What Is Mediation – Revisited
by Diane Cohen
Structural Mediation versus Impasse Mediation
Parties seek mediation to meet one or both of the following needs: (1) to help them structure a solution to a problem connected with some kind of dissolution or change of status between the parties; and/or (2) to help them resolve a disagreement between them.
Many of the fundamental disagreements in the mediation community stem from a conflation of these two needs. Teasing them apart will shed light on how to address such basic questions as to how to mediate; whether a mediator needs subject matter expertise; how much process training a mediator requires; whether an apprenticeship is necessary; what should be involved in credentialing; whether there should be credentialing; and whether a mediator should offer suggestions or give any kind of advice.
Divorce Mediation as an Example
Mediators who practice in certain areas have come to support the notion that subject matter experience or expertise is necessary or desirable in mediating disputes in those areas. However, my view is that it is not the subject area per se that determines what type of background the mediator should have, but the role that the mediator will be asked to play in the mediation. Since I have been involved in the field of family and divorce mediation for some time, I will use that as an example. However, my belief is that there are undoubtedly several other fields for which the same analysis would hold true. I posit that the reason for the belief that subject matter expertise is necessary in divorce mediation is not because one can not mediate in that field without it, but because what is being asked of the mediator is to structure a solution to a problem, rather than to mediate a disagreement.
What is divorce mediation?
When most people think of divorce mediation, they envision a situation in which a divorcing couple consults a mediator to help them resolve the problem of how to divide up a life that is currently lived as a couple into a life that will be lived separately. In many divorces this involves figuring out how to divide up assets, how to arrange times for each parent to spend with the children, who will make decisions about the children and whether there will be any spousal support.
This is clearly a problem and the parties will undoubtedly have different views on the solution to the problem, but they will probably not fully understand all the relevant factors, the details of the solutions, or have a full idea in their own minds of how they would draft a separation agreement or resolve all the details of their divorce. They may consult the mediator as a kind of expert in the field, to help guide them through the process of figuring it out and addressing all the important issues. If so — because the mediator’s knowledge and experience is being relied upon by the parties to help structure the resolution — this type of mediation is a kind of “structural mediation”.
At the same time, divorce mediation does not only have to involve that type of situation. Although I do not practice structural divorce mediation, I have provided mediation for divorcing couples who already understand the legal and financial issues of their situation but have a specific disagreement about one or more elements of the solution. Sometimes the issue is one that they feel competent to decide on their own without the help of lawyers – such as parenting issues — but can not agree between themselves. Or, perhaps it is a financial matter, such as the decision about what to do about the house. The parties may have already gotten advice from attorneys and financial professionals, but disagree among the possible options. In these situations, the parties are not seeking a mediator to help them devise a structure, they each feel they know the structure they want and they are seeking to convince the other party of the correctness of their positions. In that type of mediation, subject matter expertise is not the issue. The parties may also want to consult a mediator to help them with issues such as communication or to improve their working relationship. The parties may each have an idea about what they want the other person to do differently and are not seeking the advice of a therapist; rather they want to develop an agreement of their own making on these issues, but they disagree as to an appropriate resolution. A mediator who has devoted a great deal of time and effort to studying, thinking about and practicing a mediator mindset that enables parties to work together toward a resolution is the type of mediator that can be helpful in all these situations. I am calling that type of mediator an “impasse mediator”.
Two types of mediations within the field of family and divorce:
Thus, I posit that within the field of family and divorce mediation there exist two different types of mediations and two different types of processes which depend upon the needs and desires of the parties. One process is structural divorce mediation and the other process is impasse divorce mediation. Any given couple could at one point desire and need structural divorce mediation and at another point desire and need impasse divorce mediation. The processes are not interchangeable. They serve different needs within the same field, although there is undoubtedly some overlap between the two.
Generalizing from the foregoing
There are clearly other areas outside the realm of family and divorce mediation in which parties enlist the help of a mediator to structure a solution to a problem rather than to address a dispute. Areas such as the dissolution of a business, or a bankruptcy situation jump out as ones which require a complex understanding of the situation, knowledge of potential issues and the ability to structure a possibly complex solution for parties who may not have a full understanding of all the ramifications of their problem. Other specialized areas such as construction, employment, intellectual property or patents may also involve structuring complex and specialized resolutions that may require expertise within the field. However, even within these areas, it is entirely possible for parties who wish to consult an impasse mediator to begin their mediation in that way. As they begin to realize that they need more information from other sources, they can consult the appropriate professionals to provide that information and then continue in mediation, armed with that information. Thus, the alternative to working with a structural mediator is to work with an impasse mediator and consult other professionals. One option may work best for some parties and the other option may work best for other parties. It depends upon whether they see the biggest sticking point between them to be their difficulty in working together (which would point to working with an impasse mediator) or whether they see the complexity of the situation as the biggest concern (which would point to working with a structural mediator). It also depends upon whether they would prefer to maintain control of every aspect of the decision making or whether they want advice or assistance with it. Consulting outside experts and then attending an impasse mediation armed with that knowledge can put parties more in the “driver’s seat”. In most situations, even if parties consult a structural mediator, they will want to get the advice of other professionals, such as attorneys, and possibly financial professionals. However, the structural mediator may take a lead oar in the structuring of the discussions; while an impasse mediator may be focused on helping the parties resolve the matter on their own. If the matter is complex, the parties may find it easier to be guided by a structural mediator; while other parties may prefer to work toward devising a solution of their own making.
