Mediation news

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

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.)

1. Methodological coherence? 

Evaluative mediation (EM) shows the clear traces of a hybrid of justice and mediation. It has its origins in court-led mediation procedures in the US. These serve to increase the efficiency of the courts and the belief that "settlements" are often better conflict solutions that are more acceptable to the parties than case law. 

EM is problem-oriented. The intermediary mediator, on the basis of his expertise and experience, considers the best outcome of the conflict and aims to encourage parties to discount that outcome in the choice between litigation and arranging. Party autonomy is therefore limited here to expressing interests and saying yes or no to reasoned proposals from the mediator. However, that justification can also be of a tactical, unverifiable nature, such as the fact that the other party no longer wants or can make concessions at any point or that something is difficult to implement in practice. The evaluative mediator often shuttles between parties in a process that is not transparent. Its outcome may differ from the outcome that the parties would have preferred if they had negotiated themselves. 

The criticism on the part of the facilitating mediation (FM) is in line with this. FM was born out of the practice of 'out of court settlements' by American lawyers. They noticed that if they presented themselves as integrative process guards, the parties would be much more easily agreed and were more committed to implementing the decision.

FM's criticism of EM is that party autonomy requires parties to negotiate themselves to reach an optimal, mutually acceptable solution rather than subjecting the parties to transparency that is often even greater than that of justice. The task of the FM mediator is therefore limited to that of process guard. He must persuade parties to view their dispute as a conflict of interest and not as a values conflict. After all, there is not much to negotiate about values with their often emotionally charged nature. Anyone who marches with values will soon be called an opportunist.² The task of the mediator is to mute the emotions in order to facilitate business negotiation. A major advantage of conflict resolution through a swap of interests is that things can also be brought in that are not in itself part of the conflict.³ 

However, one might ask a critical question concerning why the parties could not reach a solution even without the support of the mediator. Only then will the parties really be called autonomous. Transformational mediation (TM) blames this on a lack of empowerment (decisiveness and communication clarity regarding one's own interests) and recognition (responsiveness and openness to the interests of the other party). In order to empower, the mediator will try to make it clear that the conflict has not just happened to the parties, but that they have made choices that have led to conflict. The question then arises as to why these choices are made. Was it a conscious choice with the conflict on the bargain and what importance was served by it, or did this choice come from communicative inability? Because the ambition is to make parties fully competent, the TM mediator also does not act as a process guard. However, he gives critical commentary on the approach to both the process and the content by parties, as well as understanding how empowerment and recognition can be strengthened. 

Suppose, for example, that one of the parties puts his feelings on the table and the other party does not respond to them, then mediator the latter can ask the question: "Can you move well in those feelings?" If that question is answered in the affirmative, the next question is "what does you prevent you from saying that spontaneously?" The latter question can also be asked if the understanding of the other party is lacking. In the first case, the importance of the expression of empathy is made clear. In the second case, it stresses the importance of providing information for empowerment purposes. The example shows that the role of the TM mediator is reminiscent of that of a coach.

The criticism of TM is that the assumption that conflicts are caused by a failure in normal communication capabilities cannot explain how and why such a failure occurs. The narrative method (NM) answers this, according to NM, conflicts arise because there is no such thing as an unambiguously known reality, but that other interpretations of it are always possible. A conflict arises when the interpretations ("stories") of parties do not trace each other. For example, a man works a lot of overtime to prevent his family from shortcoming. His wife, however, sees this as a lack of personal interest in her. The NM mediator will help parties deconstruct the conflict story as a storyline not compelling in the context of other stories. Recounting their very good relationship, for example, it turns out that the man worked so hard when there were no children, but that no accusations were made on the part of the woman at the time. The mediator then supports a reconstruction of storylines in such a way that the conflict does not fit in: the extra-income of the man was spent on dating and foreign holidays with his wife when no children had yet been spent. It is therefore not the many working as such that the woman deems unacceptable, but the loss of compensation for that. 

If the conflict is not only based on wrong or, on reflection, at least not plausible interpretations, but is related to important needs, the dissatisfaction expressed in the conflict as a secondary conflict substance will also have to be defused. A suitable starting point for this is, for example, that the man tells about how enjoyable and important personal attention was in the relationship with his wife at the time. She no longer doubts the good intentions of her husband, to whom she then proposes to hire a babysitter once a week to go out together. The man probably says that he was already thinking about this because he also misses that personal attention very much now that everything seems to revolve around the children. The original problem has therefore been exorcised. It is something that has happened to the parties, not something they deliberately chose and with slightly different timing there was no conflict at all because the man himself had come up with a solution.

