Over the past month or so, Tammy Lenski has been posting on the subject of “mediation in the mainstream”. What she’s been addressing, in my view, is the strategic issue of how to increase the demand in the marketplace for mediation as a specific form of ADR. But there is also the matter, for want of a better term, of ‘mainstream mediation’. There are a number of approaches to mediation out there, each with its own theory about the nature of conflict and what the role of the mediator is in the mediation process. Some mediation models are more widely-accepted and practised by mediators than others, hence my term ‘mainstream mediation’.
For Tammy, the observability factor suggests that when the positive results of an innovation like mediation are visible, the innovation spreads. The challenge is that, “When we’re good, when our work is seamless, and when we’re not strutting around to stroke our own egos, we and our contributions may be invisible.”
In joining Tammy’s discussion on the marketing of mediation, Christopher Annunziata nicely frames the closely-related issue, “what, exactly, does the mediator do?” and encapsulates his answer in the following terms:
So how exactly do mediators help parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, discuss settlement options, and ultimately (hopefully) reach a solution?
Good mediators ask the right questions . . . which is much harder than it sounds.
- The mediator may ask questions about the case that the parties have been ignoring;
- The mediator may explore the true causes of the dispute;
- The mediator may act as Devil’s Advocate;
- The mediator may ask the parties to make tough decisions they have been avoiding;
- The mediator may have to get the parties away from tangential issues and focus on the heart of the matter; and
- The mediator may have to control heated emotions
. . . all without making either party feel like the mediator is taking sides.
I argue that the answer to Christopher’s question depends on how a given mediator works — what is her theory of the nature of conflict and of her role in the mediation process?
As a transformative practitioner outside ‘mainstream mediation’, I have a different view about the nature of conflict, the role of the mediator and hence what questions a mediator asks. For me, the factor of observability rests more with the visibility of outcomes deemed by the parties to be positive than it does with the visibility, to the parties, of what the mediator does. In any case, where each move by a transformative mediator is grounded in a clearly-articulated purpose, there is no magic of mediation.