Stop Shovelling Smoke!

 Give users a classic definition of mediation

 

Proposer – Michael Leathes

 

The first woman to win the Pulitzer Prize for Literature was Edith Wharton in 1921, for her novel An Age of Innocence. Addressing what is, and is not, classic, Wharton wrote: A classic is classic not because it conforms to certain structural rules, or fits certain definitions... It is classic because of a certain eternal and irrepressible freshness.

Mediation needs a classic definition of itself. One does not exist. It also needs to be universal. In a field widely populated by lawyers, professionals who the great jurist Oliver Wendell Holmes Jr. noted spend a great deal of time shovelling smoke, we have literally hundreds of different published definitions of mediation. It’s brain-curdling.

Edith Wharton’s delicate yet powerful quality of eternal and irrepressible freshness is notably absent. No definition inspires those who know little or nothing about mediation. Most convey the sense that mediation is about dispute resolution. None is really short. A classic definition needs to be an assault of thought on the unthinking.

Does a classic definition matter? Yes! More than that, it is vital to the growth of the field and its positive perception by those that consume its services. Everyone knows what dentistry is, or architecture, accountancy, law and medicine. Popular familiarity renders these professions above the need of definition. Not so with mediation, at best an emerging (but not yet emerged) profession, one most people have yet to encounter.

Every mediation institution has its own definition. Most are 20 to 60 words strung in segmented, sometimes complex, sentences. Many - though not all - service providers tend to see the world more through their own private lenses than from the vantage point of their customers. They wind up describing what they do, rather than properly defining mediation itself. Consequently, they unwittingly limit what mediation is, or could be, by virtue of the narrow zone within which they operate.

For example, most definitions suggest mediation is a dispute resolution process, which implies that using a mediator to help negotiate, say, a pre-nuptial agreement or any other kind of contract, is somehow not “mediation”. The word “trust” is notably absent – despite educators falling over backwards emphasising its importance to mediation. There is no consistency. It all underscores the fragmentation of the mediation field that holds back its progression into an independent global profession.

As this balkanised field tiptoes toward a set of international professional norms, voluntary standards and a consistent code of ethics, surely mediation’s leaders can at least agree a classic, universal definition of mediation, for the benefit of the users out there. That straightforward task cannot elude the field’s extraordinary talents. Can it? 

Richard Buckminster Fuller is remembered for two things: patenting the geodesic dome, and his advice to the world at large – Dare to be naïve. Let’s accept his challenge: to be naïve enough to offer a seven-word definition of mediation based on four key words - Negotiation, Facilitation, Trust and Neutrality – aimed at achieving a classic definition of mediation that can work for everyone, everywhere – and especially for the demand side - the users, the parties and their advisers. If widely adopted, if everyone started using it, the world’s leading dictionaries could be informed. If this happened, the impression created in the minds of potential users of mediation services would be electric. Here, for the first time, and not soon enough, would be something the entire mediation field could buy into, setting aside market-driven one-upmanship and presenting a single professional identity to the world, something that can really inspire users. As Alexander Pope put it: There is a certain majesty in simplicity which is far above the quaintness of wit.

A possible classic definition is: Negotiation facilitated by a trusted neutral person.

Negotiation (Latin negotiatus, past participle of negotiari to carry on business, from negotium business) is a series of communications involving personalities, behavior, positions, assumptions, obfuscation, indecisions, tactics, half-truths, lies, misunderstandings, blame, history, exaggerations, counter-claims, threats, hidden agendas, confusion between wants and needs, distractions, cultural differences and other interferences. The involvement of a suitable, competent neutral can help the parties “feel” their way through this quagmire to a higher quality outcome than is otherwise likely.  The dynamic of a neutral presence can influence the dialog in ways that transcend the capacity of the parties, individually or jointly, to achieve alone – namely, to render it more interest-based, focus on exploring options for mutual gain and enhance the parties roles as consensus-seekers.  

Facilitation (Latin facilis: “make easier”) is the act of providing assistance to ease the parties quest to achieve their goal. Facilitation can take passive and active forms, and can be facilitative, evaluative, transformative and normative. Evaluative mediators facilitate by expressing their own opinions, if that’s what the parties want them to do. Mediation can be, but need not be, purely facilitative. The mediator’s opinions can break deadlocks and ease the path forward. We should not trip over our own pre-dispositions, habits, cultures and philosophical approaches when defining mediation.

Trust (Old Norse traustr: “strong”) requires acceptance by the parties that the neutral person has the competency to facilitate the discussion effectively, including skills to manage process, communicate, maintain confidentiality, question, build relationships, listen, analyze, identify issues and generate options for mutual gain. Trust also assumes that, during mediation, the neutral is felt by all parties to be the right person to facilitate the discussion in terms of competency, experience, expertise, standing and personality.

Neutrality (Latin neuter: “neither”) involves those chosen to mediate being impartial and not having conflicts of interests that are not known to and accepted by the parties.

Both Trust and Neutrality involve respect, a heady mixture of how mediators are perceived, their standing, competency, knowledge, wisdom, history and many other subtle and often unexpressed characteristics. Mediators have to earn trust as the mediation progresses. Impartiality, and absence of conflicts of interests, are often claimed to be vital characteristics of a mediator, but I have seen occasions where parties used a mediator who was paid and even employed by one of them – with the full support, of course, of the other party. There are situations where using a theoretically partial mediator, one with an apparent conflict of interest, can be the golden key to a successful mediation, provided the mediator is trusted by everyone to act impartially. There are many cases in the political arena where this has occurred. The over-arching consideration is – can the mediator be trusted and respected all round, and act neutrally?

In his April 2009 thought provoker in Mediate.com, The End of Mediation: An Unhurried Ramble On Why The Field Will Fail And Mediators Will Thrive Over The Next Two Decades! Peter Adler helpfully described mediation as a meme.  Interesting idea, and no doubt mediation is a meme, but that still does not say exactly what mediation is to the average user.  Some people mistake mediation as a branch of law, or of dispute resolution.  Actually, it is bigger than that.  Mediation is a branch of negotiation.  All the more reason, in fact, for a short, classic, universal definition clarifying that fact.  Users really need this.  If those engaged in legal services keep shovelling smoke around the issue, favouring one complex categorization or definition over another, mediation’s agonising lack of clear identity in the eyes of its customers will perpetuate.  What a wasted opportunity that would be.

There is an easy Litmus Test.  Ask ourselves: If Edith Wharton were alive, might she agree that a definition of mediation with eternal and irrepressible freshness is: 

Negotiation facilitated by a trusted neutral person.

 

August 2011 (updated to reflect stakeholder comments - December 2012)

 


 

Michael Leathes is a former in-house counsel with a number of corporations and serves as a director of the International Mediation Institute (www.IMImediation.org), a charitable foundation that is funded by donations from stakeholders to promote mediation and set and encourage high and transparent professional standards throughout the world. He welcomes comments to Michael.Leathes@IMImediation.org

 

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