Mediation news

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

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 diagnostics

The needs of the parties are not only related to the breadth of their problem definition, but are partly determined by the stage of a conflict (input), by the communicative competence of parties (process) and by the small or greater variety of possible outcomes of mediation (output).

Van der Hoek² explained that there is a link between glasl's escalation and the suitability of methods of mediation. The order he proposes is: FM (if parties no longer come out themselves) in the win-win phase, TM and NM in the win-loss phase, where NM is deployed when TM no longer works, and finally, in the loss-loss phase, EM. After that, the mediator must clear the field for arbitration or case law. The logic of this sequence is clear and Glasl's empirically well-confirmed phase theory thus contributes to the objectification of party needs. Nevertheless, a number of questions arise. The first question is how SOM can be fitted in. 

SOM is a facilitating, process-oriented method as well. It distinguishes itself from FM by decoupling conflict resolution from problem solving. SOM primarily aims to improve the relationship of the parties. The further the conflict has escalated, the harder it is to get it done. In this way, it is obvious to bet on SOM and to switch to FM if the positive support of the former proves irreparably damaged.

The second question is what the diagnostic place of MM is. MM is the moral pendant of EM. Given the escalation value of EM (image and coalitions, loss of face, threat strategies), MM may be useful in highlighting the essence of mediation as a preference for cooperation rather than further escalation. This is easy to the extent that parties have both opted for mediation. From there, it is only a small step towards cooperation from when there was no conflict (SOM). If this does not turn out to be a viable card because one does not detach from the positional discourse, then there are two possibilities. The first is to persevere with an evaluative role of the MM mediator. The second possibility is that the moral approach is jammed and the mediator will the escalation to the loss-loss phase in order to shift the focus from values to interests, as is customary in the pre-phase of FM. 

However, MM still has a third application option. The linking of methods to the escalation phase makes little sense if, in advance, as a result of the legal arrangement, there are only two or three possible outcomes, for example shared parental power or not. The MM mediator can then advise on the moral considerations that are at issue or attempt to bring parties to the same position.

The second reason why the escalation phase may be less relevant is too little communicative competence among parties. It is not a local incompetence, because it can be remedied with TM. If there is any doubt about the local or general nature of incompetence, there is no point in applying methods that are rather demanding in terms of the use of parties. The mediator can then propose non-binding arbitration.

Assessment of the adequation of methods is also a matter of a quickscan of whether and how each method appeals to the parties. The aim of EM is an opinion on the possible outcome of a lawsuit and the possible added value of an alternative devised by the mediator. However, one is particularly interested in the ethical aspects of the dispute (MM). This can also be of practical importance if a person's reputation is at stake. FM is obvious for parties who, in view of their interests, see opportunities for negotiations and already feel little for a court case. 

The quality of communicative capabilities is more or less evident in the representation of the problem’s history. Was one clear in terms of desires, did one show understanding for the other party? Do one listen carefully to the mediator, one asks if something is not clear? OM is suitable for people who used to be reasonably satisfied with the relationship with the other party and who would like to restore it. NM will appeal to people with a strong sense of perspective, i.e. with the understanding that one can interpret the same facts differently and that differences in interpretation can make a difference in consequences. In this way, it should be possible to develop a psychological test for mediation. The results of such a test can then be tested again against the representation of the problem history. It should be noted that this does not help with the importance that OM attaches to minimal attention to the conflicting past. However, the representation of the positive part of the past can be used as an indication of the degree of desire for an improvement in the relationship between parties.

In broad lines, the parties will express multiple needs. In this case, it should be identified which method appeals most to both parties. More difficult than the question of multiple interests of one party is the situation in which the primary needs of parties differ. Secondary common needs can then be decisive that there is a impression that the parties are very interested in finding a solution through mediation.

