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Micro Management in Mediation
Doctoral DissertationUppsala
13 February 2015
Hans Boserup
Hand Outs
• Both this PowerPoint– and
• A copy of my speech paper can be found at:
• www.mediator.dk
• A limited number of hand outs are available at the defence
Modern mediation
• Generic (Community) 1960/70
• Settlement riven 1980
• Humanistic 1990
Efficacy
• Lawyers in particular focus on efficacy. • Lawyer mediators use control to achieve
efficacy. • Mediation ends up looking like a non-binding
arbitration. • Lawyer mediators colonise mediation.
• But arbitration is not mediation.
A satisfying process
• Criteria for a satisfying process: – Autonomy,– Assertiveness – Empathic communication that stimulates– Reflection.
• Assertiveness is understood as the ability to 1) identify own needs, 2) communicate them so clearly, that they are understood, og 3) communicate them clean, so that the other party does not adopt a defensive position.
Positivist frame of understanding
• Both the criticised and the critics operated within a positivist frame of understanding.
• This is also the traditional legal frame of understanding.
• Progress: – To negotiate about needs and concerns together with
the deflected interests rather than about positions– Include data about feelings.
Positivist frame of understanding 2
• Feelings are short cuts to needs and concerns. • Natural to see mediation as a catalyst of inner
processes, that can motivate the party to: – fulfil needs and – eliminate concerns for the other party.
• Through communication psychology and experiences from therapy, mediators became better and better to satisfy needs and eliminate concerns.
Lawyer Mediators’ Main Competences
• Communication psychology and therapy analogue processes are not the lawyer mediator’s main competences.
• The competence that other mediators managed to impart to the parties (autonomy, assertiveness and empathy), were rarely a part of the lawyer mediator’s practice.
• Instead risk evaluations were more predominant.• Risk evaluation is a main competence for lawyer mediators.• In particular court annexed mediation is characterised by
the lawyer mediator’s own views on the most fair solution.
Postmodernism
• During the 1990’s postmodern mediators found new ways to achieve a more satisfying process.
• Postmodernism’s thoughts had also tried to change or broaden the legal positivist frame of understanding.
• But most of the legal system was hostile to this. • Nor were the lawyer mediators receptive.
Postmodern mediation• The postmodern styles do not take their starting point in feelings,
needs, concerns and interests.
• The styles considered are:– systemic, 1980– transformative 1990 and– narrative mediation 2000.
• The three styles take their starting point in external processes between individuals such as interaction, communication, language, positioning and discourse.
• It is these three styles the dissertation has investigated.
Postmodern Characteristics
1. Interaction rather than the individual 2. System theory3. The language and the use of language4. Discourses – Interpretative repertoires5. Things taken for granted are social constructions6. No universal truths7. Stories/narratives8. Positioning and interpellation9. Intertextuality
1. Focus on external processes
• Also focus on phenomena that cannot be weighed or measured.
• Focus on the invisible connection between the parties. • No focus on internal processes.• Focus on the interaction between the parties. • Inside-out process changed to an outside-in process. • The problem is not the person.• The problem is no longer the problem.• The problem is the way the parties speak about the
problem (language – narratives).
2. System theory
• You have to relate to the systems that the parties are part of.
• Systems are habitually closed.• Even though the system requires the surrounding
environment, it is relatively independent of it. • Autopoiesis (self-regeneration).• Homeostasis (balance or equilibrium).• It is autopoiesis and not homeostasis that is the
theoretical foundation in systemic mediation.
3. Language and Use of Language
• Language is not considered a neutral conveyor of data.
• The Parties are constantly doing something with each other with their language.
• We call this speech acts. • Negotiations and utterances are not value free.• The starting point is always the sender’s value
set or ideology.
4. Discourse – Interpretative repertoires
• Connected chains of statements, for example conversations, stories, reports, arguments, and speeches.
• Central to discourse is meaning.• Discourses are totalitarian in that they attempt to
exclude other opinions. • Interpretative repertoires are flexible.• Interpretative repertoires are the spectacles
through which we see and experience the world.
5. Natural – from nature– authority
• For the individual, there is always something that appears as natural or as derived from nature.
• Postmodernists reject the natural or things derived from nature as authority for anything.
• Foundations of authority are always social constructions formulated by people. – This also applies to ”universal” or ”overriding” truths.
• The starting point is in the concrete.
6. No Universal Truths
• No universal theories or explanations but a starting point in the specific interaction.
• Neither is there a universal theory of the self (identity) or general legitimising stories. – NB Transformative mediation
• Many and flexible identities.• Knowledge – including remembered knowledge
is dependent on time, place and social circumstances.
7. Stories/Narratives
• Mediation is about stories.
• We live in stories about ourselves and the others.
• Stories have functions: – identity – morals –good/bad – right/wrong – need for support – need for creating alliances etc.
8. Positioning
• Positioning is more flexible than roles.– I am the professor. – I am the victim.
• When you position others it is called interpellation.– Is there a doctor here?– You are a bad mother.– You didn’t do that right.
9. Intertextuality
• Intertextuality is the connection with other utterances heard in other dialogues or in another context.
• 80 % of our utterances are not our own work.
• Closed discourses and positionings attempted peeled for foreign layers.
• The original (own views) are easier to open up than foreign ones.
• Humanistic og transformative mediation wait patiently for the parties to realise for themselves the intertextual connection and then reflect on it.
• Settlement driven, systemic and narrative mediation force this development using questions.
