Mediation news

Reconstruction and innovation of mediation: an integral approach (I)

Nico Roos, PhD. (Professor of Metajuridica at Maastricht University and took the register exam mediation in 2011)

 Jan van Zwieten, RI,RA,RO (professor of management and economics at KROK University in Kiev. Since 2002 he has gained a lot of experience as mediator and as a trainer of mediators. He is also chairman/treasurer of the SKM.)

Mediation as a practical science for an adult profession

Introduction

About three years ago, Baarsma asked the provocative question whether mediation remains the eternal promise or whether it will be a mature market. Her advice was to make quality of mediators more transparent and to embed mediation in the justice chain. This advice has been taken to heart. The various organisations of mediators have joined forces and have, in the face of it, started to lobby successfully to provide mediation with a more structural place in the case-law chain through the Van der Steur initiative law. In addition, as of 1 January 2012, a successful assessment was made a condition of registration. 

However, the question remains whether this is sufficient to make mediation a 

significantly more attractive professional offering. Even with the current requirements of assessment, it is very possible that the public will remain sceptical about mediation. This is, after all, a profession which pretends to be superior to justice as a form of conflict management, despite training requirements that are low in comparison to those imposed on judges and lawyers. 

According to Baarsma, the methodical fragmentation also gives the public a lower appreciation of the professionalism of the mediator. Whether that is the case, must be questioned. After all, few (potential) customers have any awareness of this fragmentation. The MfN (Mediators Federation Netherlands) does not address methodical diversity on the public part of its website. Mediators will also be of little affection for this. It may raise the question of why the mediator prefers one method to another. For the vast majority of mediators, the answer to that question is that they are only trained in one method. In such a deficitary answer, some mediators will add that after their training they have developed a personal style in which techniques of other methods also figure out. However, this answer amounts to an implicit admission that mediation is characterised by a considerable degree of methodical anarchy. Each mediator can choose the method that appeals to her or him the most and can also add his own personal style. 

Unlike the methodical anarchy, the relatively small heaviposition of the training is visible to the public, 40% of which is reasonably well known to mediation. This anarchy is at odds with a development towards a professional profile that can compete with that of lawyers and which is reflected in the heaviand level of mediation training. For the development of such a profile of mediation, theoretical integration is desirable in which the various methods are no longer seen as competitors aimed at the same purpose, but as options tailored to the variable needs of parties. 

Such an approach, which states that it is possible, implies a much broader, multi-methodical training based on a coherent and comprehensive science theory of mediation. This is a practical theory of science, of which research is of a strategic nature. Such an investigation serves to determine the identity of mediation and its values and theoretical purposes. The following questions are therefore addressed:

1. What is mediation and how does it stand out from other forms of      treatment of social conflicts? 
2. What are the values that mediation is supposed to serve, what is      the ideological background of mediation and by what principles is it      guided?
3. What are the methods of mediation and in what relationship in terms      of coherence and strengths and weaknesses are they combined? 

The development of such a practical theory of science is what we will pursue here, with a view to a multi-methodical training based on a deeper understanding of the unity and diversity of mediation. It should be noted that this concerns only the strategic analysis. The tactical analysis (the technical implementation of the methods) is not systematically discussed here. On the other hand, detailed attention will be paid to the question of the relationship between methods and techniques. It will criticise the dilution of this distinction through terms such as 'style' and 'approaches', which may relate to both methods and techniques.

1. Usefulness and function of      multi-methodical training

If a theoretical integration of the various methods of mediation will prove possible, it is by no means certain that a multi-methodical approach is also practically feasible in training and practice. It is clear in advance that it is too much to ask the mediator to be able to apply all methods of mediation at a professional level. However, against specialisation as such there is little to say, in fact, it is a characteristic of professionalization. Specialisation is desirable in order to meet the specific needs of parties as well as possible. However, this also requires that there is a generalist who is able and willing to refer to the right specialist in case he or she cannot provide for that specialism himself. 

The generalist must be sufficiently familiar with the various specialisations in order to be able to refer properly. The position of the generalist mediator is reminiscent of that of the general practitioner in the medical world. However, whether the analogy with the medical specialist also applies is very much a question. Specialisation is problematic if specialists do not recognise each other's specialism and believe that their approach is the best for all the problems that arise. If this superiority is not already explicitly stated, mediators at least behave as if this were the case. One applies one's own method as if there are no substantial differences in the objective of the various methods corresponding to the diversity of the needs of parties.

Specialisation of mediators has increased considerably in recent years, however this concerns specialisation in social problem areas, such as divorces and labour disputes. This specialisation does not in itself have a methodical meaning, but is mainly determined by the idea that extensive knowledge of legal and social facts is of great importance if mediation is to be able to compete successfully. Around this kind of specialisation, sometimes a private interest organisation with training and all of this is developed, precisely because the (un)usefulness of fact-finding is highly dependent on the applicable method. One and the same social problem area can lend itself to a variety of methodical approaches. In the case of divorce, for example, in addition to a business conflict, there is often also a serious relational issue at stake. How these two aspects relate to each other and what kind of mediation is primarily in need of parties is typically a multi-methodical issue. 

