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Advanced techniques and dilemmas in mediation
The issue of autonomy and social control in particular[1]

Association on Conflict Resolution, Orlando, FL, October 2003
Victim Offender Mediation Association, Nashville, TN, November 2003
Similarities and Differences of six Anglo-American/European Models of Mediation
Hans Boserup, Denmark, - hb@bhc.dkwww.mediator.dk

Profile of the author:
Hans Boserup (1947), Denmark. Attorney at law (admitted to Supreme Court), conducting more than 3.500 court trials, - public law, corporate, family and penal. Trained in mediation (commercial, corporate, family, penal, community, school, etc.) in USA, Ireland and Germany. In 1992, he introduced mediation to Denmark, authoring a book and articles on the topic. He has since published additional books and articles, covering victim/offender, community, family, school, and corporate mediation, along with group conferencing and sentencing circles, in which he practices. As adjunct professor, he has been teaching mediation at the University of Aarhus, Denmark, to law and psychology students.

His textbook (co-authored by Susse Humle) “Mediationsprocessen”, Nyt Juridisk Forlag, Copenhagen 2001, (ISBN 87-89319-67-2) is an introduction to mediation and covers too the micro focus inside the mediation process; the issues about free storytelling versus information gathering, control, possibilities and limitations, philosophical and sociologic perspective to mediation. His recent text book, "Mediation - Six Ways in Seven Days", Nyt Juridisk Forlag, Copenhagen 2001, (ISBN 978-87-574-1755-5) explores and presents in details 1) generic mediation, 2) transformative mediation, 3) humanistic mediation, 4) cognitive systemic mediation, 5) narrative mediation and 6) settlement-driven mediation.

He is a founding member of World Mediation Forum, a former member of the board of directors of VOMA (Victim Offender Mediation Association), a founding member of Danish Mediation and former chair of Nordic Forum of Mediation. He frequently lectures internationally on the topic. He has formed a European electronic network of mediators, now with more than 250 participants. He has trained more than 2,000 mediators in various European and overseas countries.

Key words: Surfacing information with and without questions or with or without social control, linear exploration in a circular world, the comparison of wolf language to giraffe language, clashes between value systems, communication style and mediation style, separating the agenda of the parties from the agenda of the mediator, dealing with surface issues without dealing with real/underlying issues or the conflict environment, neutrality in systems theory, affective vs. cognitive approach in mediation.

Abstract: Surfacing information to the mediation table is crucial. Information is surfaced to serve the parties rather than serving the mediator. Methods of obtaining and sharing information are diverse. Mediator style in bringing out information and the personalities of the players can change the whole concept of mediation as a practice. Six categories of mediation have emerged as most widely known:

1) Generic, 2) settlement-driven, 3) cognitive systemic, 4) transformative, 5) humanistic and 6) narrative. Some mediators’ methods of uncovering information and defining issues are inconsistent, however, with the individual mediation style chosen. The ability to choose a specific type of mediation suitable for the situation at hand requires the ability to identify and perform the each of the different mediation styles.

This handout tries to address some issues – particular concerning the degree of mediators’ social control - from the perspective of the academic researcher and the practicing mediator.

I have been litigating more than 3.500 cases, literately representing any kind of conflict you can imagine. The styles adopted by the judges, the attorneys and the parties to this huge variety of litigations have had an impact of the process and the outcome of the matter in dispute. Likewise, the style adopted in mediation has a strong impact on the dynamics and outcome of the process. It is important for the mediator to be skilled in identifying the different styles, and to adopt that method which may enable the parties to make intelligent choices about process and outcome.

Many trace the Mediation Movement in Europe back to around 1985, with some initiatives occurring a few years before and many much later. The movement has emerged at very different times within individual European countries based on: 1) the area of conflict (penal, family, school, civil, corporate), 2) the rate of satisfaction with the traditional court system, and 3) the shifts of paradigm from controlling practice to client-centered practice, and retributive justice to restorative justice.

The notion of mediation is far from new in Europe. The Danish King issued a detailed Mediation Act on July 10th 1795. Over time the mediation process described in the Act became reinterpreted and altered by lawyers, and in the 1950’s, the Act was replaced by a general request for trial judges to mediate after the closing remarks of council. The style of mediation adopted by the judges was a prediction how he would most likely rule in the case. When studying the development of the mediation process and the mediation institution around the world, I predict that an almost similar development will take place once again, both in and outside of the courts.

By the end of the 19th century, mediation was introduced in labor conflicts and became more institutionalized (a rather directive style). The style adopted was different from the style of the mediation movement (hereafter named the generic style) born in the late sixties in North America.

