It's time for mediation to claim its place as a stand-alone profession freed from being just an alternative to the law and adversarial litigation.
Let the legal profession find its own way of engaging in our modern disruptive world. Let it continue alone healing its dehumanised adversarial culture that the Dean of Harvard Law School, Roscoe Pound, described in 1906 as dissatisfactory with respect to delays, expense and game playing.
The problem is that mediation theories have grown out of trying to prove mediation is of equivalent value to litigation. Neutrality, balanced power, self-determination, just outcomes are reactionary theories linked to the law. They don't serve mediation well.
They are static one-dimensional concepts that do not relate to the multidimensional environment of the mediation session. They are devoid of context which is fundamental to the practice of mediation.
Mediation can still be a light on the hill, a beacon, for the law to find its way out its dehumanised command and control approach to dispute resolution. But it should not define itself by such reference.
It is time to draw a line in the sand and start mediation afresh with theories and practice that are unique unto itself.
Let's start with a new definition of mediation.
"A process of a mediator creating a venue where parties get close to each other in order to move an issue forward"
This contains the three basic elements of mediation.
I would start by keeping the basic mediation training model with its focus on facilitative role-plays. It fits the apprentice model of learning and is a good starting point.
The Elements of a New Theory of Mediation
I have set out below examples of a new approach to theory that parallels mediations fluid nature.
Firstly, two institutes that model higher ordered 'thinking' grounded in the present over lower ordered 'understanding' grounded in the past:
The problem with much of current mediation theory is that describing something is not the whole story and certainly not the most meaningful part. It seems to be just about naming the problem. That's where it starts and ends.
It satisfies our need for simple answers to complex issues. It can be a psychological defence mechanism to deal with the uncertainty and unpredictability of life.
It is through letting go of the need to control and understand that allows us the freedom to go with the flow and experience each mediation afresh as if it is our first. It allows us to join with the parties in experiencing the experience of the moment.
Mediation theory should therefore be about questions not answers. 'What is going on here?' (John Kay and Mervyn King) and 'Why is it so?' (Prof Julius Sumner Miller).
It's time for a refresh.
Hi DavidI am not suggesting that the legal profession stop pursuing mediation as a legitimate part of legal practice.I would encourage the legal community to still persist with mediation. But I sense what is really happening is that the profession is trying to colonise it rather than embrace it.In other words it wants to mold it into an image of itself by continuing to persist with a dehumanised command and control approach. Keep the parties separate and remain that parental role of advice and decision maker. They find it hard to stop standing in the party shoes and handing those shoes back to the parties to put back onGood luck to them and best wishes for the future. It will take a couple of generations to let go of centuries of adversarial practice even though some lawyers can make the switch to a more humanistic approach.It is about looking at the evolution of mediation theory and practice mediation in its own right rather than being just alternative to the law. It's just holding back mediations development.By separating its theory and practice from the law it will encourage the legal profession to make the jump into a more humanistic approach to dispute resolution.It will take a couple of generations of lawyers to do this. But I sense the world is changing so fast that they will have to make the jump much quicker than they want to.
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