With NM, unlike TM, it is not about learning competences, but the parties under the direction of the mediator are looking for constructive connection to their stories about their relationship in such a way that there is no longer a substantial place for the conflict. 

However, if there are no suitable points of reference, then an excellent general competence to resolve conflicts does not provide any solace. According to NM supporters, however, there is almost always such a starting point. 

However, this does not seem to guarantee that conflicts can always be resolved. After all, there are always differences in the credibility of stories.

Where NM falls short, it may then be replaced by a discourse of negotiation in which the parties make concessions over and over again in view of the more important common interest of continuing the relationship. The chances of success of such a discourse will be all the greater if there are successful precedents of compromise in the relationship. However, we have in fact switched to negotiating without an FM obligation for the mediator to confine himself to interventions in the negotiation process. This process of negotiation is, as it were, incorporated into the solution-oriented method (SOM).

The possibility of narrative discontinuity is seen not only as an objection from the perspective of SOM, but also the problem orientation characteristic of the methods other than TM as such. The objection of the Public Prosecutor's Office to this is that it accentuates contradictions and thus can block solutions. Instead of investigating the emergence and development of the problems, the SOM mediator directly asks what is (still) good about their relationship and whether and how this good can be strengthened. Whether this also solves the problem that gave rise to mediation is of secondary importance. Often explicit problems are branched out with other problems, which cannot be solved one by one either. It is in fact only important whether sufficient agreement can be found on the future of a relationship to be pursued. In addition, the experience of what went well in the past is relevant in so far as it is possible to gain insight into the factors that are determining, possibly renewable.

One possible criticism of SOM is that it is in fact not a method of mediation precisely because it is not problem-oriented. The existence of a conflict is seen as a symptom of a non-functioning relationship as the actual problem. The symptomatic problem need not play a role at all. Even without that problem, the parties could have approached the mediator, complaining that the relationship with the other is worse than before and then received exactly the same treatment as if they had reported a conflict. However, this is not a reason to regard SOM as a form of pseudo-mediation. This is not because SOM can be seen as a reconstructive form of mediation. However, the solution found will have to be such that the symptomatic problem cannot arise again as long as the relationship remains at the level of its recovery. In that case, the problem that gave rise to mediation does not need to be solved as such. From NM's perspective, it could be argued that "those who do not know history are doomed to repeat it", but that is for the time being only speculation about the relative applicability of both methods. In one case, the importance of connecting to the past will be important, in the other case it will have to be ignored as much as possible. This illustrates once again the importance of connecting in terms of method to the needs of parties.

We have seen that the methods are positioned as successive answers to critical questions about the quality of the previous method of conflict resolution. Each method pretends to answer the deficit of a different method and thus meets different needs of parties.

EM provides for a lack of expertise from parties. In the case of FM, the problem is not that of the substantive expertise, but of the processual competence or the transition from a discussion on values applicable to the conflict to a discussion and negotiation of interests. NM, on the other hand, seems appropriate if the common past of parties is rich enough in starting points to de- and reconstruct the conflict as a narrative misconception. However, SOM is preferable if these points of reference are not there or do not allow plausible interpretations that support the possibility of a common future, arguing that the parties attach value to them on their own. The discussion can then be better about that value and how it can be realised. 

These methods seem inwardly consistent, provided that the limitations of each method are recognised. But are they also complete as a collection of methods, i.e. no more methods in principle? In our opinion, there may well be a need for such a method and one that aims to confront the moral visions of the parties.

1. Moral as a missing link?

Above, we have assumed that the man in the NM is prepared to revise the spending of his income. What if the man had complained about the unjust distribution of lusts and burdens in the relationship? There is then nothing to negotiate before it is clear what standards should be set for justice in this matter. But then we encounter a gap in the methods of mediation. There is no such thing as moral mediation (MM). Mediators assume that moral arguments can only reinforce contradictions. They see moral argumentation as a matter of subjective taste that popular wisdom says is not (rationally) to argue about. Moral thinking, like legal thinking, would tender up to binarity (I'm right or you're right) and thereby also reinforce negative emotions instead of making them manageable. 

