Why I argue for Mediation to move beyond the dehumanised legal mediation model – Part I

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I have no problem with the legal profession experimenting with mediation. I would encourage it.

 It’s just that the broad mediation field is being held back by its historical definition as an alternative to the western legal adversarial culture. A legal culture that dehumanises dispute resolution and which operates through an adversarial lens.

I feel it is time for the mediation field to fully embrace the human connection at the heart of the mediation process. Embracing a humanistic mediation focus is the next logical step in its evolution as a profession. 

I draw the title ‘Humanistic Mediation’ from the work of the French mediator Jacqueline Morineau who established mediation in France in the 1980s.

My argument is that the traditional Western legal processes are a product of a 19^th-century Industrial Revolution culture and are not fit for purpose in the 21^st century complex and fluid interconnected commercial and social world we inhabit. This 19^th-century mindset has transferred into the legal professions approach to the mediation product.

The Cynefin Framework of making sense of the world in order to act in it

The Ordered/Complicated Domain

Using the prism of Dave Snowden/Cynefin framework the traditional western legal model falls within the ordered/complicated quadrant. This is the domain of legal structures, standard operating procedures and practices which require analysis and expertise as there are a range of right answers. It is a 19^th-century industrial/Newtonian approach.

It is controlled by experts. The approach is to sense- analyse- respond.  Its downside is that it can lead to analysis paralysis and where innovative suggestions by non-expects can be overlooked or dismissed. It is limited to the vision of the expert.

The Complex Domain

Our 21^st-century commercial and social world falls within the Cynefin complex domain.  It is the world of no predictable right answers because every action changes the situation in unpredictable ways. It requires a multi-hypothesis approach. The answer emerges out of that interaction. This leads to emergent practices and novel outcomes which are key elements of navigating our 21^st-century environment.  It is more Quantum Theory than Newtonian.

They are called complex adaptive systems and apply to conflict, politics, the economy, social networks, battlefields, markets, ecosystems, corporate cultures and Covid 19. Anything to do with humans is inherently complex. The approach here is to probe-sense-respond. It is based on emergent practice.

Expertise is limited by the fact that best practice is by definition past practice, hindsight does not lead to foresight when there is a change of circumstances and joining the dots in advance is an illusion. No one is an expert in predicting and there is no universal solution.

Disputes energise change and transformation especially if they are seen as a breakdown in the human connection. If this human element can be harnessed, it can lead to something new and unexpected, not merely a problem to be solved with one particular answer. It draws on the power of disruption and the commercial principle that if you do not disrupt internally then your competitors will disrupt you externally.

The broad humanistic mediation approach of bringing parties together to jointly unblock a dispute mirrors this complexity dynamic and is far more compatible with the world we now live in. 

Goodhart’s law

The traditional Western legal processes also offend two key laws that govern how we humans interact socially and commercially – Goodhart’s Law from economics and Constructal law from the natural sciences.

Goodhart’s Law is the economic principle that targets destroy outcomes because it encourages people to game and manipulate to reach the targets.  It leads to parties seeking their own goals to the detriment of the objective task.

Adopting a positional approach in litigation and negotiation is a target and an example of Goodhart’s Law. It is made worse by the agreement to dehumanise the exchange by lawyers (experts) standing in the shoes of their clients.

It leads to what Roscoe Pound identified as the great legal problem of a game playing that leads to a culture of consensual deception and benign manipulation, the key elements of traditional adversarial legal culture.

Whereas humanistic mediation re-establishes that direct human connection between people in dispute. It is centred in the here and now of each moment rather than in some imagined future state. It’s about where the parties are now not where you would like them to be.

The role of the humanistic mediator is to probe, sense and respond to this unpredictable human interaction. It moves the focus from mediating the problem/solution to mediating the moment. An answer will emerge.

Constructal Law -The law of flow

Constructal Law comes from the natural sciences and relates to the continuous flow of life. Put simply when the flow stops you die. It is allied to the second law of thermodynamics where entropy, which relates to disorder, randomness and uncertainty always increases. It’s that circle of life made up of continual endings and new beginnings.

It is best explained by the quote from the novel The Leopard – “If we want things to stay as they are, things will have to change”.

Humanistic mediation is about helping parties traverse through necessary endings and on into new beginnings. Mediators work in the liminal transition stage which is a stage of new opportunities that can open the way to novelty and imagination, construction and destruction.

The traditional Western legal approach both in litigation and mediation puts the disputing parties in an isolated state of suspended animation where the legal ‘experts’ battle with each other through adversarial and positional negotiations. This breaches the fundamental principle of Constructal Law that, for life to survive, the flow has to be continuous. As Roscoe Pound pointed out it leads to excessive delays and huge financial expense.

I therefore propose that the broad mediation field move away from the 19^th-century legal approach to the law in general and mediation in particular and move towards a humanistic focused mediation model with all of humanity’s diversity that that implies.

I would note that there are two processes that are compatible with the complexity inherent in 21^st-century society. Project Alliancing in the oil and gas and construction industry and Truth and Reconciliation processes/Restorative Engagement in matters of claims of abuse and rape. The former excludes the civil justice system, and the latter excludes the criminal justice system.

In part 2 of this series I have written in more detail how mediation, if detached from the legal model, will impact on the definition of mediation, mediation training and accreditation. This article can be accessed on Mediate.com