELL him they want him to be directive. But as he says in his article, clients at some level want us to be ‘be facilitative with them, be evaluative of the other side’s drivel, and transform their opponent into a reasonable person’. But we don’t and can’t honor those desires, right? – Simon
Stewart: Ah, the quoted line was a joke, which, of course, is based in reality, which, of course, is what makes it funny. Merely using evaluative techniques is not telling the parties what to do. It is giving an opinion on what may happen if they don’t settle, which they are free to accept or reject. Most folks want to know the most likely alternative to a negotiated agreement, (MLATNA) to reduce their use of Mylanta! 16
Colbert: I’ve got nothing against people who don’t recognize that something is a joke, which is how I was invited to do the Correspondent’s dinner in 2006. Bush thought I supported him!
5.“Similarly, it’s impossible for me to honor the request of a client who has both asked me to mediate and asked me to tell them what to do.” – Simon
Stewart: It is interesting that Simon insists that as the mediator, he cannot tell the parties what to do, and yet, he has no problem deciding the parties do not have the option of requesting evaluative or directive techniques. By telling the parties: “you can’t ask me to tell you what to do,” he is telling the parties what to do. How empowering is it to deny a party’s Self-Determined need for information they think is important?
Colbert: What you have to understand is that the only evaluative technique that can be used is Simon’s evaluation that evaluative techniques should not be used. He can tell the parties what to do if he wants to, but not if the parties want him to.
6.“I don’t think it’s possible for me to control the process without also having a huge impact on the outcome.” – Simon
Stewart: If a butterfly flaps its wings in the Amazon … oh, never mind! If the mediator doesn’t have a significant impact on the process or outcome, then why engage one? Surely Simon must mean “outcome” narrowly, referring only to rights and obligations of the parties. Used more broadly, “outcome” encompasses how quickly, efficiently and fairly the parties were able to resolve the dispute, the positive effect on the relationship between the parties, and the satisfaction that the parties feel with regard to the process and/or result, etc. One would think that even the strictest adherent to Rhoades and Simon’s philosophy would aspire to impact the “outcome” in the broader sense. Let’s not forget that the mediator can have a huge impact on the outcome by not guiding the process.
Colbert: Not guiding the process would be making a process decision, Jon. If the parties want to coerce each other, then who is the mediator to intervene? The Eurythmics 17 said it best: “Everybody’s looking for something. Some of them want to use you. Some of them want to be used by you.” Some of them want the mediator just to sit there while one of them uses the other.
7.“All mediators say they support self-determination. As transformative mediators, we’re dedicated to it.” – Rhoades
Stewart: Rhoades doesn’t have a monopoly on Self-Determination even though his rhetoric implies otherwise. If he doesn’t adequately inform the parties about the different approaches and techniques available (Informed Consent), then there is no true Self-Determination. If he doesn’t explain that the parties are forfeiting the opportunity to ask subsequently for a different approach, then Self-Determination has been undermined. On the other hand, a mediator using a hybrid approach has actually ensured Self-Determination throughout the entire process because sheis willing to adapt her approach to what the parties want in different stages of the process.
Colbert: I don’t like the anti-monopoly talk that I am hearing. If Rhoades wants a monopoly on Self-Determination then we don’t need any communists trying to get in the way. Of course, the claim that transformative mediators are more dedicated to Self-Determination than other mediators is not backed up by any “evidence,” but taking the time to claim to be more dedicated, shows that they are more dedicated.
8.“We don’t expect other mediators to conform to our orientation, but it’s important that our practice remain consistent with this theory.” – Rhoades
Stewart: Psst, don’t tell that to Bush and Folger. They made it clear they were urging other mediators to conform to their orientation: “We place before you an agenda that we’d like to see you adopt, a platform for escaping the intoxicating prison that has entrapped us, for returning to an original vision of the mediation field and making that our future.” 18 As noted above, the USPS REDRESS program mediators are expected to conform. In 1999, half of the observed mediators were “screened out” for not using the transformative model. 19
Colbert: It’s not that you have to use the transformative model when you mediate; it’s just that you can’t use any other model. Don’t you see that, Jon? Using the transformative model already guarantees effectiveness and party satisfaction. Why … because they say so.
