Shifting the Focus from Mediating the Problem to Mediating the Moment - Moving Beyond ‘Getting to Yes’ and 'The Promise of Mediation'

26 Pages Posted: 3 Sep 2012 Last revised: 18 May 2017

Date Written: September 1, 2012


This paper represents the current state of our thinking with respect to the fundamental question for practising mediators; “What do we mediators do in the session and why do we do it?

Our thinking has been evolving over the last 25 years and continues to evolve. It has in part been informed by the thoughts and writings of many theorists from diverse professional fields that we feel speak to us as mediation practitioners and trainers.

The focus of this paper will be on us as mediators and the theories that underpin our professional practice rather than on the broader question of “What is mediation and how can we help parties resolve their problem?” We will shift the focus from the parties and their “problem” on to us as mediators.

This will mean exploring theory that goes beyond traditional mediation theory which has mainly focused on the parties, the problem and the negotiation. This has been driven and informed by seminal texts such as ‘Getting to Yes’(Fisher, Ury and Patton 1981) and ‘The Promise of Mediation’ (Baruch Bush and Folger, 1994). These authors challenged and disrupted the prevailing adversarial positional negotiating culture and marked important historical milestones in the evolution of the modern Western mediation movement.

While there has been much written on the parties there is a notable absence of theory underpinning how we as mediators practise our art. This absence has led to the conclusion by many authors and theorists that mediation is a field rather than a legitimate stand-alone profession.

We will set our focus on theories that underpin and support the skills required to practice as a professional mediator. At the heart of these skills is the mediator’s ability to manage the dynamics of conflicting parties especially when working with them in a joint session.

The skills required for this interaction are often referred to as fluid or soft skills. The theories that underpinned these skills and why they work have been developed over an extended period of time and are drawn from a diverse range of professions and theories. They include professions such as organisational psychology, psychotherapy, psychology, advanced mathematics, physics, anthropology, the law and theories such as complexity theory, the Nash equilibrium, obliquity theory, game theory and concepts such as being totally present in the moment, intuition, the challenge of being an irritant, the use of time and space (Temporality), the ‘Third’, the ‘Field’ and Meditation/Mindfulness.

The way mediators think and how they behave in each moment of a mediation are interconnected at many levels. This connection is the core of mediators thinking and practice.

Keywords: mediation, negotiation, ADR, intuition, conflict resolution, the third, The Field, The Nash Equilibrium, the Bhagavad Gita, Zero Thinking

Suggested Citation

Rooney, Greg and Ross, Margaret, Shifting the Focus from Mediating the Problem to Mediating the Moment - Moving Beyond ‘Getting to Yes’ and 'The Promise of Mediation' (September 1, 2012). Available at SSRN: or

Margaret Ross

Independent ( email )

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