It will be clear that if there are relational problems, which can hinder the business handling of divorce, for example. Extensive knowledge of the facts of divorce, according to some, means that the mediator is not sufficiently open to dealing with the relational issues. However, this is a side note. Research shows that there is a regular beneficial effect on the fact that the issues to be settled in divorce are approached from the perspective of the future, while the relational issue naturally focuses on the past. The multi-methodically trained mediator will therefore have to be eminently competent as a pointer based on the assessment of the needs of the parties. If he notices that the future perspective is appreciated by parties, then a problem-oriented approach can be preferable to a solution-oriented form of mediation.

By now, it should be clear that the introduction of the generalist mediator calls for its own diagnostic methodology. But that is only at issue if it proves possible to theoretically integrate the methodical diversity of mediation.

2. Mediation      as an ideology

The basis for a rational strategy is to clarify the values that the strategy aims to serve. What are the underlying ideal values of mediation? Mediation is based on the idea that people are better off if they have the ability and capabilities to settle their conflicts without coercion and in a peaceful, discursive manner. Historically, mediation has developed as a criticism of the accessibility of justice and the acceptability of its decisions. They are often arbitrary and binary, i.e. they tender it or lay it wrongly or unevenly with one of the parties. 

In the accessibility of justice, expenses plays an important role, which can lead to a significant degree of inequality between parties in terms of knowledge, experience, relationships, endurance and strategic possibilities. Although the State subsidizes legal aid to the unemployed, subsidy does not help if a case is lost and the legal costs of the opposing party are condemned. Moreover, the government wants to further reduce the subsidy of legal aid, while the court fees are in danger of increasing. This will increase the need for cheaper, more accessible and faster alternatives to justice.

In this way, mediation is part of a society based on peace, freedom and equality. However, each method of mediation has its own ideology, in addition to this common denominator, which sometimes linked the pretension of superiority. They differ from each other to the extent to which they consider people in general capable of conflict management. In our view, such pretensions are not only theoretical and empirically unrealistic, but above all irrelevant, because the needs of the parties must determine the choice of method. 

This immediately follows from the principle of party autonomy fundamental to mediation. 

Remarkably little attention has been paid to the question of when there is a conflict relevant to mediation. In the Mediation Handbook, Prein defines conflict as a situation in which "two or more parties pursue goals or aspirations, have interests or represent values that cannot be reconciled". Such a definition implies that there is mediation in any conflict of interest involving a neutral third party. However, such a definition is far too broad. For example, a broker acting for both parties would be a mediator because there is a conflict of interest every time contractual negotiations are negotiated. However, a conflict of interest does not imply a social conflict. If the seller does not want to lower the price and the buyer does not want to increase, no contract will be established, but there is no conflict. In general, there is no legal or moral obligation to allow a contract to be established. Mediation is, if it is not to be a rip-off phenomenon, essentially limited to social contradictions of a normative nature. This does not, of course, mean that all kinds of treatment of non-legal or morally charged conflicts of interest can be strongly related to mediation or that such treatment can have the effect of solving legal or morally fraught issues. We will come back to this later on our presentations on the solution-oriented method (see p. 15)

3. Party autonomy

Party autonomy is virtually uncontroversial as the most important principle of mediation. This is also obvious in view of the criticism of the judiciary that underlies the development of (modern) mediation. Nevertheless, the question is to what extent the parties can really be autonomous. After all, if they were truly autonomous in conflict management, they would not need a mediator either. 

Traditionally, in addition to party autonomy, impartiality, neutrality and confidentiality are considered as principles of mediation. We think this is incorrect. There is, in principle, no good reason why the effectuation of these three values could not be left to the autonomy of parties. With the exception of facilitating mediation, the mediator can also participate in the discussion in substance and the mediator's position is sometimes inevitable. At most, altering or multiplying partisanship is sometimes achievable. Even facilitating the unequalness of one of the parties is not considered to be contrary to the principle of party autonomy that leaves parties free or not to settle for (alleged) partisanship.

Neutrality means that the mediator has no personal interest in the outcome of mediation. This, too, is a prerequisite for independent justice that does not always apply to mediation. After all, parties can have so much confidence in the expertise and integrity of a mediator that they are increasing the lack of neutrality. In fact, this is always the case when the mediator maintains a permanent relationship with a client.

Confidentiality is often also considered to be a principle inherent in mediation. However, we do not recognise that confidentiality cannot be left to the autonomy of parties. They may have a predominant interest in using information on other occasions.

