"Choosing to Make Choices for the Mediation Field"

Keynote Address by Dorothy J. Della Noce to the Iowa Association of Dispute Resolution, May 1998

Judge Thomas of Cedar Rapids (who invited me) won't be with us today. He is still in Reno, Nevada, where we have just completed teaching a one-week course in family mediation to judges from throughout the United States, as well as from Australia, Ethiopia and Israel, at the National Judicial College.

It has been my honor and privilege to teach at the Judicial College since 1995, and to learn from the judges there. I take very seriously the observations and insights of the judges regarding conflict, mediation, and the human condition, because their comments are based on years of experience at the front lines. I'll be sharing some of their comments with you later today. (My legal background warns me against the use of hearsay--- but I do remember a professor once saying that hearsay is excluded from evidence precisely because it is so persuasive --- )

On my first day of a 40-hour training program, I spend a good bit of time giving an overview of the ADR field, the variety of practices which make up the mediation field, and the theory of mediation practice which guides my process. At dinner that first evening, one judge asked me, "Is the field evolving?" This is a powerful question, and I think the answer captures the very essence and tension of the mediation field today. By understanding the evolution of the field, and the choices we now face, we may catch a glimpse of the future of mediation, or even more deliberately, shape that future.


A Brief History of Mediation Mythology

Let me share with you my thumbnail sketch of the recent evolution of the mediation process in the US, and from there, project with you what I believe to be the challenges of the future.

My sketch of mediation's evolution begins only with the latter half of the 20th century in the US. I realize that this overlooks the ancient and venerable history of mediation throughout the world's cultures. But even this limited look back is useful to understanding our future.

In the latter half of the 20th century, mediation could be characterized as mythology. Our literature suggested that the mediator was a magical, mythical, bias-free creature, who could intervene in conflict without influencing its outcome in any way. We could control process and people, but outcome would show no signs of our presence.

I think of this mythological version of mediation whenever I hear the story, repeated in many trainings, about the desert sheik who left 19 camels to his three sons, ordering that the first son get 1/2, the second son 1/4, and the third son 1/5 of the camels (and that no camels be cut into pieces). They squabbled endlessly until the desert wise-woman arrived on her camel, and tossed it into the pot. Suddenly, the problem was solvable and solved: the eldest brother received 10 camels, the next 5 camels and the next 4 camels, making 19 camels. The wise woman collected her camel and rode away, leaving each brother with exactly what they were entitled to, but otherwise leaving no trace of her presence. Examine the story carefully, and you can't help but see it is a set-up, contrived to perpetuate the mythology of the time.

This was the same time period during which I entered the mediation field, coming from a civil and divorce litigation background. I remember sitting at my first training, thinking even then that the myth did not make sense in light of my own professional experience: one cannot simultaneously convince people to settle on terms acceptable to the mediator and claim no effect on that settlement. I kept thinking that maybe I was missing something that everyone else knew.


Research and Self-Reflection

Other people were also intrigued by the myths, and began to study mediation, and in particular the talk of mediators. These scholars found that mediators did have influence over the outcomes of disputes, which they exercised by controlling the topics that could be addressed, the order of topics on the agenda, who could speak, how people could speak, what options were on the table, what consequences were explored, what information was shared and what standards of fairness were used.

This research created a crisis for the field, and we worked to defend ourselves against these outsiders who suggested that our process held dangers for women, and the powerless, and the disadvantaged. As we struggled to defend ourselves, we shaped policy to meet the critics' concerns: we claimed that parties in family mediation could get full financial disclosure which rivaled that of the judicial discovery process (a provision in the AFM Code of Ethics), that we could ensure fair outcomes (also AFM Code of Ethics), that we would protect third parties affected by the mediation (also AFM Code of Ethics), and that abused women could be safe and protected in our process (AFM Domestic Violence Report).

This was a painful time of self-reflection, and of measuring our process against the rival processes of advocacy, adjudication, and counseling. The irony is, it is also the time during which mediation came to resemble the very non-neutral processes it was supposed to be an alternative to. In trying so hard to meet the criticisms of the advocates, the adjudicators and the counselors, to please them, we actually became them.


