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Just because you're a Mediator, that doesn't mean you can't be Angry.

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12 minutes reading time (2350 words)

Confessions of A Gapper

Hello, everyone, my name is The Angry Mediator, and I’m a gapper.

That’s right. I said it. I’m not ashamed. Feel free to break out the torches and pitchforks, fellow Neutrals, because I’m ready for you! Let’s get it on!

What’s that? You haven’t the slightest clue what a gapper is, nor why you should give a damn?

Here’s the thing. Mediation doesn’t really have its own body of work. We steal a lot from Social Work, and a lot from Law, and fill in the rest when nobody’s looking. (Of course, Social Work is stealing nearly its whole body of work from Psychology and Sociology, so it’s not like we’re the only ones... let’s say “borrowing.”) Now, there’s nothing wrong with this. It works just fine. I have mediated thousands of cases, and vanishingly few of them ended in disaster. So have thousands (nay, SCORES of thousands) of other practitioners. So, all is well in Mediationland, right?

Of course not. Don’t be naïve. Mediation can’t continue to steal its whole framework of theory and practice from elsewhere indefinitely. After all, Mediation is a distinct practice, separate and different from either Social Work or Law. (Or any other field, for that matter.) So, sooner or later, it was inevitable that Mediators would look around and say “Shouldn’t we have some standards?”

Some Mediators (and assorted other Neutrals) have done exactly that. In fact, they did it more than once, and so have created several competing theoretical frameworks for Mediation, because of course they have. Happily, it turns out that each of these various frameworks is useful, applicable, and internally consistent. What are these mystical, magical, philosophical orientations that allow one to practice competently? Let’s look at some big ones.

Facilitative Mediation is sort of the granddaddy of orientations. It was at the core of the Community Mediation in the seventies, and it’s still super-groovy today. The core idea is that a Neutral, the Mediator, helps folks to negotiate based on their Needs. The Mediator asks a lot of questions, keeping their own views, values, and point of view entirely to themselves. It’s fairly structured; the Mediator is definitely the one running the process here. One of the Mediator’s main roles is creating, tracking, and enforcing the agenda, based on what they perceive (or are told) the folks in conflict need. The parties retain all decision-making authority, and ultimately and solutions they choose or agreements they build are their own.

Evaluative Mediation is what Attorneys do when they want to say that they’re Mediating. Ha, just kidding! (Mostly.) In this style, the Mediator is assumed to have some expertise in whatever the folks are arguing about. They can make suggestions, and even offer legal information and their own assessments of “fairness.” They still don’t have any direct decision-making power, but they have a HUGE amount of influence over the process; and arguably over the outcome. The Needs of folks in conflict are still an important part of the discussion, but they aren’t always front-and-center. This is an extremely structured form of the process, with a lot of third-party control and influence.

Narrative Mediation is what Social Workers do when they want to say they’re Mediating. Kidding; kidding again. (Mostly, again.) This style does indeed have roots in Counseling and Restorative Practices, and takes a unique approach to the Mediation process. Folks in conflict are encouraged not to present evidence or to summarize facts, but to tell a story. Each party’s story is different, typically casting themselves as the hero, and the other side as the villain. The Mediator helps folks to start telling the story of the conflict without these labels; from a universal, neutral point of view. They then move toward telling NEW stories; ones in which the folks have reached an agreement, solved their conflict, and implemented possible solutions.

Transformative Mediation is also somewhat Counseling-influenced, but in a different way. The core idea here is that the folks don’t need to directly resolve conflict. Instead, the idea is to TRANSFORM their relationship; ideally, from a combative one to a collaborative one. How do you do that? With great difficulty. Seriously, though, the Mediator needs to equip the parties with tools that they simply do not have. They need to be able to communicate effectively. They need to be able to understand each other’s Needs and Values. They need to be able to talk about emotions; their own and each other’s. If they can do all of these things (and it’s quite an “if”), then conflict resolution will just… happen.

As I said, all of these orientations work. Whether you are a Transformative Mediator or an Evaluative Mediator, you can effectively resolve conflict. You can Mediate competently and professionally. If fact, many practitioners and organizations proudly proclaim their allegiance to one of these orientations. “Filmore Q. Fitzgibbon, Transformative Mediator” they proclaim! “Fixya Kwikli inc.: An Evaluative Conflict Center” their sign will inform you! Which is FINE. All of that is fine, I have no problem with it.

Except... I sort of do. Because here’s a dirty little secret. While all these orientations work, they don’t all work EQUALLY WELL for ALL CASES.

Transformative Mediation, for example, is great for a custody dispute. People’s kids are involved, and you need to take your time to look at everyone’s perspectives, to sort out their feelings, to compare their priorities, to listen to them blather on endlessly! (That’s not a joke; folks in a Transformative process will blather on endlessly, and that’s a feature, not a bug. Shut up and listen.) All of that takes time; a great deal of time. I’ve had these cases stretch on for weeks, and occasionally months.

Got a Small Claims Court case? Chances are, the Transformative Style will be a non-starter. Or, more accurately, they’ll start, and then quickly run out of time, patience, and will. Folks in conflict over two hundred dollars that have never met in person before don’t have much of a relationship to transform, kids. They don’t want to build skills, they don’t want to make a big investment, they just want to settle this thing and go home. You probably want Facilitative or Evaluative processes here. Does that mean that Small Claims parties never have a complex and durable relationship? Of course not. Does this mean that you CAN’T resolve these cases Transformatively? Of course not. But… it probably isn’t the best tool for the job.

