Overlooking the essential issue of ‘ownership’ as one of the underlying philosophies of mediation means that a process labelled as ‘mediation’ defaults to an adversarial process more akin to arbitration and other adversarial processes. As a result, mediation does not provide a meaningful alternative to processes already in existence and so is often dismissed and underused.
Examples of practices which do not ‘respect or expect’ ownership as an essential aspect of the mediation process include:
- Compulsory mediation – an oxymoron
- ‘Expert’ mediators – where assumed prior ‘expertise’ in a field means the mediator brings their own view to the dispute and so participants are drawn into persuading the ‘mediator’ of the ‘rightness’ of their view.
- Shuttle mediation where the mediator becomes the central figure in the mediation process rather than the participants in dispute, thereby predisposing the mediator to being ‘persuaded’ by participants of the rightness of their view, again returning the process to an adversarial process.
- ‘Binding’ mediation outcomes whereby participants in mediation are not considered to have created an outcome they know to be suitable for all involved but one that is ‘at risk of being broken’, which is counter to the purpose and aims of mediation and limits the potential of the mediation process. This expectation is more likely to occur when mediators treat ‘agreement’ as the primary aim of the mediation process and thus have their own agenda of ‘getting an agreement’ and fixing it.
In mediation, those involved in a dispute or difficult situation are considered to have ‘ownership’ of it and this means they also own the responsibility to resolve it. The mediators are not involved to resolve the problem for people but to help them to resolve it for and by themselves.
A fundamental expectation and belief in mediation is that people have the capacity to resolve their own conflicts, whether a complaint, an argument, a relationship difficulty or some other dispute or disagreement. While at times we all struggle with the achieving of that resolution it doesn’t change the fact that we have the capacity to do so. Additionally, this philosophy includes the expectation that we are responsible for resolving our own conflict, indeed that no-one else can do this for us, because it is our conflict, we own it. Within that expectation is that we also own our beliefs, our thoughts, our feelings and our consequent actions in response to the conflict. As the late Stephen Covey said, we have response-ability, the ability to create our response rather than to simply react.
This differs from many processes and views that do accommodate the possibility that someone else can be, or is, responsible for our beliefs, thoughts, feelings and actions. ‘They made me feel…..’, ‘They made me do it……’, ‘I was brought up to believe….’ etc. The legal system can accommodate that view and see ‘extenuating circumstances’ being the ’cause’ of someone’s actions, because its purpose and underlying philosophy is different to that of mediation. It is an adversarial system which seeks to establish ‘right’ and ‘wrong’ by a set of conventionally agreed laws and the assessment of who is ‘right’ and who is ‘wrong’ is decided by an independent third party.
The purpose of the legal system is not to resolve a dispute, it is to ascertain whether one or other person has committed a ‘wrong’ as defined by our laws and to punish them if they are found guilty of doing so. The allowance of ‘extenuating circumstances’ can be considered in order to reduce the degree of ‘wrongness’ in the person found guilty and hence the severity of the final punishment. This is a clear and significant difference between the two processes. Mediation has no focus on ‘rightness’ or ‘wrongness’ or even the degree to which these may be considered to be so.
I am not here seeking to discuss whether one process is ‘better’ than another but to clearly identify that mediation and adversarial processes are fundamentally different in their aims, underlying philosophies and, consequently, their practices and outcomes.
This clear distinction is often missed in discussions relating to mediation, particularly where the dispute is already intertwined with a legal or other adversarial process, and is a reason why there can often be a confusion about what mediation is, because it is being looked at through the filter of a completely different process with different underlying philosophies, aims and outcomes.
Fortunately these differences are being recognised and publicly acknowledged by people within the legal system as well – Lord Falconer, former Lord Chancellor was quoted recently in the Law Gazette:
“….Falconer questioned whether mediation could really take off if mediators continued to practise as lawyers as well. ‘It’s not that easy to move from being an adversarial lawyer on one day of the week to a mediator on another. It is not just about training, but a cast of mind,’ he said.”
The mediation process which seeks to help those in dispute create a better way of doing things, without allocating blame, or seeking to establish the ‘truth’ or who was ‘right’ and who was ‘wrong’ will inevitably be practised differently to one that focuses on those aspects in responding to a conflict.
