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Файл:Dialogical self theory and mediation. Toward a self-narrative model of conflict resolution
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In any case, from the very first moments mediation was intended as opposed to a
formal legal enterprise. The common standards for mediation included: commitment to
shared obligations; parties' control over solutions; impartiality of a third party,
development of mutual consensus. By that time, guiding principles of mediation such
as voluntary participation in the process, impartiality of a third-party and confidentiality
of the process are believed to have emerged. All of them have been hotly contested
ever since, especially issues of fairness and neutrality.
Mediators' role has been defined as tensional one, since they are ordered to
settle cases and at the same time have no power to impose solutions. One major study
revealed a set of subtle strategies mediators developed to cope with this tension. First
of all, mediators establish unquestionable authority by referring to their expertise.
Secondly, they entirely control the mediation session (including inter-party interaction)
in order to not let the conflict escalate. Finally, they avoid differences at any rate and
look for possibilities for reconciliation by activating shared commitments of participants.
In the study of mediation, conversational analysts stress the necessity to
distinguish between two discourse levels of mediation – legal-practical and interactionalstructural ones – in order to avoid confusion. Both levels are important for better
understanding of mediation, however, each of them has to be studied separately. As a
communicative event mediation is described in terms of its most notable features:
contradictory, fragile, persuasive, verbal, culturally specific.
In terms of outcomes and benefits mediation was described as aimed at
integrative problem-solving and transformation. As social appearance mediation's
capacity for contributing though not overwhelmingly to social justice as well as injustice
was mentioned. To conclude, the current chapter provides basic debates in mediation
field that include debates over:
– mediator's activities: control vs. empowerment; expertise vs. neutrality;
event;
– levels of discourse: mediation-as-procedure vs. mediation-as-communicative-
– benefits and outcomes of mediation: settlement vs. transformation.
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Settlement-oriented mediation and transformative mediation are both regarded
as separate models of mediation. Settlement and transformation are not understood like
in the sense of Silbey and Merry's (1986: 19-20) bargaining and therapy as two poles
on the continuum of mediation's possibilities. Transformative mediation is often
confused with therapeutic intervention, although it is not. The following chapter will
look into the main premises of the transformative mediation more thoroughly.
2.2. Transformative mediation
Ideologically based on the so-called relational worldview (McNamee/Gergen,
1999), philosophy of the transformative approach postulates that people are by their
essential nature are both individually autonomous and socially related to each other
beings. This dual quality of human identity explains the need for autonomy as well as for
social interaction. So, whenever inter-personal conflict occurs, it threatens the basic
human need for social connection with fellow human-beings. Transformative model of
mediation is thus largely based on a theory of conflict as interactional crisis as well as on
a belief that only mediation among other forms of conflict resolution has a unique
capacity to regenerate interaction by supporting empowerment and recognition shifts.
According to Bush and Folger, in most cases conflict to people causes a sense
of their own weakness and incapacity: lost control, anger, confusion, doubt, uncertainty
and indecisiveness. At the same time, conflict produces a sense of greater selfabsorption: as a result of conflict people tend to become more focused on self alone,
more self-protective, more suspicious, hostile, closed towards other, and impercepient to
the perspective of the other person. These experiences of weakness and selfabsorption gradually strengthen and intensify each other in a vicious circle: the
weaker I get, the more hostile and closed I get toward the other; the more hostile I am
toward the other, the similarly he reacts to me; the worse he treats me, the weaker I feel,
the more hostile and closed I become, etc. For Bush and Folger conflict does not appear
static, instead, it moves spirally either up, or down. When parties are more concerned
with selves and experience weakness, interaction moves “down” repeating those
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sequences, it degenerates until it reaches the condition of mutual alienation and hatred
(Fig. 2.1.):
“This vicious circle of disempowerment and demonization is exactly what scholars mean when
they talk about conflict escalation. The transformative theory looks at it more as interactional
degeneration. [...] The interaction in question does not end when conflict begins, but it degenerates to
a point of mutual alienation and demonization. That is the conflict escalation or degeneration spiral”
(Bush/Folger, 2005: 50).
