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What is Mediation (Part Two)?

Or, "What has happened to mediation in the court-annexed setting and why it has gone that way."

Or, "Just because you have a hammer, doesn't mean that every problem you meet is a nail -- but a good hammer works great with nails."

Introduction: Models of Mediation

If I ask scholars what mediation is, I am likely to get a variety of responses.
.

Mediation is a quasi-religious endeavor wherein participants are transformed in their human relationships by the dual processes of recognition and empowerment (Transformative Mediation). In postal service mediation and some related employment context mediation, this is exactly what mediation is. The mediators are monitored, and if they are not practicing transformative mediation, they are removed from the program. The mediation process teaches the employees how to better relate to each other and to solve their own conflicts without recourse to a mediator. The process works (conflicts go down about 30% per year in a program like this, year after year, and no one is yet certain just how far how great the reduction will be in the amount of conflicts -- thought this would make a great study since the postal service keeps some good records). L. Boule in Mediation (1996) refers to this as part of the sub-set of therapeutic mediation and there is an entire area of family counseling practice that is the therapeutic use of mediation. That is beyond the scope of this discussion.
Mediation is an analytical event where the parties explore their essential needs and how to best meet their needs rather than how to achieve realization of positions (Needs Based Mediation). Strongly endorsed by numerous associations and groups, this model is the core of the training for many community mediation centers and is the official party line of many quasi-scholars and scholarly trained mediators. L. Boule in Mediation (1996) refers to this as facilitative mediation. Facilitation[i] is such a wonderful word (just as conciliation[ii] is), but it gets used in so many ways that it is hard to use it as a label without feeling as if I've misused the word. Some of the best selling mediation texts (e.g. The Mediator's Handbook, etc.) take this general approach and it is very successful in bringing people to alternative outcomes that benefit them more than would a straightforward negotiation or a resolution of their rights in a court of law. http://www.nafcm.org/ is the web site for a leading group that supports this styel of mediation.
Mediation is an non-directive evaluative process wherein a mediator plays the devils advocate and helps the parties look at and evaluate their positions and their cases by asking questions and helping them to reframe and rethink (Value Added Mediation). The mediator asks, rather than tells, and does not offer a bottom-line "this is what your case is worth" or "this is what you should do" evaluation, but strongly interacts and provides numerous "what ifs" and "what about" and "look at it this way" sorts of input. Read http://adrr.com/adr4/bimss.htm for an excellent example of the sorts of things this type of mediator would do. Most who practice this type of mediation do not consider it evaluative because it does not engage in directive evaluation of the results. Many theorists consider it highly evaluative and directive while many practitioners who use this method strongly condemn evaluative and directive models (and, perhaps obviously, do not consider what they do to be evaluative or directive).
Mediation is a bottom-line evaluative process similar to non-binding arbitration (Evaluative Mediation). Many community mediation centers practiced this model in the past, though its day set fifteen to twenty years ago (the most historically common being the model where there were three mediators, one a plaintiff's attorney, one a defense attorney, and one a lay person, who listened to the sides, evaluated the case, explained their evaluations to the parties, and then attempted to help the parties negotiate a final settlement based on the evaluations. In a by-gone era, retired judges and sitting judges used to "mediate" conflicts in a similar fashion). This model seems to be an evolutionary dead-end that is being abandoned. Roundly condemned by many quasi-scholars and scholars, this type of mediation can be exactly what parties need (and as an advocate I have expressly paid for this exact type of service and have been pleased -- when this is exactly what was needed. While I am not fond of having it imposed on me without warning and do not practice this type of mediation, I strongly feel it should be available to parties who wish to use this type of process.). Many ethics codes attack this model of mediation.
Mediation is a directive process whereby a wise neutral guides the parties to the right resolution (Directive Mediation). Without going into excessive detail, some cultural groups are incapable of perceiving mediation as anything else, regardless of what is really happening, even with scripted role-plays. Many consumers hope for this type of mediator, regardless of what their attorneys, scholars or others think they should need or want. When a gatekeeper insists on skills, knowledge and background, they are seeking, to some extent, directive inputs. In the right case, the right input is invaluable (speaking as a gatekeeper/party representative in this regards).
Mediation is a facilitative reconciling process whereby in a face-to-face setting, with the help of a neutral, parties explore their conflicts and misunderstandings and come to reconciliation (Classic Mediation). The historic Saga of Burnt Njal is about a mediator of this type and how practicing this type of mediation got him burned alive in his house almost a thousand years ago. Abandoning this approach is one of the things that led to major successes in the mediation model. Again, the words facilitation[iii] and conciliation come to mind.
Mediation is a neutral intermediary process (Shuttle Negotiation). This method is also known as Pure Process Mediation and the mediator's skill set and background knowledge are seen as generally inconsequential. It is what mediation has become in almost every arena where mediators are paid to mediate (outside of the postal service). This article explores why this is the reality and is written in response to those scholars who keep saying to me "that isn't mediation!" when they are trying to get a handle on what is happening in the field and encounter the reality. Clean Pure Process Mediation settles 83% to 85% of the conflicts it is applied to.[iv]

