In the space of two weeks, the field of dispute resolution lost Robert Baruch Bush, the prophet of the transformative model of mediation, and the world lost Jürgen Habermas, the philosopher whose theory of communication and rationality provides a normative justification for much of dispute resolution—even if few American legal scholars in this field engage substantively with Habermas.

Their nearly simultaneous passing contains a bitter irony: if any American dispute resolution scholar could be said to be operating in a Habermasian key, it would have been Bush. The moment demands engaging with their challenge.

And a challenge it is: not only in the density and precision of Habermas’s prose, but in his recognition of the elusiveness of genuine communication.

To a field that grounds its core theories on the satisfaction of interests or needs, or utility maximization, Habermas offers an important distinction between “strategic action” in which “the actor is supposed to choose and calculate means and ends from the standpoint of maximizing utility” (TCA I: 85) and “communicative action” “in which all participants pursue illocutionary aims, and only illocutionary aims” (TCA I: 295). Or, to put it even more concisely, per the Internet Encyclopedia of Philosophy, “Strategic action is about eliciting, inducing, or compelling behavior by others to realize one’s individual goals. This differs from communicative action, which is rooted in the give-and-take of reasons and the ‘unforced force’ of the best argument justifying an action norm.” Bargaining to satisfy one’s interests by identifying creative options that also satisfy one’s counterpart’s interests, and shifting the perceptions of any zone of possible agreement in one’s favor by strengthening one’s best alternative to a negotiated agreement—this is squarely an example of strategic action. A mediator assisting parties to find a solution that enables them to move forward also engages in strategic action, rather than communicative action.

While informal dispute resolution is operationalized through communication, it is nevertheless a space for strategic communication. The institutionalization of mediation and of negotiation training are examples of what Habermas described as systems rationality. When this kind of systems rationality extends into spaces that were otherwise coordinated through communicative action, we have the “colonization of the lifeworld.”

In some contexts, dispute resolution practitioners may work to create space for communicative action against its colonization by systems rationality. Habermas saw this possibility: how, within the family or the school, “the place of law as a medium is to be taken by procedures for settling conflicts that are appropriate to the structures of action orientated by mutual understanding—discursive processes of will-formation and consensus-oriented procedures of negotiation and decision-making” (TCA II: 371). But a funny thing happened on the way to defending the lifeworld from colonization: specialized training and canonical texts and formalized institutions created a new “sector[] dealt with by specialists” “splitting off … from a stream of tradition continuing on in everyday practice in a quasi-natural fashion” (TCA II: 355). When problems became transmuted into interest-satisfaction, when complex reactions were classified into five core emotional concerns, the discursive processes of will-formation became themselves colonized by systems rationality.

Habermas’s “ideal speech situation” remained a counterfactual, a set of four presuppositions that must hold for us to identify moral outcomes within a discursive context. From the IEP: “(i.) no one who could make a relevant contribution is excluded, (ii.) participants have equal chances to make a contribution, (iii.) participants sincerely mean what they say, and (iv.) assent or dissent is motivated by the strength of reasons and their ability to persuade through discursive argumentation rather than through coercion, inducement, and so on.” These are not conditions that hold in actually existing circumstances.

Enter Bush, whose model of transformative mediation, as I understand it, comes closest to trying to instantiate those conditions within the space of the mediation room. Empower the parties to participate as equals. Encourage candor and sincerity. Relax the goal-orientation of mediation to let the parties themselves define the outcome, avoiding the carrots-and-sticks of proposing terms to satisfy interests. Bush’s great concern with party self-determination stems from the same wellspring as the Habermasian ideal speech situation: allowing parties to freely exchange reasoned arguments and testimony to explore a problem.

The distinction that Bush insisted upon between transformative and facilitative mediation corresponds to Habermas’s distinction between lifeworld and system. It is not enough to say that mediators may work transformatively at some times and facilitatively at others; the challenge is to protect the mediation room as a space for communicative encounter rather than as a space for strategic action (even for action that is strategically beneficial to both parties).

Did he succeed in defining a model of mediation that protected the room from systems rationality? I’ve had my doubts—and my doubts about the possibility of advancing party self-determination by “following” the parties could be seen as doubts concerning the presuppositions of the ideal speech situation: do parties sincerely mean what they say? are they motivated only by reason rather than through coercion or inducement? I’m skeptical on both fronts, and those are, I think, fatal to Bush’s notion of self-determination.

Transformative mediation became another school of mediation, another program to sit alongside more traditional facilitative practices, maybe coexisting comfortably, maybe not. Its articulation as a program was the crack through which systems rationality could find its way back into the mediation room. Habermas’s challenge remains: can we hold open those “discursive processes of will-formation and consensus-oriented procedures of negotiation and decision-making” without forcing them into analytical frames that fragment reason?

 

• Andrew Mamo