Interest vs Argument Based Mediation
Mediation is still in a relatively nascent state. While there is general agreement about the great benefits of mediation and about the centrality of freedom to the process, there is no consensus about how best to proceed. Instead, there various approaches to mediation each of which emphasize different possibilites that exist within the general framework of mediation. The most common division is between facilitative, evaluative, and transformative mediation. Mediation, of course, has the potential to be all of these things.
In my view, there are two approaches to mediation: interest-based mediation and argument-based mediation. Interest-based mediation focuses on uncovering common interests (goals, purposes, etc.) and argument-based mediation focuses on arguments. Interest-based mediation is generally more expedient and less antagonistic than argument-based mediation. For this reason alone, it is generally the method of choice. If it breaks down, however, one may be faced with the choice of either moving to arguments or abandoning the session.
Human beings are purpose-oriented creatures. Often their purposes conflict. Suppose, for example, that there are two divorcing parents who live far apart and they both have as their main goal to have their one child live with them full-time. How are they to resolve this conflict?
Interest-Based Mediation – Interest-based mediation works by exploring the individual motivations and circumstances of the conflicting parties in an attempt to uncover common interests (or purposes), which can then form the basis of an agreement. To return to our example, the parents are likely to have a common interest in the well-being of their child; and this common interest might permit for an agreement to emerge.
Argument-Based Mediation – In general, the greater the number and degree of conflicting purposes that exist between parties, the less likely it becomes that interest-based mediation will permit for an agreement to be reached. In such cases, it is sometimes necessary to find a rule or principle to which the disputants can agree to be bound.
Let us suppose that one of the parents in the above example is forced to travel extensively for their job and has no relatives in his or her hometown. Suppose also that, in the course of the mediation discussion, both parties come to agree that, as a rule, a child should not be left for several days in the care of non-relatives. Agreement to this rule limits the available options for the parent who travels.
Interest-based mediation is almost always done “live”; that is, the people involved are brought to a room where the mediation session takes place. My role in that context is to help the parties to uncover mutual interests which will permit a “breakthrough” to take place in the proceedings and then to help them secure an agreement that will stand the test of time. Note, however, that interest-based mediation does not ignore arguments, but it does not turn to argumentation as the primary means of sorting out conflict.
Argument-based mediation can, but need not, take place in real time. In fact, because it is more technically difficult, it is more likely to be effective if done, in the first instance, in writing. My role, in this case, is to support the process of argument; that is, to help all the parties involved to argue well. I ensure that arguments are clearly and concisely formulated and free of fallacies (e.g., personal attacks, etc.). I see argumentation as fundamentally cooperative, since it has as its primary goal the search for truth and justice. Note, however, that argument-based mediation does not ignore interests. Instead it subjects all interests to the stress test of reasoned argument. I am currently working on ways to use technology to facilitate argument-based mediation.
© 2016 Michael D. Kurak