Like it or not, facilitative and evaluative mediation are part of the social reality of our field. Despite the fact that these models are misleading and provide counterproductive concepts to guide mediators’ behaviors and set parties’ expectations, they are inescapable. They are standard elements in texts, courses, trainings, and general discourse in our field. They are so routine that people often mention these terms in passing, assuming that everyone knows what they mean.
However, these models are inadequate even for people who strongly believe in them. Formal models like these are quite general and do not provide specific answers to mediators’ question, “What do I do now?”
Psychologist Kenneth Kressel’s insightful article, How Do Mediators Decide What to Do?, Implicit Schemas of Practice and Mediator Decisionmaking, shows that mediators’ mental models (or “schemas”) are largely unconscious and consist of mixtures of formal models and “personal ‘mini-theories’ of conflict and the role of mediators.”
Kressel defines mental models as “ideas the mediator holds about the role of the mediator; the goals to be attained (and avoided), and the interventions that are permissible (and are impermissible) in striving to reach those goals.” They are “mediator coping responses to the complex and demanding task of intervention decisionmaking and the limitations of formal models of practice and conscious human deliberation.”
Mediators inevitably develop DIY (do-it-yourself) models, incorporating their unique beliefs, values, and experiences. Consider that many mediators specialize in certain types of cases and rarely handle other types of cases. Thus mediators who exclusively or primarily mediate small claims, family, personal injury, business, or public policy mediations develop their own models based on the types of cases and parties they work with. Numerous other factors shape mediators’ mental models such as laws, policies, and informal norms in their practice communities.
So, although mediators may talk as if they follow standard formal models, in fact, they rely on their own idiosyncratic mental models, which evolve with their experience.
In another article, James A. Wall and Kenneth Kressel analyze how mediators use their mental models. Adapting Daniel Kahneman’s framework in his book, Thinking, Fast and Slow, they argue that “mediators’ thinking move[s] simultaneously along two parallel planes: a system 1, intuitive, spontaneous, and frequently unconscious plane, and a system 2, rational, deliberative one.” System 1 is faster and more efficient, but is more prone to errors. System 2 is a more careful goal-oriented approach, but it is slower and requires more mental energy; mediators have limited capacity to use it.
Mediators inevitably use both systems. Since mediators necessarily design their own mediation models, it makes sense to do so consciously using system 2. When mediators are more self-conscious about their goals and potential interventions, they can develop better unconscious routines that they consciously adapt in actual cases.
This short article lists numerous goals that parties sometimes have in mediation, and suggests that by helping parties identify their goals and priorities, mediators can better choose appropriate interventions. It describes how mediators can develop and test theories about what interventions are likely to produce particular results in particular circumstances in their particular practices, and it includes links to practical resources.
So What Should You Teach?
I suggest that teachers and trainers teach people to build their own mediation models. This is the essence of “reflective practice” – careful and continuous consideration of one’s experience to refine one’s values and theories that inform professional practice. Scott Peppet and Michael Moffitt highlighted the importance of learning to learn in this chapter of the Negotiator’s Fieldbook. This generic learning process is relevant to virtually any type of professional practice.
It can be used in a wide range of dispute resolution contexts. For example, students and practitioners can use it to reconcile the allegedly alternative models of positional and interest-based negotiation. Beyond Winning demonstrates that they are complementary approaches that can be combined in a single case, as does the LIRA book.
To help students develop skills in reflective practice, faculty can assign them to write papers developing practice models based on their simulated and clinical experiences. Of course, these will be rudimentary models compared with models that experienced practitioners can develop, but the assignment would teach students the valuable skill of learning to learn.