And yet many processes which go under the heading of ‘mediation’ are still underpinned by practices which do seek to establish wrongness, rightness, blame and truth. They follow a sequence carried out by the ‘mediator’ which can be described as assessment-diagnosis-prescription , all 3 of which are contrary to the philosophy of ownership by those directly involved.
Participants in a mediation may self-assess, or self-diagnose and subsequently self-prescribe or they may ‘situation-assess, situation-diagnose and subsequently situation-prescribe. But at no point is this done by the mediator. The mediator’s role is to support these processes and help those involved towards their own creation of a resolution rather than give an assessment, diagnosis or prescription.
There are plenty of processes already in place that do provide assessment, diagnosis and prescription. If mediation were just one more process that provides more of the same it would not be providing a genuine alternative and so would serve little purpose. This is a comment I have often heard about mediation when practised this way and with clear justification. In these examples it has always been the case that ownership of the dispute and its resolution has not been respected and expected to be that of the participants. Instead the process has defaulted towards the ‘mediator’ seeking to influence or even deciding the outcome created, which in turn suggests an adversarial process.
Overlooking the philosophy (/concept/expectation) of ownership is where suggestions that mediation be made ‘compulsory’ completely miss the point of mediation. When a process is compulsory, the whole purpose of mediation is lost – there is not an ownership of the decision to use it and so from the very start of the process the belief that people have the capacity to resolve their own difficulties is lost, and the expectation that they have the responsibility to do so is also lost because the decision about how to resolve their conflict is taken out of their hands before the process has even started.
Essentially, ‘compulsory mediation’ is an oxymoron, but easily overlooked when the thinking that informs the decision to try to introduce it comes from an adversarial perspective. Later Underlying Philosophies of Mediation to be discussed in this series include Empowerment and Adult-Adult not Parent-Child approach and these also have significance in challenging the misconception that mediation can ever be compulsory and still remain mediation.
This isn’t to argue against compulsoriness in general as there may be some processes in our society we wish to be compulsory, but in mediation it creates a self-contradiction. If we see mediation as a process whereby people experiencing unresolved conflict can create their own resolution they have to acknowledge and take ownership of their situation and their responses within it for that to be possible, and these cannot be ‘forced’ upon them.
If we don’t see mediation as a process that pursues that aim then it is not an alternative and simply adds to a long list of processes that already exist that provide or impose a solution to unresolved conflicts on people and these are usually either adversarial processes such as the legal process or complaints procedures or grievance procedures as examples, or they are treatments such as medication or incarceration or some form of control in the form of punishment or restraint. These are again based on an adversarial philosophy where there is deemed to be someone who is ‘in the wrong’ or their behaviour is ‘wrong’ and needs to be controlled by a separate decision maker, it is not the person acted upon who creates and owns the decision. To emphasise, this is not a criticism of such processes, my aim is to outline the clear difference in the underlying philosophies of mediation and such processes. Mediation has a certain place and role, the other processes have another. They are fundamentally different.
Other examples of practices described as ‘mediation’ where the relevance of ownership as one of the underlying philosophies of mediation is overlooked and is therefore adversarial and/or little different to other processes already in existence are:
The ‘Expert’ Mediator
Some organisations offering mediation emphasise the ‘background’ of the mediator being from a particular field, or even that they are a noted expert in the field. Within mediation this is an irrelevance and even risks being to the detriment of the process. If the participants are aware of the mediator’s ‘expertise’ there is a risk they see the mediator as someone who needs ‘persuading’ that their stance or position is the ‘correct one’, in the hope that the mediator will give a view in their favour. Worse still, the mediator may themselves see their role as including that of giving an ‘expert view’ in which case the participants will be even more inclined to persuade the mediator of their rightness and condemn the ‘wrongness’ of the other party.
This sets the mediator as the central figure in the process and makes it an adversarial process, more akin to arbitration – a process available elsewhere and more honestly portrayed as an adversarial process with a central third party whose view of the dispute and its solution is actively sought by those having arbitration – a fundamentally different process to mediation. I am often puzzled when I hear of such processes because I don’t understand why the participants did not ask for arbitration. I am particularly puzzled when a lawyer representing a client proposes mediation and then complains when the mediator acts in a way that fits with these underlying philosophies of mediation. Why, again, did the lawyer propose mediation and not arbitration?
