2008 - PAPER_C_Irvine_Mediation_and_Social_Norms

Mediation and Social Norms

By Charlie Irvine In December 2008 I attended the Hamlyn Lecture, delivered in Edinburgh by Dame Hazel Genn. Her topic was Civil Justice and ADR, but she quickly made it clear that her main interest, or target, was mediation. I readied myself for a verbal assault, and got one, but in more trenchant terms than I had anticipated. While there was nothing new in Dame Hazel’s litany of mediation’s failings, I was startled and a bit stung by the rhetorical flourish with which it was uttered. What’s worse, having worked myself up to overcome the intimidating ambience of Edinburgh’s Old College (the very heart of the Scottish legal establishment) by speaking up for poor little mediation, we were told there would be no questions, just a wee drink.

Well, having had the drink, and some time to reflect, I still want to come back at her. Normally one listens to senior academics respectfully, ascribing a degree of dispassionate objectivity to their pronouncements. But when Dame Hazel turned her withering prose on mediators I was riled. It was particularly galling to hear her ask ‘How many new professions benefit from the support of the senior judiciary?’ when we were surrounded by the very old profession that receives that support daily.

However, having got my own rhetorical point out the way, the thing that most stung me was the following statement: ‘Mediators have no interest in justice and fairness’. This was the culmination of her theme, contrasting well-meaning but ineffectual mediators who focus on relationships with robust and straightforward judges who vindicate people’s rights. Dame Hazel had already outlined low demand for mediation despite attempts by government and judges to promote it, combined with low levels of satisfaction when it is mandated.

What’s this got to do with social norms? Well, it led me to muse on mediation rhetoric. I want to make the following assertion: mediation rhetoric is often out of step with mediation practice.

Indifference to norms like justice and fairness may still feature in mediation rhetoric, but I believe it ignores the ‘facts on the ground’ of daily mediation practice. This phenomenon allows observers like Dame Hazel to seize on our strengths, such as our support for party self-determination, and turn them against us.

I add a second, related, assertion: mediation is too complex an activity to reduce to ethical codes. As Canadian academic, Julie MacFarlane, puts it: ‘mediating ethically required the constant generation of internal norms appropriate for a specific mediation and set of parties’ (MacFarlane, 2002, p.52).

For this reason, ‘flat’ or ‘bright-line’ standards such as impartiality, empowerment and respect for party decision-making simply can’t touch the sides of mediators’ ‘talk in action’.

And finally, I want to link this difficulty with simplistic ethical codes to the true moment-by-moment ethical choices mediators make. I suggest that, when faced with truly difficult dilemmas, especially at the margins of mediation practice, mediators find guidance neither in mediation models nor ethical frameworks. Rather they fall back on their core values. It is therefore instructive to consider what these might be.

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Mediation rhetoric – the ‘norm-generating’ model To return to the question of mediation rhetoric, I start first with a typology of mediation practice set out in 1997 by Ellen Waldman. It ranks mediation models according to their treatment of social norms. Reflecting Carrie Menkel-Meadow’s question: ‘Are third parties, like mediators, ever morally responsible for the outcomes they preside over?’ (Menkel-Meadow, 2004, p.xvi), Waldman would claim that the ‘classic’ form of mediation responds with a clear no. She describes this as a ‘normgenerating’ model in which ‘disputants are encouraged to generate the norms that will guide the resolution to their dispute’ (Waldman, 1997, p.708). While a mediator gets busy managing process and interaction, ‘he does not restrain deliberations by referencing concerns extrinsic to the parties’ (p.718). The norms by which choices are evaluated must come from the parties themselves.

It is useful to define social norms. They are: ‘The rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviours’ (www.changingminds.org). This definition embraces the law, but is by no means limited to it. Judges in the early 20th Century were fond of referring to ‘the man on the Clapham omnibus’, as the standard by which numerous normative questions might be settled. Social norms applicable in disputes might include ‘what most people would think of as reasonable’; ‘the way children ought to be brought up’ and ‘standards of decency’.

However, they could also include simple ideas like turn-taking and the impoliteness of interrupting.

