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The Limits of Mediation

Updated: Mar 22, 2022

If you take out your mediation textbook (your textbook/dossier, your notes, etc.), you will most likely find some caveats about the fact that mediation is not always a panacea, and in some cases it is even strongly contraindicated. Typical examples include cases in which violence was used, or so-called ideological disputes, where disagreement is based on a philosophical (religious, political) issue.

The first example (exclusion in the event of the use of violence) is relatively easy to understand in theory, since nothing could be further from mediation’s philosophy of life, based on non-violent communication, than the legitimization of violence in any form. This type of conflict management framework cannot deal with violence, as it is conceptually unintelligible in this context: violence - in a broader sense, aggression - is simply out of the question. Violence is the opposite of everything that acceptance, mutual respect, dialogue and listening to the other (the key words of mediation) suggest. In other words, the rules of the game forbid violence. So if someone does resort to it, we are clearly not playing the same game, there is no common frame of reference and forward facing communication is impossible. (Note: to nuance what is said here, it should be mentioned that this does not exclude the usefulness of mediation in criminal cases. The absolute limit - i.e. when mediation is a futile attempt - in such cases is abuse of power/abuse of authority/abuse of an unbalanceable dominance.)

What about ideological debates? In my view, just as outlined above, there is also a problem based on a difference of frames of reference: the parties cannot find common ground on issues that they perceive as unquestionable fundamental truths (e.g., there is a God or there is no God, there is one or more, God is a man or a woman, God is within us etc.). ) Importantly, it is not that mediation cannot take place between people who hold different basic truths, but that mediation cannot take place on these (their) basic truths (as they experience them): since it is conceptually impossible for the parties to agree on the most basic points of orientation, we cannot move forward together because we do not know where forward is.

In addition to these, I would like to mention another situation where mediation (or the mediation 'miracle' experience: listening to each other, thinking together about possible directions) can similarly fail: when the parties do not acknowledge/accept facts that are the concrete objects of mediation. This is systematically different from ideological disputes: the parties do not disagree on fundamental truths, but disassociate themselves from whatever (even mundane, banal) concrete facts arise. In such a case, they will also lack a common frame of reference: they will not be able to move forward either, because they also lack clarity of direction.

As a rookie mediator, one of my favorite images was that of two people standing around a number from two sides, one of them seeing it as 6, the other as 9, and it was captioned "just because you are right does not mean I am wrong". I referred to this picture as a symbol of mediation’s approach to life, and argued that it conveys what we mediators strive for in our profession: everything is always complex and always a matter of perspective, and one should try to listen to the other person, and as a result, one can come closer to understanding what led him or her to take a position that may (or may not) be valid, and in the process (perhaps, hopefully) find points where one can connect.

But over the years I've had to admit that this picture is not the best symbol for a mediational approach, because it's not abstract enough, and it's very plausible that whether the number in the cartoon is a 6 or a 9 is not a matter of opinion and feeling, but a simple fact. And if it is either a 6 or a 9, then we cannot start from "but it depends from where we look", because then we have to start from the fact that we have the directions (the directions are marked), we have the exact number, and it becomes clear that one statement was factual and the other false. If these issues can be clarified (but only if they can be, i.e. if there is a willingness to be honest on the part of the party in the wrong), then we can start to think about building a common future in the frame of reference that has now become common. But if there is no way or willingness to clarify this, then mediation as a conflict resolution method will not be appropriate either.

(To reassure my readers: I will also write about the cases in which mediation is absolutely great and how you can spot the signs that indicate the ideal "wow, we need a mediator and we need him/her now!" situation).

(The picture is an illustration, the caption is a meme.)

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