How You Can Build a Mediation Model to Optimize Your Own Cases

That’s the title of a program I recently did for the Association of Northern [England] Mediators.

I began by describing why formal mediation models, such as the facilitative and evaluative models, are incomplete and often misleading.  Mediators constantly must answer the question “What do I do now?”, and the formal models don’t help in most situations.

Consciousness and Competence

I suggested how mediators can develop their own, unique mediation models, relying in part on the work of psychologists Kenneth Kressel, Daniel Kahneman, and Amos Tversky.

Kressel argues that mediators’ actual mental models are largely unconscious mixtures of formal models and “personal ‘mini-theories’ of conflict and role of mediators.”  Kahneman describes two cognitive systems:  System 1, a fast, unconscious system, and System 2, a slow, conscious system.

People use their conscious cognitive systems to develop unconscious routines.  This is the essence of training and practice.  With enough practice, routines can become “second nature” – that is, unconscious.

The Gordon Training Institute model describes a sequence in which people begin by being unconsciously incompetent, becoming consciously competent, and eventually unconsciously competent, as illustrated in the following diagram:

Elements of Actual Mediation Models

Formal mediation models prescribe particular interventions, typically based on assumptions that they will produce certain effects.  Although possible interventions obviously are important elements of mediators’ conscious and unconscious models, there are many other factors that may be more important.

In addition to such interventions, mediators’ actual mental models – their “personal ‘mini-theories’ of conflict and role of mediators” –  also are based on the following dimensions:

  • Mediators’ goals
  • Types of case
  • Types of parties and other participants
  • History of conflict
  • Parties’ goals, interests, and positions
  • Common challenging situations
  • Principles and strategies to handle challenges

In my presentation, I outline variations of each of these dimensions as well as mediator interventions.  Here’s a link to the video presentation and the powerpoint.  My presentation lasted about 25 minutes and we had a conversation with charming English accents for a half an hour after that.

Hypothetical Illustrations

Andy is a high school teacher who just got trained as a volunteer mediator in his local community mediation center.  He learned about the center when some of his students and parents had some good experiences with it.  He generally approaches things with a mediation mindset, and he likes the idea of helping people solve their problems.

Bahar is a family lawyer who has practiced family law for ten years and has been mediating for five years.  She particularly wants to prevent emotional harm to children of divorce, and she has found that mediation has helped her clients manage their divorces as constructively as possible with as little rancor as possible.  She serves as an advocate and mediator in different cases, depending on her clients’ needs.

Carmen is a retired judge who handles large, multi-party civil cases.  When she was on the bench, she was frustrated trying cases that should have been settled.  The lawyers and parties often had unrealistic expectations about the likely court outcome and wasted a lot of time and money on unnecessary litigation.  She enjoyed conducting settlement conferences and, as a retired judge, she has more freedom as a private mediator.  And the pay is better.

Obviously, there are zillions of other mediator profiles, but this is enough for now.

What are the mediation models for each of the mediators?  Consider the dimensions listed above for each of these mediators.

     Goals.  Each of the mediators has multiple goals, with the following priorities. Andy is primarily interested in helping people communicate and maintain relationships.  Bahar wants to promote healthy family reorganization.  Carmen wants to help resolve large disputes efficiently.

     Types of Cases. Andy will mediate whatever categories of cases that the mediation center handles. Bahar mediates only divorce and parenting cases. Carmen mediates a variety of large civil cases, though she specializes in cases in certain industries.

     Types of Parties and Other Participants.  Andy’s cases will involve some people in small claims court and others where there is no legal issue.  Very few of the parties are represented by lawyers.  Bahar serves a middle-class clientele, all of whom have separate lawyers, though sometimes the lawyers don’t attend mediation sessions. Carmen manages processes involving large corporations, each of which sends a team that may include outside counsel, inside counsel, executives, and/or experts.

