CADRE Resources

Maximizing Mediation

This article suggests that the adoption of a maximizing mediation approach by the mediator in family and other matters is permissible and advised. There are no barriers to mediators moving beyond the world of barely sufficient processes and barely sufficient results to stimulate maximized processes and maximized results. In considering this proposition, let us first think about what we mean by "maximization" and the extent to which maximization exists in various processes.

For the moment, let us assume that maximization has to do with "assisting participants to be at their personal best and assisting them to identify their fullest range of interests and assisting them to most capably solve their problems." It is important that maximization is understood as an aspirational goal, not a minimum standard. Maximization is a goal never fully achieved. It is a guiding light for realizing mediation's potential.

Maximization takes empowerment to the "nth" degree. Rather than empower a bit, or some, or comparably or to balance, a theory of maximization suggests that the only way one can empower participants consistent with the mediator's duty to be impartial is for the mediator to maximally assist each participant to be at their best in seeking maximum satisfaction of their interests. In fact, it is suggested that empowerment without maximization may be ethically challenged as partial mediator behavior.

It should be immediately noted that mediation participants will commonly have different personal needs and different ideas about the process and substantive interests that they would like maximized. One participant may want to maximize simply getting the matter over as quickly and cheaply as possible. The other may have interest in taking whatever time is necessary to talk about relational issues and to ensure that they do not make any foolish decisions. The goal for the mediator is to seek to maximimally assist each participant in the way that they want to be assisted.

Consider asking participants, "On a scale of 1-10, please identify the extent to which you would like the following emphasized in your mediation process:

1. a better understanding of the process
2. ensuring effective legal advice and review
3. discussing what has happened in the past
4. discussing relational issues
5. joint meetings
6. individual meetings
7. face to face meetings
8. email and online communications
9. speed
10. economy
11. other: _______________

It is not for the mediator to impose the qualities to be maximized, but, rather, for the mediator to elicit from the participants, through questionnaire devices and otherwise, the qualities that they would respectively like maximized in their mediation. The mediator's duty is to then seek to identify ways of working with each participant and with both or all of them to achieve as much satisfaction of their respective personal, process and substantive interests as possible.

One of the implications of the concept of maximized mediation is that mediation becomes a passionate endeavor. Mediators are no longer neutral nor removed from what the participants want to accomplish. We are passionate about assisting participants to get as much of what they want as possible.

Concepts of maximization are realistically absent in the adjudicatory (court) context. Adjudication is not focused on maximization but upon determining truth and fairly applying the law. Adjudication is win/lose by nature. Parties "plead" with the court for relief and they either carry their burden of proof and get their requested relief or they don't. Sadly, adjudicatory assumptions may also rob negotiating and mediating participants of the opportunity to resolve their dispute in a maximizing way.

In contrast to adjudication (and arbitration), we find intrinsic maximizing interests and potentials in negotiation, but, unfortunately, unassisted negotiators commonly have a hard time even sitting in the same room with the other party much less engaging in maximized problem solving. It is asking a lot for disputants to self-maximize. Disputants are distracted and incapacitated by their emotion and righteousness.

And so we arrive at the proposition that, if maximization is to happen in dispute resolution, it will happen through mediation. The basic qualities of adjudication are adversarial. Disputants can not reasonably be expected to engage in maximization on their own. In mediation, by contrast, participants need only agree that they will mediate and share the qualities that they would like satisfied for a maximizing table to be set.

If we move to the level of system design, maximization means designing overall systems that supports the maximized processing and resolution of each micro dispute. Just what would such a system be like?

Mediators make many choices, including such things as where to mediate, whether to mediate in one or more meetings, what to do between meetings, whether to caucus, whether to give homework, whether to assist participants to be personally more effective, whether to assist in developing options, whether to use the internet, whether to suggest valuable resource information, etc. How do we as mediators make these decisions? What is our ultimate guiding light? Are we here to facilitate barely sufficient agreements or are we here to facilitate best possible agreements?

Note that any theory of maximization will involve the mediator "empowering" participants. The question thus emerges whether empowerment, particularly maximized empowerment, can be viewed as consistent with the mediator's duties to be impartial and neutral.

In thinking about whether or not to seek to empower participants in mediation, there seem to be four basic choices:

1. Operate under the assumption that mediators do not influence participant power and seek to avoid any such influence;

2. Empower so as to balance power between participants.

3. Seek to "comparably" empower participants; or

4. Embrace empowerment and carry it to the fullest extent of "maximization."

With regard to the first option, it is suggested that "no influence"is really not an option. Whatever the mediator may think, participants seek to read the mediator's every response and representation in assessing their best next negotiation move. Participant interpretation of mediator impressions dramatically impact participant perceptions of their own power and their behavior. It is suggested that it is impossible for the mediator to not influence participant perceptions of their own power and capacity.

