It’s been believed and now it is confirmed, in mediation, creative solutions can be achieved. (The recent mediation in Detroit, featured on the home page, is a solid example.) A study in Denmark and Norway, in 2014, the subject of an article in Negotiation Journal (October, 2014), found that the majority of civil cases that were mediated–divorce; probate; contracts–produced creative solutions, defined as solutions that contained elements beyond those that were reported in the court filings.
What guides mediator decisionmaking? Kenneth Kressel and his colleagues used reflective research methods to explore this question in three studies, which he
describes in “How Do Mediators Decide What to Do? Implicit Schemas of Practice and Mediator Decisionmaking” (Ohio State University Journal of Dispute Resolution,
2013, p. 709). The theme that threads through all three studies is that mediators make decisions that are derived from their unconscious and personal ideas about “the nature of conflict, the goals to be attained byintervention, and implicit intervention ‘scripts’.”
The first study utilized reflective team debriefings of live family mediations to explore why mediators made particular decisions. In the debriefings, the mediators involved in the study all discussed the decisions they made and the reasons for them. The study pointed to two approaches to mediating: the problem-solving style (PSS) and the settlement-oriented style (SOS). Mediators utilizing PSS focus on in-depth problem-solving, while mediators taking the SOS approach focus on surface positions and settlement. The study found that while both approaches are helpful, PSS worked better for more polarized cases. The study also revealed that mediators know much more than they can say, since so much decisionmaking is based on tacit knowledge that is largely unconscious.