On the other hand, people regularly consider justice more important than their direct self-interest. Even if parties cannot agree, it could be enlightening to know what and why moral principles are and cannot be agreed upon. The above picture of moral argumentation is also strongly distorted in that, despite their conflict, parties can often make positive moral judgments about the opponent. A little mediator, of course, tries to provoke this, even if this creates no more than favourable conditions to find a solution. Moreover, moral reasoning is not only a question of taking a stand, but of arguing for this position and its compatibility with other positions taken. Both deductive (from a rule to a case) and inductive (from cases to a rule) moral reasoning quickly becomes a complex affair. That is precisely why legal reasoning can be attractive. 

The lawyer adopts rules and precedents as given and can be a great abstract of their moral correctness. On the other hand, in moral arguments, all relevant values can be put forward. This is not the only cause of complexity. The parties may also differ in their views on the facts of a dispute and on the moral consequences of alternative proposals to resolve them. However, this complexity does not fit with binarity. That does not alter the fact that, indeed, it can be difficult to find a solution on the basis of moral arguments. It can certainly be difficult, but it is not impossible. 

This applies not only to the everyday moral conflicts that we can dismiss relatively easily without a mediator, but also to more complex conflicts in which a moral mediator can play a useful role.

Disagreement on principles does not preclude the parties from coming to the same conclusion in a concrete situation. The reverse is also possible, namely that one agrees in terms of relevant values, but not in their application in a specific case. After all, the parties can have a different picture of the facts or of the moral consequences of a conflict resolution proposal. The solution can then consist of doing further examination of the facts and the consequences.

Finally, there is still the possibility of finding a solution that amounts to a compromise between the two positions. The reason for its acceptance may be that it is sufficiently served by its interests. However, MM is a cover for the exchange of interests, which does not mean that FM would have achieved faster or better results. However, it may also be the case that the compromise as a moral position is superior to the (often one-sided) positions with which the parties have entered the mediation process. This is often the case when there is something to be said for both points of view. Here, there is no longer a cover for the exchange of interests, but of deepening moral insight.

How can MM be positioned within the collection of methods? The place of MM is where FM mediators are used to letting parties change their minds in terms of values to those in terms of interests, but without an a priori assumption that parties cannot come to a solution through discussion of values. In EM, it is also evaluated on the basis of values. What should the difference between EM and MM be? That is that a moral-based solution is not something that outside parties can be put forward, as the EM mediator would. It is parties themselves who must understand the moral acceptability of a solution on the basis of their moral principles. MM also operates with an evaluative framework. The difference with EM, however, is that this framework cannot be developed independently of the parties and therefore cannot be used in such an intransparent manner. 

The critiques on MM for not leading anywhere because of the subjectivity of morality is therefore very debatable. It is not the binarity, but the complexity of morality that can make it difficult to find suitable solutions. However, complexity implies not only more evidence of disagreements, but as well for compromises when there is something to be said for both positions. 

        8.  Moral as hidden persuader

It is a somewhat naïve representation that the FM mediator would only be interested in moral questions insofar as they block thinking in terms of interests. Experienced mediators confirm that even in the phase of negotiation, the moral weight of interests can indeed play a role. Measures to prevent accidents, for example, place a different weight in the negotiating scale when it comes to children or adults. Morality can, in other words, be the origin of an interest.

Morality is also built into the general ideology of mediation: peacefulness, freedom and equality. The same applies to the particular ideologies of the various methods. There is also a certain blindness to moral elements in existing techniques. 

At first glance, mediators already use many morally charged techniques, such as empathy, externalizing, relabeling, normalising, neutralising and mirroring.

Whether MM has the right to exist is the (empirically) to answer question. We think that there are sufficient points of reference for the development of such an ethics-oriented method. The competence required for this form of intervention is that of an auditor who tests whether the positions taken in the conflict are consistent with the explicit values of a party or the values whose money is not contested. 

9. Completeness

The question of completeness can only be answered if we first determine the identity of mediation. However, what is the practical importance of that question? This interest lies in the distinction of methods of conflict resolution that may or may not belong under the head of mediation. With the successful rise of mediation and its increasing diversity, the question became urgent whether and how this diversity can be understood as a whole. Third parties play all kinds of roles around conflicts and can help bring them to a solution, but when is something mediation? Why, for example, don’t we see meditation or hypnosis led by a third party as a form of mediation, even if this proves to dissolve the conflict?

The reason is that mediation seeks to serve party autonomy. In case meditation were to be applied, its possible effect is clearly outside the parties. Although manipulative techniques are also used in mediation, they are ultimately in the service of strengthening the subjective practical rationality of the parties. The principle of party autonomy is a dimension of mediation that varies between autonomy only with regard to the acceptance of the intermediary mediator's proposals for full autonomy of parties on the process and content of the conflict. 

