I wish to add to Michael Leathes’ recent post on his suggestion that more field-based research be done into the mediation product and Rick Weiler’s follow-up.
There are really two distinct questions here. One relates to whether, with enough real-world research, we can put mediation in a nice box with a ribbon around it and show it to everyone as a discrete valuable product. The second question is why people and organisations do not embrace mediation.
If we don’t get the first question right, then we can’t have a hope of dealing with the second question.
The first question
My problem with the first question is that it is based on very 19th-century Newtonian concepts that are linear, predictable and deterministic.
Newton’s belief was that the world is ordered and that if enough research is done and a full understanding of a situation is achieved then the future can then be predicted.
He was influenced by his religious beliefs that God must have a universal plan and the reason we haven’t found it is that we haven’t looked hard enough. Einstein was also caught by this mental construct in his search for the universal equation.
Einstein and much of 19th-century Newtonian physicists were blindsided by the rise of quantum physics in the early 20th century which has led to the digital age we now live in. Newton was fine for the Industrial Revolution but we could not have got to where we are now in the 21st-century with Newtonian physics and thinking.
Newtonian physics has been superseded by modern physics; particularly, the laws of thermodynamics and the emerging awareness of quantum physics. These offer far better explanations of what is happening in our world and more importantly why it has changed so much.
The laws of thermodynamics hold the best scientific explanation of the disruptive world we live in. Thermodynamics is a branch of physics that is the study of systems. The first law of thermodynamics is that nothing is created or destroyed; it simply changes form. The second law of thermodynamics asserts that this change is always in the direction of decay and that all natural processes lead to an overall increase in disorder. It is why human beings, and nature in general, cannot reverse the ageing process.
As this change occurs nothing is lost or destroyed. It is simply reconstituted in another form which then becomes the new paradigm, before it too starts to decay. Disruption is therefore a normal part of reality rather than the ordered Newtonian view of the world.
The emerging understanding of quantum physics also impacts on our understanding of the complex world we now inhabit. It is a branch of physics which is highly uncertain and interconnected and where change occurs depending on the position of the observer. It breaks down the Newtonian link between cause and effect.
The latest challenge to this Newtonian view of the world can be seen in the replication movement in which many of the significant social science experiments of the past are being repeated with vastly different results from the original conclusions. This is because nothing is repeatable in a complex environment. It has thrown into doubt the validity of much of the so-called evidence-based research and observational case studies carried out in the social science field. This has become a significant problem for academia.
Anything that involves human beings or markets is inherently complex. In a complex environment outcomes cannot be predicted. This is because each aspect of a complex environment is interconnected and so all parts constantly co-constrain each other. They co-evolve by constantly modifying behaviours in random, never in the same way twice. This constant change means it is impossible to forecast or predict what will happen.
As a result our understanding of why things happen the way they did can only be done in retrospect. Because no two contexts are the same in a complex environment the concept of joining the dots in advance is an illusion. Best practice is, by definition, past practice and hindsight does not lead to foresight after a shift in context.
In my view our search for answers must start with modern science particularly some of the natural sciences, anthropology and the work coming out of the IT industry particularly complexity theory in how to deal with situations that are not repeatable. It requires a totally different form of thinking which I believe practising mediators acquire particularly those who are comfortable working in the moment to moment dynamics of the joint session.
The second question
Why is there a resistance to mediation within the commercial world. There is an old saying that generals generally fight the last war. In my view much of commerce and many in the legal profession that support it are still stuck in the competitive adversarial 20th century world.
The modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established organisations and professions.
The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours. The sharing economy relies on the willingness of users to be trustworthy and to trust each other. The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.
This interconnected economy is built on the creative tension between risk-taking and innovation. Balancing this tension and establishing a culture of trust is essential for maintaining the increasingly short time at the top in the 21st century economy.
Some of the work coming out of complexity theory is founded on a practice-based management system that seeks to modulate this complexity rather than trying to constrain it. It is an insightful way of thinking that has direct application to conflict resolution and mediation.
It is an experiential mode of management which requires leaders to step back and allow patterns to emerge. It is through this emergence that opportunities arise for innovation and creativity. It is a process that opens the door for luck and serendipity. The focus is on managing the present and seeking out its evolutionary potential.
It requires leaders to have a deeper understanding of the broader context in which they operate and the ability to not shy away from complexity and paradox. Because it is an evolutionary process it gives managers the time and space to assimilate complex concepts. The approach is to probe first then sense and respond. It is managing for emergence rather than outcome.
Embracing risk and possible failure is an essential element of experiential understanding. It challenges groupthink by encouraging minority views, mavericks and dissent. In other words diversity.
It is the opposite approach to the command and control model which seeks fail safe predictable outcomes. This is based on the cult of the alpha leader and is often driven by the desire to make the complex simple and ordered. This tends to focus on facts rather than allowing patterns to emerge. This leads to a structured rules approach which constrains the freedom of movement and diversity within organisations. It leads to organisational groupthink.
The over emphasis on efficiency and outcomes drives out variation. This is because diversity includes things that are not currently efficient. Allowing a place for mistakes, inefficiency, conflict and disruption to occur allows new learning which can be the springboard for innovation. They create a tension in the system which allows for evolutionary breakthroughs. If managers do not allow this type of internal disruption to occur then their competitors will disrupt externally.
