“Touchy Feely” Mediation Ain’t

December 11, 2008 · Filed Under Mediation - General 

A number of years ago we often heard mediation described by case hardened negotiators as “touchy feely”.  Over these years a probable majority of those cynics have come around to an appreciation that mediation  need not be anything of the sort, and in fact, as practiced in court connected cases around the country, it nearly never is.  Mediation by trained and experienced litigation resolvers has been widely embraced as second only to direct negotiation in which the disputing sides are willing to communicate in a productive dialogue aimed at finding resolution.  The benefit of mediation is of great value in all situations where the skills of the mediator can help to establish a constructive communication process, and help the parties minimize the effects of those human biases and heuristics that interfere with that process.

Even in community mediation where volunteers work with unrepresented parties to help them understand and find solutions to their conflict, a realistic and businesslike negotiation is generally more effective than merely “making nice”, and court connected mediations are arrayed along a spectral line from friendly to fist in the face toughness, but with the vast majority centered in no nonsense negotiation.

In a well written article published at www.mediation.com titled “Not Even Wrong”, Wayne State ADR teacher and provider, Barry Goldman calls attention to the typical textbook blather about peaceful mediators bringing peace into the room and such nonsense, and suggestions that untrained mediators can be sufficiently effective because there is something about the process, separate from technique or theory, that explains positive results.  His argument is that just because there is value in the process, does not mean that mediators need merely be pure and “at peace”.   He compares we modern mediators with early physicians, some of whom got good results and some not so good,  with hit and miss theories of the science of curing illness.  “All the vast literature on ‘mindfulness’ and ‘presence’ and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.”

Well said, Barry.


7 Responses to ““Touchy Feely” Mediation Ain’t”

  1. Peter Quinn on December 11th, 2008 8:00 pm

    Hi. I am a long time reader. I wanted to say that I like your blog and the layout.

    Peter Quinn

  2. David Hoffman on December 13th, 2008 2:42 am

    In the article “Bringing Peace into the Room” (the subject of Barry’s article), my co-author Daniel Bowling and I describe mediation training as “vitally important,” which of course it is. (The full text of the article can be found at http://tinyurl.com/6rjkgn.) As to the importance of being scientific, I totally agree. That’s why Daniel and I readily admitted in the article that we could not pinpoint the scientific cause-and-effect of how or why a more peaceful, more centered presence on the part of the mediator seems to enhance the mediator’s effectiveness. But I have two points that I would like to add to the conversation. First, science sometimes confirms that folk remedies, used for centuries without a scientific basis, actually work. For example, the FDA has — I am not making this up — approved the use of leeches for certain kinds of medical procedures requiring vascular repair (http://www.fda.gov/fdac/features/2004/504_leech.html). So, we may find scientific support some day for the intuition that centeredness enhances the effectiveness of conflict resolvers. Second, that day may not be so far off. Two published studies — one involving psychotherapists and the other involving physicians — point in the same direction. The former showed greater improvement in patients of psychotherapists who meditated as compared with those who did not. (See October 2008 issue of the professional journal “Psychotherapy and Psychosomatics”). The latter, a study of 350 Wisconsin patients, showed that patients being treated for cold symptoms experienced lower severity and duration of those symptoms when treated by doctors who rated higher for empathy (see May 2008 issue of the medical journal “Brain, Behavior, and Immunity”). Mediation is hard to study empirically, but it can be done; peacefulness is hard to measure, but leave it to scientists, and they will eventually find something to measure — perhaps through the use of MRI’s. But the bottom line is that Daniel and I invite scientific inquiry on these subjects. We are taking bets that science will bear out our intuition.