Bush and Folger expound on the theory of mediation as conflict transformation,
that is, on the mediation's capacity to transform the quality of conflict interaction from
negative into positive. Conflict transformation becomes possible with the regaining of
one's own sense of strength and relation with fellow human-beings. By so doing, the
vicious circle of mutual “alienation and demonization” can reverse into the virtuous
circle of constructive interaction:
“In the transformative mediation process, parties can recapture their sense of competence and
connection, reverse the negative cycle, reestablish a constructive (or at least neutral) interaction, and
move forward on a positive footing, with the mediator's help” (Bush/Folger, 2005: 53).
Figure 2.1. “Vicious circle” - conflict deterioration spiral. Source: scanned in from Bush/Folger 2005: 50
The critical resource in conflict transformation is the parties own basic
humanity – their essential strength, decency, and compassion, as human beings. As has
been highlighted above, conflict tends to escalate as interaction degenerates, because
people experience weakness and self-absorption in the face of sudden challenge.
However, as much tendency to self-absorption and weakness is true, the opposite
tendency is also true for parties: the ability for strength and responsiveness are
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characteristic to all people, too. These inherent capacities should be activated, in order
the conflict spiral can reverse and interaction can regenerate:
“...human beings have inherent capacities for strength (agency or autonomy) and responsiveness
(connection or understanding) and an inherent social or moral impulse that activates these capacities
when people are challenged by negative conflict, working to counteract the tendencies to weakness and
self-absorption” (Bush/Folger, 2005: 54).
Empowerment and Recognition
Dynamic shift from weakness to strength, characterized by parties becoming
calmer, clearer, more confident, more articulate, and more decisive; and shift from selfabsorption to responsiveness to the other in the transformative theory are called
respectively empowerment and recognition. Through the circling between strength and
responsiveness in virtuous circle it appears possible to change the quality of conflict
interaction from the negative and destructive into the positive and constructive one.
The central premise of the transformative theory is that parties' primary motivation to
move out of the conflict is explained by the relational connection as well as by the
inherent capacity for strength and responsiveness (Fig. 2.2.).
Figure 2.2. “From vicious circle to virtuous circle” - conflict transformation. Source: scanned in from
Bush/Folger, 2005: 55.
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Examining the conflict transformation model, the question arises regarding how
exactly empowerment and recognition shifts are activated in mediation session. Bush
and Folger see the transformative mediator's role in helping parties make positive
interactional shifts by supporting the exercise of their capacities for strengths and
responsiveness, through their deliberation, decision-making, communication, perspective
taking, and other party activities throughout the whole session. In particular, Bush and
Folger specify two ways for activation of empowerment and recognition shifts:
• Mediator supports every party's deliberation and decision-making at every point
in the session where choices arise (regarding either process or outcome);
• Mediator supports every party's freely chosen efforts to achieve new
understandings of the other's perspective (perspective taking).
How simple the rules for activation of empowerment and recognition shifts may
seem, it is not easy at all for a mediator to give up trying to make parties shift out of
weakness or self-absorption. However, the transformative mediator should bear in
mind that parties and parties alone can make those shifts. Normally, parties cannot
make recognition shift before they regained some degree of strength. Still feeling
vulnerable and unstable, people are little expected to be able to extend themselves to
the other. So, everything in transformative mediation begins with parties getting calm
and strong. After that people are able to open themselves up to others. The
transformative mediator tolerates recurrent retreats back into weakness and selfabsorption. And yet again mediator should give up trying to “move” the parties forward.
Great patience is required of the mediator in allowing these retreats, until finally parties
fully enjoy recognition of one another. The outcome produced by parties' own reflections
and attempts for responsiveness can do more, than a “good” outcome proposed by a
mediator.
