Take the gloves off!

Mediation had long been used in labour disputes in the United States however, in the seventies; it extended to other contexts such as community, family and interpersonal conflict. A similar trend is developing here in Trinidad and Tobago and like in the US, as the field grows, mediators are being guided to take a one-directional approach in the practice : generating options to solve problems. This ‘problem solving’ approach sets out to find satisfactory solutions that suit the underlying needs and objectives of the parties and this overriding goal now characterises the mediation field.

In one sense, this ‘Alternative Dispute Resolution’ technique which is being touted as being more effective than litigation and adjudication, is not really new to us. Our society is made up primarily of peoples whose ancestors have been using conflict resolution techniques that have focused on the norms and customs of the group or people, for example the panchayat or elder intervention. Trad-itional cultures deal with conflict primarily through third parties so that the resolution is achieved in indirect, lateral and systemic ways. This “Original Dispute Resolution” see conflict as a communal concern and the group has ownership of the conflict and the context. Modern western society, on the other hand see conflict as an individual issue and assume private and personal ownership. Also, while traditional cultures follow conflict patterns entrenched in the values of the group or people, western culture see it as situationally defined, with open options for pragmatic individual choice.

It is this view that is dominating our mediation processes today.

The problem solving approach to mediation is individualistic and does not draw from what is or used to be culturally prescribed in our society, for example, the use of the extended family, communal nature of our society and the respect for elders. The basic premise of this problem solving approach is client self-determination and mediator neutrality. Spelt out this means that:

1.Individuals will act according to their needs and are responsible for their own choices.

2.Individuals are driven by internally generated needs which are expressed in the mediation process as interests

3.Personal unmet needs are the underlying basis of the development of conflict and the individual desires to fulfill those needs and

4.The mediator is a neutral third party and does not favour conflict goals and needs over the problem-solving process. He/she is responsible for:

•Asking questions and validating the parties’ points of view.

•Searching for position interest of the parties.

•Assisting the parties in searching and analysing options that will lead to an agreeable resolution.

•Serving as a communication facilitator between the parties and designing a plan that the parties understand.

Yet, mediators here have reported that far too often, parties to a dispute are not interested in self-determination and look to the mediator to make a decision in the matter at hand. This is contrary to the core of the approach and places the mediator in an awkward position. Often, matters referred by the court for mediation, find their way back before an adjudicator. It seems like in our society the assumption of a neutral, disinterested stance by the mediator does not engender confidence in the minds of the parties who continue to see the third party as an authority figure. Power distance in this society is high and disputants still believe that the person ‘in charge’ should have answers. Therefore, it is either that the authority figure resolves this issue, or they, the parties, would do it themselves. As such the problem solving model does not allow the mediator to take into consideration culturally specific issues.

This gap has opened the mediation field to other approaches which are now being used in some other countries. Two of these are the transformative approach and the narrative approach and this article would deal with one here, the transformation model.

The transformative model of mediation has as its basis the principle that the active participation of the mediator in empowering the participants for greater recognition of each other, leads to a more beneficial outcome for all. The term transformative refers to the fundamental change in attitude and behavior of an individual or the relationship between two or more parties. The assumptions underlying the concept are:

•The belief that people desire more control over their lives, and thus attaining this control makes them more powerful and;

•Power which is attained through an authoritarian value system can be balanced if parties gain authority through empowerment.

The mediator who uses this technique therefore focuses on supporting the ability of the parties to change, empowering without directly interfering, listening for signs of weakness and self absorption and taking advantage of interactional transformation, finding opportunities for empowerment and recognition shifts. He/she would have mastered the art of reflective listening, the nuances of body language and would use a combination of psychology, communication, and other related fields to lead the conflict transformation process. In this approach, the conflict is transformed rather than resolved. Through the process of coming up with solutions to the conflict, the parties are empowered to change the quality of their conflict interaction from a negative and destructive process to one that is positive and constructive. Empower-ment is therefore “the restoration to individuals of a sense of their own value and strength and their own capacity to handle life’s problems”.

Some criticise the transformative model for being too idealistic, not structured enough, and not useful for business or court matters in addition to being a lengthy mediation process. But it does leave the door open for the mediator to play a more direct role in the conflict. Conflict transformation techniques such as apology, forgiveness, gift giving, which have been features of our traditional society are not overlooked as in the problem solving approach.

As a tool for conflict resolution, mediation has brought great relief to our society by providing alternative avenues to the judicial process. It leans on the traditional premises that the parties to a dispute are usually least able and least equipped to settle the dispute constructively and shifts us away from direct face to face confrontation, to more creative and constructive options involving a third party. This third party today is the Mediator (rather than the Elder in traditional societies) who has a role that is neutral and independent but who is not encouraged to use the traditional pathways that have existed in traditional societies and who instead uses the common denominator of the legal social contract to resolve all conflicts.

Our mediation system has to begin to obtain and use the requisite data of relational, communal and social contracts and mediators have to ask themselves whether our culture and values permit us to use a more transformative approach.