  3. Dave Finch on December 14th, 2008 9:12 pm

    While Dave Hoffman’s and Daniel Bowling’s bet is not one that I would take, I am much less accepting than they of their proposed evidence for centeredness as enhancing the effectiveness of mediated negotiation. This is not to say that I doubt that a mediator may benefit from meditation or that he might turn in a better performance having gained a state of peace and centeredness. Carrying a load of inner turmoil into the process a neutral may be less nimble and discerning than otherwise. But, the notion that the mediator’s state of inner peace might be transmitted to the typically self absorbed parties in negotiation seems to me to be both naive and, to the extent it dissipates a more astute attention to human nature, misdirecting. The cognitive behavior studies by such notables as Daniel Kahnemann and the late Amos Tversky and the many who have followed their lead, suggests that the much more productive investigations are aimed at the heuristics whose roots may stem from adaptive evolutionary purposes, and unconsciously direct human decision making. If we mediators can learn to recognize the heuristics at work, alert the parties to possible fallacy and unwarranted bias, and so help them improve their thinking and speaking about the issue, even at times when we ourselves may not be in a monklike state of peace, we can help the process to work well. Hoping that our inner peace will significantly advance it, like holding hands in a circle of love and humming a calming hum, might be justifiable in some disputes with some parties, but likely do little to advance our understandings of human nature, such as the endowment effect, human accounting, anchored beliefs, and many more, which present the tough obstacles in the typical case. Dave Finch

  4. drfinch on December 15th, 2008 3:19 pm

    Please excuse, dear readers, my blown metaphor above. Roots don’t stem “from” anything: stems grow from roots. Oh well. I’ll try harder next time. Dave Finch

  5. David Hoffman on December 16th, 2008 10:21 am

    I agree with you entirely about the value of heuristics and helping people think more clearly about risk and opportunity. Game theory has clearly added enormous value to our understanding of negotiation and mediation. The point of the article “Bringing Peace into the Room” is not that we should ignore those elements of mediation. Our thesis was that after learning practice skills, and studying theory, there is a third element that adds value – namely, developing those personal qualities that enhance the peacemaking process. – David Hoffman

  6. Barry Goldman on January 5th, 2009 1:31 am

    This is an important conversation for the field, and I’m gratified to see David Hoffman’s response. David says he is in favor of scientific investigation into his claims. He says early intuitions are sometimes borne out by later scientific study, and he cites the modern medical use of leeches.

    This is a telling example. Here’s why. If you go see a psychic she will often say there is something going on in your life concerning a man with the initial J. She doesn’t say whether the man’s name is Jack or John or Joe or Jim or even whether J is a first initial or a last initial. And she certainly doesn’t say what is going on. But if you try it right now you’ll see it won’t take you long to find there IS something going on in your life involving someone with the initial J.

    The point is, if you define a “hit” as broadly as possible, ignore your misses and only count your hits, you can prove anything. It shouldn’t be surprising that something from the universe of ancient medical treatments turns out to have some actual value.

    There is also a problem with the other examples David cites. This is the tendency for the placebo effect to show up in studies of alternative medicine. For an extremely thorough and engaging treatment of the subject I highly recommend Snake Oil Science by R. Barker Bausell, Oxford Press 2007.

    David says he and Daniel Bowling are taking bets that science will show centeredness improves mediator effectiveness. I will be happy to take that bet, but I think it’s fair to establish a few boundaries first. For instance, we need precise definitions and objective measurements of centeredness and effectiveness before we proceed. In other words, we need to define what will count as a hit before the study, not after it. And then we need a randomized, placebo controlled, double blind study of statistically appropriate size.

    If such an experiment were performed I don’t think it would show the effect David predicts. I think he’s wrong. My intuition conflicts with his intuition, if you like. But that is not the important point. The important point is that the field is not proceeding along these lines at all. It is proceeding as though having an intuition is enough. The field is contenting itself with intuitions alone and not making the effort to see if those intuitions are true. That, I believe, is a profoundly serious and perhaps fatal mistake.

  7. Badder on April 25th, 2009 4:29 pm

    I have been struggling with this for a long tie, I appreciate the encouragement – it gives me hope. Maybe someoneelse will figure this out.

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