The “community mediation movement” of North America (including penal, neighbourhood, and family) gave birth to a similar movement in Europe in the eighties. The first family and victim-offender mediators in Europe naturally shaped the meeting between the parties after that generic community mediation model.

As with the rest of the western world, other mediation styles in Europe were developed in order to serve different purposes. When doing commercial or corporate mediation, civil mediation, family mediation, community mediation, VOM (Victim Offender Mediation) or VOC (Victim Offender Conferencing) we can draw on experiences from this variety of styles.

In both the generic, transformative, humanistic and narrative mediation models, we attempt to identify feelings, needs and concerns of the parties in order to create an environment for empathy, empowerment and recognition.

In the generic, settlement-driven, cognitive-systemic and partly in the humanistic styles intended outcome along with other goals is agreements of plans or transactions. In the transformative, humanistic and narrative styles, intended outcome along with other goals is improved relations.

Occasionally one or both of the parties are not willing or able to reveal the emotional aspects of the conflict. In response, the mediator may adopt approaches, which are cognitive and intellectual compared to those, which target the affective or emotional. As we shift from the “feeling mode” to the “thinking mode,” we change our pattern of communication, adopting a different way of surfacing information. The mediator moves from the generic and transformative styles into the cognitive style, which has often a systemic approach.

In the generic, settlement-driven, humanistic and narrative styles, the process follows stages. In the cognitive-systemic and transformative style, the process follows cycles.

Many mediators chose to be the least directive as possible. The art then becomes to surface as much information and as many issues as possible without asking questions, thus the practice of active listening. If the parties are slow to share information or define issues, we may be tempted to speed up the process by asking questions. Question-asking is a highly sensitive matter, and I recommend the use of open-ended, circular questions when questions are needed. Questions reflect our own intentions and have a specific effect, dependent upon the type used.

In numerous mediations, we learn that the process is more important to the parties than is an agreement. This view reflects the transformative style of mediation where the concepts of “empowerment” and “recognition” are regarded as more important than an actual written agreement. If we sense that the parties are impatient for an agreement, the settlement-driven or the cognitive, systemic style may be preferred.

Occasionally, the parties enable us to recognize some of our biases or our own preferred outcomes in a given case we are mediating. To test whether we are fit for continuing the mediation, we may benefit from the domain theory, which asserts that mediators must realize that they themselves are an integral part of the process.

Fifty years in the future, when mediation has become a mainstream approach to dispute resolution, I predict that the opponents of mediation will focus on the degree of transparency and social control and the potential risks for manipulation, which exist in the process, by examining communication patterns within. Despite existing regulations inherent in mediation practice, manipulation by mediators can only be avoided through mutual and open discussions and demonstrated facilitation between mediators in order to identify styles of manipulation, and the creation of values preventing their occurrence.

The different styles of mediation seems to be grounded in the variety in

  • Epistemology
  • Ideology
  • Psychology
  • Sociology
  • Organizational theory and
  • Communication / linguistics

This becomes clear when analyzing the macro perspectives framing the different styles and when analyzing the micro-dynamics appearing in the individual style chosen. Micro-dynamics are:

Check-Outs
Circular Questions
Clarifying the Denial of Recognition
Confrontation
Directives to Elaborate
Evaluation
Interpretations 
Key-Word Encouragers
Metacomments
Minimal Encouragers
Normalizing
Open-Ended Questions
Paraphrases
Paraphrasing a Request for Recognition
Parroting
Process Observations
Prompting Questions
Reassurance
Reflecting Content
Reflecting Feelings
Reflective Questions
Reframing
Separating Double Massages
Suggestions
Summaries
Tracking Questions

 

 

Six Basic Mediation Styles:

  1. Generic style (1970)
  2. Settlement driven style (1980)
  3. Cognitive, systemic style (1980)[2]
  4. Transformative style (1990)[3]
  5. Humanistic style (1990)[4]
  6. Narrative[5] (1990) style may be a new bud on the tree of the mediation development[6].

Ad. 1. Generic style
Structure consists of a stage model – feelings and emotions important – needs, concerns and interests are useful – joint sessions preferred over private meetings (caucus) if possible – active listening and free storytelling – facilitative over evaluative – intended outcomes are agreement, empowerment and recognition.

Structure:

  1. Storytelling
  2. Defining issues
  3. Generating options by brainstorming
  4. Negotiation
  5. Agreement

Grounding:

  • Cybernetics means science of control and regulation of systems – Deriving from the Greek word for steersman (kybernetes) introduced as the science of communication and control in the animal and the machine (to which we now might add: in society and in individual human beings)
  • Cybernetics of first / second order
  • Emotional psychology
  • Cognitive psychology
  • Psychoanalyze
  • Humanistic psychology
  • Existentialism

Ad. 2. Settlement driven style
Structure consists of a stage model – defining issues through exploring needs, concerns and interests important – feelings and emotions recognized as useful – private meetings regarded very useful – information gathering over free story telling – evaluative over facilitative when necessary – intended outcome is agreement.

