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Why I Argue for Mediation to Move Beyond the Dehumanised Legal Mediation Model

  • 1.  Why I Argue for Mediation to Move Beyond the Dehumanised Legal Mediation Model

    Bronze Member
    Posted 11-11-2022 10:58 AM has just published my two-part series reflecting on the human aspect of mediation

    Part 1 - Why I Argue for Mediation to Move Beyond the Dehumanised Legal Mediation Model –

    Download here  - Why I argue for Mediation to move beyond the dehumanised legal mediation model – Part I -

    Part 2 - How a Humanistic Approach to Mediation Would Impact on the Definition of Mediation, Mediation Practice, Training and Accreditation  

    Download here - How a humanistic approach to Mediation would impact on the definition of mediation, mediation practice, training and accreditation – Part II -

    In Part 1 I argue that the broad mediation field is being held back by the dehumanised and adversarial mediation model

    I argue that embracing the human connection at the heart of the mediation process is its logical step in its evolution as a profession. 

    I draw the title 'Humanistic Mediation' from the work of French mediator Jacqueline Morineau who established mediation in France in the 1980s.

    I argue that the legal profession is caught in a 19th-century Industrial Revolution mindset that is not fit for the complex and fluid 21st-century world we live in.

    I draw the work of Dave Snowden's Cynefin framework to argue that the traditional legal approach to litigation and mediation falls within the ordered/complicated domain whereas the humanistic mediation approach falls within the complex domain.

    I also argue that the traditional Western legal processes offend two key laws that govern how we humans interact socially and commercially - Goodhart's Law from economics and Constructal Law from the natural sciences.

    I therefore propose that the broad mediation field move away from the 19th-century legal approach to the law in general and mediation in particular and move towards a humanistic focused mediation model with all of humanity's diversity that that implies.

    I would note that there are two processes that are compatible with the complexity inherent in 21st-century society. Project Alliancing in the oil and gas and construction industry and Truth and Reconciliation processes/Restorative Engagement in matters of claims of abuse and rape. The former excludes the civil justice system, and the latter excludes the criminal justice system.

    In Part 2, I have written in more detail how mediation, if detached from the legal model, will impact on the definition of mediation, mediation training and accreditation.

    While I am not keen to add to the proliferation of mediation models, I would submit that there are really only two models of mediation
    – the model that focuses on the human connection to drive the process (humanistic mediation) and
    - the legal model that avoids any meaningful connection between the parties (solution focused shuttle mediation).

    I argue that many of the foundation mediation theories grew out of trying to prove mediation was of equivalent value to litigation. Neutrality, balanced power, self-determination, just outcomes were defensive responses to attacks from both the legal and the social sciences professions on mediations legitimacy.

    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. Context changes everything.

    I propose a human centric definition of mediation. 

    "Mediation – A process of a mediator creating a venue where people get close to each other in order to move an issue forward"

    This contains the three basic elements of mediation.

    1. The venue forces parties to actually do something. To turn up, to be present and to actually deal with an issue.
    2. It's built on human interaction. This brings in the huge complexity of human relationships.
    3. It recognises the fundamental law of flow that guides all human activity. When the flow stops you die. It is about necessary endings and new beginnings.

    I then propose 14 theories that are compatible to a more humanistic approach to mediation.

    t'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. It is time to embrace the human element that is at its core

    Greg Rooney
    Mount George SA