Real Mediation Systems to Help Parties and Mediators Achieve Their Goals
24 Cardozo Journal of Conflict Resolution (forthcoming 2023)
University of Missouri School of Law Legal Studies Research Paper No. 2022-14
35 Pages Posted: 19 Dec 2022 Last revised: 10 Jan 2023
Date Written: December 19, 2022
This article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems with it. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly-understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in the field.
Dispute system design (DSD) theory can provide a better theoretical framework for understanding mediation and guiding people’s actions in mediation. A DSD frame can incorporate and refine traditional mediation theory – in addition to many aspects of mediation that are completely independent of traditional theory. Moreover, using DSD as a central frame for understanding dispute resolution integrates the entire dispute resolution universe, not just mediation.
This article describes the Real Mediation Systems Project, which is intended to provide a more realistic portrayal of how mediators actually think and act and to illustrate benefits of using a DSD paradigm. The article analyzes detailed descriptions of actual mediation systems of ten mediators. The mediators described their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their mediations. They developed categories of cases, parties, and behavior patterns that led them to design routine procedures and strategies for dealing with recurring challenges. Their accounts describe how they reflected on their experiences and evolved their techniques accordingly.
Mediators and advocates in mediation can use the Real Mediation Systems Project’s framework to become more conscious of how they think and why they act as they do in mediation. Faculty, trainers, and program administrators can use this framework to help students and mediators become more aware of their ideas and actions related to mediation. The dispute resolution field can undertake an initiative to develop a fairly concise lexicon of recommended dispute resolution language that everyone can understand. Empirical researchers can use this framework to better understand how various populations of mediators conceive of their work – and also operate unconsciously “on automatic.” Theorists can use this research to develop empirically-grounded generalizations.
Keywords: mediation, mediation theory, facilitative mediation, evaluative mediation, dispute system design
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