Whereas, unlike mediation, impartiality and neutrality are fully valid in the case of case law, this is not the case with confidentiality. Even in arbitration, confidentiality is not a principle. The initial proposal to revise the Dutch Arbitration Act sought to change this, but in the meantime it has been returned to it in favour of party autonomy. A fortiori is therefore not a principle of mediation, even though the opposite is suggested in the Mediation Handbook and Article 4.1 of the MfN's (mandatory) standard agreement.

What about the mediator's obligation to confidentiality? This can also be arranged by the parties themselves as part of the mediation agreement. However, this arrangement cannot cover the possible obligations of the mediator as a witness in law, unless the legislature would grant the mediator a right to change. We will not be discussing the merits of this because, even if there is a right to change, parties can decide whether the mediator should also use it if he is heard as a witness in court. 

Nevertheless, this criticism does not alter the fact that impartiality, neutrality and confidentiality are important issues to which the mediator should explicitly pay attention in the conclusion of the mediation agreement. After all, party autonomy is a positive value that cannot be achieved on the basis of ignorance.

Conversely, however, this does not mean that the mediator is entirely dependent on what the parties consider desirable. Nevertheless, if the parties have not negotiated confidentiality, the mediator can conclude that the mediation process is stagnating in the absence of confidentiality and demands that this be negotiated. If not, he can terminate the agreement on the basis of his autonomy as a professional expert.

4. Expediency 

Expediency is usually split between effectiveness and efficiency. Effectiveness is about the extent to which a set goal is achieved (output). Efficiency is on the cost of achieving that goal (input). If the aim is to express only financially or at least in monetary value, effectiveness and efficiency coincide. 

Expediency has hardly been explicitly recognised as a principle of mediation, yet it is the basis of, among other things, the principle of professional autonomy of the mediator. The given example of the mediator who finds that mediation cannot succeed if a confidentiality clause is not agreed is still concerned is a question of effectiveness and efficiency of mediation. In fact, the principle of effectiveness stems directly from the mediation ideology under which party autonomy leads to better, more committed parties and nevertheless cheaper solutions to conflicts. You could therefore see the principle of effectiveness as more fundamental than the principle of autonomy. However, the vision of which the principle of effectiveness is at two levels is better, namely once the basis of mediation and once as a basis or principle in mediation. The decommission of the principle concerns the latter. Perhaps the reason for the lack of effectiveness in mediation is that mediation has developed as a criticism of the effectiveness of justice and thus took a somewhat complete view of the possibility of inefficiency of mediation. In addition, the actual inefficiency, about which later more, so eclatant and therefore also so threatening, that she could provoke a head in the sand reaction and all the more so where mediation was nevertheless quite successful. 

We will come back to the aforementioned detail later. But before we move on, it should be examined whether the methods of mediation are internally consistent, clearly distinguished from each other and form a well-ordered and complete set. If this were not the case, the demand for efficiency is unnecessary in the absence of clarity of the relationship between purposes and resources. 

1. Historical relationships between mediation and justice

The lack of knowledge of differences between the principles of justice and that of mediation is a lack of historical awareness. Mediation clearly preceded justice in social evolution. The historical mediator was only trusted if he did share substantial interests with both parties and thus put those interests at risk if he were to operate partisanly. 

The independence of the court, on the other hand, was a product of state-building, with the central authority either settling long-distance conflicts or intervening in local conflicts to strengthen the values, norms and interests of central authority. This independence from the court concerned local or personal interests. However, local interests as such continued to play an important compensatory role in the form of jury or sheriff justice, thereby limiting the power of the independent court. 

It was only with the development of national justice as an exclusive source of law that the issue of judicial independence of political authority was added in cases in which the government itself was a party. Curtailing political authority by the court was initially seen as an abuse of his independence, because the court had been made independent to represent the interests of the state. Hence the tendency to set up specialised administrative tribunals for such matters. In the administrative tribunals, the administration checked itself. 

In the Netherlands, at least only about 20 years ago, the abolition of the so-called Crown Appeal came to an end formally, after it was rejected by the European Court of Justice in the well-known Bentham case in 1985. The irony of this history was that the Crown Appeal offered the citizen the opportunity not to confine himself to legal arguments, but that he could also complain about inefficient consideration of interests. The Council of State often played the de facto role of mediator by examining whether there were acceptable solutions to the conflict for both sides. Remarkable and understandable in this regard is the recent emergence of use of mediation by the government.

Does the given historical-evolutionary sketch of mediation imply that modern mediation is a form of romantic regression? Here and there, a hint of romance can be seen in the history of the development of modern mediation. However, it is essentially a new form of specialisation in social control that can be classified as postmodern, because it is a recombination of old and new. Modern mediation is based on a critical relativism of socio-evolutionary "progressivity" on the one hand and on empirical-functional scientific research on the other. Modern mediation is recombinative as well, because it uses also scientifically supported techniques of conflict management, such as negotiation and mediation, coaching and therapy.