The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition Robert A. Baruch Bush and Joseph P. Folger

Jossey-Bass Publishers, San Francisco 1994 296 pp.

Summary by Heidi Burgess and Mariya Yevsyukova.

Copyright 1997 by the Conflict Research Consortium


TOPICS:

Conflict management and resolution, mediation, transformative approach, problem solving approach, mediator conduct, bargaining, therapeutic mediation, mediation training, mediation process, empowerment, recognition.

ABSTRACT:

This book contrasts two different approaches to mediation. The first is the problem solving approach which emphasizes finding solutions to problems and generating mutually-acceptable settlements. This kind of mediation, which has become dominant, tends to be quite directive and settlement oriented. The second approach is the transformative approach which emphasizes empowerment and recognition as primary goals, not settlement. Empowerment means empowering parties to define issues and to seek solutions on their own. Recognition means recognizing the other party's needs and interests, and better understanding the other party's perspective. It does not mean having one's own view recognized (though that usually happens). As described by the authors, transformative mediation "helps parties recognize and exploit the opportunities for moral growth inherently presented by conflict" (pg. 12). This approach has received less and less emphasis over the years, as the field of mediation has developed. However, Folger and Bush argue that it should become the dominant mode of mediation in the future.

Although the book is not a practical guide to transformative mediation, it contains recommendations on how to exercise this approach in mediating conflicts. The authors offer several case studies to illustrate the transformative potential of mediation. The ideas presented in the book will be of interest to those working in the field of conflict resolution and mediation as well as people whose work involves situations where the ability to recognize and use the positive functions inherent to conflicts is essential.

Chapter One is entitled "The Mediation Movement: Four Diverging Views". Here Bush and Folger present four views or "stories" which describe the field of mediation. The first, most commonly espoused, story is the "satisfaction story." This story says that mediation is better than adversarial dispute resolution because it uses collaborative and integrative approaches to reach win-win solutions that satisfy the needs of all parties, not just one. This story touts flexibility, informality, and consentuality as benefits of mediation. Reduction of economic and emotional costs is also seen as a benefit.

The "social justice story" suggests that mediation is an effective way of organizing individuals around a common interest, thereby empowering them to obtain social justice and limit exploitation. By helping parties to solve problems by themselves, mediation reduces dependency of lower power groups, especially when used for self-help by grassroots community organizations.

The "transformation story" says that mediation is a unique process because it allows the parties to transform themselves and society as a whole by defining problems and goals in their own terms. By working themselves to identify solutions, or even deciding to not resolve a conflict, parties become empowered. They usually also come to understand the views of the other party in the process.

The final story is the oppression story. This story argues that mediation is dangerous because of its informality and consensuality as it allows the stronger party to manipulate the weak. It also allows mediators enormous amounts of power to manipulate the outcome in the way they wish. The oppression story also charges that, since mediation does not follow precedent or necessarily concern itself with the public interest, it results in the disaggregation and privatization of class conflicts and public interest problems. This theory essentially charges that "the mediation movement has helped the strong to divide and conquer." (pg. 23).

Chapter Two explains how, as mediation developed over the years, it began to focus increasingly on party satisfaction and settlement. The authors describe the influence this orientation has on several levels: the individual practice of mediators, institutional policies (which emphasize quick, highly-directed mediations designed to resolve cases as quickly and inexpensively as possible), and on people's perception of the ability of mediation to impact societal problems.

The satisfaction story became dominant, according to Folger and Bush, because it corresponded to the most common "world view" or "orientation" to conflict. This is the notion that conflict is a problem that needs to be solved. Conflicts are usually seen to be "real or apparent incompatibility of parties' needs or interests" (pg. 56). Problem solving allows parties to work together to find ways of satisfying all of the parties' needs or interests or coming sufficiently close to that goal that the solution is agreeable to all.

This world view--and this approach to mediation--both have limits, which are discussed in Chapter 3. These limits are inherent in the mediator role if the mediator operates under the mandate to define and solve problems. This mandate creates three patterns of mediator conduct. First, mediators engage in labeling. They tend to decide early on what the case is about and how it should be framed in order to make it manageable. Second, mediators tend to be directive in defining settlement terms. Third, they tend to drop issues that cannot be easily handled within the problem solving approach. Relational or identity issues, for instance, are dropped because they are too intangible to deal with. Folger and Bush argue that "The type of influence embodied in those patterns shifts the focus away from mutual satisfaction of needs as the parties define them. The effect of the shift in focus is to undermine the problem-solving enterprise at its very core." (pg. 70). "The evidence suggests both that current practice generally follows the problem solving approach and that problem solving mediation does not do a good job of solving problems at all. . . . "The aggregate result," they go on to say, "is not more satisfaction and justice but less" (pg. 74).

