Matching Mediator Background to Mediation Style

[Disclaimer: the opinions expressed in this blog post are only my opinions and are not backed by research, as they very well should be]

The world of mediation is mostly simply divided between mediators trained legally and mediators trained in mental health. Currently, both groups tend to share a mediation style in which the mediator is detached, impartial, and facilitates a discussion of the problem until the parties create a solution. I believe that this approach under utilizes the professional skills that are brought to the table by both educational backgrounds.

Before I discuss how both of these skill sets could be better put to practice in mediation, let me first say that I am not a fan of the detached, impartial approach to mediation.

Detached impartiality may make sense for judges and therapists; however, mediators misapply this approach to facilitated dispute resolution. Judges can and should be impartial because they remain separated and above the investigation and because they must make a decision after hearing both sides. Mediators, on the other hand, are actively involved in unearthing the story behind the dispute (and may affect the direction of the process with their inescapably human biases) and, also, do not as much need to be impartial because they do not render a decision. Therapists use a detached what-do-you-think-about-that approach to mental healing because the point is that the patient vent and come to terms with their perceptions and experiences. Dispute resolution, on the other hand, involves two (or more) perspectives clashing in order to arrive at a solution--the parties are not coming in every week to discuss their life-struggles, and also they are actively arguing with each other rather than engaging in self-discovery. For a physical representation of this disconnect, compare the patient laying at ease on a couch to the disputants sitting on opposite sides of a table.

Detached impartiality does not make sense in mediation because the mediator is a human being who is directly facilitating human conflict and cannot remain unbiased. While an overwhelming amount of social scientists are empirically showing that people cannot avoid bias, I do not have the time or resources to pull their research and give it well-deserved citation. I will therefore use myself as an example: "The detached-impartiality style of mediation? Total crap." That just feels natural, trust me.

Anyways, mediators end up using this detached approach to prevent their human biases from affecting the process. However, this limits the mediator's role in the process, effectively allowing them to be replaced with machines that simply ask each party to politely respond to the other party's last point (or at least outsourced overseas). I, and others, argue that mediators should have a more meaningful role in the process, which brings me back to my original point about using the legal and mental health skill sets in mediation.

Attorneys are trained problem-solvers and negotiators. In problem-solving, legal education and practice equip them with necessary tools for creating and analyzing rules, regulatory structures, and effective human systems. These skills could be applied in crafting optimal resolutions to the parties' conflict. This does not mean that the parties will be any less "empowered" to solve their problems. So long as the process is a voluntary negotiation, the parties retain ultimate authority and can use the attorney-mediator's ideas to expand their thinking on possible solutions.

Furthermore, mediators with legal experience can also provide guidance to the parties as experts on negotiation. Many disputants are neither comfortable or knowledgeable with negotiation. And because procedural advice about methods in negotiation does not necessarily advise the parties on the substance of their situation, a mediator should be able to inform disputants of effective negotiation methods without threatening their neutrality. Legally trained mediators should therefore participate in the process as a facilitator and also as an expert on negotiating and crafting agreements that satisfy the parties' conflicting positions in creative and innovative ways.

Mental health mediators are experts on motivation and behavior. And as interpersonal dispute resolution is more active and problem-focused than individual counselling, so too should the mental health professional conducting a conflict be more actively involved in the dispute resolution process. Instead of being passive explorers of the parties' thought-processes, the mental health mediator should act as an active conduit of the parties' perceptions, intentions, and relationship ideas. While internalizing may be effective, in the long run, in bringing individual patients to better perceive and control their lives, parties to a dispute want more in an intermediary than someone who simply asks each side to respond to the other in turn.

Mental health professionals could offer so much more to mediation in terms of knowledge of how and why people fight, and they could apply this to dispute resolution to guide the parties' interaction and educate them on the psychological underpinnings of their dispute with the other side. This would mean shifting the specialty from internal mental health to interactive mental health, using methods of family therapy/couples counselling rather than Freudian therapy.

A concise description of what I am arguing against, on both fronts, is mediation in which the mediator is a detached nobody who basically keeps the parties talking and responding to each other (oh, and who enforces ground rules such as "don't be a jerk"). In contrast to this approach, mediators trained in both law and mental health could offer actual expertise and helpful involvement in the process. Attorney-mediators could offer creative, optimal solutions that satisfy both sides, and mental health mediators could psychoanalyze the parties' interaction (rather than their internal processes) and conduct an exploration/exposition of the perceptions, intentions, and relationship of the disputants at the table.