Stages of transformative mediation
Transformative approach conceives mediation as emergent – resulting from the
ongoing interaction on the part of all participants, and thus moves away from the
typical stage model of mediation. In fact, it disapproves the stage model as it can
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seriously hinder natural flow of interaction. Instead of dividing mediation into stages,
Bush and Folger distinguish between several interactional activities that appear in no
specified order. Parties can go through these activities again and again during a
mediation session. They are: creating context; exploring situation; deliberating;
exploring possibilities; making decisions. With the help of mediator actively following
and supporting parties' activity and interaction, all of these activities are aimed at
transforming parties' conflict (Fig. 2.3.).
Despite the absence of the clear defined stages, still a greater impact is laid on the
opening stage in a transformative mediation session. Another important precondition
for transformative mediation to work is allowing for parties to have long and
uninterrupted segments of talk, that in turn foresees the intentional silence on the part of
the mediator. To follow the content and highlight the choices mediators use some
specific to transformative approach interventions such as reflection, summary and
check-in.
Opening stage
In transformative mediation a metaphor of conversation is central. Conversation
opens the mediation session not the declamation of opening statements. It is therefore of
importance to set interactional tone from the very beginning. The word “mediation”
itself can trigger uncomfortable feelings by parties. Instead, a mediator can invite parties
simply to converse. Session is therefore better described as a conversation not as a
mediation not as exploring resolution not even as a session. Conversation is something
everyone can do. Conversation metaphor is in harmony with the focus of the model on
party interaction rather than settlement. Mediator can support empowerment and
recognition shifts already from the very beginning by explaining that “he will support
parties in thinking what they want to do, and making decisions about what to do and
considering how they want to see each other”. As to the outcomes in the transformative
mediation resolution is, of course, one of the possibilities, however, not necessarily.
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Figure 2.3. A model of mediation as a transformative process. Source: scanned in from Bush/Folger,
2005: 226
A mediator can point out that other useful things can occur to the parties, such as
gaining clarity in their evaluation of the situation. Thereby, from the beginning, the
process has a much broader focus than an agreement. Mediator supports and allows party
deliberation and decision-making from the earliest moments of mediation. For instance,
a mediator inquires, if parties want him to review how the process works, what the rules
and guidelines are. Mediator also asks parties to determine who should speak first.
Mediator tries not to control interruptions. If he is interrupted, he just draws back and
listens to. So does he when parties get angry. He does not control their anger.
Conflict escalation
Mediator's response to the escalating anger and emotion – to intentionally stay
away from intervening to diffuse the emotions. By so doing, the mediator concretely
expresses his commitment to party choice, that includes both choices about outcome and
choices about the process, and control. Deciding on how to talk about things is entirely
up to parties. Mediator pursues interaction no matter how emotional. He allows parties
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to interrupt him, but rarely interrupts parties when they speak. Important is to resist the
temptation to take the conversation over. When he notices that parties' talk slows down,
he then takes his turn.
Following the content
1. Reflection is a specific form of intervention that is characteristic of the
transformative model. Accurately reflecting to the speaking party about what the
mediator believes the speaker has just said, keeping both substance and the emotional
tone of what the speaker has said, helps that party to hear her speak and then to have a
kind of “conversation with herself”. Simultaneously, the reflection allows the speaking
party to surreptitiously listen to the mediator's reflection and reconsider more fully what
she has already said. Reflections should be offered very tentatively and directly involve
only one speaking party, whose comments mediator is reflecting. In a reflection, the
mediator should reproduce the full range of what has been expressed – with no editing,
softening or filtering what the speaker has said, including emotions. Reflection is usually
expected to evoke by the speaker an immediate confirmation response or a
correction response that cures the mistake.
