Abstract: “Mediation Theory vs. Practice”

While many scholars and practitioners have contributed to the discourse on defining models, tools, and strategies being used by Alternative Dispute Resolution professionals, these concepts and perspectives are frequently presented in the form of binary descriptors–a polarized “either this or that” approach. Rather than clarifying the issue, these descriptors, for the most part have articulated the confusion. Differences in models are often described in order to show other models as “wrong.” In order to transcend this win-lose paradigm, a framework is needed to recognize the value of a wide range of models. Such a framework, taking the discourse beyond either/or, has been offered by Ellen Waldman.

Looking first at the similarities, the essential elements and strategies mediators all use, we can then isolate differences in models. Waldman’s analysis defines mediation models based on the norms they reference and names three categories of mediation: Norm-Generating, Norm-Educating, and Norm-Advocating. This framework allows mediators to choose from a range of tools and strategies, and to specify differences in models.

Models can be compared based on: theory of conflict, empowerment of parties, basis of authority of the mediator, control of the process and definition of success. Waldman’s construct lays a foundation for an exploration of a variety of models and provides a non-adversarial approach to defining them. Use of Waldman’s categories would allow mediators to say simply and clearly what we are doing; in addition, it would give the parties a way to determine what mediation model will work best for them, thereby supporting self-determination, the most basic element in mediation.