Structure:

  1. Positions
  2. Defining issues
  3. Information gathering
  4. Re-defining issues (needs, concerns, interests) from the newly available data
  5. Generating options by brainstorming
  6. Negotiation
  7. Agreement.

Grounding:

  • Cybernetics of first order
  • Psychoanalyze
  • Humanistic psychology
  • Existentialism
  • Positivism – linearity
  • Behaviorism
  • Adaptation, assimilation and accommodation

Ad. 3. Cognitive, systemic style
Structure consists of repeated cycles – focus on problems – defining issues through exploring needs, concerns and interests – feelings and emotions regarded not useful data – information gathering over free story telling – circular questions and hypotheses important – intended outcome are agreement empowerment and recognition.

Whenever a problem occurs or is identified a cycle like the below mentioned structure take place:

Structure:

  1. Wants, needs, concerns, interests – defining issues
  2. Information gathering over free storytelling
  3. Presenting and exchanging data – open access to data
  4. Re-defining issues (needs, concerns, interests) from the newly available data
  5. Presenting options or offers related to the re-defined issues
  6. Selecting the most suitable options
  7. Negotiation
  8. Agreement
  9. Cycles are repeated whenever a new problem surfaces.

Grounding:

  • Cybernetics of second order
  • Systems approach
  • Milan School
  • Curiosity, hypothesis and circularity
  • Postmodernism
  • Social constructivism
  • Language do not describe reality rather reality is created in discourse

Ad. 4. Transformative style
Structure consists of repeated cycles – focus on situations – feelings and emotions important – needs, concerns and interests are useful – joint sessions preferred over private meetings (caucus) if possible – active listening and free storytelling – facilitative over evaluative – following the parties around and going with the flow is most important - intended outcome are empowerment and recognition.

Strategy:
Attending to empowerment and recognition. Empowerment and recognition have a very specific meaning in transformative[7] mediation:

Empowerment is this movement:
Unsettled> Calmer
Confused> Clearer
Fearful> More confident
Disorganized> More focused
Unsure> More decisive
 

Recognition is this movement:
Self-protective> More attentive to other
Defensive> More open
Suspicious> More willing to accept other’s good faith
Incapable of stepping> More able to see other’s perspective
outside own frame

As the main function of the mediator is to provide an environment where empowerment and recognition can emerge and improve, the mediator is constantly looking for situations of lack of, request for or emerging of empowerment and recognition. The transformative mediator regards sentences as illustrated in the left columns below as signs of particular responses as illustrated in the right columns below. He/she regards these identified responses as signs illustrating lack of, request for or emerging of empowerment and recognition. A mediator wanting to perform the transformative mode therefore learn the sentences cited below and more examples by heart in order to be able to detect situations of lack of, request for or emerging of empowerment and recognition. Whenever a situation of lack of, request for or emerging of empowerment and recognition is identified, he/she slows down the process and creates an environment fit for improving the degree of empowerment and recognition.

Table 1. Opportunities for empowerment.[8]

Lack of Empowerment
Type of Response

Illustrative Party Statements

Expressing doubt, confusion, uncertainty, I'm just not sure that...
or inability to comprehend I just don't understand...

Inability to act There's nothing I can do...
I can't ... I don't see how...

Anger/frustration #!@&!

Continued repetition of same point As I said before...and I'll say again...

Requests for Empowerment
Type of Respons
Illustrative Party Statements

Exasperated questions I don't see why....

Seeking advice/suggestions What do you think?
Seeking change from other party If only s/he would…

Emerging Empowerment
Type of Response Illustrative Party Statements

Shift from third-person to second-person s/he... to you...
pronouns (including body language) (turning to face other party)

Shift to more specific language Let me tell you exactly what I mean...
Shift to "can" and "will" language I guess we can... I could try...

Table 2. Opportunities for recognition.[9]

Inability to Give Recognition

Type of Response Illustrative Party Statements
Lip service, and "but..." Yes...but

Accusations, name calling, sarcasm Ooh, that's original!
Assuming worst motives of other party As usual, you...

Minimizing or trivializing Of course...she/he only wants to
Outright refusal It just can't be done!

Requests for Recognition
Type of Response
Illustrative Party Statements

Justification/explanation of past conduct The reason I did...
Statement about feeling misunderstood Nobody knows...that's not it at all

Emphasis, exaggeration, and repetition You always…
"Here and now" language Here I am with all this...now I have to...
How one wants to be seen by others If only people would understand...

