by David A. Hoffman
A few weeks ago, as I was preparing for a workshop about the emotional issues in family
and business cases, I returned to The Promise of Mediation, by Robert Baruch Bush and
Joseph Folger, the much-praised and much-criticized text that is arguably the most important
book about mediation of the last 10 years. Revisiting their powerful yet provocative argument
that mediators should reject a problem-solving orientation and instead embrace a transformative
model of mediation, I found my resistance to that argument weakening.
It’s not that I ever disagreed with the importance of transformative moments in
mediation, or the value of empowerment and recognition, which Bush and Folger contend
should always be the primary goals of mediation, as opposed to settlement. My resistance
stemmed from what I (and many other mediators) saw as a fundamental tension between their
model and the principle of party self-determination of the process. How could we justify
imposing our own view of what mediation should accomplish (personal growth and
development) on parties who came to us for something else (namely, settlement)?
A second major concern for me (and perhaps others) was that not all cases lend
themselves to transformative techniques. In certain business cases, for example, the primary
participants are lawyers, with clients represented by in-house counsel. For them, mediation is
an exercise in bargaining, and the people who were originally involved in the dispute are often
not at the table (in some cases they are no longer with the company). The parties’ primary
focus is their Best Alternative to a Negotiated Agreement (BATNA) — i.e., the likely verdict if the
case goes to trial. The transformative potential in such a mediation is, in most cases, rather
limited at best.
Basically a Problem Solver at Heart
The Promise of Mediation, I found myself ready to accept the possibility that I
had resisted Bush and Folger’s ideas because — dare I say it? — I am basically a problem-
solver at heart. Tell me about a problem, and my first instinct is to suggest a solution. This, as
sociologist Deborah Tannen and others have amply documented, is characteristic male
behavior. My background as a lawyer could also be at fault. As a mediator once said to me,
law school causes your left brain to circle around your right brain and eat it — and it takes many
years of work as a mediator to recover the right-brain function.
Whatever the reason, contending with my problem-solving instincts is part of my work as
a mediator. Learning to trust the parties’ competence to solve their own problems is a
fundamental principle of mediation. (See Albie Davis’s «The Logic Behind the Magic of
Mediation» for an unsurpassed articulation of that principle.) Yet it’s a lesson that I — and I
suspect other mediators too — must continually re-learn.