According to the ‘norm-generating’ model these must come from the parties, not the mediator.

This model will be very familiar to mediators. Most of us were trained in some version of it, and the mediation values to which it correlates include party self-determination, empowerment and respect.

Transformative Mediation catchphrases like ‘The Parties Have What It Takes’ and ‘The Parties Know Best’ (Folger & Bush, 2001, p.27) seem particularly apposite. Waldman (prefiguring Dame Hazel) claims: ‘The leitmotif of the norm-generating model, then, is its inattention to social norms. In an effort to spur innovative problem-solving, the model situates party discussion in a normative tabula rasa’ (Waldman, p.718).

This model is particularly suitable where legal norms do not apply, or are unclear, or where the most important goal of mediation is improving people’s relationship. It may also come into play when social norms exist but are not conclusive.

Norm-Educating Moving along Waldman’s taxonomy, we come next to the ‘norm-educating’ model. She claims that this is a later development, a response to mediation’s expansion into new, more legal areas and to criticism that the norm-generating approach fails to uphold standards of fairness and justice. I am not convinced, and have a sense that the norm-educating approach has probably always been around1.

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In Waldman’s earlier piece on legal norms she traces the opposite development, where knowledge of the legal framework was seen as essential by family mediation pioneers, only to give way in the 1980’s to a more hard-line commitment to privileging the parties’ own ideas of fairness (Waldman, 1993, pp.93-101). See also

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In any event, it is characterised by a more forceful role for the mediator, who adds to her standard repertoire of facilitative techniques the option of ‘educating’ the parties about the norms that may apply to their situation. Notice that she may not tell the parties what to do – the choice whether to actually apply these norms remains with them – but she may remind them of society’s rules and norms, and continue to question whether they have been applied throughout the mediation: ‘Contrary to the norm-generating model, where discussion of societal standards is thought to impede autonomy and distract parties from their true needs, this model’s consideration of social norms is thought to enhance autonomy by enabling parties to make the most informed decisions possible’ (Waldman, p.732).

The archetypal norm-educating process is family mediation. In addition to their facilitative strategies, family mediators refer to a number of social norms. Chief of these is probably the welfare of children, which spawns a range of norms pertaining to topics like patterns of contact, the importance of a relationship with both parents and the place of children’s views. As well as these child-oriented norms, mediators may invoke legal rules regarding arrangements and money. All Issues Mediation seems further along this continuum, with reference made to legislation, particularly by lawyer mediators (Lewis, 1999). Waldman is not the only one to notice this facet of family mediation – famously, Robert Dingwall and David Greatbatch started analyzing family mediation in 1983 and characterised it as ‘Selective Facilitation’ (Greatbatch & Dingwall, 1989). They recently asserted: ‘It is clear that every mediator in this sample has some sense of an acceptable bracket of outcomes, “the parameters of the permissible”, to the case which they are dealing with and will seek to manage the process to ensure that any eventual agreement falls within this bracket’ (Dingwall & Greatbatch, 2000, p.251).

The norm-educating style seems prevalent in other fields, including court-annexed or mandated mediation and commercial mediation in the construction industry (Belhorn, 2005). It boasts the capacity to protect weaker or less articulate parties because the normative framework provides a backstop to ensure fairness. However, all this educating doesn’t mean that parties have to do what the mediator says: party self-determination remains a driving value and they may still choose to ignore the mediator’s normative guidance.

Norm Advocating Moving further along the continuum, Waldman posits a third model. Here the mediator not only informs the parties about norms, but has a responsibility to ensure these are observed. Her example involves a ‘bioethics mediator’ facilitating an intensive care team’s discussion about a patient’s decision to terminate treatment (thus ensuring her death). In this end-of-life mediation, the mediator uses some standard mediation techniques, like agenda setting and option exploration.

However,

Fuller, 1971, whose classic treatment of mediation describes both ‘norm-generating’ and ‘norm-educating’ roles

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‘the mediator not only educated the parties about the relevant legal and ethical norms, but also insisted on their incorporation into the agreement. In this sense, her role extended beyond that of an educator; she became, to some degree, a safeguarder of social norms and values’ (p.745).