1. Diluted distinction between methods and techniques

Meanwhile, the diagnostics advocated here are purely speculative for lack of multi-methodically trained mediators. Methodical thinking is now fairly artisanal. The method in which one is trained is applied to almost every case. In addition, one develops what is called a personal style, a style to which elements have been added with which one has gained beneficial experiences. Craft, a mix of largely teacher tradition with some personal experience adjustments. However, craft can degenerate into methodical anarchy. In a recent interview with conflict management magazine (no.3 2014, p.7), this is well illustrated by an experienced mediator:

“However, the style I apply now does not fit into any box. I mainly use what comes to mind… I try to steer as little as possible, but sometimes I let go of that too. I believe you should do what works. And what always works sometimes doesn't work, then you have to do something else.”

Because of this subjective component, methods have started to be called styles, as if the purposes of mediation are always the same, but only their techniques can vary.

How are techniques distinguishable from methods? Why, for example, do we see "mirroring" as a technique and not as a method? A method consists of an orderly set of processes and techniques with which a certain goal can be realized. A technique can be part of different methods and therefore has no inherent purpose to date, even though some techniques are more or less typical of a particular method. The question, for example, of why parties have failed to resolve the conflict itself seems to be a typical TM question at first, because this question suggests a lack of empowerment. However, it also fits very well in the context of FM.

The question also makes sense in the NM framework. Contradiction of interests can be the cause of the no more trace of storylines, as the example of the hard-working partner given above shows. Although the question is typically TM-like, it does play a different role in FM and NM than in TM. At FM, he needs to determine the complexity of the conflict and the assessment of the compatibility of interests. At NM, the question should be the determination of the point where things went wrong or the identification of starting points for the development of alternative storylines. Conversely, there are techniques that are incompatible with some methods. Techniques that appeal to the emotions of parties will prevent an FM mediator as much as possible. because they can be a nuisance to negotiate. That is precisely why it may be necessary for parties to express their emotions first, but if they do, the FM mediator will soon intervene through reformulation and relabelling. 

Even experts in the methodology of mediation, the distinction between methods and techniques is not always entirely clear. Prein, for example, seems to regard the systemic approach as a method of mediation. Although he does not speak of a systematic method, he places the systemic approach under the same head of "approaches" as TM and NM. On the other hand, Choy, a writer on the systemic approach in the book " Approaches and sources of inspiration of mediation" edited by Prein, argues that there is "not so much an indication of systemic mediation as for the mediator to set up systemic glasses".  As a background theory for various techniques of mediation, this theory is very valuable, but therefore it is not yet a method linked to an independent goal. 

Prein distinguishes result-oriented (EM), problem-oriented (FM) and communication-oriented (TM and NM) 'approaches'. The coincidence of the first two with EM and FM suggests that there is no question of technization of methods. This is the issue if TM and NM are brought under the same umbrella of the "communication-oriented or interactive" approach. Below, Prein understands that the mediator "does not directly interfere with the content of the conflict", but "primarily wants to improve communication between parties." Given this definition, however, FM is also focused on communication. The mediator is supposed to interfere only in the process and not with the content. It should steer the communication from a discussion on positions to a discussion about interests in order to start negotiations. These negotiations, in turn, should only be procedurally controlled through Harvard rules for negotiation. These rules dictate how to communicate in negotiations and the mediator acts only as a guardian of those rules and not as a substantive mediator. 

Because NM does not distinguish between procedure and content, it is also not clear why NM would be eminently communication-oriented. Prein's definition of that term actually only fits tm, when it comes to improving empowerment and recognition. NM, on the other hand, is indeed solution-oriented and very radical: the disappearance of the problem. 

Although the classification "communication-oriented" is therefore wrong, there are undoubtedly other classifications imaginable that are correct. For example, Prein refers to authors who speak of a "therapeutic style" in both TM and NM. Above it is stated by us that TM shows characteristics of coaching rather than therapy. After all, it is about improving skills and not, as with NM, about a substantive change in the relationship between the parties. However, Prein also explains his distinction by referring to the 'homo economicus' at EM and FM and contrasts it with the more emotionally irrational nature of TM and NM. That is an acceptable distinction, but one without methodical meaning. It does not imply that TM and NM are more methodically related than to EM, FM and SOM. This raises the question of the usefulness of these types of classifications. Unlike the principles from which we derive our classification, they are fairly arbitrary.