This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s. They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions. They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now highly valued in this complex commercial world.
So maybe the problem is not mediation and mediators but the commercial world struggling to fit in.
Well done Michael for starting this conversation.
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This, for me, is an important, well-reasoned and insightful contribution to this discussion. Thank you.
Greg, your post is a valuable reminder that there are other ways of interpreting things than the linear, single-reality approach – especially in mediation.
Your title is a good one and you pose two excellent, closely related questions that merit discussion. Might I suggest that there may be simpler, albeit Newtonian, answers?
Question 1. Can mediation be simply explained? Yes it can, but there are almost as many descriptions and definitions of mediation as there are mediation providers. This confuses users. I offered a 7-word umbrella definition in my first post on the Kluwer Mediation Blog in 2011 entitled: Stop Shovelling Smoke; give users a classic definition of mediation.
https://mediationblog.kluwerarbitration.com/2011/09/01/stop-shovelling-smoke-give-users-a-classic-definition-of-mediation/
Question 2. Why is mediation not embraced more widely? Part of the answer is that if mediation cannot be simply explained, then it is practically unmarketable. But even if there were a classic, universal definition adopted by most, there is currently too little coordinated funding, and apparently too little appetite, for an international marketing campaign to communicate a simple, consistent message. If the leading service providers considered it an industry imperative to expand the mediation pie for the benefit of all, they could pool their considerable skills and resources to explain and promote mediation credibly and persuasively right around the world. That would stimulate growth.
This is not, to my mind, just about Newtonian versus quantum thinking. It’s more about overcoming the inertia of what the late Frank E. A. Sander called the deadening drag of status quoism. It can be addressed by the international mediation industry collaborating together for the greater good of its customers, and itself.
Michael
Thank you Michel and Rick for your responses.
It is a challenge to promote a product using a definition.
Coca Cola is a dark, carbonated, sugary drink with a secret ingredient. Coke does not try to sell the drink. They sell the “Fizz”. In other words the experience.
Definitions also suffer from the averaging effect. You can have a thousand rocks with an average weight of 5.7 kilos and not one of the rocks weighs 5.7 kilos. It is meaningless unless statics is important to you.
So what is mediation’s “Fizz”?
I would suggest that mediation opens the door to endless possibilities (Quantum Theory). Every mediation is unique and unpredictable. That is its charm and its challenge. That’s the Fizz. Are you ready to step back and take the time and risk to allow something new to emerge? Are you ready to take the challenge.
However there is a deeper issue at play here that our young profession needs to deal with.
It starts with where we chose to put our focus. Everything changes from where you stand and look (Quantum Theory).
If you focus on dispute resolution then conflict is something to resolve or put right. It about a solution. Conflict is bad – solution is good.
If you see conflict as a positive thing, in that it is a weather vane to tell you that something is wrong, then the focus changes to what the conflict is telling us – what is the mutual story that is emerging out of the dispute.
Using Complexity Theory terminology, what are the week signals of the ‘new/ next step’ hidden in the fog of the conflict. It is allowing a ‘ good enough’ solution to emerge to nudge us forward to the next iteration of life (the first two laws of Thermodynamics).
It is mediating for emergence not outcome. The modern interconnecting economy needs this fizz.
I have just spent the week in Paris at the ICC International Commercial Mediation Competition where 150+ professionals gave their time to judge and mediate competition sessions.
This group is surviving and thriving against the odds. It is not of one mind – that seemed to be an asset rather than a constraint
From the rich conversations the week afforded it was clear to me that the discussions provoked in this blogpost and the comments that follow are places where we do some of our best work. We don’t need to agree – we do need to keep talking and engaging a broader church in our conversations.
Lawyers are still the wholesalers of disputes and (sorry to disagree Michael and Frank) they are stuck on power and control rather than the status quo.
However the recent UIA program, looking at the introduction of mediation into schools, gave me some confidence that education can be a significant force in de-mystifying mediation. Children are natural explorers – they are curious and are not driven to find definitions and certainty. They are creative and see opportunities everywhere. I am hopeful that this movement, which is gaining significant traction in my country, might help to overcome the ‘definition wars’ and create a population more ready to see conflict as an opportunity and mediation as an infinitely flexible tool for learning.
I agree with you Greg that Coke only sells the “fizz”. It is ultimately what one experiences that is the pivot for rejecting or embracing an idea. This experience is the outcome of thought which is again an energy driven process linked to memory, conditioning as more of loss/risk aversion. The loss/risk aversion is again a powerful trigger based on memory. Hence cognition and ability to discern appears to be the criteria for which one must be able to choose ‘valid knowledge’. Knowledge is what one think she/she knows, ought to know and what one knows with the drag of the ability to ‘do’ based on this knowledge.
It is clear that there are multi layers which have to be examined, kept aside, and objectively appraised. Lawyers and disputants entrenched in litigative mode have to willingly move out of the defensive/aggressive mode to conscious responsible thinking and so commercial mediation needs to look at more than win-win.