Where the mediator is present to facilitate discussion by the participants and, as far as possible, remains outside of that discussion, the participants return to the creation of their own, shared, view of a way forward via the discussion and are not distracted by a temptation to ‘get the mediator on their side’. The mediator’s role is to support effective communication and creative thinking by those involved to help them create that way forward. Ownership of any outcome, remains with the participants.
The idea of an ‘expert mediator’ is a surprisingly common misconception about mediation and more surprisingly it is actively advertised by some ‘mediators’ in this way. It is also not surprising that, when practised in this way, many lawyers quite rightly claim mediation brings nothing new in addition to processes already in place, such as settlement discussions and so will actively discourage clients from using it.
It surprises me and saddens me how often mediators who practise as ‘expert mediators’ will justify it by saying that their ‘expertise’ will help to ensure the ‘correct outcome’ apparently oblivious to the fact that their very expectation of this being within their mediator role is a contradiction of the purpose of mediation. Why would clients want advice on the ‘correct outcome’ having sat through a long discussion with each other if they could just go to their own lawyer and ask for their view? What if their own lawyer disagrees with the ‘correct’ view proposed by the ‘mediator’? Does the mediator still get paid? It misses the whole point of mediation which is that it is the parties themselves who create the outcome, whatever that may be, including one that may not be conventional and the mediator is not present to give a view about that outcome.
This is why it can actually be detrimental for the mediator to have or believe they have an ‘expertise’ in the area of dispute which is using mediation, as their temptation can be to bring this ‘expertise’ to bear. For arbitration the expertise is important, similarly so for consultancy or advice giving or advocacy. But for mediation it is irrelevant and potentially damaging to the process if the mediator brings it in to the situation.
This is often explained as ‘necessary’ because ’emotions may run high’ and so participants are ‘kept apart’ or they ask to not have to sit in the same room as the other person. Within a model of mediation that is rooted in the underlying philosophy of ownership, emotions running high is seen as an intrinsic part of an unresolved conflict, not something to be set apart by the mediator and avoided (an ineffective response to conflict that can never resolve it). Similarly, my practice if a participant says they don’t want to meet with another party in mediation would be to acknowledge this and then ask:
‘Ok, so in what way would you prefer to communicate with X? I wouldn’t be able to accurately convey your words to them nor would I be able to respond on your behalf to their views as my role is not to represent either of you. I understand that you may not wish to be in the same room but you have requested mediation and support in resolving the conflict that exists between you so what other means may be possible for you to communicate with them, whether within mediation or otherwise?’
At all times within this question is the expectation that the participant takes responsibility for resolution and the means of creating that, but does not ignore their discomfort in being in the same room with the other person. If the person is clear they do not wish to be in the same room it is often a sign that their original decision to come to mediation has not been owned by them, and a sense of compulsion to be involved has existed and so this statement allows them the opportunity to not continue with something they did not originally want.
Also, it provides an opportunity to explore other ways in which they may wish to pursue resolution if they do not wish to meet face to face, and often participants will decide to write to the other person or will phone them, or will create other ways of dealing with their situation that resolves it for them. These are common practices within mediation and not ‘theory’ or ‘wishful thinking’ as is sometimes suggested to me. These are practises that I and colleagues have carried through in disputes in a range of different areas of application of mediation over a period of many years. It works because it has a clear set of philosophies and principles, and practices that arise from them.
In my experience, shuttle mediation comes about for two main reasons:
- There is a ‘determination’ on the part of the mediator to ‘make participants connect’ even where it is fairly clear they do not wish to as they have not had ownership of the decision to participate in mediation, or have been ‘cajoled’ into continuing with it by the mediator who perhaps has come to measure their own ‘success’ by their ability to persuade people to use mediation and so see resistance as a challenge to their reputation and, it has to be said, their ego, and this overrides acknowledgement of the party’s wishes.