13. Unity in variety?

Prein distinguishes three visions on how the wide variety of ways of working mediators can be seen:²

• As a loose set of techniques from which mediators can more or less freely operate; Prein rejects this because as a mediator you do not escape working from a certain purpose and vision. In other words, the mediator must use a methodical criterion to use techniques in a targeted manner.
• If depending on contingency factors such as the nature of the conflict, the needs of the parties, the barriers to a possible solution or the escalation rate; Prein cites, however, all kinds of research showing that mediators do not work if not but rather rigidly stick to their own style. 
• The third view is that the differences in working methods are determined by "something that is complex and coherent and goes back to an orientation, philosophy, ideology, professional ethical view, human image or identity", a vision to which Prein joins.

Methodical rigidity does not rule out the possibility of the necessary technical variation within a method... If, for example, there is a lot of outrage among the parties, the mediator will have to intervene against this drive, and the mediator will have to congratulate the parties on their business. However, if the method is TM, the former interventions are taboo for methodical reasons. The parties must then discover for themselves that it is more effective not to show more emotion than is necessary to improve communication over and over again rather than block it.

The implication of the methodical rigidity of mediators is that the needs of the parties do not determine the purpose of mediation. The fact that there is a connection between ideology and method has already been argued above, but that does not imply that ideology and human image are important causes of the methodical rigidity of mediators. One-sided training during training could also be a cause. Prein himself suggests that this is a major cause. Mediators, he says, are "little aware of their own style", as has been confirmed more recently by American research.³

Yet that is again difficult to reconcile with the idea that ideology or human image would be the cause of rigidity. After all, methodical awareness only arises when one is also familiar with alternative methods. However, it may also simply be too difficult to use two or more methods side by side at level. This indicates that even mediators who had indicated in the register that they could use more than one style were also found to use only one style in practice. On the other hand, however, a large number of mediators are also lawyers and apparently have no major problems of changing the legal approach to conflict resolution to that of mediation.

14. The emperor's new clothes

By suggesting that mediators can do no different than what they do for such pompous reasons, Prein creates a sense of inevitability among his reader. In this way, he can rather carelessly ignore the fact that he himself has relived the research that the needs of the parties do not affect the methodical manner of action of the mediator. This is remarkable, because the lack of methodical flexibility is in flagrant violation of the principles of party autonomy and efficiency accepted in all forms of mediation. It is up to the parties to decide what purpose they wish to submit to mediation and deviation from it is by definition ineffective. Following prein would be mediation theory and practice logically completely incoherent. In fact, there can, of course, be consistency in so far as the needs of the parties happen to fit with the rigid methodical offer of their mediator.

After this analysis, it is also clearer what the function of watering the distinction between methods and techniques is under the heading of approaches or styles. As long as the relationship between purpose and means is undetermined, technical differences can be charged to methodical differences and be exempted from the demand for their methodical coherence. Conversely, methodical differences can be treated as only technical differences. In this way, each mediator can develop a "personal style" and possibly claim ideological superiority for it. It seems very much that prein's "communication-oriented" style is an example of this. Prein is clearly charmed by TM (the "perhaps most consistent form within this communication-oriented approach") and apparently wants to combine TM with unspecified NM techniques. A good example of a personal style, but also of operation to your own taste from a collection of loose techniques. But how can this be reconciled with Prein's objection to it, namely that the mediator does not escape working with a certain purpose or vision?

Prein's objection is a petitio principii. The overall aim of mediation is to resolve conflicts or to improve the conditions for this. A mediator can develop his own style based on experience with techniques that he believes work (at least with him) or do not work without having to ask themselves the methodical question of why they work in mutual cohesion. He is, as stated before, similar to a craftsman. He also develops his own style of work without being hindered by the theoretical knowledge required of an engineer. This knowledge is only necessary if the technology needs to be adapted to variable, innovative needs of clients. The still great admiration-inducing architecture of Gothic cathedrals, for example, was based not on theoretical knowledge of building, but on experience acquired (literally) trial and error. 