Analysis: Mediation Realities

Before exploring why professional mediation has, for the most part, become shuttle negotiation or a value added shuttle negotiation, some mediation realities need to be explored.

Studies have shown that choice of process is more important than skill.[v] That is, the use of "shuttle negotiation" techniques is often more successful than any other method or value added approach[vi] (for each individual case[vii]).
The elements of the most efficient process are as follows:

o Building trust.[viii]

o Making the parties take turns and not interrupt each other (working principle: delayed denials).

o Focusing the parties on specific details and responses rather than allowing blanket accusations and denials (principle: moving from emotions to facts).

o Having the parties talk to the mediator rather than directly to each other (principle: recasting the conflict for an independent neutral).

o Having the mediator express proposals, solutions, and compromises (principle: avoiding reactive devaluation).

o Establishing co-operation with the process as the norm for the mediation context (principle: control of context and socialization norming).

o Increasing the number of times the mediator shuttles[ix] (principle: increased cycling).[x]

o Increasing the number of times the mediator restates the situation (principle: increased reframing moments).[xi] [xii] xiii

o Most mediators are not taught all of these principles.[xiii] [xiv] xv

So, what is the Mediation Reality (for court-annexed mediation)?

In court-annexed mediation, which is where parties are most likely to pay for a mediator, the reality is that most mediators will eventually end up performing pure process mediation with flashes of value added mediation. Further, this model seems to be spreading outside of its native context, e.g. according to a recent report, the most common type of "environmental mediation" (meaning public policy dispute resolution in the environmental sector) appears to be "shuttle negotiation" even though a more comprehensive dispute resolution process is well established, works better, and is well understood and documented.

Conclusions

The natural results of the rules and reality are:

Practitioners in a court-annexed setting[xv] tend to steadily discard anything that interferes with the "shuttle negotiation" or "pure process mediation" approach.[xvi] [xvii] This happens as much by the process of erosion as by any other process.
Practitioners in general ADR processes outside of the court-annexed setting tend to substitute the "shuttle negotiation" or "pure process mediation" approach in other settings, often without realizing that the rules mentioned above do not necessarily apply outside the court annexed setting.

The reason I began this essay was because I keep getting calls from people doing (I hope) legitimate research (often on behalf of governmental entities) who want to know (a) what is the current status/shape of mediation in areas (such as Texas) where court-annexed mediation is well entrenched and (b) how can I call the resulting "shuttle negotiation" "mediation" and finally (c) how could "shuttle negotiation" of all things could supplant "real" mediation (of whatever kind).

There are, of course, other constant conflicts and questions in the court-annexed area that I have not addressed in this essay.[xviii]

Do I call what is going on "mediation?" Yes, though I also consider many other processes mediation. I hope that in this essay I will have given the reader the necessary information and knowledge to understand why the pure process or shuttle school has supplanted all other models wherever court annexed mediation has become normative and why it dominates in the form it does. I also hope that by extending my analysis, I have provided the practitioner with a complete model for shuttle negotiation so that when appropriate they can apply it in their current practice to improve the techniques and approaches available to them in resolving conflicts.

[i] “facilitate” to make easier, facilitation, the process of making things easier. Definitions adapted from Webster’s.