While some of the examples used may be unfamiliar in the UK – zoning, environmental and bioethical disputes – I believe we do see this model in use in Disability Discrimination mediation. To quote from the Disability Conciliation Service website, ‘It enables people to exercise the same rights as they would in court but through a less rigid and more widely focussed approach. We describe this as rights-based conciliation’ (www.dec-gb.net).

Mediation rhetoric My point is a simple one: mediation rhetoric still, by and large, features the norm-generating model while, in practice, much UK mediation has become norm-educating or even norm-advocating.

Regarding practice, Dingwall and Greatbatch are not alone in claiming that family mediators are now quite sophisticated in bringing legal and societal norms to their clients’ attention. In 1999, Jane Lewis identified ‘guidance from mediators’ as among the benefits identified by Scottish mediation parties (Lewis, 1999, p.58). One mediator said ‘If they are flying against the principles of law then I would see my role as just reminding them again how the law looks at the matter’ (Lewis, 1999, p.59).

But if we consider our rhetoric, the Family Mediation Helpline website, for example, is quite categorical about mediators: ‘They are there to help both parties, unlike a solicitor who only works for one party in each case. Sometimes the mediator will suggest a way of solving a problem to help them to reach an agreement acceptable to both, but they will never tell either party what to do’ (www.familymediationhelpline.co.uk).

Notice that, although the mediator may have a problem-solving input, there is no hint of normative guidance. Norms still come from the parties themselves, as the only criterion for an agreement is that it is ‘acceptable’ to both. The Relationships Scotland website is equally clear: ‘Mediators avoid taking sides, making judgements or giving guidance’ (www.relationships-scotland.org.uk).

In relation to court annexed mediation, where we might expect more stress to be placed on the mediator’s normative guidance, the same sort of tone prevails: ‘Mediators avoid taking sides, making judgements or giving guidance.’ (www.nationalmediationhelpline.com). Even CEDR, the leading provider of commercial mediators in the UK, doesn’t hint at much normative input from the mediator, ‘with the parties in ultimate control of the decision to settle and the terms of resolution’ (www.cedr.com). The little word ‘ultimate’ does perhaps leave elbow-room for commercial mediators to take more of a norm-educating role.

So, the role of social norms in mediation is under-acknowledged, and yet crucial to the moment-bymoment choices mediators make. If mediators do care about fairness and justice, and if we bring these and other norms to our clients’ attention, why do we not say? On the face of our publicity, we take little responsibility for ensuring that agreements conform to norms or rules. Our ethical codes commit us to neutrality and impartiality, so Dame Hazel’s dig may be irresistible.

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And yet, at the same time, a widespread critique has evolved, highlighting mediator pressure to reach particular results, within ‘the parameters of the permissible’ (see Greatbatch & Dingwall, 1989; Grillo, 1991) – almost the opposite phenomenon. This conundrum illustrates the trickiness at the heart of mediation. Do we influence people, or do we not? Do mediation outcomes need to be fair, or is that, as Joe Folger once said, ‘a very subjective matter’? (Folger, 2006). These are ethical questions, and we might expect to find answers to them in our codes of professional ethics.

Julie MacFarlane’s hypothesis I turn now to a writer who has considered the difficulty of applying ethical codes to mediation. She argues that these codes ‘consistently underestimate and oversimplify the complexities of what it means to mediate ethically’ (MacFarlane, 2002, p.51). She contrasts mediators with adjudicators, who are constrained by both substantive and procedural rules. Without such normative guidelines, ‘the mediator must pay attention to every aspect of party interaction in the course of their negotiations, and assumes a very broad responsibility for the ..... process that unfolds’ (p.51).

Because of the complexity of this activity, and the constantly unfolding interaction taking place between people in conflict, MacFarlane argues that it is impossible to apply a ‘bright-line’ standard like impartiality. Instead, she claims that: ‘implicit in each decision is a balancing of alternate courses of action and an appraisal of how far each advances the goals – and the mediator’s understanding of the underlying values – of the mediation process’ (p.57). This in turn requires mediator discretion, and the remainder of her article considers how we might ensure that mediators exercise that discretion in ethical ways. I like her recognition that mediators carry out a succession of ‘on-the-spot judgments’ (p.53) that may not only be invisible to the parties: even mediators themselves may not be clear about the moral reasoning that led them to make to one choice over another.