The master builder of such a cathedral would have been totally disengaged if he had been asked to build a 500-metre-high skyscraper, although it's still unknown theoretical building principles are in principle the same.

Prein's objection to the model of mediation as a collection of loose techniques is therefore justified, but he seems to care little about it himself. In addition, the importance of personal style in the practice of mediation should not be underestimated in any way. But it is the importance of craftsmanship in a discipline that has scientific pretensions. With the idea of a personal style, however, an even more far-reaching pretension is linked, namely the pretence of being able to eliminate the incoherence between the theory (party autonomy) and the practice (methodical rigidity) of mediation. 

            15. Methodological contamination and party autonomy

Presently, almost all mediators are trained in one method and apply them independently of the needs of the parties. If experienced mediators are confronted with this, it is suggested that the diversity of methods is discounted in their personal style.

In theory, one can imagine a personal style that seems to be flexible in responding to the needs of parties. For example, the mediator starts in FM style, encounters a small degree of empowerment and recognition and throws some TM technique at it by asking how the parties could solve conflicts independently in the past. The mediator then notes that the parties begin to tell various stories about the development of their relationship and uses this semi-narrative interlude to allow the parties to experience the relativity of their positions and then switch to an FM discussion about interests that leads to negotiations.

What we find here is not methodical flexibility, but something like exploring the needs of parties. In the scenario outlined, it is certainly not the case that parties could know what the methodical purpose of the mediation process is and what their tasks and roles are in relation to those of the mediator. In any case, a continuous change in the methodical perspective in the scenario just outlined would be virtually impossible for parties. The actual methodical work only begins when the mediator finally decides to operate in a certain methodical framework. The scenario is nevertheless interesting. It shows how mediators using these techniques of other methods can derive from it the illusion that they are methodically versatile thanks to their personal style. That illusion can also be easily created. In the history of conflict, interests, competences and the diverse narrative experience of history are more or less naturally addressed. Mediators can therefore feel that they are doing justice to all methodical angles. In reality, they impose a method on the parties, although the TM and EM options are not further explored in our scenario, although parties may need it most. In the absence of a massive lack of familiarity with methods other than FM, such a lack of further research is also obvious.

A second explanation for methodical contamination may be that some techniques are useful in various methods, albeit with a different purpose. In the scenario outlined, for example, this is the case with the use of narrative technique. Apparent methodical versatility can also result from using one method as a cover for another (see p. 19). Finally, there are also interactive effects imaginable in the use of methods. For example, participation in an FM or NM procedure can strengthen empowerment and recognition through unconscious learning effects. 

We have explained why mediation is an incoherent strategy if there is no way of aligning methods with the needs of parties rather than those of the mediator. In that case, there can be no party autonomy, the fundamental principle of mediation. The choice of a given method should therefore depend on the needs of the parties in the light of the other contingency factors mentioned above prein. Whether this can actually be achieved remains to be seen. Further investigation must answer that question. However, we are committed to the possibility that mediators other than their own favourite "method" can at least get to know them so well that they can refer parties to a colleague more giveable in the relevant alternative method. 

16. Recommendations for multi-methodical training

The conclusion of our analysis is that while mediation is methodically consistent, it is not entirely coherent because of a missing link. In principle, however, it is more objectionable that the theory and practice of mediation are in flagrant conflict with each other. Methodically, mediation still shows artisanal traits because no clear distinction is made between methods and techniques. The extent to which multi-methodical training and improvement of methodological understanding can change this is a question that needs to be answered by experimental research. The assessment, which is now entirely FM-oriented, will then need to be more varied for the increase in the level of education, more extensive attention to ethical argumentation theory, conflict sociology and – psychology is desirable. Much more attention is recommended for the theoretical foundations of the various methods. Greater legal expertise in areas attractive to mediation will also be able to benefit the usefulness and prestige of mediation and reduce the risk of juridification of mediation by ensuring that multi-methodical training sharpens methodical awareness. Furthermore, a more general training in the special communication techniques relevant to mediation, which also know their applications outside of conflict, could be a valuable contribution. The mediator will then be able to act outside of conflict as mediator, negotiator, coach or narrative therapist. Finally, it is important to give special attention to techniques that are useful in almost all methods. In particular, this is a think of the systemic approach. 