So, assuming for the moment that the mediator can not avoid influencing participant power, just how does the mediator organize his or her thinking about the issue of power? Two other approaches worthy of consideration are to "balance power"or "comparably empower"

Examination of these approaches finds, however, some fatal flaws.

With regard to the possibility of organizing one's thinking around the concept of balancing power, how can this approach possibly be done consistent with the mediator's duty to be impartial? If one participant is "stronger" than the other, and the goal is to balance power, how would the mediator so "balance." It is suggested that there are two basic balancing options: one can assist the stronger participant to be weaker or the weaker participant to be stronger. How can one possibly so seek to balance power consistent with a duty to be impartial? The answer is that one can not. Any power balancing or "leveling of the playing field" approach inevitably involves assisting the weaker participant to be better to the disadvantage of the stronger participant and this is inconsistent with the mediator's duty to be impartial.

Now let us consider the possibility of empowering participants "as comparably as possible?" So, if we give "10 units" of empowerment to one side we would give a comparable amount (10 units) of empowerment to the other side. The problem here is that the assistance that the mediator would give and each side wants likely differs substantially and what does one do when the mediator mistakenly gives 12 units of help rather than 10 (as if empowerment is quantifiable). Do we then go in a do a "2 unit" correction, and what if we overcorrect? The biggest practical problem is that such a "comparable empowerment" approach has the mediator constantly focusing on whether the participants are being comparably assisted rather than maximally assisted.

So, we are left to consider a theory of maximization. The concept here is that mediators can not but help influence the negotiation system and each participant in that system and that it is healthy for the mediator to organize his or her thinking around how to best influence the system and each participant. In that a focus on power balancing or comparable assistance suggests that the mediator is focused on the relative assistance given to participants (is one stronger than the other or have I helped them comparably), it is suggested that these approaches are distracting and dysfunctional. In each case, we fail to appreciate the opportunity to maximally assist each participant to most capably consider the situation and their options. If our goal is power balancing or comparable treatment, we rob ourselves and participants of the opportunity for maximized assistance.

So, how does a concept of maximization survive the "impartiality challenge?" Isn't it true, for example, that what one does as mediator for one participant under a theory of maximization will not be exactly what one does for the other? Isn't it also true that the mediator may in fact do more for one participant who needs a lot of help than for the more capable participant? Further, isn't it true that, even if we as mediator treated the participants in a comparably maximizing way, there would almost certainly be "differential impact"in the sense that one participant simply stands to benefit more from even the same assistance.

These things, it is suggested, are all true. What we as mediator do for one participant, we will likely not do exactly the same thing for the other participant. We may very well end up providing more assistance to one participant than the other. Even if we do the exact same thing for each participant, there will almost certainly be "differential impact." Still, even with all of these imperfections, it is suggested that an imperfect model of maximization is still that best model we have to work with. It is commonsensical and no more imperfect than any other model for organizing mediator involvement on the issue of participant and system capacity.

Some of those who criticize concepts of empowerment and maximization suggest that they do not engage in such new age empowerment. Such traditionalists, prefer to mediate "the old fashioned way"which is explained to mean, essentially, that they assist each side to appreciate the weaknesses of their case and the strengths of the other side. We might also call this "disempowerment mediation."

When asked whether in so inducing the participants to settle the mediator does exactly the same thing for (or to) each participant, these mediators quickly acknowledge, "Of course not, what is a compelling point to highlight for one participant will not necessarily be of concern to the other."Mediators in this traditional "doubt and dissonance" model realistically do different things for and to mediation participants. When asked whether participants are comparably impacted, these traditionalists will also acknowledge that "some participants (like experienced attorneys and claims adjusters) are pretty resistant to attempts to persuade, but less sophisticated participants are more likely to actually listen to respond to the mediator's doubt and dissonance. Hence, even if the traditionalist treats participants identically, the reality is that there will be differential impact.

So, how is this traditional doubt and dissonance model superior to a maximization model? The answer is that it is not! In each model, there is an acknowledged intent of desiring to treat the participants "comparably" and also the recognition that this can not be perfectly done. There is also recognition that even if identically treated, there will be differential impact. Given these common imperfections, it is suggested that maximization is not only as good a model as the traditional approach, it is better. Why would we want to only induce awareness of vulnerabilities and risks when we can also induce awareness of opportunities, capacities and gains.

It is also suggested that a concept of maximization is superior to other concepts of comparable treatment as other concepts ask the mediator to constantly compare what he or she has done for each participant lately. With maximization, there is a complete (comparable in completeness) commitment to assisting each participant to be at their best in most capably considering resolution. Why stop at comparable treatment when one can extend this to comparably maximized assistance.

And what about "power balancing." Well, why simply balance power and ask if each participant is sufficiently competent to take part in mediation when one can assist each participant to be at their best in mediation. Whey settle for doubt, comparability or balance when we can have maximization?

Jim Melamed is Associate Director of the CADRE project and may be contacted at jmelamed@mediate.com and www.to-agree.com