     History of Conflict.  Most of Andy’s cases will involve disputes involving parties who have had a relationship in which something caused a breach.  Bahar’s clients all have had a relationship with each other, though the length of the relationships and the level of hostility and cooperation varies.  Some of Carmen’s cases involve torts where the parties haven’t had prior relationships, and some cases involve commercial relationships gone bad.

     Parties’ Goals, Interests, and Positions.  Many of the parties in Andy’s cases want respect and vindication.  Often, monetary issues are proxies for emotional and relationship concerns.  Bahar’s clients have a wide range of goals including moving on with life, maintaining relationships with kids, financial security, and revenge for their spouses’ affairs, among many others.  Carmen’s clients generally want to maximize their partisan financial interest, i.e., receive as much money or pay as little as possible.  The parties and their lawyers want to demonstrate that they have the will and ability to prevail in litigation and mediation.

     Common Challenging Situations.  The biggest problems that mediators experience in Andy’s mediation center are that parties are so angry that they yell insults at each other, leading to downward spirals of communication. Bahar has the hardest time with cases in which the husband coercively dominated the wife. Carmen has a hard time when parties or lawyers have very unrealistic expectations about the likely court outcome and are unwilling to listen to reason.

     Principles and Strategies to Handle Challenges. Andy was trained to handle bitter disagreements by expressing respect for all parties and actively listening to their perspectives, often in caucus. Bahar routinely talks with each party before convening joint sessions and assesses if there has been a history of abuse and the parties’ decision-making capabilities.  When she identifies problematic situations, she discusses whether mediation is the most appropriate process, possibly with some special safeguards and participation of additional professionals. Carmen patiently discusses critical factual and legal issues using decision analysis to help people understand the risks of plausible contingencies in litigation.  She helps parties identify and value their intangible costs of continued litigation and she incorporates these factors in the decision analysis.

     Mediators’ Interventions.  The preceding factors affect all of the mediators’ decisions about how to intervene most helpfully.  This begins with decisions about how to handle intake and introduction to the process.  They all listen and ask questions but they do it very differently.  They express their perspectives, sometimes with declaratory statements and sometimes through the questions that they ask and the way they ask them.  The video and powerpoint of my presentation describe a menu of interventions that mediators choose.

To be clear, this is not to suggest that all community, family, or civil mediators fit these profiles.

Heck, the point is that they don’t.  Each mediator is a reflection of an infinite range of combinations of variables like these.  Moreover, their individual mediation models evolve over time.

Careers of Mediation Models

We are familiar with the concept of people’s careers, referring to the sequence of events in their work.  We also can think of careers of mediators’ mental models.

Andy’s model is at the beginning of “its” career.  This model mostly reflects the ideas he learned in his training.  In his first few mediations, he uses “scripts” from the training as if following a cookbook recipe.  Over time, he learns to improvise based on his observations about different kinds of parties, cases, and effects of interventions.  He regularly co-mediates and his observations of co-mediators’ actions help him refine his ideas about his preferred (and disfavored) mediation techniques.  He participates in the center’s continuing education programs, which leads to further refinement.  Eventually, he becomes a trainer for the center, and teaching mediation leads him to reflect on his experiences and make subtle changes in the training program.

Bahar’s model began in law school, where mediation was briefly mentioned in several courses, and she got only hazy ideas about mediation.  When she was in practice, she got an on-the-job education.  She attended mediations with some clients, got reports from other clients who attended mediation without her, and talked with mediators outside mediation sessions.  Based on these experiences, she developed a disjointed understanding of mediation.  When she decided to incorporate work as mediator into her practice, she attended a training and read lots of publications oriented to practitioners.  She was excited as if a light bulb went on in her head as she developed a coherent understanding of mediation and appreciated nuances of mediation theory and practice.  She joined a reflective practice group consisting of traditional and collaborative lawyers, mediators, and mental health professionals.  In their regular meetings, they discussed their hard cases and possible techniques for handling them.