Chapter Four presents Bush and Folger's transformative approach to mediation, which stresses the concepts of empowerment and recognition. In this chapter, they describe empowerment as it refers to goals, options, skills, resources, and decision-making. Empowerment with respect to goals means that a party understands what his or her goals and interests are and that they are important. Empowerment with relation to options means that the parties understand the range of options available to them and realize, regardless of constraints, that there are choices to be made and the control over the choices is theirs' alone. Empowerment with reference to skills involves adding to one's skills in conflict resolution including listening, communication, organizing and analyzing issues, presenting arguments, and brainstorming solutions. Empowerment with respect to resources means gaining new awareness of resources already in one's power, learning how to use one's resources more effectively and obtaining additional resources if necessary. In this respect, it includes realizing that you hold something of value to the other party, and an ability to communicate or persuade effectively. Empowerment with respect to decision making means the party uses good decision-making skills to make decisions about settlement options and, indeed, whether even to settle the conflict at all. "When these kinds of things occur within mediation, the party experiences a greater sense of self worth, security, self determination and autonomy" (pg. 87).

Recognition in this book is something that is given more than something that is received. Recognition can be given in thought, words, or actions. Giving recognition in thought involves releasing oneself from one's own viewpoint, even temporarily, and trying to see things from the other party's perspective. Giving recognition in words involves openly acknowledging the understanding of the other party's position or view. Giving recognition in action means changing ones own conduct to accommodate the other person or the other side. Recognition, however, does not mean reconciliation. "Recognition is a much more modest, practical and obtainable objective in a wide range of situations and this modest objective has very real and substantial value. It is a mistake to accept a "threshold of value" argument that suggests that nothing short of complete reconciliation has any value in terms of how the parties relate to each other. This argument misses the point that in transformative moral growth terms there is a continuum of value. Reconciliation may stand at the top but it does not obviate the value of every lower point on the continuum. The recognition objective is concerned with the whole continuum." (pg. 97)

Just as problem-solving mediation involves three typical patterns of mediator conduct, transformative mediation does as well. In transformative mediation the typical patterns are (1) micro-focusing on parties contributions to the dialogue (as opposed to quickly labeling the conflict as being a particular type), (2) encouraging parties' deliberation and choice making (as opposed to being directive) and (3) encouraging perspective taking where you frame and reframe arguments in an effort to lead parties to recognition of the other party, instead of dropping relational issues, as is done in problem-solving mediation.

Since these transformative patterns are so inherently contradictory to the approaches of problem-solving mediation, the two approaches cannot be successfully combined, according to Bush and Folger. A problem-solving mediator cannot follow the hallmarks of transformative mediation and still use his or her standard "bag of tricks" to be sure to get a settlement. Nor can the transformative mediator use the tricks of the trade to encourage empowerment and recognition, while pursuing the goal of settlement. Mediators must choose one approach or the other and follow that one alone.

In the second half of the book, Folger and Bush give detailed examples of how transformative mediation would work in practice. Chapter Five presents an example of how a mediator implementing the problem solving approach will tend to overlook the possibilities for personal growth and transformation of the parties. In a chapter Six, the authors present a case study of a landlord-tenant dispute in which the mediator was able to recognize and use transformative opportunities throughout the mediation session. Chapter Seven offers the analysis of the mediator's moves in the landlord-tenant case and describes in more general terms how transformative mediation can be applied. The chapter contains an excellent "map" of the process and a table of transformative "signpost events."

Chapter Eight discusses potential pitfalls of the transformative approach, and gives guidance about ways to avoid them. These pitfalls include thinking that "empowerment" means mediator passivity, mediators pushing too far for empowerment and/or recognition, focusing on empowerment alone or recognition alone, protecting the parties too much--or too little--or losing sight of the transformative purpose. These pitfalls are easy to fall into, especially for mediators who are just learning the transformative approach after having been trained and experienced in the problem-solving orientation. But awareness of these pitfalls makes them easier to avoid.

Chapter Nine contains a discussion of the underlying values of transformative and problem solving approaches and explains how these values are linked to different worldviews: the individualistic, the organic, and the relational. The individualistic world view sees the individual as being of primary importance. The primary goal, in this view, is the self-fulfillment of the individual's interests and needs. Autonomy, independence, individuality, and self-satisfaction are primary objectives. This world view contrasts with the organic world view, which sees the person as a part of a larger social entity. That larger entity is of primary importance, not the individual or the individual's needs. Thus the supreme value is the collective welfare, and service to others and to the whole is seen as more important than the pursuit of personal interests and needs. Both of these world views are then compared to the relational world view, which is, in essence a combination of the other two. In the relational view, people are recognized as separate, but with the potential for a connection to others and the larger social whole. Both autonomy and connection are seen as important goals. This, of course, is the world view that leads to (and from) the transformative approach, while the individualistic world view is connected with the problem-solving approach to mediation.

Chapter Ten looks at ways of advancing transformative practice in mediation training and at the institutional level. Since this approach to mediation is not yet popular, this chapter looks more at what can and could be done, rather than what is being done at the current time.