A New Challenge

And then came what some describe as the challenge from within. In 1994, Joe Folger and Baruch Bush published The Promise of Mediation, what I and many others consider a landmark in the evolution of the field. Experienced mediators as well as scholars, Joe and Baruch identified some key concepts which rocked the field --- and continue to do so today.

First, they acknowledged that a mediator cannot intervene in a conflict without influencing it in some way. Second, they tied practice to theory, and argued that what a mediator believes about conflict and human beings shapes how a mediator intervenes in conflict. Third, they argued that mediator influence could be exerted either to drive settlement production, or to foster self-determination and understanding between the parties, but not to do both. And finally, they suggested that the difference between a mediator who drives settlement and one who fosters empowerment and recognition, is that the former believes human beings in conflict are fundamentally individualistic, self-interested, satisfaction seeking creatures, while the latter believes that human beings in conflict are capable of growth and change if the ever-present opportunities for empowerment and recognition are surfaced, and that human beings have the capacity to exercise both personal strength and concern for others. This has come to be known as the transformative approach to mediation.

The book caused no small stir. I was present when a member resigned publicly from AFM when Baruch presented his ideas at a plenary.


Conflict in the Field: Is it Good or Bad?

It is now 4 years later, and the stir has not died down. Within the last month alone:

(1) an article by a university professor appeared on a website, urging mediators to set aside their ideological differences, to submerge the conflict for the sake of the field;

(2) a heated thread ran through a university list-serve, yet again, on the topic of defining mediation and who has the right to do so;

(3) an article appeared in Mediation News claiming that the transformative framework was ethically unsound, unlike the author's "normal" approach to practice; and

(4) an article appeared in Mediation Quarterly criticizing Promise and its authors and claiming, much like Irving Younger, that the individualistic model they described was not mediation, or if it was, it was not competent mediation, but since he was a competent mediator he could practice both the individualistic approach and the transformative approach at the same time!

And, we are seeing articles and conference workshops that are reframing these differences in orientation as mere differences in "style," implying that all styles are acceptable, that the mediator can change styles at will, and that we are only talking about minor surface differences in practice. Meanwhile, Joe, Baruch, and those of us who endorse this approach to practice, are accused of "creating conflict in the field." (As you can imagine, there is probably no worse charge in the conflict resolution field than being responsible for creating conflict!)

So why this stir four years later? Because Promise has forced us to hold up a mirror to ourselves and question what we do, why we do it, and whether any or all of it should be called mediation.

Is this bad for the field??? No, in fact, I argue, it is very good for the field. (Of course, my orientation is transformative: I believe conflict provides opportunities for growth, clarity, understanding, and decision-making!) But, whether we can take advantage of the opportunities this conflict presents --- whether it realizes its promise --- depends on how we as a field respond.


Why We Should Embrace the Conflict

Those who want to deny that there is a conflict in the field, and those who are urging us to submerge it, are missing --- or squandering--- the opportunity to gain greater clarity about mediation. Our challenge right now is to move toward the conflict and the promise of clarity, not to run from it, and to consider the consequences it highlights and the choices it presents.

The urge to avoid or deny the conflict is understandable---facing it may mean coming to grips with the notion that what any given third-party practitioner does may ultimately be defined as not being mediation. That is, someone may be "outside the tent." But, there are already tents for advocacy, settlement conferences, neutral evaluation, and adjudication. Let's just call each practice by its real name.

But is the position that anything any third party does can be called mediation really helpful to the field? I say no --- in fact, it is paralyzing the field. Because even the position that "anything goes" has very real consequences. Let me give you some examples that I see, having spent the last four years in a policy-making position.


Policy Issues and the Need for Clarity

Professionalization is a concern of many mediators, especially mediators in an organization like AFM. There is a push for organizations like AFM to put systems in place that will enhance the professional credibility of mediators, such as training approvals, membership standards, ethics, and certification. What does the failure to come to grips with the definition of mediation do for these issues?

Training: The first training dilemma is "What do I present as mediation?" Do I teach only my approach? A survey course? Can I train all approaches in one training? Should I? Do I disclose to trainees that there are certain things I will train and other things that I will not? Should I?