[ii] “conciliation” to overcome distrust or animosity, to regain friendship, to make compatible, to reconcile. What a wonderful term for dispute resolution’s highest goals.

[iii] I prefer to use the term facilitation (as in facilitation initiative) in terms of socializing and acclimating groups to each other in the process of resolving intergroup conflicts. Many public policy, environmental and international disputes are the proper subject of facilitation initiatives rather than mediation as described herein.

[iv] Also, true pure process mediation can be engaged by anyone, regardless of background, and without any case specific knowledge or advance preparation.

[v] The implications for roster membership, and the importance of quality control from the training end, cannot be over emphasized in connection with this point.

[vi] Jumping ahead, this is why court annexed mediation invariably becomes pure process mediation.

[vii] Obviously, in a repeat player context, transforming the conflicting parties is more effective over time. Consider, for example, the postal system’s results with transformative mediation or the federal system’s experience with worker/management councils.

[viii] Building trust or rapport may seem like an implied essential, and is easy to subsume. Apparently there are mediators who do not build trust by the four step method

1. by displaying empathy,

2. by demonstrating neutrality,

3. by engaging in attentive inquiry (asking open ended questions and listening to the answers); and,

4. by demonstrating knowledge.

[ix] The research here is fascinating and begins with gender studies. Research into the effectiveness of female vs. male mediators reflected that on the average, female mediators were more successful than male mediators. The reason was that they “worked harder.” “worked harder” turned out to mean that, on average, they shuttled more often than male mediators. Once the study was corrected for the number of times a mediator shuttled, male and female mediators had the same success rate with the “better” male mediators shuttling just as often as the better female mediators.

[x] Of course the ideal mediator is able to find value added moments without slowing down or ceasing to shuttle. My personal goal as a mediator is to combine steady reframing with consistent shuttling and a string of quickly found value added moments. Remember that reframing is a value added process and essential to success.

[xi] Reframing includes, very importantly,

1. distraction (to break current mindsets, often by use of humor),

2. invention,

3. inspection of the facts/challenging positions (to demonstrate weaknesses); and,

4. the standard reframing technique of restating positions in order to create new perspectives (which needs based analysis does very well).

[xii] My favorite mediators shuttle constantly, reframe effortlessly (at least from my perspective, though at the end of the day they seem as tired as I am) and add a great deal of value – without slowing down. I see their ability level as beyond what can reasonably be expected of most mediators and have not addressed my perspectives gained from watching them in this essay.

[xiii] I should note that I like value added moments. However, when I watch mediators who spend the time and effort a value added moment can require, it often tends to take them much more time than shuttling back and forth several times. In fact, value added efforts (other than reframing) often lead mediators to attempt to find a magic bullet to settle the matter early when they could be making more progress by just shuttling. Early "magic bullet" moments are a well known cause of failure that increases resistance.

In representing parties I have been known to force mediators to shuttle when they were reaching for value added moments or when they were convinced an impasse had been reached. There is nothing like predicting when a mediator will decide that there is an impasse and also predicting the number of shuttles it will take to break the impasse and then to see a settlement resolve when the mediator is completely surprised. I do the predicting in advance, with the client, so that they are aware of the process.

[xiv] Ask yourself why this well known list is not more commonly addressed in training or in theory. For another list that ought to be in your training, visit http://gis.umn.edu/~hperry/NRES_3001/resources_negotiation_styles.html

[xv] Which is where the money is. Aside from environmental mediation, there is no other sub-specialty that provides full time professional employment for any reasonable number of mediators. Otherwise I doubt there would be anywhere near the interest in the topic that currently exists.

[xvi] This is not true of non court-annexed programs which often preserve needs based analysis or transformative models and which meet the needs of the participants very well. I am not saying that pure process mediation is appropriate, superior or necessary in any context or that it has taken over the non court-annexed venues.

[xvii] Because of this, gatekeepers have a duty to analyze the needs of their clients and to be able to match those to specific mediators – In my experience there are times when a transformative or needs based or other model mediator is essential to meeting client needs and goals.