Emerging Recognition
Type of Response
Illustrative Party Statements

Acknowledging a new piece of information That's news to me...I never realized...

Use of qualifiers Maybe we could do that IF…

Attributing better intentions Now that I see that you...
Acting more receptively toward other party We can do it that way...

Awareness of the other's points of view I hear you... I'm beginning to understand why you saw it that way.

Whenever the mediator identifies a situation of lack of, request for or emerging of empowerment and recognition, he/she slows down the process and provides an environment for the cycle below:

Structure:

  1. Spheres of activity naturally shaped and reshaped through the conversational interactions in the session:
  2. Creating the context (How do we want to do this?)
  3. Exploring the situation – sharing perspectives (What is this about?)
  4. Deliberating (What does this mean?)
  5. Exploring possibilities – developing ideas (What is possible?)
  6. Decision-making (What do I / we do?)

Grounding:

  • Interaction between individuals
  • Macro and micro dynamics
  • Cognitive
  • Cybernetics of second order
  • Postmodern
  • Social Constructivism
  • Social and cultural context
  • Social psychological and socio-cognitive approach over individual-psychological approach
  • Language do not describe reality rather reality is created in discourse
  • Discourse analyses
  • Speech acts
  • Agency

Ad. 5. Humanistic style
Structure consists of a stage model – feelings and emotions important – needs, concerns and interests are useful – in private meetings the parties are prepared for the joint session – the pattern of communication is at the stage of preparation indirect communication facilitated by the mediator; in the joint session(s) a direct dialogue between the parties is preferred and encouraged - active listening and free storytelling – facilitative over evaluative – in joint sessions the mediator tries to be as invisible as possible – intended outcomes are understanding, learning, accountability, empathy, reduced fear and anger, improved sense of mood, empowerment and recognition.

Structure:

  1. Storytelling in private preparatory meetings
  2. Defining issues in private preparatory meetings
  3. Defining context in private preparatory meetings
  4. Dialogue in joint sessions
  5. Reaching understanding of impact on others lives
  6. Developing plans

Grounding:

  • Humanistic Psychology
  • Existentialism
  • Spirituality
  • Wrongdoing seen as:
    • Infringement of law
    • Infringement of others life

Ad. 6. Narrative style
Structure consists of a stage model – focus is on relations rather than on needs, concerns and interests – de-constructing listening – externalising listening - focus on the dominant discourse and the alternative discourses - elements and functions of stories important - deconstructing the conflict-saturated story - changing the epistemology into a reconstruction of an alternative story important – questioning ownership to the conflict story - de-constructing entitlements to the context and the labeling of describing terminology adopted by the individual party and emerging of a new and common story - intended outcomes are understanding, agreement, empowerment and recognition.

Structure:

  1. Storytelling
  2. Engagement
  3. Deconstructing the conflict-saturated story
  4. Constructing the alternative story
  5. Agreement

Grounding:

  • Cybernetics of second order
  • Systems Approach
  • Social constructivism
  • Language do not describe reality rather reality is created in discourse
  • Systemic-constructionist approach
  • Existence is made-up via our language and mental scheme of things
  • Linguistics
  • De-construction
  • Re-authoring
  • Dominant and
  • Alternative discourse

Conceptions:

  • Within the context of the practices associated with the externalizing of problems, neither the person nor relationship between persons is the problem. Rather, the problem becomes the problem, and then the person’s relationship with the problem becomes the problem.
  • In this process, the problem becomes a separate entity and thus external to the person or relationship that was ascribed as the problem.
  • Life experience is richer than discourse. Narrative structures organize and give meaning to experience, but there are always feelings and lived experiences not fully encompassed by the dominant story.
  • As persons separate from the dominant to totalizing stories that are constitutive of their lives, it becomes more possible for them to orient themselves to aspects of experience that contradict these knowledges.
  • Re-authoring involves relocating a persons experience in new narratives, such that the previously dominant story becomes obsolete.
  • When persons experience problems for which they seeks help, the narratives in which they are storying their experience and/or in which they are having their experiences storied by others do not sufficiently represent their lived experiences, and in these circumstances, there will be significant and vital aspects of their lived experience that contradict these dominant narratives.

Communication adjusted to the six principle styles of mediation

  1. Generic mediation
  2. Settlement-driven mediation
  3. Cognitive, systemic mediation
  4. Transformative mediation
  5. Humanistic mediation
  6. Narrative mediation

Different styles of communication in mediation often depend on the mediation style adopted. Some methods of communication are inconsistent with some forms of mediation.