Each and every one of these orientations has real strengths and weaknesses. (Yes, weaknesses, not challenges. Not obstacles. I’m not Mediating; I’m ranting.) My point of view is that, as practitioners, we owe folks in conflict the absolute best service possible. That means a lot of things, including that it be competent, effective, honest, ethical, and... efficient. That’s right, we should never have people in our offices for one minute more, nor one minute less, than we absolutely have to. We shouldn’t be cutting corners to hit a target, and we shouldn’t be dragging out the process either. If there is an orientation out there that can fit these folks better, then we ought to be offering it to them.
So, how do you actually do that? Ah. Well, there are a few different approaches that you can take. What you think is the best approach depends on your talents, your worldview, and your resources.

The approach that I see most often is to simply exclude a group of folks from service altogether. As in “If their case can’t be solved with Transformative Mediation, then we aren’t the place for them.” I will credit this approach with being honest; if you can’t help someone, then don’t tell them that you can, even if they’re paying hourly. What makes my CRAZY about this approach, though, is this: Where are they supposed to go? It’s not like skilled Mediators are growing on trees! Are you sending them back into the open arms of the Court System? They came to you specifically to avoid that! Are you sending them to Attorneys? They knew that option was there, and rejected it! Are you sending them to a less-skilled, and perhaps less-ethical practitioner? Someone whole shingle reads “advisor” or “life coach” or “counselor?” (By the way, there’s nothing wrong with those services if they’re what you want or need, but they’re NOT Mediation.) I don’t like the idea of turning folks in conflict away when Mediation is exactly what they want, and exactly what they need.

So, what to do? Well, let’s look at Law Firms and Medical Practices as good examples. They tend to have an assortment of specialists at their disposal. Oh, sure, this firm might specialize in contract law, and this practice on pediatrics, but they should have a good assortment of education, experience, background, and skills. That way, if a client or patient needs something that their professional can’t provide, that expertise is available right down the hall. Mediation practices can operate the same way. Your Transformative folks handle custody, your Facilitative folks handle neighbor disputes, your Narrative folks handle couples and families, and so on. The only problem with this (well, okay, the BIGGEST problem with this) is resources. Doctors and Attorneys have the money to hire a lot of big talent, and the space to put them in. A lot of Mediation is non-profit, and the rest is not-very-much-profit. You likely just don’t have the bank balance to hire a hundred Mediators with narrow skill sets.

This brings us to my preferred solution. Don’t be a specialist. (Specialization is for insects, anyway.) If you’re a Mediator, you should be competent in at least two orientations; maybe more! This allows you to apply the proper tools and technique to the situation. Sure, it’s a big ask, but it can happen over time. Start with the style that fits you best (mine’s Transformative) and then acquire expertise in the others over time. Make sure that you’re apprenticing with someone competent in your orientation of choice, and keep your skills up by taking on a variety of cases.
Up until this point, a lot of Neutrals have been nodding along with me. Here’s where you can insert a record-scratch sound: You can even blend tools and techniques from different orientations, moving between them in the course of a single Mediation session.

I know, I know, that… ma’am, please put down the pitchfork… that’s often regarded as a dange… sir, please stop weeping… a dangerous thing to say. Before you crucify me, though, just hear me out.

Let’s say that you’re Mediating a couple through their Divorce. (This is currently my primary area of practice.) Let’s take a look at what you’re going to have to do in order to effectively and efficiently give them the space and tools to build solutions. You’re going to need to give them room to talk, and to work through the huge emotional impact of this event. Topics like heartbreak and anger. You’re going to need to create an agenda that ensures that every issue that needs to be addressed, gets addressed. Things like financial decisions and how they will file. You’re going to need to let them tell you how things led up to this point, and what they want to see happen in the future. Tell you their stories. You’re going to have to provide occasional pieces of information, including some basic legal and financial information (not advice, NOT advice, I can hear you shouting through the screen; I said information).

You will, in short, need to be all Mediators to all people.

Now THIS is where otherwise rational Neutrals bring out a derogatory term: Gapper. As in, one who practices in the gaps between orientations, rather than within them. It implies someone who is unprofessional, unskilled, and perhaps even unethical. It’s not supposed to be a compliment.

To me, though, it is.

Here’s what I think some Neutrals don’t grok. If a person took from a bunch of different orientations willy-nilly, throwing together whatever tools and techniques they liked, and forcing them into a pseudo-style indiscriminately, that person would be Bad At Their Job. They would make a terrible Mediator, and I couldn’t be paid enough to work with them. They have no foundation of theory, no standard of practice, and probably put pineapple on pizza, the wretches. Show me such a practitioner, Brothers and Sisters, and I will raise a torch beside you.

However. If a practitioner is skilled in each orientation. If a practitioner understands the theory and practice of each. If a practitioner grasps and can articulate the strengths, weaknesses, advantages, hazards, and relationships clearly. Above all, if a practitioner is always careful, mindful, and intentional of their use of each style, and uses them at appropriate times and in appropriate ways for the needs of the folks in conflict… then I think they’re fine.

I acknowledge that this isn’t an easy thing to do. I also think there are some best practices that ensure that you’re doing it right. The biggest, of course, is to elicit feedback from your folks in conflict. Do they feel heard? Do they feel that they had equal access to the process? Do they think that the investment was worth the outcome? These should be your biggest signposts.

In addition, you should be relying on other professionals in the field. Be observed by experts in each orientation periodically, and accept their feedback on whether or not you’re practicing appropriately. Consider that feedback as valuable, and incorporate it into your process.

If you do this right, you won’t be living in the gaps. Instead, you’ll be navigating AMONG them, skillfully moving from one set of tools to the other as the conflict changes and the process demands it. That, kids, is nothing to be ashamed of. It’s not unprofessional, or unethical, or impossible. That it what I mean when I tell people that I’m a proud gapper, and you can be one, too.

Now, please, put the torches out. You’ll set off the sprinklers.

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Friday, 30 September 2022

Third Way Conflict Resolution

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