[xviii] e.g. how and why various schools of mediation keep attempting to insist that the other mediation processes are immoral and unethical or why efforts to establish rosters of qualified neutrals with equal access to court referrals continually arise and then fade. Since these also are a constant source of comment and reflection, I hope to reduce my observations on these topics to a written essay for the use of those who are interested in the topics.

Post Script: Comments on the Essay

My writing in italic, Joe Maizlish in teal.

Subj: Re: comment: pushing beyond Marsh's mediation typology
Date: 7/22/01 6:39:21 PM Central Daylight Time
From: goodwork@igc.org (Joe Maizlish)
Reply-to: goodwork@igc.org
To: Ethesis@aol.com

Mr. Marsh,

I am pleased indeed that you found my comments of use. Yes, by all means please add them to your essay -- though if you're to use my words I'd like to do what perhaps I should have before sending them to you and the list, and that's tighten them up and clear them up a little. Since you request permission, I guess you're considering giving attribution, which would be an honor!

Perhaps here's a shorter version (though I like my illustration of the attorneys who wanted only to bargain):

Just as a mediation case is likely to come to us with an overemphasis on the differences between disputants, our task then being to respect those differences and search out what unity might be getting ignored or underutilized, our discussions of method may tend to overemphasize differentiation and underemphasize many underlying points in common that make any method promising and useful.

It's nice to find that you share my speculation that there's a lot of valuable stuff underlying the differences, and that focusing on that stuff could be just as beneficial (you didn't use those words and may not share the opinon quite that way, I recognize) as the also important sifting of specific type to match specific case.

(Maybe that is a useful shortening of my longer earlier comment -- but let me know what serves your purpose best).

As for your observation

I find needs based discussion is often very useful for the mediator to build rapport and trust with the parties. Where I find it breaking down is the mediator in a 6-7 hour mediation spending the first four to five hours in two meetings, one with each party, discussing needs and not going any further.

Yes indeed! Firstly, the mediator has to do some negotiating with the parties about the proportions of time and the process and pattern. I sure had to think fast with those two attorneys who wanted simply to bargain. I decided that my mediator principles of party empowerment or to put it simply, not butting heads with those whom I was hoping to put at ease and help be creative, and my principle of supporting their process of getting to agreement both directed me to respect their AGREEMENT about preferred thing to do first. I did, however, insist on a short introdcution in which I gave the rules of the court program (this was a court-annexed meeting) and described my role. Then they were off to the bargaining they wanted to do (and to show their clients that they were still masters of the process and doing the work -- that's OK with me. If I'm in a fight with the parties or their representatives over who is to get the credit for a resolution, I'll make it all harder for them and I'll deserve the discredit for a non-resolution!). ;

Five hours, really? I'm quite upset just to hear that. What the hell does the other party do during that time, watch the clock and cry about attorney's fees? I've sometimes discerned that the quality of distance between the parties was such that separate pre-mediation meetings with each were warranted. This was an EEOC paid case, not a 50-50 shared payment, so that made it easier to have approximately the same length pre-mediation meetings with each party, a process which turned out, I believe (though controlled experimenation is impossible!) to shorten the eventual mediation meeting and make resolution much more likely.

But the situation you describe is disturbing. I guess the task here is to make it possible for the mediator to explain their process suggestion AND to hear from the parties whatever they want to say about it.

Also, such loooong separate meetings without any joint ones do leave out one need the parties may have, that is some mutual recognition (no, I don't insist on that in all cases, but it does seem to be on the needs list someplace in most matters).

Thus the underlying mediator principles may save us all from mediations in which you as a litigator feel that you and your party are being improperly used.

Sincerely,

Joe Maizlish
goodwork@igc.org
Los Angeles
(310) 442-9982

Ethesis@aol.com wrote:

I was reading on some Oakshott typologies when this e-mail came in and the shift in mental gears ...

First, I really appreciate the comments and thoughts. I would really like permission to use them as a footnote or sidebar to my essay, which is both an area I think needs being thought about and a type of thinking I enjoy.

Second, I very much agree that there are very often cross typology mediation behaviors that are valuable. I'm primarily a litigator and I am more likely to hire mediators than to be one. I conciously shop for and consider various cross typology strengths and methods vis a vis the particular case I have going to mediation. I know judges that do the same thing as well.