In generic and settlement-driven mediation the communication – at least in the beginning – goes through the mediator. Language is a problem solving language.

In the cognitive mediation questions are meant to initiate a thinking process rather than a feeling process. The question: “What do you feel?” leads to a completely different process and answer compared to the question: “What do you think?”

In the systemic mediation questions are meant to disturb the system in order to initiate reflections. Focus is not on the individual rather than the relation between the participants constituting the system.

In the transformative mediation questions are meant to clarify process issues and to encourage decision-making. Questions are never meant to provide information. Statements are replaced with conversations on how to process.

In the humanistic mediation questions in preparatory meeting are meant to clarify, to encourage, to empower and to encourage to empathy and recognition. In joint sessions questions are meant to clarify process issues and to encourage decision-making.

In the narrative mediation questions are meant to challenge the ownership to the conflict story, to de-construct entitlements to the context and the labeling of describing terminology, to deconstruct the conflict-saturated story, to engage the party into the externalizing conversation freeing the party to act and shape his own life in relation to others and to construct the alternative story

Not adjusting your method of communication to the style of mediation you wish to adopt will lead to confusion.

Information serving the parties or the mediator

The more the mediator surface information to improve the awareness and competence of the parties, the less pushing and social control is probably going on. The more the mediator surface information to serve his/hers curiosity and strategy the more pushing and social control is probably going on.

Means of getting information:
Closed questions
Open-ended questions

Linear questions
- Clarifying questions
- Defining problems
- Leading questions
- Confronting questions
- Strategic questions
- Influencing questions (value-based)

Circular questions
- Questions about behavior
- Questions about differences
- Hypothetical questions
- Observer questions
- Reflective questions

Active listening
- Restating
- Summarizing
- Silence
- Non-verbal cues
- Checking in

Focusing on facts
Focusing on feelings and emotions
Focusing on problems
Focusing on situations
Focusing on settlement
Brainstorming
Joint sessions
Private Sessions (caucus)

Directive
Non-directive

Facilitative-wide approach[10]
Facilitative-narrow approach
Evaluative-wide approach
Evaluative-narrow approach

Communication directly between the parties face to face
Communication in a triangle through mediator in a face-to-face setting
Communication through mediator between parties in separate locations

Storytelling, information gathering, limitations in a linear paradigm, communication

Questions:

Few mediators realize that every question they ask has unconscious intentions behind it, which lead to specific effects on the parties.

The more questions the mediator asks the more he/she is imposing social control and his/hers own strategy upon the parties. The answers may be correct or false - however mostly questioning change the mind track of the parties and limit the option of possible answers. Surfacing information through questions will therefore normally prevent the party from revealing the full story and consequently the mediator and the other party will miss important pieces of information.[11]

The notion of storytelling is to provide an environment where the parties design the agenda after the storytelling. Designing the agenda after the storytelling normally adds new issues to the agenda, - not seldom the original agenda is redefined after the free storytelling. Free storytelling leaves more of the social control with the parties. Opening the session with free storytelling can be regarded as turning upside down the traditional way of conducting a meeting. The traditional way is to open with an agenda.

The notion of information gathering is to gather information serving the original agenda. Often information gathering support what the mediator finds relevant and leave more social control with the mediator. Information gathering rests on the traditional conducting of a meeting. First agenda; then input from the parties.

Difference between affective and cognitive mediation
The mediator may choose only to respond to the cognitive elements of the parties’ storytelling in order to prevent the parties from being stuck in the past.[12] If the mediator prefers that strategy he/she will benefit from being circular compared to linear.

The mediator may choose to respond to the affective (emotional) elements of the parties’ storytelling in order to make room for ventilation, validation and reaffirmation. Choosing that strategy the mediator can benefit from active listening. Active listening consists of empathy, frees storytelling, summarizing, restating, pauses/breaks occasionally followed by summarizing and restating.

If the mediator makes room for the party to share affective information (emotions), the parties and the mediator will achieve a shortcut to unmet needs and concerns. Unmet needs and concerns are shortcuts to the real problems.

Paradigms of psychology

  • Behaviourism
    • Explaining
  • Psychoanalysis
    • Focus on inclinations and urges (grounded in the paradigm of natural science)
  • Humanistic psychology
    • Understanding
  • Different grounding in the arts and social sciences: e.g. existentialism – first and second degree of cybernetics (science of control and regulation of systems) – systems approach – hermeneutics (understanding) - social constructionism and constructivism (meaning of environment), etc

Difference between linear and circular behavior
Linear behavior or questioning tends to limit the answers and the storytelling of the parties. Further more linear behavior and questions tend to make the party feel examined. Linear behavior and questioning may lead the party and stimulate our own prejudices. Linear behavior and questions often tends to make the party feel corrected/adjusted. Linear behavior and questioning may stigmatize the party and stimulate mediators’ own confrontation.