The second principle of mediation is that of efficiency, it has been argued. Again, it is about practical rationality, but now specifically about the objective aspect of it. Efficiency is a dimension of mediation that varies over the size and depth of the problem definition. This ranges from one concrete problem in mediation, for example the extent of an insured damage, to a thorough overhaul of the relationship of the parties, in which the number of parties involved or interests can also vary.  The question of the completeness of methods can then be answered by examining whether the possible variation in terms of party influence and the extent and depth of the problem definition is covered by the various methods in their interconnection.   

A related two-dimensional planning room for the methods of mediation was presented as early as 1996 by Leonard Riskin in his influential article "Understanding mediators orientation, strategies and techniques: a Grid for the Perplexed."²According to Riskin, mediation on the dimension varies evaluationally as well as on the size of the problem definition. The former opposes the dimension of the party influence proposed here. However, there is an important difference, as Riskin himself acknowledged in 2003. EM does not have to be accompanied by any deterioration of party autonomy. 

It can also be a tool for parties to be informed about the chances of the court compared to a compromise. He therefore proposed to replace the dimension evaluative-facilitative with directive-elicitative. 

However, that same year he also rejected that distinction (and called it the "New Old Grid") because an intervention by the mediator can be both executive and elicitative at the same time. Relabeling, for example, is both directive and elicitative. It is a procedural intervention because it focuses attention on a particular aspect of what a party says and it is an attempt to make that party agree to a more neutral representation of the saying. This distinction was therefore replaced by Riskin with that of the party influence as the most substantial of what the earlier awards had intended to express. However, Riskin also made a distinction by the nature of the influence, namely substantive and procedural influence, in which the latter is still distinguished depending on whether it is pre-regulated influence or (still) irregular meta-procedural influence. 

However, only the substantive influence is relevant to the question of the completeness of methods. No one is interested in procedural influence as such, but only to the extent that it indirectly determines the substantive influence. Moreover, the distinction is dubious in view of Riskin's relativism of the distinction between procedure and content. It looks a bit like he's letting back in through a back door, which he threw out through the front door. This is, of course, without prejudice to the fact that the impact on the procedure in general will be conducive to conflict resolution by the fact that the parties are more likely to experience the solution as self-produced. 

Either way, Riskin's New New Grid, without having acknowledged it, is the expression of the principles of mediation that we have reduced above. In our view, this explains that Riskin's model could be so successful despite its failures until 2003.¹⁷
 
Riskin's second dimension, the breadth of the problem definition, has hardly been controversial. However, what does it have to do with expediency (effectiveness and efficiency)? The question of effective completeness is an effective question that can be formulated as: do the methods address each other's shortcomings in such a way that mediation can be met in every conceivable need? 

A (too) simple model of completeness looks as follows:

The model is too simple because it suggests party influence be constant horizontally. However, it aims to indicate only that the party influence of MM is at least as great as in EM, but smaller than with the other four methods. The same applies to SOM in relation to FM (at least the same size) and TM (smaller), and between TM and NM (at least the same size). 

When presenting the various methods, we have already mentioned how each method can be interpreted as an answer to the criticism of another method. Now, let us look again at whether and how that criticism refers to the two dimensions of the model, namely party influence (P) and breadth of the definition of the problem (B).

The criticism of EM is that it leaves little of party autonomy very late. According to some, therefore, it cannot even be qualified as a form of mediation (P). In addition, EM is limited to a legal frame of reference, whereas in practice there are also issues of a moral nature that can play a role in whether appropriate or litigated (B) should be applied. However, this broadening of the problem definition does not always imply greater party influence (P). The auditor will have to sit on the parties in order to give them a position – morally responsible – and precisely if that goes against the self-interest of a party.

FM is distracted from two-way criticism of EM. The first is that EM operates positionally and therefore does not achieve utility maximisation achieved by negotiating (B). The second is that the mediator is not an expert when it comes to valuing interests. Parties themselves know best what's good for them (P). So there is no reason to limit party autonomy. However, the FM mediator is in place to stimulate the transition from a conflict over values/positions to interests (B) and to ensure that the negotiation process is conducted in an orderly manner (P). This criticism from fm's perspective also affects MM in so far as it hinders the transition from value positions to interests (B). However, as previously argued, this does not have to be the case if conflicting interests are both morally defensible. This encourages a willingness to compromise.