The second training dilemma comes from the desire to have trainings endorsed by certain organizations or agencies as a testament to their quality and credibility. At this time training standards are framed only as "hours in a chair" on a series of broad and vague subject matter topics. Without clarity on the definition of mediation they can be framed as nothing else. There is no recommended curriculum, and there are no learning objectives, which means there is no shared body of knowledge and skills which marks us as a profession.

Qualifications and Certification: Without a common understanding of what a mediator should know and do, there is no basis for establishing qualifications beyond, again, "hours in a chair." This is often framed in terms of numbers of cases mediated or numbers of settlement agreements produced, but sheds no light on the real knowledge and skills of the mediator. We have no tests as yet, but a project to develop a voluntary test has just been funded. The first issue a certification initiative will have to confront is how to define the requisite knowledge, skills and abilities for a mediator, which means it will have to define what mediation is, even if just for the purposes of the test. This should be a conscious and explicit decision.

Evaluation: If we did want to move to real evaluations of a mediator's work, how would we do this? Number of cases settled? Contents of the settlement agreements? Satisfaction with the outcome? Satisfaction with the process? Or something else? Some local programs are coming to grips with this question, and with the realization that evaluation first requires a policy decision about what we expect a mediator to do, and what behaviors we want to encourage or discourage. But we have not dealt with this as a field, and hence we remain limited by training and qualification standards that say no more than how much time one must serve in a chair.

Ethics: What kind of ethics code can you have, and how can it possibly be enforced, when "anything goes?" Can one ethics code simultaneously prohibit the mediator from giving advice, and set the ethical parameters for giving case evaluation? I seem to remember an ethics code that SPIDR had years ago that was intended to cover all third party neutrals. It was riddled with inconsistencies for this very reason. Does this then mean that we should have a different ethical code for each "style" of mediation?

Practice of Law: Mediators are being accused of the unauthorized practice of law, and some organizations are being asked to join in the defense against these claims. Before we jump too quickly to the defense, though, we must ask if there are mediators who evaluate cases, apply law to fact, and give opinions. There are. This is arguably the practice of law, and could lead to the restriction of mediation practice to lawyers alone. If we do not grapple with this at the policy level, and define what is acceptable mediation practice, we are powerless to stop it.

Marketing and Lobbying: It is common sense to note that you cannot mount an effective nationwide marketing program for a process you cannot define. What do you sell? How do you sell it? Can a brochure or a public service commercial simultaneously tout the benefits of self-determination and of adjudicatory processes? What impression is left with the public, besides "buyer beware?" The same goes for lobbying activities. How can we as a field lobby the appropriate powers for policy statements, regulations, program development, or resources, without a clear definition of our process?


The Courage to Contend

So, back to the question my friend the judge asked me in Reno: "Is the field evolving?" The answer is, it might, it could, but only if we have the courage to allow it, and by that I mean the courage to say that certain things are mediation and certain things are not. Or, at the very least, even the courage to thoughtfully differentiate among all the processes we now call mediation, and to set the very different policies and standards that each would require.

Interestingly, the group of judges that I spent the week with in Reno had no difficulty with this choice. (Now here comes the hearsay.) Throughout the week, they noted time and again that the directive, evaluative and settlement-driven forms of "mediation" are really what they engage in as judges. Those in the best position to recognize adjudicatory processes when they see them did not hesitate to call these activities by their proper names: case evaluation, settlement conferencing, and even adjudication.

Some judges expressed concern and dismay that adjudicative processes could take place in a closed setting, by individuals not likely to be qualified or authorized to adjudicate, and without any opportunity for review or appeal. Some questioned why anyone would want that -- a process little different really from what happens in court, yet with far less protection for the individuals involved. More interestingly, many of these judges had long ago recognized the dehumanizing effects of adjudication, and this is what brought them to a week-long mediation training in the first place. To them, the real alternative was the transformative framework, in which they saw a potentially humanizing process through which people could talk, think through their choices, consider each other's situations, and make voluntary, fully-informed decisions, including the decision to settle or not.

The future of our field depends on this kind of clarity -- on recognizing, acknowledging and dealing with our differences -- and on deciding how to go forward from there. To do this, we must have an open dialogue about the differences in the field, and explore what these differences mean, rather than denying, submerging or reframing them out of existence.