Circular behavior or questioning provide more space or room for a freer storytelling of the parties. When exploring in the circular mode mediator may release the party and stimulate his/her own acceptance. When facilitating in the circular mode mediator may develop the party and stimulate his/hers own creativity.

Intentions: What does the mediator want to accomplish?
To examine, explore, correct, adjust, or facilitate?

Effects:

  • When linear examining, we may lead the party and stimulate our own prejudices.
  • When circular exploring, we may release the other and stimulate our own acceptance.
  • When linear correcting/adjusting, we may stigmatize the other and stimulate our own confrontation.
  • When circular facilitating, we may develop the other and stimulate our own creativity.
  • The intention of the mediator may be neutrality or autonomy.
  • The effect may be learning, reflecting and expansion of thinking.
  • When you ask questions, you ask from your hypothesis and problem definition. “He who has the power to define the problem owns the solution.”[13] That kind of behavior is a challenge to neutrality and respect of autonomy.
  • You then own the stage. Is that your goal?
  • When you ask questions, you may have to continue questioning, and it may be difficult to get off that stage and leave it to the parties.
  • You will obtain answers, true or false, and you will cut yourself short from important information.

We live a circular world[14], often addressing that world in a linear manner.
Is it effective?
Is it contraindicated?

  • During our upbringing, many were taught a style of linear thinking.
  • For the purpose of simplification, we learned to search for a cause-effect relationship when making an observation.
  • The disadvantage of this viewpoint is that we place events into a one-dimensional sequence. With a multi-dimensional reality, we miss the opportunity to get much important information by making assumptions about cause and effect, therefore missing the full context of the situation.
  • Everything is dependent upon everything.[15]

Although linear thinking is useful in an educational context, mediators must adopt a circular viewpoint to avoid the pitfall of missed information.

  • Do you ask what it’s made of – earth, fire, water, etc.? Or do you ask; What is its pattern?
  • The whole is more than the sum of the individual parts
  • In fact, cybernetics and systems theory study essentially the same problem, that of organization independent of the substrate in which it is embodied
  • Since we cannot know objective reality, all knowing requires an act of interpretation. [16]

Wolf and Giraffe language[17] - A choice of strategy when the mediator summarize
Traditional communication consists of evaluating, analyzing, judging, moralizing, etc.

Marshall Rosenberg[18] describes these communication behaviors as “Wolf language,” violent communication. In the Australian terminology, the behavior is often named: Communication killers.

Examples:

  • “That idea sounds stupid / brilliant!”
  • “The only reason you suggest that is because …”
  • “That’s unfair!”
  • “What an indecent / intriguing dress!”

What is preferable in mediation is the language of observation, feelings and needs. That kind of behavior supports the free storytelling of the parties. Marshall Rosenberg refers to this as “Giraffe language.”

Basic Giraffe language:
1. Observations
2. Feelings (emotions)
3. Needs
4. Requests

Example:
1. When the class begins at 10 and you arrive at 10:30
2. I get disorganized
3. because I need a certain flow in my lessons.
4. I would like everybody to begin the class at the same time.

This is comparable to what many know as “I-statements.”

Examples:

  • Starting together will make me calmer, because I need to able to address everyone at the same time!
  • When you suggest that every one is free to enter the meeting between 9:00 and 9:30, I become worried. I need a firmer structure!
  • When you ask her to work two hours and you ask me to work four hours, I feel hurt. I needed to be treated equally

People often tend to evaluate, analyze, judge, moralize, minimize, manipulate, dominate, etc. when they address human behavior. Marshall Rosenberg identifies this kind of behavior as Wolf or Jackal language.

  • Is that natural or habitual?
  • Does this promote effective communication?
  • Is it possible to communicate by using observations instead?
  • Is it possible to teach the parties to communicate by observations and needs only?
  • How is this accomplished?
  • What is the effect of using” “observation” language over evaluative language?

Wolf language is intellectual and digital. It inspires contradiction and defense, and closes constructive communication. On the other hand the parties are not deprived of their conflict.

Giraffe language is empathic, analog and useful for mediators summarizing or reflecting what the parties have stated. Giraffe language is composed of observations, I-statements, emotions and needs and more often inspires the other party to a change rather than to create defensiveness. Changing the discourse and by that eliminating party strategy.

The Wolf and the Giraffe apology
“Sorry for stepping on your feet, - I was in such a hurry” is a Wolf apology suitable for making the life of the offender go on.