9.“…pre-trial settlement conferencing and evaluation are legitimate and valuable ADR practices, but that they are simply not mediation. Great effort was put into defining four recognized categories of mediation: facilitative, inclusive, analytical and transformative.” – Rhoades (Emphasis added)
Stewart: First off, Rhoades’ characterization of the MACRO definition of mediation barely passes Colbert’s truthiness standard. Committee Note 1 explains why: “‘Evaluative Mediation’ is not defined here because it is a misnomer. Evaluation is a technique, not a mediation framework.” 20 Committee Note 1 goes on to describe the type of evaluation that would be considered outside the definition of mediation: “If a process consists solely of an evaluation and attempts to get participants to settle in line with the evaluation, then that process is not mediation, it is more likely a settlement conference.” 21 (Emphasis added.) The mere use of evaluative techniques in mediation is not the same as Neutral Case Evaluation. I agree that evaluative techniques, taken to the extreme, can essentially become a settlement conference, and transformative techniques taken to the extreme, can essentially become a therapy session.
Rhoades implies that the MACRO definition of mediation completely excludes evaluation, but that is … what is the word I am looking for? Ah, yes, Bull$^!&.Evaluation is specifically included as one of the techniques used by analytical mediators. “The analytical mediator will draw on a variety of styles as the circumstances require, including facilitative and evaluative techniques where appropriate…. As circumstances dictate, these mediators may analyze the strengths and weaknesses of the law, facts and other circumstances that could affect an outcome of a dispute if it is not resolved…. [A]nd may give their evaluation of the case, if asked, and they feel it would be helpful.” 22 (Emphasis added.) Wow, the parties are asked; now that’s Self-Determination.
Colbert: You’re getting too caught up in pointing out what these documents actually say. Maybe the MACRO definitions do actually include evaluative techniques, but I feel like all the other techniques wanted to exclude them, but their moms wouldn’t let them. Evaluative techniques are like the kids at the party who were invited by the host parents even though their own kid didn’t want them there. Jon, did that happen to you? Would you feel better if I patronizingly said to you what Simon said to Sam, “I can understand [your] frustration…”
10.“First, we don’t set ground rules for the clients. … this practice conveys the overriding message that the mediator is the one who knows how to do this, and that the parties should not trust or follow their own instincts.” – Simon (Emphasis added)
Stewart: If the mediator is not the one who knows how to do this, then why bother hiring a mediator? The parties likely sought out a mediator particularly because the mediator is the one who “knows how to do this.”
Colbert: The last thing any mediator wants to do is convey the message that they know how to mediate. And, don’t get me started on ground rules. Vitriolic vomiting in the general direction of your opponent is how Real Americans argue. Didn’t you listen to the presidential debate … or were you too busy preparing your last show? If the parties can’t be transformed into reasonable people, then the mediator should have the decency to allow them to transform each other into bloody pulps.
11.“Some mediators may say that asking the right questions helps the parties think about their situation, their interests, and creative ways to solve their problem. … The transformative approach suggests that those very questions – the questions of what to think about and when – need to be in the hands of the parties. That’s self-determination.” – Simon (Emphasis added)
Stewart: Rhoades and Simon indicate process decisions “need to be in the hands of the parties.” They, along with Bush and Folger, spend a lot of time discussing all of the things that mediators should not do, but they leave unclear what mediators can do. That begs the question: what part of their mediation approach, if any, should the mediator be involved with?
In another article, Simon says, “I don’t just sit there. It takes complete focus and a lot of skill to pay close attention to the parties and intervene in ways that support their efforts at making their own decisions and at trying to understand each other.” 23 (Emphasis added.) Now I get it … I have to pay close attention while mediating. Wait, there’s more – I actually get to “intervene!” Well, how can the mediator “intervene” if the mediator can’t make any process decisions? Oops, both statements cannot be true, can they? Please tell me that mediators can intervene even if it’s not true so I can hold on to something here.
Colbert: Mediators should not even shake hands with the parties, because then you have to choose who to shake hands with first, and that choice is a power-balancing, process decision, and in making it, you are undermining Self-Determination and Impartial Regard, making it a double sin. The key to mediating is not to do anything that could have a possible impact on the outcome. If one party sneezes don’t say “bless you” because that is tantamount to giving your blessing to their side of the story. To answer your question: No part of the mediation is in the hands of the mediator.
