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Philosophies of Mediation

by Daniel Clay Marsh and Stephen R. Marsh

Preface

The split between Deontology and Teleology in terms of ethics and communication is not the usual forum for Mediators to dwell on, but maybe it should be.  The Deontologist believes that there are basic things that are right or wrong by their nature and that actions themselves have moral importance.  (E.g. that lying is a wrong act).  The Teologist views actions only by their outcome or result.  Lying, for example, is good to a Teologist if it produces the desired outcome and bad if it does not.

Introduction

In the essay "What is Mediation" there is a discussion of mediation from a functional standpoint.  Mediation is the resolution of school yard conflicts or mediation is what high level diplomats do and so forth.  To simply look on mediation from an external, functional standpoint, is in large terms, to miss what mediation does for the participants  and how they view the process.  If we are simply determinist creatures of the behavioral model, the external view may be sufficient. However, if we are free willed and pursuing our own personal agendas, looking at mediation from a philosophical view point -- defining mediation by what it is understood to be, by the participants, rather than by how it functions may be both enlightening and necessary to successful conflict resolution.

 This essay discusses several definitions of what mediation  including social utilitarianism, essential needs, resolution natural law and the Deontological/teleological split.


Utilitarianism

There are several different schools of utilitarianism, and for that matter, for each of the following brief clarifications there are several schools. For the purpose of  illustration and as an entreaty to further study, we will simply combine salient points to present food for thought -- not as the attempted introduction of a new school..  Mediation is utilitarian because it allows parties to seek their own economic self-interest without constraints.

From this view, the goal of mediation is economic self-interest (usually defined in obtaining the best dollar value for a case) in a free market without constraints.  The limits to this philosophy are fairly obvious beginning with the fact that often mediation is over issues other than money.

On the other hand, if the definition shifts just a little, to social utility, where value is defined as whatever the parties want (for one to make money, another pride, a third to resolve this quickly so that a good nap is in order), mediation is a process that improves society by facilitating a free market exchange between parties.

This philosophy implies that the mediator wants what is the greatest good for the free market and society, is basically neutral to the parties, and places a strong focus on allowing the parties to seek their own good (with some help in understanding or realizing what the outcome of their own unencumbered desires would be, and some social balance on other's good).

Essential Needs

Utilitarian theory blends into essential needs theory as a natural development of social utility.  In essential needs theory mediation helps parties seek and accommodate their essential needs, whether the need be for freedom, shelter, peace, dignity or fair compensation.  Essential needs theory focuses on the emotional and non-financial elements that drive many conflicts and is especially well suited for community mediation efforts.  This is where the emphasis is first on meeting each parties essential needs and then recognizing the benefits that can be made above the essentials.  Maslo and his ascending needs provide a base line for comparing where each party is and where each wishes to end.

Resolution

Resolution theory is a special branch of Essential Needs.  In resolution theory, the focus of all mediation is on dispute resolution with the premise that violence and conflict need to be avoided or resolved.  While rather ill suited to the mediation of a personal injury claim, it works extremely well in mediating partnership disputes.  This kind of resolution is ideal for internal problems where the goal is smooth operation, not justice.  Resolution based mediation is essentially what military law and cooperative internal policy runs on.  Not what is just, but what can be done to resolve this problem and keep the operation moving forward toward its basic goal, be it deterrence, global domination or meeting a product deadline.

Natural Law

Natural Law mediation treats mediation as an expression of natural law (more so than courts or formal processes).  In one branch it is extremely naturalistic, but in all applications it treats mediation as part of the essential nature of man at his best.  Natural Law mediation is an attempt to incorporate the structure of the philosophy of natural law into the definition of mediation. This is an effort to get both parties to harmonize with how it "should be" and requires a basic harmony between parties on that basis in order to resolve conflict toward that goal.

Intervention

Interventionists see mediation as an equity device (a process that seeks to create social justice or find fairness) and that philosophy casts mediation as a tool for intervention into conflicts.  An interventionist seeks conflicts and situations to which mediation may be applied in pursuit of greater fairness.  This process inserts the mediator into a situation the mediator views as requiring change and the mediator is an active value holder in the process.

Justice

A law oriented mediator sees mediation as an expression of the rule of law and a tool for justice under the rule of law (albeit at a cost savings).  Generally this approach sees mediation as giving parties greater participation and control and focuses on reducing the cost of justice.  It values mediation for its utility in reducing transaction costs and increasing the level of satisfaction and knowledge.

Restorative Justice

This philosophy of mediation sees the process (often used in post conviction proceedings with criminals) as a tool for providing restorative justice and for healing the harm caused by criminal breaches of the civil contract.  Once again the mediator is an active value holder (representing the injured party/society) in a relationship with the offender in the offender's efforts to rejoin society.

Other Views

There are other philosophies of mediation, but to my understanding, the above philosophies shape the various types of mediation that we see in society today.  From the victim-offender movements to school yard and diversity mediation, to attorney-mediators in court-annexed proceedings, to families and partnerships in the process, each facet of mediation seems to reflect a philosophy that created mediators that address the needs and situations of the various types of conflicts approached by mediation.

Conclusion

 It does not take much of an imagination to see that resolving a conflict where parties have divergent views as to what the role of a mediator is, and whether Deontology or Teleology define the way a mediator should act, is a problematic exercise.  For mediation to be successful and long lasting, either the conflict must be one that does not reoccur* or the parties must have similar understandings of the basis of their mediation.  

In the preliminary stages of negotiation to mediate (when the parties are making the decision to mediate and how to mediate the conflict) the underlying presumptions and expectations can be examined and common philosophical ground established, a great deal of frustration can be avoided and a better mediator/client fit obtained.

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Copyright 2000 Stephen R. Marsh

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* Some conflicts, such as settlements of personal injury claims resulting from automobile collisions, involve parties who will meet once and never face each other again.  Systems that mediate many such conflicts can hide or mask the issues that are caused by the various differences in philosophy and orientation.  Such differences can lead to a deep sense of anger and betrayal by a party to mediation if the difference impinges on the process or the results, and it is debates over such differences that form the core of the deeper conflicts over standards of ethics for mediators.