“I apologize for stepping on your feet. – I can see the pain I caused you. May I help you up the staircase” is an empathic and Giraffe mode of apology suitable for making the life of the victim goes on.

Agenda, problem definition, narrow-wide focus,
Distinguishing their agenda from our agenda and from where the differences originate. Separating their “stuff” from our “stuff”.

It is common for mediators, as well as each of the parties, to have ideas regarding a “preferred” outcome of the mediation. These preferences have much to do with our ideals, values and needs. The more the mediator supports his/hers preferences the more he/she impose social control upon the parties. The art and challenge for mediators is to discover the ideals, values and real needs of the parties.
How can we find a shortcut to those?

Active listening from a very wide approach is an excellent way to open a mediation: “Please tell me why you are here today?”

There are great differences between addressing the “surface” conflicts compared to addressing broad, general issues and values of importance in the lives of the parties.

Some mediators feel it natural to immediately deal with the initial conflict that the parties bring to them. However, it is often effective to let the parties vent their emotions about their issues. That detour increases the chance of finding common ground between the participants, which most mediation easier.

Creating common ground by categorizing,
How can categorizing of diverse ideas, which appear to be heterogeneous on the surface, become useful to enhance the likelihood of agreement or transformation in mediation?

In the pyramid of demands, interests and needs, the higher the level (demands) which you work on, the more difficult it is to find common ground. The deeper you dive beyond interests into needs, the greater the chances that you will uncover common ground. Although the parties often express themselves in terms, which seem diverse and divided a skilled mediator finds it possible to unify the heterogeneous ideas and statements into specific categories. Finding their ideas in the same category can be uplifting and promising for the parties. It takes some practice to categorize issues, yet it is especially helpful if the mediator remembers to view the information revealed from a “helicopter’s” perspective.

The expressions: “A more detailed job specification is needed” and “It’s hard not to know which of my supervisors has authorization to approve my work” can both be placed in the category of “rules that make daily work easier” or “means that provide more certainty”.

Mediator Neutrality
How to cope with biases from a systems approach? - Fairness and truth are challenged words. Few judges realize themselves being a part of the process. Consequently, most judges feel neutral when they comply with legal guidelines of neutrality. I hope that the mediator realizes him/herself as part of the process and the system at hand. I hope that the mediator realizes the circularity of the system at hand and realizes that he/she is a player in the cause-effect dynamic. How to ensure neutrality in a circular paradigm? When guidelines of neutrality from the linear paradigm are less useful in a circular approach, the mediator may benefit from the systems domain theory: 1) domain of aesthetics, 2) domain of production and 3) domain of reflection.[19]

1) Domain of aesthetics
In this domain, the prevailing elements are ideas and values like harmony, agreement, moral and ethics. When the ideas and values of the parties prove to be profoundly different from ideas and values of the mediator, the mediator has to decide whether he or she can continue on the case. Dilemmas may be i.e. imbalance of power, fairness, confidentiality, etc.

2) Domain of production
In this domain, reality is regarded as objective. Only one reality is the truth and this truth has to be found. Criteria of “good and bad,” and “black and white” are well known and accepted. Diagnoses of physicians and rulings of judges are examples of professional practices that rest on well-established knowledge, recognized methods and painstaking procedures. “Does the patient have influenza or not? Is this party the owner of the property or not?” are examples from this domain.

3) Domain of reflection
In this domain, reality is subjective. A variety of experiences, perceptions and explanations are accepted as equal perspectives. In this “circular” domain, it is not important to determine whether the hen came before the egg.

The domain theory may be helpful to those who want to determine whether they can be neutral in a particular mediation. The domain theory may also bridge the gab between the linear and the circular paradigms and thus enlarging the communication system.

In a linear world, neutrality refers to the mediator’s ability to pay no conscious interest in the outcome of the process. Mediators regard themselves as independent subjects observing the parties as being outside the mediator’s world. When the mediator is recognized as an integrated part of the process, it is difficult to separate the parties’ experience from that of the mediator. In VOM[20], neutrality is unique because it is not under dispute whether harm has been done. In most cases, it is useful to simply ask the parties how they feel about their mediators’ ability to be neutral. The mediator’s own view and values become less important than the opinion of the parties.

As a mediator, you need to be aware of which domain you are operating in the particular conflict. If one or both of the parties convey values, which deviate drastically from those of the mediator, should the mediator remove him or herself from the case? (Domain of aesthetics) Is it possible to act as a mediator if he or she has a different view of right and wrong than one or both of the parties? (Domain of production) Is it acceptable to stay reflective to whatever the parties present to you without taking a stand? (Domain of reflection)

Fairness — an issue of diversity

Can we define fairness without clarifying which standards to respect? Are the criteria of fairness the same in every culture? Whose fairness is the best one? Where did we learn our own paradigm of fairness? Would we have learned the same standard if we were brought up in another country or culture as adopted children?

