Reconstruction and Innovation of Mediation: An integral approach

Reconstruction and innovation of mediation: an integral approach

Nico Roos, PhD. and Jan van Zwieten, RI,RA,RO

Mediation as a practical science for an adult profession

About three years ago, Baarsma asked the provocative question whether mediation remains the eternal promise or whether it will be a mature market. Her advice was to make quality of mediators more transparent and to embed mediation in the justice chain. This advice has been taken to heart. The various organisations of mediators have joined forces and have, in the face of it, started to lobby successfully to provide mediation with a more structural place in the case-law chain through the Van der Steur initiative law. In addition, as of 1 January 2012, a successful assessment was made a condition of registration.

However, the question remains whether this is sufficient to make mediation a significantly more attractive professional offering. Even with the current requirements of assessment, it is very possible that the public will remain sceptical about mediation. This is, after all, a profession which pretends to be superior to justice as a form of conflict management, despite training requirements that are low in comparison to those imposed on judges and lawyers.

According to Baarsma, the methodical fragmentation also gives the public a lower appreciation of the professionalism of the mediator. Whether that is the case, must be questioned. After all, few (potential) customers have any awareness of this fragmentation. The MfN (Mediators Federation Netherlands) does not address methodical diversity on the public part of its website. Mediators will also be of little affection for this. It may raise the question of why the mediator prefers one method to another. For the vast majority of mediators, the answer to that question is that they are only trained in one method. In such a deficitary answer, some mediators will add that after their training they have developed a personal style in which techniques of other methods also figure out. However, this answer amounts to an implicit admission that mediation is characterised by a considerable degree of methodical anarchy. Each mediator can choose the method that appeals to her or him the most and can also add his own personal style.

Unlike the methodical anarchy, the relatively small heaviposition of the training is visible to the public, 40% of which is reasonably well known to mediation. This anarchy is at odds with a development towards a professional profile that can compete with that of lawyers and which is reflected in the heaviand level of mediation training. For the development of such a profile of mediation, theoretical integration is desirable in which the various methods are no longer seen as competitors aimed at the same purpose, but as options tailored to the variable needs of parties.

Such an approach, which states that it is possible, implies a much broader, multi-methodical training based on a coherent and comprehensive science theory of mediation. This is a practical theory of science, of which research is of a strategic nature. Such an investigation serves to determine the identity of mediation and its values and theoretical purposes. The following questions are therefore addressed:

1. What is mediation and how does it stand out from other forms of treatment of social conflicts?
2. What are the values that mediation is supposed to serve, what is the ideological background of mediation and by what principles is it guided?
3. What are the methods of mediation and in what relationship in terms of coherence and strengths and weaknesses are they combined?

The development of such a practical theory of science is what we will pursue here, with a view to a multi-methodical training based on a deeper understanding of the unity and diversity of mediation. It should be noted that this concerns only the strategic analysis. The tactical analysis (the technical implementation of the methods) is not systematically discussed here. On the other hand, detailed attention will be paid to the question of the relationship between methods and techniques. It will criticise the dilution of this distinction through terms such as ‘style’ and ‘approaches’, which may relate to both methods and techniques.

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