2. Summary is another form of intervention characteristic of the transformative
model, where the mediator organizes and condenses what has been conversed onto the
topics of discussion that were introduced. Summary shows the parties their conversation
as a whole and helps to get clear about choices to make. Summary can also help parties
manifest and recognize differences of one another keeping the support of both
empowerment and recognition shifts. Whereas reflection intensifies parties' individual
comments, the summary reinforces conversation. It makes the conversation as a whole
more visible to the parties, so they can make clearer choices about what to do. Unlike
the mediator's reflections, his summary directly involves both parties. The mediator does
not summarize everything the parties said, but rather condenses the topics under
discussion, of whether agreement or disagreement, that emerged from both parties'
comments. The mediator omits no topic in his summary. He is not afraid to highlight and
even sharpen the differences, in order to support clarity and choice, including the choice
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to give recognition or not. Like in reflection, summary often produces its own
confirmation of effective practice. The sign that the summary was effective in
supporting party choice is an unpredictable movement that parties make towards mutual
responsiveness, that was not insisted by the mediator.
Highlighting choices
As soon as the discussion fades out, the mediator does a quick summary and
then a check-in, another form of minor intervention in the transformative model. It is
used when the time to highlight choices to the parties comes, where they are to make
serious decisions for themselves. Check-in is used in a form of “process question”:
“How do we suppose to proceed?”. Check-in serves to highlight for the parties their own
responsibility for whether the discussion continues or ends. The mediator is giving
parties an opportunity to call for a time-out. Caucus is certainly an option in
transformative mediation, but process decisions belong to the parties, not the mediator.
In the transformative mediation session mediator is expected to follow the content as
well as the emotional tone of party-to-party talk by tentatively reflecting, inviting
corrections, and summarizing the topics raised by the discussion, of both agreement and
disagreement, as well as offering decision points for the parties by looking for
possibilities for empowerment and recognition shifts. In the transformative model,
conversation tends to cycle spirally up and down, forward and back, but nevertheless
move parties to interactional gains and transactional resolutions.
To sum up, the transformative approach to mediation asserts that face-to-face
interaction plays a great role in mediation. It even neglects the well-known stages of
the settlement-oriented mediation for the sake of inter-party interaction. For
transformative approach conflict appears merely as interactional degeneration. The
theory is that conflict tends to escalate because parties in the face of a sudden challenge
feel violated and retreat into themselves, so they cannot give recognition to one another.
In order for parties to regenerate communication a mediator must literally stop
controlling parties and simply allow them to talk (and even shout) the conflict out. A
mediator promote empowerment shifts by allowing parties to decide on their own every
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minute in mediation session. As soon as parties regain self-control and calm down, they
are now ready to give recognition, as much as they are able to give it at any particular
moment. Recognition shift becomes possible when parties take over perspective of the
other person. If empowerment shift is else sort of within mediator's competence, making
recognition shift is entirely left within parties' own control. In the transformative
mediation a mediator is comfortable with it, because he is deeply convinced that parties
have inherent capacity and primary motivation for restoration of social interaction with
each other, once they are empowered in their sense of who they
are.
The metaphor of conversation suits transformative mediation best. Assests of
the transformative practice include making explicit notions of empowerment and
recognition; proposing a conversationalist vision of the stages of mediation; reforming
opening stage; proposing for mediators such helpful intervention techniques as
reflections, summary and check-in; promoting a complete non-assertiveness of
mediators.
Critique
“'The Promise of Mediation' took a risk in making theoretical contribution to a
practical discipline” (Irvine, 2006: 2). The transformative mediation is very much driven
by the ideological underpinnings about human moral connection (Gilligan, 1982).
The idea of human moral connection protects the view of morality in which
maintenance of relationships is of equal significance with the fulfillment of personal
needs and interests. The superficial use of this view in the theory of conflict
transformation was subject to criticism of many practitioners and academics (e.g. Seul,
1999, Menkel-Meadow, 1995, et al.). The theory of transformative mediation has been
accused of sadly lacking more profound theoretical basis and that it operates within the
realms of faith (i.a. Seul, 1999, Gaynier, 2005).
Critics to transformative model of mediation also strongly disagree with the
view of Bush and Folger that the transformative model of mediation cannot be combined
with settlement-oriented model of mediation (Williams, 1997, Gaynier 2005, MenkelMeadow 1995). Although the transformative model of mediation seems to be in tune
with conversational analysts' vision of mediation as communicative event with face-to-
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