- Alternatively I have seen shuttle mediation be proposed and instigated because of the mediator’s lack of confidence in managing themselves in the presence of strong, difficult emotions being expressed by the participants and so it is quickly ‘suggested’ by the mediator as the process to be used, sometimes persuading themselves that they have ‘suggested it in the interests of the participants’ rather than because they find powerful emotions being expressed to be a challenge for them. It can be for all of us, but our role as mediators is to work on ourselves and our ability to manage ourselves in the presence of difficult emotions being expressed – because it can be an integral factor in an unresolved conflict – not to take over the communication and ‘solving’ of the problem for those involved. Removing the opportunity for those emotions to be expressed is not supporting resolution it is preventing a full exploration of the unresolved conflict.
In both instances, ownership of the dispute and the means for resolving it through mediation or otherwise is not respected or expected. The decision to use it is based more on the mediator’s own agenda than on the parties’ ownership of their situation and its resolution.
This practice indicates another situation where ownership is not expected or respected. In mediation, an agreement or other resolution of a situation arises because the participants themselves create it, they own it. When this is so, no binding is needed. Participants may or may not wish to record the outcome of their meeting but this would not be to ‘bind’ it but to simply record their shared view of the things that were discussed and, if relevant, agreed on. If they create something they want to be legally binding then they can direct a lawyer after the mediation to make it so but often this is not a request they make because they don’t believe it to be necessary.
Again, the practice of ‘binding’ as an outcome is a remnant of adversarial influences on the mediation process. One of the many strengths of the mediation process arises from the non-binding nature of the outcomes. It means there is a clearly recognised, shared view of the best outcome for all parties involved. There is not a ‘winner’ and a ‘loser’ and even the notion that the outcome is ‘win-win’ still echoes an adversarial influence. The notion of winning or losing is not the issue, it is whether the outcome is resolution and an effective, productive, useful way forward in the situation that works for those involved – as defined by those involved.
When we decide with our friends, or our partner, or our family, or our work colleagues that we wish to take a certain shared action (go to the cinema, go for a meal, meet up at the weekend, arrange an away-day) we don’t need to ‘bind’ it, write it down and get everyone to sign it, we discuss it and if there are changes to be made we make them and then follow through with the decided activity. Some will say, Yes but this is not our friends, partner or work colleagues, we are talking about people who are in dispute so that all sounds nicey nicey but it’s not realistic.
First of all, in response to such a statement, a dispute could just as easily involve friends, partners, neighbours or work colleagues as people who are relative strangers. Secondly, if they want the situation to work without fear of it coming undone and needing constant policing by a ‘binding’ status (and who does the policing?) then they have an investment in creating an outcome that works and is thoroughly explored to consider possible ways in which it may not work. A mediator will play devil’s advocate with any decisions made, or proposed ways forward, in order to ‘reality test’ them so that participants create something that they are as clear as possible will work through their own actions and not need to be ‘bound’ and assumed to be policed by some external authority.
This again relates to another Underlying Philosophy of Mediation mentioned earlier of an Adult-Adult, not Parent-Child approach whereby, as adults, participants do not need to be ‘overseen’ by a ‘Parent’ body or individual to act in ways that are productive, useful and resolving of their previous conflict. The ‘good faith’ resolution created in this way is far more sustainable than an imposed solution and requires far less effort and resources to carry through.
Any objections I have heard that such practices and consequent expectations of parties are unrealistic come from those who do not practice in this way and are not trained or experienced in an approach that supports this. It works, and it follows from having clear underlying philosophies, principles of practice and communication skills informed by those philosophies and practices.
The practices differ significantly from those that occur within adversarial processes because they have fundamentally different philosophies and aims and so those more used to working in adversarial contexts will find the contrast a challenge as identified above by Lord Falconer. And this applies not only to lawyers but also advice givers, consultants, advocates and other similar roles where the client does not create their outcomes for themselves, they / their situation is assessed, diagnosed and prescribed for. In many senses it can apply to all of us as we can all take a view that others are not ‘fixing’ their life situations as we think they should. Through mediation we can practise in a way that trusts that people in difficulty can and will create a way that works for them and it supports their empowerment to do so.
Later posts will describe in more detail the mediation principles and practices that follow from the Underlying Philosophies of Mediation described in this series.
Read about all of the 6 Underlying Philosophies of Mediation:
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