OM’s criticism of FM is that problem solving and conflict resolution is not the same (B). Provided that the relationship can be improved in general, a problem that is not solved as such can sometimes be "put on sale". Furthermore, the problem orientation is annoying because it stimulates preoccupation with the past (B). Finally, the separation of process and content is not always effective, but rather artificial. The mediator's task is to promote the goal of achieving. It can be very effective to give parties co-responsibility for the process; but it can be equally effective when the mediator intervenes in substance (P).

This criticism is further prompted by TM: learning to control the process is the goal from the perspective of party autonomy (P). Parties must learn from their mistakes, as it were. The mediator's job is to encourage parties in that learning process. According to the NM view, TM does not recognise that communicative quality of parties is not a sufficient condition for conflict resolution, but that there should also be points of reference in the stories of parties in which the conflict does not fit and the facts underlying the conflict can be interpreted in a different way (B). 

NM also makes no distinction between process and content (P). The task of the mediator is to identify positive points of reference, while the parties further develop the alternative narrative, but this is not a formal division of tasks. In relation to SOM, nm's criticism is that it assumes in advance that a problem-oriented approach cannot produce the better story and can be more efficient if there are no structural relational problems (B). This criticism is only partly justified because SOM does indeed recognise the possibility of its own failure in the attempt to bring parties on the same page towards the future. However, the criticism is broader, namely that SOM can succeed, but that it can be inefficient not to limit itself to the business aspects. Just as problems can disappear as a result of the revision of the relationship, a business solution to the problem can greatly improve the relationship, as empirically demonstrated in the case of divorces (see p. 4). However, we have already arrived at the second aspect of efficiency, namely efficiency. 

Efficiency is the adjustment of the width of the problem definition to the needs of parties, a method should not take the problems unnecessarily wide. In this context, we can speak of completeness if all the wider methods can be replaced by a narrower method in so far as in the specific case the criticism of the narrower method is not relevant to parties. For example, it is inefficient to apply the SOM if parties are not interested in the continuation of the relationship. The same applies in case the conflict is not directly related to the history of the relationship (NM), but to communicative incompetence (TM). Finally, it is rather pointless to assess a conflict by moral standards (MM), if parties are only interested in "the marbles" or the presumed judicial judgment.

We have now demonstrated completeness in an approximate way by showing that the extremes of the two relevant dimensions are occupied and that the other two methods can be seen as intermediate positions in terms of partisan influence. As regards the breadth of the problem definition, it has been argued that, horizontally, there is a narrow versus broad relationship between the three pairs.

10. Methods as a communicative technique

According to our description, the different methods rely on special communication skills:

1. Mediation is the issue if the realisation of a goal depends on the cooperation of someone else. Mediation should be the articulation of everyone's interests in cooperation and the disadvantages of non-cooperation; EM
2. Auditing requires the ability to analyse values and interests at stake; MM
3. Negotiation is the exchange of interests that make cooperation (even) more attractive than not working together; the negotiator as process supervisor pursues the maximum usefulness of both parties: FM
4. Coaching is providing advice about and control over the expediency of behaviour; OM
5. Meta-communication is necessary when people unjustifiably ascribe each other ideas, intentions or attitudes as a consequence of insufficient communication; TM
6. Therapy is intended to alight and when possible eliminate contradictions in someone's values and interests; NM.

Method is now replaced by communicative style in the following model:

If the completeness theorem proves effective, each method in the right column should be able to be construed as an extension of the parallel method in the left column. 

Auditing is an extension of mediating that relies not only on self-interest in cooperation, but also on the moral obligation to do so. Coaching is an extension of negotiation if agreement is also required on the process by which the common goal achieved by negotiations can be achieved. Finally, therapy is an extension of metacommunication because an individual's ideas, intentions or attitudes can be contradictory.

With this "proof" of the completeness theorem, the question of the identity of mediation has also been answered. Mediation is not a confluence of disjointed approaches to conflict, but a collection of intervention methods in social conflicts ordered according to the principles of party autonomy and efficiency.

These communicative techniques are also useful outside of conflict. As has already been said, some people already speak of a conflict if there is only a conflict of interest. But if not one of the parties claims a legal or moral right, there is no conflict. An interesting methodological question then is what difference it makes when or not there is a conflict at issue. Thus, once again, the importance of morality appears in the foreground, the stepchild under the methods of mediation.

After answering the strategic questions on mediation formulated on p. 2. we are able to outline a methodology for the generalist mediator.