I only wish more people did so -- and had the tools and understanding to do so.

Mr. Marsh,

Thank you for directing us to your essays, and for the effort and thought you put into them. My comment is on your essay on typology and analysis of trends and fits between types and paricular situations. (in a sense your essay on dr studies was also a typology and analysis essay, this may be a type of thinking you enjoy or believe needs doing).

As a mediator and trainer in conflict skills and mediation, I have been assisted in your analysis of what kind of work suits what kind of situation. In describing the situation, the expectations and at least conscious preferences of the parties are important features.

Yet I have too many stories of helpful cross-category work to make quite as much of the categories as the typologies -- useful as I too find them -- or perhaps more correctly, to be satisfied with differentiating the categories, or even with choosing which are best for which situations and types of conflicts.

I also would like to comment on something you said:

"complying on the surface while underneath wondering whether or when or how the mediation might show itself as needing some of the needs-based discussion or empathic work."

I believe that to be competent to mediate generally, a mediator must have exposure to and a mastery of needs based skills and methods, but that they are not in general a substitution for the other factors that have been shown to result in successful mediation outcomes.

I fear, perhaps, that the point I was trying to make is lost.

Also

"There tends to be an excess of "product differentiation" in most of the method labeling and description; that is, the methods have more in common than is usually recognized when the focus is on telling them apart or describing what is new, or what differentiates one method from another -- and those features they have in common are likely highly related to what makes any of them work well (when they do work well)."

Yes, what features they have in common are important and are what:

(a) makes it mediation
(b) are what are useful for teaching skills to mediators.

e.g. the need to reframe a conflict often. the need for distraction (humor, etc.). the need to build trust and rapport. etc.

Original Comment

July 22, 2001

Mr. Marsh,

It is suggesting a further task for all of us: I suggest we spend some energy on describing those skills and mediator actions which are found helpful in many or even perhaps every mediation; what mediator qualities and actions seem to help make any or all of the methods work well (in the situations in which those methods are otherwise appropriate)?

For I, likely as many others, have experienced situations in which as mediator I complied with the expressed strong preferences of parties (counsel) about the process (within my limits, declining the most directive or evaluative forms and offering a needs-based explanation for my substitution of a more facilitative or pure process format) -- complying on the surface while underneath wondering whether or when or how the mediation might show itself as needing some of the needs-based discussion or empathic work.

I tell trainees that the counsel might indeed have left the mediation feeling reinforced in their belief that "it was all about the money" and the money bargaining with a little shuttling was all that had been needed, and that the more "processey" mediator was really off base. The named parties might perhaps recall the few minutes we spent, after the counsels' money bargaining stalled, discussing the contruction project, the goals of each disputant, their images of themselves as capable and honest professionals, and recall that only after the feel of the meeting had shifted were the counsel able to return to the numbers bargaining and to conclude a deal.

My experience in those cross-border events suggests my one challenge, to the way we use your typology. You list the basics of any mediation as trust building, careful listening, etc. My point is one I raised at a final comment period in the Postal Service training a few years ago (and one I raised as a Clniical Psychology graduate student as well): There tends to be an excess of "product differentiation" in most of the method labeling and description; that is, the methods have more in common than is usually recognized when the focus is on telling them apart or describing what is new, or what differentiates one method from another -- and those features they have in common are likely highly related to what makes any of them work well (when they do work well).

Since much of the approach description is done as part of "sales" efforts by practitioners, with some professionals plugging for the advantages of what they [think they] are doing, this is natural and expectable. But with that being the main mode of method discussion (not, however, in your essay), we may lose the great benefit which careful analysis of what features of mediator behavior help make any method serve disputants to the fullest of its potential (gladly granting the points you make about choosing an appropriate pattern for the particular situation). I suspect we will find much in common when we do that analysis -- and that such findings -- if we pay attention to them -- will help us focus our personal and professional improvement and our training efforts and the service that any and all of the types of mediation and related services provide.