There was no instruction in ADR in Carmen’s law school when she was a law student.  Even when she was in legal practice, very few of her cases were mediated.  When she was on the bench, she didn’t know much about mediation except that it was helpful to send difficult cases to mediation and avoid sticky trials.  Over time, she conducted settlement conferences and really enjoyed doing them.  She didn’t have any training in settlement techniques – she just relied on her intuition about what might be effective in getting parties to settle.  After she retired from the bench, she joined a panel of neutrals and she took advantage of their training programs.  She now regularly attends programs where mediators exchange stories and tips about mediation techniques.

We might consider these mediation models’ careers to be successful.  Of course, some are not.  For example, some mediators always rigidly stick to their scripts so that their models’ careers are stagnant.  Some mediators project their own experiences with conflict onto their clients, unconsciously infecting the models.  Some mediators have only one tool in their toolbox, routinely “trashing and bashing” the parties’ legal arguments (to use Jim Alfini’s colorful phrase).

Just as all mediators use their own unique mediation models at any point in the mediators’ careers, there are an infinite number of careers of their mediation models, which usually evolve with experience and education.

Reflective Practice

As mediators gain experience, they may consciously develop certain routines. In other words, their System 2 “trains” their System 1 to use certain techniques without much thought.  Mediators can refine their models through reading, attending educational programs, self-evaluation, participation in peer consultation groups, and conscious decision-making to revise their mediation procedures and routines.

This is the essence of “reflective practice,” which is used by practitioners in many professions.   Here’s Wikipedia’s description:

Reflective practice is the ability to reflect on one’s actions so as to engage in a process of continuous learning.  According to one definition it involves “paying critical attention to the practical values and theories which inform everyday actions, by examining practice reflectively and reflexively.  This leads to developmental insight.”  A key rationale for reflective practice is that experience alone does not necessarily lead to learning;  deliberate reflection on experience is essential. … A person who reflects throughout his or her practice is not just looking back on past actions and events, but is taking a conscious look at emotions, experiences, actions, and responses, and using that information to add to his or her existing knowledge base and reach a higher level of understanding.  (Footnotes omitted.)

By using these techniques, mediators can develop and test theories about what interventions are likely to produce particular results in particular circumstances in their particular practices.

Even experienced mediators can take advantage of reflective practice.  Old habits may not be optimal, and seasoned mediators can benefit from periodic reviews and revisions of their routines.

Long-time mediator Michael Lang has focused his career on promoting reflective practice in mediation.  He developed this website with articles, podcasts, videos, and bibliographies with helpful information.

Mediators may find that participating in reflective practice groups to be particularly valuable as described by mediator Laurel Tuvim Amaya in her short article, Mediators Can Greatly Improve Your Skills Using Reflective Practice Groups.  Mediators generally don’t have others who can provide thoughtful feedback about their work, and reflective practice groups offer this opportunity.

So What’s Your DIY Mediation Model?

If you are a mediator – or a student or trainee learning mediation – you can become more conscious of your do-it-yourself mediation model by summarizing it in writing.  Even if you have only studied mediation and not yet mediated, you already have some rudimentary ideas about how you would mediate.  You can identify the categories you use to describe parties, cases, techniques, problems, etc.  Take a look at the powerpoint and see what concepts are useful in describing your model.

As you write your model, notice what elements are unconscious routines, what cues you look for to recognize problems, what are your go-to techniques for handling problems, and – especially important – what are your goals when you mediate.  Experienced mediators may want to trace the evolution of the careers of their own mediation models.

Whether they know it or not, virtually all mediators create their own mediation models.  Some do so consciously and intentionally.  They and their clients reap the rewards.

2 thoughts on “How You Can Build a Mediation Model to Optimize Your Own Cases”

    1. I use the Gordon training institute model in all of my mediation training and when I’m speaking to experienced lawyers. I think it’s very valuable to reflect on what you know that the clients don’t and how to talk to them. I take it a step further than unconscious competence and talk about reflective competence. It’s important to know what you’re doing but also to reflect upon why you’re doing what you’re doing and help clients understand it, too.

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