12.“Also, we try to reflect the participant’s comments as close to their own language and intensity as possible.” – Simon
Stewart: This may be my all-time favorite! What if Megyn Kelly was mediating with Donald Trump and screamed, “I hate you, you f***ing idiot!” The mediator should turn to the Donald and reflect those comments with the same “language and intensity”? Other than modeling assholian behavior, why not simply play back the debate 24 for crying in the night.
Colbert: It is one thing for the other party to tell you something, but when you hear it repeated by the mediator with the same language and intensity, it really helps move the conversation along. That is why it is so important for mediators to be skilled impersonators.
13.“So, in a family mediation, if parents are angrily arguing about which parent the children should live with during the school week, another mediator might say, “So I’m hearing that you have in common the desire to spend significant time with the children.” … On a rational level, this change seems to make the problem more solvable, but it misses the heart of the conflict. At the heart of the conflict is each parent attempting to regain a sense of control. The mediator changing the focus can only contribute to the parties’ sense of loss of control.” – Simon
Stewart: This one makes the podium because finding common ground is apparently not OK! The mediator cannot reframe what the parties are saying, test the parties’ assumptions, change the topic, or even suggest a five-minute break as those techniques would be inappropriate process decisions. Here again, Simon gives an example of what mediators cannot do with no explanation of what the mediator can do.
Simon concludes that the heart of the conflict is both parents attempting to regain a sense of control, but that is merely his assumption. If the mediator tests that assumption, the mediator may very well find that the desire to spend significant time with the children is, in fact, the heart of the conflict. And not that this has ever happened, the mediator may find one of the parties is using parenting time as a way to reduce support obligations … say it isn’t so! Finally, the parties might not be primarily concerned with having control themselves; it may just be that they do not want the other party to be in control.
The parties, who as we all do, indulged the s*@# fairies, (you know – those pesky voices in your head that whisper Bull$^!&so frequently that you actually believe them), had unassisted “control” of the conflict prior to mediation, and if that had been working for them, they would not go to mediation, but they do.
Colbert: I think it is important to point out that testing assumptions is what the lamestream liberal media wants you to do, but you have to trust in your initial assumptions. Much like there is no crying in baseball, there are no questions in mediation. The experienced mediator knows that mediation is about sitting back and letting the parties work it out for themselves based upon untested assumptions. Why risk inviting any new information that could contradict what the s*@# fairies are saying?
14. “… we, as transformative mediators, tend to think of self-determination as party choice at every stage of the process, from start to finish.” – Rhoades
Stewart: This is rhetorical magic, especially the part where they know how each transformative mediator mediates. The fact that the parties are mediating gives at least some indication that they may want a third party to guide their conversation. If I didn’t want a circumcision, I wouldn’t have gone to a Mohel!
What if the parties want the mediator to move even a little bit towards the evaluative side of the approach spectrum? If you’re mediating with Rhoades or Simon, the parties have waived that choice because they refuse to add any evaluative aspects to their approach. That is not Self-Determination at every stage of the process.
Colbert: The key to Self-Determination lies in its name. It is called Self-Determination not Mediator-Determination. Simon and Rhoades are granting the parties complete Self-Determination and that is why it is so important to have no ground rules. The mediator is going to have his own approach and it’s up to the parties to know what they are getting into. That’s how we do things in America.
15.“Recent research commissioned by the Maryland Judiciary … found that ‘The more directing strategies are used, the less likely it is that participants will report the mediator listened to them and respected them. The more eliciting strategies are used, the more likely it is that participants will: Reach an agreement; Say the other person listened and understood; Become clearer about their desires; Say the underlying issues came out; and Become more able to work together.’” – Rhoades
Stewart: Well, the research cited by Rhoades was limited to child custody mediations. 25 Would the results have been different had they studied business or corporate mediations or even the property division aspect of divorce mediations? Additionally, the language Rhoades cites is taken out of context. The sentence immediately before it reads: “For most of the outcomes explored, Mediator Directive Strategies did not have a statistically significant effect one way or another, with one exception.” 26 Not surprisingly, Rhoades mentions only the exception. Oh, the intellectual integrity of it all!
Rhoades points to eliciting strategies as the better approach, but those strategies do not appear to be in line with Simon’s description of the transformative approach. According to the Maryland Judiciary report, mediator eliciting strategies are “characterized by mediator strategies that involve asking participants what solutions they would suggest, summarizing those solutions, and checking in with participants by asking how they think those ideas might work for them.” 27 The report showed that eliciting strategies led to greater success resolving the problem and higher levels of participant satisfaction. WOW, a study confirmed that people would rather be asked what they want to do and not told what to do!
