Oxymorons R Us

Posted on 17/09/2024 by Milan A Nitopi

John Lande, JD, PhD
This post is republished with permission. The original article is published within the University of Missouri School of Law the Legal Studies Research Paper Series.

In ‘Evaluative Mediation’ is an Oxymoron, Kim Kovach and Lela Love argued that evaluative mediation described in the famous Riskin Grid is a contradiction in terms – essentially not really mediation or the way that mediation should be. Len Riskin responded, “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article.”

Although I share Len’s perspective, this article is not about what should or should not be legitimately considered as mediation.

Rather, this article argues that the concepts of facilitative and evaluative mediation themselves are oxymorons. I analyzed problems with these concepts in various pieces in Part 3 of the Real Practice Systems Project Annotated Bibliography (Including the classics Confusing Dispute Resolution Jargon, Houston, We Have a Problem in the Dispute Resolution Field, and “Labels Suck”). So I will not repeat those critiques here.

This article riffs on comments at an excellent program during the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic these terms have become. It suggests ways that we in the dispute resolution field can decide to avoid speaking oxymoron.

Mediators’ Proposals

The ABA program described techniques for making mediators’ proposals. This procedure usually is a last resort after extended unsuccessful efforts to reach agreement. Typically, it is used in high-stakes cases where both sides are represented by attorneys. The parties want to settle but worry that one or both sides are taking unreasonable positions. The procedure can help parties feel more confident in their decisions.

Mediators make these proposals only if both sides agree to the procedure. Indeed, some mediators use the procedure only if suggested or requested by one or both of the parties. Mediators gives a proposal confidentially to each side. It reflects their perception of the terms that both sides would accept. It is not a prediction about the likely court outcome if the case were adjudicated.

If both sides accept the proposal, they have an agreement. If either or both parties reject the proposal, there is no agreement. A party that rejects the proposal doesn’t know if the other party has accepted it or not.

As this description illustrates, this is a specific procedure that the parties agree to, not a unilateral casual suggestion by a mediator.

Two Oxymorons

During the discussion, one person referred to mediators “facilitatively” making a proposal. Another person described mediators “empowering” the parties by asking how much risk they were willing to take. For example, if plaintiffs are willing to take more risk that the defendants would not accept the proposal, the mediators would propose a higher amount. If the plaintiffs were willing to take less risk, the mediators would propose a lower amount.

In the definitive publication defining facilitative and evaluative mediation, facilitative mediation, includes helping parties develop and exchange proposals (in contrast to evaluative mediation where mediators may propose agreement). Thus, by definition, mediator proposals are inherently evaluative and can’t be facilitative.

A recent article by Robert A. Baruch Bush, a founder of transformative theory, identifies the goals and purposes of transformative mediation as “[s]upport[ing] parties in changing their conflict interaction from negative / destructive to positive / constructive; help them recapture strength and understanding.” It requires mediators to “[p]rivilege party decision-making on all matters – content and process.” The reason for this approach is to promote “party empowerment and interparty recognition.” The article states that the “emphasis in the transformative framework on party empowerment opposes any effort by the mediator to bring the parties toward reconciliation.”

Arguably, mediators making proposals and inquiring about their preferred level of risk is transformative by asking about parties’ preferences about the procedure. However, it is designed to promote agreement and it is not designed to promote empowerment or constructive interactions between the parties. Nor is it how mediators generally understand transformative theory.

Presumably, members of the audience kinda, sorta, probably understood what the speakers meant by using the terms “facilitative” and “empower.”

But why misuse terms from traditional mediation theory when there is plain language that expresses these ideas more clearly and without contradicting traditional theory?

How You Can Avoid Speaking Oxymoron

As a public service, this article provides the following suggestions to help you avoid the embarrassment of speaking oxymoron. These suggestions have the added value of making our language intelligible to civilians.

Instead of using the term “facilitative,” we might say the following, adapted from Riskin’s original account:

Helps parties develop ideas and proposals
Helps parties evaluate ideas and proposals
Asks parties about consequences of not settling
Asks parties about likely court or other outcomes if they don’t settle
Asks parties about the strengths and weaknesses of the arguments

Note that these are very different techniques. Mediators often use some but not all of them in a given case.

Listening to people using the term, however, they kinda, sorta, probably mean some of the following:

Is friendly and respectful
Helps parties understand their case and their options
Doesn’t (explicitly) pressure parties

Here are the elements of “evaluative” mediation from Riskin’s article:

Urges / pushes parties to accept settlement
Develops and proposes agreements
Predicts court outcomes and consequences of not settling
Assesses strengths and weaknesses of each side’s case

Again, these are different techniques and mediators who are allegedly evaluative don’t use all of them in a given case. When people use the term, they kinda, sorta, probably mean some of the following:

Is aggressive
Doesn’t listen to parties
Pressures parties to accept the mediators’ ideas

Bush’s description of empowerment is included above. When people use the term “empowerment,” they kinda, sorta, probably mean that the mediator helps parties understand their case and options so that they feel more informed, confident, and assertive and thus can protect their own interests.

Maybe people mean other things when they use the traditional terms of facilitative, evaluative, and empowerment. Who knows? When people use these terms, we don’t really know what they actually mean. We kinda, sorta, probably think we know. But we don’t really know.

As so-called communication experts, it would be nice if we could speak and write so that people actually do know what we mean.

A radical concept.

Try it. You’ll like it.

Author Biography

John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.

The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).

John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.

What’s in a frame? Power, control and desire in the experience of family mediation.

Posted on 13/12/2017 by jillhowiesonuwaeduau

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We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

“By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames. Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court). The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements. On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).

desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or

a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements. We could look at the relationship between language, outcomes and experience more closely. As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’. We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.