Joseph Maizlish
Los Angeles
goodwork@igc.org

I also appreciated your analysis. I liked the "basic principles" principle.I think there may be others around eg trust building that could be explored.Also the use of paradox. Eg if people are told they dont have to settle then it removes the pressure to settle - and they are more likely to do so.
One comment is that there ought to be a differential between the role of the advocate/lawyer, and the mediator. the one that i utilise is the diff between analysing a case (ie strengths and weaknesses) and evaluating - ie what is the percentage of winning? - that is an advice giving function - whilst the former is information giving on which the party can make a wise decision.
It is not "peekaboo" mediation- but does describe the costs and risks of litigation and contrasts same with outcomes poss at mediation. (Eg litigation is about the past; provable facts and legal rights - mediation can do all that plus - allow for the present and future; the parties perception of the facts - provable or not, or even real or not; and of course needs and interests)
Arguably there is a risk if the analysis leaves something out - but the intervention is not much more than a summary anyway, and can be reality checked with the parties so they take responsibility, and the "value added" is to empower them with better tools to make their own decision. It can be done in caucus or plenary session.
It gives credence to the presence of lawyers, and by inference frees the mediator to do their thing without legal over-interruption.
So everyone present gets treated with respect.
The name of "analytical" mediation as a compromise between "pure" and "evaluative" is suggested. I have just never seen it identified like this in any writings. Maybe I've missed something.
After all if one gives advice there is the risk of being sued for negligence - why would a mediator take that risk w/o necessarily the returns lawyers can generate to pay insurance? or anyway? When a lawyer is present to take that job on?
Also lawyers here tend to be shy about talking costs with their clients. I often get "I'll have to check with the office whats on the computer time records" when I ask them (in caucus).
But a party will need to know what fees are at mediation stage to ensure they dont end up with a debt - and it also clarifies what will be left over for them after fees are paid. They also need to know the costs of going further - is the case economic - often a deal breaker.
I find that an agreement to pay legal fees (i do mainly enmployer/employee cases) takes a lot of pressure off excessive claims - from the lawyers point of view secured payment of present fees from an affluent employer may well be preferable to uncertain payment for a much larger amount much later and then promptly only if the litigation is successful. Because they are dealing with a client who is out of work. It can also backfire. "I wont pay that xxxx a cent. Its only because of him that this case is being brought!"
My other comment is that people need to vent - and the other side to hear them. The most mellifluous advocate is not as authentic as the voice of the complainant. I dont caucus as a rule until this has happened. it discharges one of the basic needs - to hear and be heard. After that shuttling works OK. There are exceptions - eg some harrassment cases. But i suspect you know all this.
Basically I work through all the non monetary issues first - then people can be rational about realistic money. Ie the zen of "crossing the last gap" is to find out what money is the metaphor for and deal with that first. Ergo money doesnt have to carry any baggage.
Of course there are several articles if not books in all of this. I hope Ihave explained enough of what I mean.
Quote used with permission, author preferred not to be identified.

My comments to another (different) respondent
Thanks for passing the typologies along and for your comments.
I'm trying to do three things, most of which do not seem to be communicated as well as I would like.
First, I'm trying to engage in some typology in order to remind and/or educate people about the broad reach of what is considered mediation and what is available. Other than some very strictly trained mediators (e.g., Folger's understandable insistence on transformation only), most mediators blur between lines and use a wide variety of techniques. Ideally, all mediators would be flexible enough to apply a broad spectrum of tools depending on the situation.
Second, I'm recapitulating what I consider the core essentials of court-annexed mediation that can be forwarded and taught to just about anyone in simple terms, i.e., "this is proven to work, you should consider using it not because of any theory argument but because it is a proven tool."
Third, I'm hoping to engage practitioners in an applied theory discussion that might lead to expanding my understanding and knowledge (I'm not so brash as to expect the interplay to expand anyone else). All in all, I found your pamphlet/journal inspiring and a nice move forward from the papers you've written and been kind enough to put up on your website.
I would note that I agree that many, many terms have been mutilated almost beyond use, but often there are not good, clear words to replace them, and it is my hope that it may yet be possible to resurrect some words, such as directive mediation, while acknowledging the theoretical morass that offers itself as well.

Copyright 2001 Stephen R. Marsh
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