The Rhoades – Simon “conversation” did not explore their disagreement on this point. Eliciting techniques do not fit within Simon’s paradigm of transformative mediation because he argues that: “The transformative approach suggests that those very questions – the questions of what to think about and when – need to be in the hands of the parties.” 28 Ironically, Bush and Folger would almost certainly not approve of eliciting strategies because those strategies are focused on solving the problem … and parties never go to mediation for that!
Colbert: Come on Jon, just because Rhoades points to eliciting strategies as being the better option, while at the same time arguing that such strategies should not be used, doesn’t mean…. Okay, their mistake was citing a study, a classic mistake, Jon. Research, evidence, and studies just trick your brain into second-guessing your gut.
Stewart: Well, we’re out of time. Thank you, Stephen, and good luck replacing David Letterman. I’ll enjoy watching you work while I do what I do best … absolutely nothing!
Transformative mediators, please know that we are not attacking your approach, but the idea some of its apologists suggest, that it must be used to the exclusion of other approaches and techniques that the participants have selected. We sought to shine a light on the hypocrisy of claiming that Self-Determination is paramount, while at the same time, denying parties the ability to mediate as they desire. Finally, it’s one thing to say an approach to mediation is the best; it’s quite another to say other approaches are not mediation.
Jon Stewart was right about there being some “good news” with regard to all the bull$&^!. “… Looking for it is kind of a pleasant way to pass the time.” 29 So take a break from your hectic schedule to ferret out any bull$^!& in this article or anywhere else; and once you’ve found it, call it out for what it is! – Imperati and Callahan
2 Dan Simon, Dusty Rhoades, & Vicky Rhoades, Bush and Folger on Reclaiming Mediation’s Future, Mediate.com, May 2015, at http://mediate.com/articles/SimonRhoadesResponse.cfm.
4 Robert A. Bush & Joseph P. Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination, Mediate.com, Nov. 2014 at www.mediate.com/articles/BushFolgerFuture.cfm.
6 The Daily Show with Jon Stewart, Episode 20142, airdate August 6, 2014. http://thedailyshow.cc.com/episodes/pjkw01/august-6–2015—jon-stewart-s-final-episode
9 Bush & Folger, supra note 4.
10 10 Joseph P. Folger et al., Transformative Mediation: A Sourcebook Resources for Conflict Intervention Practitioners and Programs, (2010); Prof. Robert Baruch Bush to speak about “Transformative Mediation,” YaleLawSchool.com March 4, 2002, http://www.law.yale.edu/news/3384.htm; All You Need to Know About REDRESS, USPS.com, https://about.usps.com/what-we-are-doing/redress/programs.htm.
11 Dan Simon, Mediate.com, at http://mediate.com/people/personprofile.cfm?auid=1143
13 Md. Code, Cts. & Jud. Proc. § 3-1801.
14 Simon et al., supra note 2.
15 Imperati supra note 3.
18 Bush & Folger, supra note 4.
19 Lisa B. Bingham & Tina Nabatchi, Transformative Mediation in the USPS REDRESS Program: Observations of ADR Specialists, 18 Hofstra Labor and Employment Law Journal 399, 404–05 (2001).
20 Maryland Program for Mediator Excellence Mediation Descriptions, 4, available at http://www.courts.state.md.us/macro/pdfs/mediationframeworkdescriptions.pdf
22 Id. at 1.
24 Paul Bond, Donald Trump, Megyn Kelly Square Off During (and After) Debate, The Hollywood Reporter, Aug. 7, 2015, http://www.hollywoodreporter.com/news/donald-trump-megyn-kelly-square-814035
25 What Works in Child Access Mediation: Effectiveness of Various Mediation Strategies on Custody Cases and Parents’ Ability to Work Together, State Justice Institute, ii, available at http://www.marylandadrresearch.org/publications (“This research measures the effectiveness and efficiency of various approaches to mediation in custody, visitation, and child access cases in Maryland.”).
26 Id. at iv.
27 Id. at v.
28 Bush & Folger, supra note 4.
29 The Daily Show, supra note 6.
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