What this means about the way the mediator should mediate and the necessary training and experience
Because both types of mediations – structural and impasse – are simply called mediation, there has been confusion about how a mediator should mediate, what training is necessary and what it takes to become a good mediator. Impasse mediators who have devoted a good deal of time and effort to becoming trained facilitative or transformative mediators (I leave the distinctions, if any, between these types of mediators for another time) can probably mediate virtually any type of dispute. Their process skills can help the parties have the conversation they need to have, can help the parties reflect upon areas in which they are unclear internally and areas in which they are lacking the information or counsel they need, and can keep the conversation going even when the parties feel stuck without influencing the type of resolution the parties will come to.
In my view, good impasse mediators should have a substantial background of training and experience and should have devoted an enormous amount of time and effort to reflecting upon mediation and developing a mediator “mindset”. A mediator mindset is one in which the mediator has become intuitive in fostering self-determination of the parties, maintaining neutrality and employing an array of responses and interventions that help the parties consider their own needs and desires and those of the other. The mediator mindset also enables the mediator to model analytic thinking and patience, while respecting the emotional states of the parties. This type of mediator would ideally have worked with a mentor and in a co-mediation situation, and should have found a way to mediate a large number of cases (hundreds) to develop an expertise in the process. Volunteering in the community is an excellent way of gaining sufficient experience in impasse mediation to feel expert. This type of mediator, however, without additional expertise, can not step into the role of a structural mediator because the structural mediator is being consulted for his or her knowledge in the substantive area at issue. When the parties want help resolving a matter that they are disagreeing about, but do not want help with substance, an impasse mediator can help them think through the matter, focus clearly on the issues, communicate effectively and productively, simplify the issues without losing their complexity, help them be analytical even when emotions are involved, and motivate them to think up creative solutions that take into account the perspectives of both parties. Although I am calling this “impasse mediation”, it could also be called “interpersonal mediation” because the sticking point for the parties is their inability to work together productively rather than their inability to understand how to structure a resolution of their issues.
Conversely, a mediator who has training in the requisite subject matter areas and has the required level of expertise in those areas can mediate structural mediations in their areas of expertise. Their job is to help the parties get a handle on the problem and to help them structure a solution. In the course of any such mediation, however, there will undoubtedly come a time when the parties will have a concrete disagreement on certain issues. It is at that point that many structural mediators lack the process skills to help parties work through those conflicts. It is also possible that if the mediator has been taking a lead role in the structuring of a solution, that he would not appear to have the kind of neutrality that would facilitate the resolution of a conflict on specific issues. While the mediator may be neutral as between the parties as individuals, the mediator may have evidenced some subtle or overt biases regarding the types of resolutions that are workable, typical, traditional or appropriate. In addition, it may be rare for a mediator to have focused both on developing an expertise in facilitative impasse mediation as well as expertise in the subject matter of the field. Mediators who practice as structural mediators may or may not have developed skills to organize the discussions relating to setting forth the areas that need to be addressed and soliciting the information and ideas from the parties that are needed to develop a structure for the solution. Some of these mediators may also have the skills to help the parties discuss possible solutions without influencing the direction of the solution. However, their skills may fall short when “impasse” is reached if they have not devoted the same level of study and reflection to the process of mediation as an impasse mediator has. Impasse is often where an impasse — or interpersonal — mediator begins.
An impasse mediator may sometimes find that parties have consulted that mediator for a structural mediation for which he or she does not feel competent. In such cases, an impasse mediator would refer the parties to a structural mediator with the appropriate expertise. In other cases, an impasse mediator may find that parties have consulted him or her for a mediation which has some elements of interpersonal difficulties but that the parties also need more information before they can make a decision. In the case, the impasse –or interpersonal– mediator may feel quite competent to handle the mediation, and the parties can consult with outside professionals, such as lawyers, financial experts, etc., to get the information they need to participate in the mediation effectively.
Recognizing that parties consult mediators for two very different reasons – to structure a solution to a problem; and to resolve a concrete dispute – will go a long way toward addressing what type of training and experience is required for each type of mediation. It should also propel us as a mediation community to clarify for the public that they should reflect upon which type of mediator they are seeking in any given case – what role they want the mediator to play – and, given that, what they should be seeking regarding style, training and experience in their particular case at that moment in time. Finally, we should also be aware as mediators that parties may wish to consult a structural mediator for one portion of a mediation and may consult an impasse — or interpersonal — mediator for intractable issues if they arise during that structural mediation. Recognizing that different mediators offer different services with different skill sets is the first step toward offering the public the product that is most likely to meet their needs and desires.