Tara West - The Mediators Approach: Five (and a Half) Paths Through Conflict

Copyright 2021 Tara West

All rights reserved. No part of this book may be reproduced, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without express written permission of the publisher.

ISBN: 979-8201569457

Cover design: Mercedes Piera

PREFACE

W hy write a book about mediation approaches? Or rather, why did I write a book about mediation approaches? For the ten years that Ive been studying, teaching, and practicing in the field of conflict resolution, Ive had a love-hate relationship with mediation. At times, I felt like mediation could save the world - it satisfied my inner peacemakers desire to bring people together in a spirit of understanding and cooperation, allowing them to find win-win solutions while improving their relationships. At other times, I thought it was a scam - it violated my inner lawyers desire for justice, as it seemed to remove the protections and oversight of legal precedent that took years to develop, allowing unscrupulous people to achieve one-sided victories. Eventually I concluded that mediation could be all of this and more, depending on the parties, the situation, and, perhaps most importantly, the mediators approach - their chosen path through conflict.

So I wrote the book that I would have been eager to read when first embarking on this journey. I wrote this to equip you, the fledgling mediator, with a better understanding of the many ways that mediation is practiced, and why. With this knowledge, you will be in the best position to make choices that are right for you, putting you on a path toward a successful and rewarding career as a mediator.

This project would not have been possible without the generous support of others. I want to express my heartfelt thanks to my family, friends, and colleagues who offered their thoughtful feedback, along with their encouragement to continue moving forward. The insightful comments of Ken Sandbank, Pamela Struss, Amy Stevens, Joan Butler, Jeff Parks, and Diane West undoubtedly improved the quality of my thinking and writing. I greatly appreciate the generosity and contributions of each of these readers.

And I owe a special debt of gratitude to my mediation trainer, colleague, and friend, Dan Simon. Dan not only read and commented on multiple drafts of this book, he also inspired and shaped my views of what mediation could offer. This would be a very different book, and I would be a very different mediator, without Dans wisdom and support.

Finally, I want to thank all the mediation trainers, co-mediators, workshop participants, students, and clients Ive had the privilege to work with over the years. I learned something from every one of you. Thank you for your patience as I discovered how much more there was to learn.

Tara West

July 2021

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1. YOU CAN CHOOSE YOUR APPROACH

I f youve not yet taken your first mediation training, kudos to you for doing your research from the get-go. If youre reading this after taking a training (or two, or five, or...), you are very likely aware that mediation trainers are some of the loveliest people youll ever meet. And these lovely people are introducing you to an even lovelier world a world where conflicts lead to honest communication, connections are forged in place of war, and win-win solutions trump lose-lose struggles a world youll want to be a part of. You will fall in love with the people who bring you this religion of mediation, and youll be tempted to treat the words of your new saviors as gospel.

And if you happened to choose the right mediation approach for you, this all may work out splendidly. However, if youre like me, you probably did not do a lot of research before taking your first mediation training, and you may not have even realized that there were multiple approaches to choose from. Because there are many different approaches to mediation, people who call themselves mediators often mean very different things by the term. And to make things even more confusing, there are sometimes large differences within approaches. This will be true for some approaches more than others because some are more clearly defined than others, as youll soon see.

Why might you want to understand mediation approaches? If youre reading this book, youve undoubtedly heard about the many benefits of mediation, including that mediation offers people the opportunity to make their own decisions and potentially save time, money, and relationships, particularly when compared to litigation. However, research on mediations benefits (and harms), for society and for the parties,] has yielded mixed results.

While a number of relevant factors are out of the mediators control, the mediators approach likely plays a role in mediations effects on all involved. Differences in the ways that mediators practice are not subtle. Although there is some overlap across many of the approaches, there are also approaches that directly contradict each other. For example, one mediation trainer will tell you its a good idea to emphasize the positive (e.g., whats working in the relationship, what the parties can agree on), and focus on the future (what they would like to see going forward); while another mediation trainer will say you should not guide the parties at all, but should instead follow them along the path they choose, which may include focusing on the past and everything thats gone wrong between them.

How can this be? What explains the differences between mediators, who all are trying to accomplish the same thing? Well, it turns out that mediators are not all trying to accomplish the same thing, at least not directly. So before we talk about the different ways mediators practice, lets talk about the different goals mediators are aiming for. What are they trying to accomplish?

F our goals many mediators have for the parties, but prioritize differently, are: 1) Reach an agreement (any agreement); 2) reach a high-quality agreement; 3) reach a high-quality outcome (other than an agreement); and 4) participate in a high-quality process.

Goal 1: Reach an agreement

Many people assume that helping the parties reach an agreement is the top priority for all mediators. Although all mediators would undoubtedly prefer this outcome, all things being equal, not every mediator prioritizes or even aims at this goal. Mediators who do prioritize this goal view it as their job to get the parties to settle by (almost) any means necessary.]

Goal 2: Reach a high-quality agreement

Some mediators prioritize the quality of the agreement over the agreement itself. These mediators might strive for an agreement, but they have certain standards for the agreement (e.g., that the agreement is fair, durable, and/or close to what a judge might order); and these standards are more important to the mediator than simply reaching an agreement.] So mediators who value the quality of the agreement would rather see the parties leave mediation without an agreement than see them reach an agreement the mediator thinks is problematic. As you might imagine, different mediators use different criteria when judging the quality of the agreement.