Her criticism of codes of conduct goes further. First of all, she argues that most are dominated by principles for process management. This ‘obscures the dynamic relationship between the process and content of dialogue in mediation’ (p.61). This has become a familiar criticism, persistently advanced by Bush & Folger (2005), who claim that process choices reflect values, which in turn affect content. It is also mirrored in Sara Cobb’s analysis that mediation has developed ‘Einsteinian Practice’ while its ethical codes remain within a ‘Newtonian Discourse’ (Cobb, 1991). This means that mediation theory employs a Newtonian idea of objectivity, implying that mediators can stand outside a conflict interaction and be neutral, while their practice looks much more relativist, as they enter into the conflict system and influence it: ‘a Newtonian definition of neutrality cannot contain or erase the evidence that mediators actively construct the world with disputants’ (Cobb, 1991, p.93).

MacFarlane advances three additional problems produced by ethical codes: 1) A right-wrong paradigm ignores the reality of discretion and personal autonomy. For example, the idea of ensuring that the less powerful party is not disadvantaged by the mediation assumes that ‘powerful’ and ‘powerless’ are fixed and immutable states.

MacFarlane states: ‘In my experience, a complex power dispersal is far more common than a clear power imbalance’ (MacFarlane, p.64, note 40). Mediator responses to perceptions of power are sophisticated, intuitive decisions, made in the moment.

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2) Ethical codes suggest that one can take a ‘snapshot’ of the process and ascertain whether it was impartial, respectful or un-coerced. The reality is, again, more complex. She contends that ethical codes focus particularly on beginnings (setting the process up properly) and endings (outcomes), while these are but a fragment of the whole process. We need to find a way to mediate ethically throughout the process of ‘micro-managing the dialogue between the parties’ (p.68).

3) Sometimes standards compete or collide. Ethical codes don’t give us guidance in the face of competing principles. Examples include the difficulty in balancing the commitment to selfdetermination with protection of vulnerable parties from undue pressure, or juggling confidentiality with a commitment to full and frank disclosure.

The point of all this is to underline the inadequacy of ethical codes to address the complexity of mediation practice. It seems unrealistic, MacFarlane claims, ‘to imagine that the personal awareness of mediators who are slow to recognise the signs of intimidation and domination will be affected by a standard in a code of conduct’ (p.71). What she proposes instead is the development of a reflective awareness on the part of mediators, as set out in the ‘Reflective Practitioner’ by Donald Schon.

Mediation’s Values I won’t pursue her ‘Reflective Practitioner’ suggestion any further, as Julie MacFarlane’s article makes the point so well. However, her piece affirms my own instinct, that while ethical codes need to exist (they seem to reassure people), what is much more relevant in the moment-by-moment choices that mediators have to make are the values underpinning mediation. By values I mean something deeper and broader than rules: ‘One’s principles or standards; one’s judgement of what is valuable or important in life’ (Oxford Compact English Dictionary, 1996). The extent to which these can be described as mediation’s values, rather than just the values of mediators, can perhaps never be resolved, but my quest is for explanatory principles that allow a whole range of subsidiary choices to be made almost automatically (thus saving time and brain power). A simple example would be politeness: if this is one of my values, I don’t need a list when I leave the house saying ‘Don’t barge in front of people; give your seat up to the elderly; allow others to speak first’ etc. The value gives me sufficient guidance for most of the micro-choices I need to make. In the same way, I contend that mediation’s values would be both descriptive and prescriptive: they would tell us how mediators are likely to behave while also telling mediators how they ought to behave.

