Thanks to Andrea Schneider, the Cardozo Journal on Dispute Resolution’s faculty advisor, and its editors, the Journal just published articles by Professor Robert A. Baruch Bush and me expressing differing perspectives about basic mediation theory.  I appreciate this opportunity to publish our perspectives and share them with readers.

Prof. Bush’s article is Beyond the Toolbox: Values-Based Models of Mediation Practice.  Mine is Real Mediation Systems to Help Parties and Mediators Achieve Their Goals.  I invite you to read both of them.

His article stimulated me to write my article, which systematically articulates ideas I have been developing for quite a while and significantly advances those ideas.  This also prompted me to develop a Real Practice Systems Project described in my article.

Before identifying some differences, I want to note some commonalities.  We both strongly believe that mediation has great potential to improve people’s lives and the functioning of communities and societies.  We both are committed to developing ideas to help mediators, academics, students, and especially parties in mediation.  We recognize that mediation theory is complex, reflecting many different values and perspectives.  Mediation practice is hard.  Throughout the process, mediators constantly make moment-by-moment decisions about what to do.  Mediators and mediation programs sometimes use problematic procedures that unintentionally harm parties.  The transformative school of mediation has made a valuable contribution in highlighting the value of promoting parties’ empowerment and recognition of each other in mediation.  Baruch and I both wish that more people shared our respective perspectives.

Now to our differences.  Prof. Bush believes that a system of theoretical models is critically important.  I want to replace the current system of theoretical models.  This is where we fundamentally disagree.

I believe that a dispute system design (DSD) framework enables mediators and mediation stakeholders, especially parties, to more accurately understand and characterize how mediators think and act – and to act accordingly.

Professor Bush’s Perspective

Here are excerpts from Prof. Bush’s article, omitting footnotes.  He criticizes what he calls the “mythology” that mediators simply select particular tools from a common toolbox.  He argues that

the toolbox myth frees mediators from the need to explain what they do – to themselves or to any supervisory authority.  Any tool from the toolbox can be justified by the demands of a particular situation and the individual judgment of the mediator.  By contrast, practicing within a clear and coherent model means operating within constraints in which some practices are normative and others are not, and coherent justifications can be demanded for what a mediator does and does not do.  The desire to practice without having to give such non-idiosyncratic justifications can be one strong motive to deny the reality of coherent models.

At a deeper level, the mythology affirms and announces (for mediators and their potential clients) that mediation is a “value-neutral” practice, which does not reflect any underlying values or beliefs.  It is just a practical, technical set of methods to help people settle conflicts and move on, no more value-based than car repair or plumbing.

He argues that the “toolbox” concept “contributes to the seemingly widespread practice of mediators claiming to use a ‘combination’ of two or more models. … However, it is a claim that ignores the reality of the several models and their differences, and a claim that is belied by the actual practices of mediators who make this claim.”

He writes that “a ‘value-free’ posture is just that – a posture, a pretense.”  Rather, there are distinct mediation models “employing significantly different practices for different purposes. … Responsible mediation practice, use and regulation all demand recognition of the reality of the different models, and the differences among them.”

His article focuses on facilitative, transformative, and restorative models, omitting the evaluative model “because in the terms of this Article, it is in effect a strongly adversarial version of the facilitative model.”  He notes the existence of other mediation models but does not include them because they have “strong similarities to one of the three models analyzed here, so separate analysis would likely be repetitive.”

He argues that the “distinct models of practice … are significantly different from each other, and that each one is itself internally coherent and integrated.  In other words, within each model, the mediator’s purpose, practices, and premises are all consistent and congruent; and when comparing each model to the others, these three levels are not only different but incompatible.”  Clearly defining the distinct models is important for users and regulators.

Practically speaking, coherent and clearly defined models are essential for users of mediation to know “up front” what service a mediator is promising them – which is not possible with the “mediator’s toolbox” approach that some advocated in the past and that persists today.  The variability of practice in that environment makes it very hard to inform clients about what to expect from a mediator.  It also makes it hard for regulators to know what standards to impose on practitioners.  By contrast, different but coherent models like those discussed in this Article meet the needs of clients and regulators: Mediators can announce and explain to clients what model they follow – and also offer clear information about what models other mediators follow.  Clients can then make informed choices about which approach meets their needs, and both clients and supervisory authorities can ensure that mediators perform according to their promises.  There will still be variations in individual mediators’ “styles” within each model.  But that kind of stylistic difference is not the same as “toolbox” practice with no consistency or coherence.

My Perspective

I think that traditional mediation theories provide useful values, ideas, and techniques.  Many practitioners, academics, and students find them very meaningful in orienting their thinking and actions.  Indeed, these theories are central to some people’s professional identities.  (FWIW, I think of the main traditional theories as facilitative, evaluative, and transformative.)

I also think that traditional theories are incomplete at best and seriously misleading at worst.  My article shows how the traditional facilitative and evaluative mediation models are oversimplified, poorly mapping onto the reality of practice.  They combine multiple elements that are not necessarily correlated.  Many practitioners ignore them because they are confusing or not helpful.  People do not understand the theoretical meanings because the terms are not consistent with commonly understood language.  Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in the field.

I suggest that dispute system design (DSD) theory can provide a better theoretical framework for understanding mediation and guiding people’s actions in mediation.  Mediators’ practice systems include their thoughts and actions before, during, and after mediation sessions.  These systems include default approaches for routine procedures and strategies for dealing with challenging situations.

Mediators’ practice systems can incorporate and refine traditional mediation theory – in addition to many aspects of mediation that are completely independent of traditional theory.  Moreover, using DSD as a central frame for understanding dispute resolution integrates the entire dispute resolution universe, not just mediation.

My article uses accounts of actual mediation systems of ten mediators to illustrate this framework.  The mediators described their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their mediations.  They developed categories of cases, parties, and behavior patterns that led them to design routine procedures and strategies for dealing with recurring challenges.  Their accounts describe how they reflected on their experiences and evolved their techniques accordingly.  Each mediator’s practice system differed substantially based on these variables.

The Real Practice Systems Project is intended to provide a more realistic portrayal of mediation and other dispute resolution processes, and it illustrates benefits of using a DSD paradigm.

There are many parts of the project.  Mediators and advocates in mediation can use the project’s framework to become more conscious of how they think and why they act as they do in mediation.  Faculty, trainers, and program administrators can use this framework to help students and mediators become more aware of their ideas and actions related to mediation.  Theorists can use this research to develop empirically grounded generalizations.  Empirical researchers can use this framework to better understand how various populations of mediators conceive of their work – and also operate unconsciously “on automatic.”  I am collecting data from faculty, program administrators, and practitioners about how this could help in their work.

This project also has prompted me to focus on the critical importance of pre-mediation-session preparation to help parties participate in mediation effectively.  I am writing a forthcoming article analyzing local federal district court rules as reflections of dispute system designs related to preparation for mediation sessions.

Take a Look

I invite you to read both articles and see what you think about our differing perspectives.