• There is intertextuality when systemic and narrative mediation try to reactualise earlier successful experiences.
The Analysis’ main results
• There are big ideological differences between the postmodern styles which are expressed as:
- Very different perceptions of best practice, – How much and how the mediator dominates in relation to the parties– The mediator influence appears both open and hidden
(microdynamics),– The mediator influence is not just dependent on the words the
mediator chooses to use,– Sound and the body language are expressions for choice and strategy– The sound produced by the vocal tract can be considered part of the
body language.
The difference is not a coincidence• The difference is predictable as a result of different goals and
working methods.
• The postmodern styles see the mediation process from three rather different points.
– Systemic mediation emphasises solving problems.– Transformative mediation emphasises optimising the parties’ dialogue
through improving empowerment and recognition.– Narrative mediation emphasises improving the relationship of the
parties by changing the discourse and positioning. It is essential to understand the thought process behind the styles to be able to practise them.
Postmodern Characteristics
1. Interaction rather than the individual 2. System theory3. The language and the use of language4. Discourses – Interpretative repertoires5. Things taken for granted are social constructions6. No universal truths7. Stories/narratives8. Positioning and interpellation9. Intertextuality
Is transformative mediation postmodern?
• Transformative mediation believes that the individual has an innate and overriding need for relationships, and that every individual is born with a certain amount of decency.
• But overriding universal ideas are rejected by postmodern thinking and the idea of an innate essence (core) in the individual with special abilities is rejected in constructionist thinking.
• Transformative mediation can therefore not be considered as constructionist, and probably not postmodern either.
Postmodern?Characteristic Systemic Transformative Narrative
Interaction ☑︎� ☑︎� ☑︎�
System theori ☑︎� ? ☑︎
Language ☑︎ ☑︎ ☑︎
Discourse ☑︎ ? ☑︎
Soc. construction ? ? ☑︎
No universal truth ☑︎ ? ☑︎
Story ☑︎ ? ☑︎
Positioning ☑︎ ? ☑︎
Intertextuality ? ? ☑︎
Themes in mediationStrategy Systemic Transformative Narrative
Balance ? ? ☑︎
Empowerment ? ☑︎ ?
Negotiations ☑︎ ? ? ☑︎
Stories ☑︎ ? ☑︎
Normalisation ☑︎ ? ? ☑︎
Summarisation ☑︎ ☑︎ ☑︎
Positioning ☑︎ ? ☑︎
Problem formulation
☑︎ ? ? ☑︎
Process/content ☑︎ ? ?
Recognition ? ☑︎ ?
Separate meetings ? ☑︎ ☑︎
Time ☑︎ ? ? ☑︎
Mediator’s control techniques 1 Microdynamic Systemic Transformative Narrative
1 Orientation towards mediator ☑︎ ☑︎
2 Mediator’s positioning of themself ☑︎ ☑︎ ☑︎
3 First person pronous ☑︎ ☑︎
4 Process directives ☑︎ ☑︎
5 Interruptions ☑︎ ☑︎
6 Ground rules ☑︎ ☑︎
7 Urban tone ☑︎
8 Balance ☑︎ ☑︎
9 Indirect communiccation ☑︎ ☑︎
10 Active listening ? ☑︎ ?
Mediator’s control techniques 2 Microdynamic Systemic Transformative Narrative
11 Back-channelling ☑︎ ☑︎
12 Summarisation ☑︎ ☑︎ ☑︎
13 Mirroring ? ☑︎ ?
14 Tempo ☑︎
15 The slow conversation ☑︎ ? ☑︎
16 Stimulate empowerment and recognition ? ☑︎ ?
17 Avoiding premature solutions ☑︎ ☑︎
18 Externalisation ☑︎
19 Deconstruction ? ☑︎
20 Co-author to a future story ☑︎
Mediator’ Control techniques 3 Microdynamic Systemic Transformative Narrative
21 Significant others ☑︎
22 Forced contradiction ☑︎ ☑︎
23 Hypotheses ☑︎ ☑︎
24 Identification af positioning ☑︎ ☑︎
25 Containment of verbal conflict ☑︎ ?
26 Body language ☑︎ ☑︎ ☑︎
27 Vocal tract ☑︎ ☑︎ ☑︎
28 How should the parties’ relationship be?
☑︎ ? ☑︎
29 Normalisation ☑︎
30 Reformulation ☑︎ ☑︎ ☑︎
Mediator’s control techniques 4 Microdynamic Systemic Transformative Narrative
31 Closed reformulation ☑︎ ☑︎ ☑︎
32 Change subject ☑︎ ☑︎ ☑︎
33 Only summarise data, goals and strategies
☑︎
34 Ignore data about feelings ☑︎ ?
35 Organise the parties’ information ☑︎ ?
36 Lip service ☑︎
37 Pair of turns– Yes/No ☑︎ ☑︎
38 Questions ☑︎ ? ☑︎
39 Change the thought process with questions
☑︎ ☑︎
40 Orientate the parties towards solutions
☑︎ ☑︎
Mediator’s control techniques 5 Microdynamic Systemic Transformative Narrative
41 Orientate the parties towards conversation
☑︎
42 Orientate the parties towards repositioning and changing discourse
☑︎
43 Orientate the parties towards the future ☑︎ ☑︎
44 Pauses – long or short ☑︎ ☑︎ ☑︎
45 Preference for short answers ☑︎
46 Subclassification of subjects ☑︎
47 Opening of closed discourses ☑︎
48 Changing of discourses ☑︎
