Orientation of “Problem-Solving” Mediation
Mediation is carried out differently by each of its practitioners. However, the general framework that most North American mediators work within is that of problem-solving mediation — meaning the focus is on solving the presenting problem. This approach was so-named and contrasted to another approach labeled transformative mediation by Baruch Bush and Folger in their book, The Promise of Mediation.1 In terms of general orientation, the main difference between the two approaches to mediation is how a conflict is viewed or conceptualized from its outset — how it is defined in the mediator’s mind. When mediators using a problem-solving orientation are introduced to a conflict, they immediately see it as a problem that must and can be solved. Usually the problem is quickly framed in terms of seemingly incompatible needs or interests between the parties. The focus is then finding ways to reframe the conflict so that the needs and/or interests of both sides can be met (or come close to being met) simultaneously. Thus, a mutually acceptable, win-win solution is sought.2
Characteristics of Problem-Solving Mediation3
Problem-solving or “settlement-oriented” mediation is by far the dominant approach in the field today. Its name implies precisely what it is — a process focused on solving a problem by obtaining a settlement. In the view of a problem-solving mediator, “when conflict exists, a problem exists, and a problem exists because of a real or apparent incompatibility of parties’ needs or interests.”4 Therefore, mediators working within this framework will assess the conflict between two parties and assist them in defining their differences in terms of a problem. If a conflict is set up as a “problem,” then logically, a solution to that problem exists. Through the process of reframing the parties’ positions, the mediator helps parties develop a common definition of the problem. This is the starting point for negotiating a solution that will satisfy the interests of both sides (see integrative bargaining or win-win).
The goal of problem-solving mediation is to help parties generate a mutually acceptable settlement of the immediate dispute. The settlement-oriented mediator usually explains that this is the purpose at the outset and defines a process that will assist the parties to work toward that goal. All of the mediator’s actions also are designed to facilitate that outcome. For example, emotions that might escalate anger and thus prevent a settlement are controlled. Issues that are non-negotiable are diverted, while parties are encouraged to focus on negotiable interests. Mediators tend to discourage a discussion of the past, as that often involves blame, which can make progress more difficult. Rather, parties are encouraged to focus on what they want in the future, and develop ways in which their interests can be met simultaneously.
Sometimes the settlement-oriented mediator acts a bit like an arbitrator proposing a solution and working hard to “sell” it to the parties (see arbitration). In other words, mediators will sometimes act as though they are experts and suggest potential terms of agreement. However, because their suggestions do not have any binding power, they must try to persuade the disputants to go along with their idea.
In addition, settlement-oriented mediators often try to keep the parties moving forward. They try to keep the process moving by encouraging the participants to move from one “stage” to the next as quickly as possible. Deadlines are one action-forcing method that can be useful for inducing parties to come to an agreement.
While some mediators allow the parties to proceed in their own direction and at their own pace, thus largely controlling the process, others are quite directive in their approach. In addition to defining and controlling the process, they may also control the substance of the discussions. They will try to narrow the parties’ focus to areas of agreement and/or common ground and “resolvable” issues, while avoiding areas of disagreement where consensus is less likely. Although all decisions are, in theory, left in the hands of the disputants, problem-solving mediators often play a large role in crafting settlement terms and obtaining the parties’ agreement.5