The usefulness of a multi-methodical approach lies not only in adapting supply to the demand of parties, but also to the construction and personality of the mediator. By being able to get acquainted with all methods both theoretically and practically, one can also consciously choose specialization in a method that one feels the most affinity with and operates well in the opinion of more experienced specialists in that method.

On its own, it would also be advisable if the mediator training could pay attention to MM.

Finally, we would also like to call for a multi-methodical approach, namely by means of a primary caucus.

            17. Primary Caucus

Since almost all mediators are trained in only one method, the question is whether the practical imchange of the method used would also occur if all methods were covered in the training. A correct methodical approach can be supported if the descriptive and curative phase of mediation are also procedurally distinguishable, as seems to be very common among EM and NM mediators. 

In order to assign a mediator methodically fit for a conflict, it is necessary for the parties to let each individual do their story. In this way, the mediator can give himself a clear picture of the contradictions and of the interests and needs involved in mediation. Without a fairly extensive intake, this is not possible. If it is immediately worked in plenary, these contradictions will be distorted by the interaction with the other party. This extensive intake is further referred to here as the primary caucus (PC).² As mentioned earlier, OM is against an extensive intake. However, this is about the selection of methods. One can first point the test at SOM. whenever SOM turns out to catch on, it's probably the best to choose right away.

An extensive intake with some depth is very common in EM and NM,² but is considered taboo in FM and TM. In the view of FM and TM, an extensive intake is accompanied by a dominant role of the mediator that does not fit with the principle that "parties ... tell their story not so much to the mediator, but to each other."³

However, the fact that the mediator would dominate during a PC does not speak by itself. If it is right, the parties in particular are speaking, while the mediator occasionally asks for clarification or a summary to check that he has understood correctly. In addition, when the intake phase is complete, there will be a primary confrontation phase in which the parties still make their stories to each other, but interactively. Because the mediator is already quite well informed thanks to the PC, he can pay a lot of attention in the confrontation phase to how the parties react to each other, both verbally (the phrasing) and nonverbal. He can also observe how the narrative of each of the parties changes as a result of the interaction with the other party. Dominance of the mediator will be limited to the PC in the case of reference to a specialised mediator. The role of referral and practitioner can also be structurally separated.

The PC has a number of other advantages. The parties receive the undivided attention of the mediator so that they can really tell their story without constantly wondering how the other party might react. This allows them to blow off steam without increasing steam at the other party. There are also considerable benefits for the mediator. It does not have to form two images of the dispute at the same time, while in the meantime he also has to clear up misunderstandings and register the non-verbal communication of the parties.

An objection to a PC is that it could entail additional costs. However, these are relatively small (one meeting). They can also be further reduced through online mediation.

        18. Conclusion

The conclusion of our analysis is that while mediation is methodically consistent in general terms, it is not entirely coherent as a result of a missing link referred to here as moral mediation. However, MM will have to be developed as a method first. In principle, however, it is more objectionable that the theory and practice of mediation are in flagrant conflict with each other. Methodically, mediation still shows artisanal traits because no clear distinction is made between methods and techniques. In doing so, mediators commit unchangeably to the method in which they are trained in combination with techniques based on their own favourable experience that is referred to as personal style. The extent to which multi-methodical training and improvement of methodological insight, as recommended by us above, can change this is a question that needs to be answered by experimental research. The recommended primary caucus will also need to be empirically examined. Finally, the assessment, which is now entirely FM-oriented, will have to be methodically more varied or specialised. 

In the meantime, we have not paid systematic attention to the tactical level of mediation, i.e. the coherence of methods and techniques.² Only once this has been realised can there be adequate professionalisation.