It is beyond the scope of this article to set out what mediation’s values might be.2 The point I want to make is that it is these, often unarticulated, drivers that affect mediators’ moment-by-moment decisions. Rather than have me, or any other writer, set out what these values are, I believe it is the duty of anyone who dares to intervene in other people’s conflict to examine their own values. I want to challenge Scottish mediators to reflect on their values: what is mediation for? Do we care about justice and fairness? Or is party empowerment a more important value? If there is a contradiction between values such as these, how do we resolve it?

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This is considered more fully in my Masters dissertation (Irvine, 2007), when I took five ‘canonical’ texts on mediation and used a form of discourse analysis to discover what values were implicit and explicit.

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Many other questions could be asked: here is just a sample. Is mediation concerned with social justice? If so, how is this ensured, and will such attempts clash with other mediation values, like autonomy and self-determination? By contrast, is mediation a child of the Enlightenment, relying on human rationality, individualism and the neutrality of the third party? Is personal choice the value that trumps all others in mediation? If not, how should we modify our rhetoric to warn clients that we may attempt to limit that choice?

Conclusion I could go on. To return to Dame Hazel, she is in a way doing us a favour. By presenting such a caricature of the mediator, she shocks us into re-thinking what we say about ourselves. If we can bring our rhetoric more closely into line with practice, that has to be more honourable and better for clients. If we are ‘norm-educating’ practitioners, then let’s say so, and even go a step further and say what these norms are.

Furthermore, we can’t expect to rebut critics like Dame Hazel by relying on our ethical codes. We have to develop a reflective practice that enables us to learn from each of the myriad critical moments in mediation, and develop theories that are grounded in reality. We owe it to our clients not only to know what to do, but why to do it, so that our choices are motivated by more than intuition or expediency.

This reflective practice will in turn enable us to work out what are our values: the fundamental principles that guide our particular mediation ‘moves’. We are a long way from a definitive list, but I suspect respect will be in there, along with non-violence and a commitment to giving people ‘voice’.

The attempt to articulate a more comprehensive set of values will surely improve both the standard and the reputation of mediation.

Charlie Irvine, 2008 charlieirvine@btinternet.com mobile: 07779 577019

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Bibliography Belhorn, S (2005) ‘Settling Beyond the Shadow of the Law: How Mediation Can Make the Most of Social Norms’ 20 Ohio State Journal on Dispute Resolution 981-1026 Cobb, S (1991) ‘Einsteinian Practice and Newtonian Discourse: An Ethical Crisis in Mediation’ 7 Negotiation Journal, 87-101 Dingwall, R and Greatbatch, D (2000) ‘The Mediation Process’ in Davis, G et al Monitoring Publicly Funded Family Mediation London: Legal Services Commission Folger J (2006) Seminar on Transformative Mediation, Institute of Family Therapy, London (unpublished) Fuller, L (1971) ‘Mediation – Its Forms and Functions’ 44 Southern California Law Review 305-339 Greatbatch, D & Dingwall, R( 1989) ‘Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators’ 23 Law and Society Review (4) 613-641 Grillo, T (1991) ‘The Mediation Alternative: Process Dangers for Women’ 100 Yale Law Review pp.1545-1610 Irvine (2007) Mediation’s Values: An Examination of the Values Behind Five Mediation Texts Unpublished Masters Dissertation, Birkbeck College, University of London Lewis, J (1999) The Role of Mediation in Family Disputes in Scotland Edinburgh: Scottish Office Central Research Unit MacFarlane, J (2002) ‘Mediating Ethically: the Limits of Codes of Conduct and the Potential of a Reflective Practice Model’ 40 Osgoode Hall Law Journal 49-87 Menkel-Meadow, C, (2004) ‘Introduction’ in Menkel-Meadow, C and Wheeler, M (Eds.) What’s Fair?

Ethics for Negotiators San Francisco: Jossey-Bass Schon, D (1983) The Reflective Practitioner: How Professionals Think in Action New York: Basic Books Waldman, E (1993) ‘The Role of Legal Norms in Divorce Mediation: an Argument for Inclusion’ 1 Virginia Journal of Social Policy and the Law 87-152 Waldman, E (1997) ‘Identifying the Role of Social Norms in Mediation: A Multiple Model Approach’ 48 Hastings Law Journal 703-769

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