Truth — and the eye of the beholder

Whose eyes can see the truth? Do we all view the same picture when we observe events? How do we decide whether one picture is more correct than another picture? Why do we choose to focus on one particular inch of the yardstick and not a different inch or three inches of the yardstick?

Hans Boserup,
Sønderborg, Denmark,
October 2003.

[1] A further elaboration of chapter 8 in “Mediationsprocessen”, Boserup and Humle, Nyt Juridisk Forlag, 2001. First presented at the VOMA conference in Portland, OR 2001. Later presented on international conferences in Ellsinore, Denmark, Fort Lauderdale, FL, Oostende, Belgium, Heidelberg, Germany.

[2] Prominent representatives of this style are the late John Haynes www.mediation-matters.com/res-haynes.htm(first president of AFM) and his successor in AFM Larry Fong, Calgary, Alberta, Canada (http://www.fongmediate.com/). John Haynes: The Fundamentals of Family Mediation, Old Bailey Press, 1993.

[3] This style was refined and defined by Bush and Folger (Bush, Robert and Folger, Joseph: The Promise of Mediation, Jossey-Bass, SF, 1994). In 2001 clarified in: Designing Mediation – Approaches to Training and Practice within a Transformative Framework, 2001, The Institute for the Study of Conflict Transformation, NY. http://www.transformativemediation.org/

[4] Mark Umbreit: Interpersonal Conflicts and Victim meet offender. http://ssw.che.umn.edu/rjp

[5] John Winslade and Gerald Monk: Narrative Mediation, A New Approach to Conflict Resolution, Jossey-Bass, 2000.

[6] I regard - maybe unfairly - the style more like a therapeutic and controlled “change of behavior” model rather than a mediation model. Central parts of the concept are: De-constructing the epistemology, re-constructing listening, questioning ownership to the conflict story, de-constructing entitlements to the context and the labeling of describing terminology adopted by the individual party and emerging of a new and common story.

[7] This style was refined and defined by Bush and Folger (Bush, Robert and Folger, Joseph: The Promise of Mediation, Jossey-Bass, SF, 1994). In 2001 clarified in: Designing Mediation – Approaches to Training and Practice within a Transformative Framework, 2001, The Institute for the Study of Conflict Transformation, NY. http://www.transformativemediation.org/

[8] Systematized by Janet Kelly Moen, Donna Turner Hudson, James R. Antes, Erling O. Jorgensen, Linda H. Hendrikson, University of North Dakota. Designing Mediation – Approaches to Training and Practice within a Transformative Framework, 2001, The Institute for the Study of Conflict Transformation, NY. http://www.transformativemediation.org/

[9] Systematized by Janet Kelly Moen, Donna Turner Hudson, James R. Antes, Erling O. Jorgensen, Linda H. Hendrikson, University of North Dakota. Designing Mediation – Approaches to Training and Practice within a Transformative Framework, 2001, The Institute for the Study of Conflict Transformation, NY. http://www.transformativemediation.org/

[10] Len Riskin’s analysis of these issues and his “Grid” is highly recommended (Riskin, Leonard L. and Westbrook, James E.: Dispute Resolution and Lawyers, Abridged Edition, West Group, 1998. Riskin has in a later article in Harvard Law Review added more shades to his “grid”.

[11] Torben Bendix, Your Nervous Patient, Lægeforeningens Forlag.

[12] Though John Haynes stated that he saw no conflicts without strong elements of emotion, he claimed that in mediation (compared to therapy) emotional data was not useful data. Dealing with emotions had to take place next door in the therapy room.

[13] John Haynes.

[14] Indigenous people mostly regard the reality circular. Linear thinking is a western invention.

[15] Bateson, Gregory: Steps to an Ecology of Mind. New York. Ballantine Books, 1972. Bateson, Gregory: Mind and Nature: A Necessary Unity, New York. Bantam, 1979.

[16] De fire citater er fra Gregory Bateson: In Capra: The web of life – A new Scientific Understanding of Living Systems, Anchor Books, USA

[17] Marshall Rosenberg’s books and videos on this topic are highly recommended. (Rosenberg, Marshall: Words are windows, or they're walls, International Center for Nonviolent Communication, Switzerland.)

[18] http://www.cnvc.org/

[19] Developed and defined by the Milan group (Cecchin, G.: Hypothesizing, Circularity, Neutrality Revisited: An Invitation to Curiosity, Family Process, 26: s. 405-441, 1987).

[20] Victim Offender Mediation

    
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