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Reframing Mediation
Reframing Mediation:
Rhetorical Awareness in Mediation Training Pedagogy
By
Charles Patrick Stack,
Bachelor of Science in Speech Communication
Master of Arts in Communication / Alternative Dispute Resolution
This paper is presented to the faculty of the
College of Communication
at Hawaii Pacific University
Honolulu, Hawaii
December 11, 2008
Reframing Mediation:
Rhetorical Awareness in Mediation Training Pedagogy
This paper submitted by Charles Patrick Stack has been reviewed and approved by the Hawaii Pacific University College of Communication.
Matt George, Ph.D. Paper Advisor Date
Assistant Professor, College of Communication
Steven Combs, Ph.D. Second Reader Date
Dean, College of Communication
______
Dale Burke, D.Min Date
Professor, College of Communication
Table of Contents
Abstract…………………………………………………………………………………4
Preface: The Straightjacket of Reason…...…………………………….……….. 5
Aristotle…………………………………………………………………7
George Lakoff…………………………………………………………..8
Chapter One: Neutrality in Mediation…………………………………………………11
Coordinated Management of Meaning…………………………………14
Pinball Machine……………………………………………………….. 23
Chapter Two: Framing Theory: Early Origins…………………………………………24
Cognitive Semantics…………………………………………………….25
Terministic Screen………………………………………………………26
Chapter Three: Framing in Mediation………………………………………………….33
Deep Frames / Surface Frames………………………………………...34
Equipment for Living…………………………………………………. 35
Cognitive Linguistics…………………………………………………..36
Rhetorical Awareness………………………………………………….38
Frame Types: Detoxification, Definitional and Metaphoric…………..41
Chapter Four: Pragmatics of Reframing………………………………………………47
Engagement, Deconstruction and Construction………………………..49
Discourse Theory……………………………………………………….51
Double Listening……………………………………………………….53
Positions to Interests…………………………………………………. .57
Chapter Five: Mediation as Framing…………………………………………………..61
Privatization of Justice………………………………………………….63
Basic Justice Frames (M.I.R.P.)………………………………………..67
Alternative Frames of Mediation, Legal, Social, Economic, Therapy…68
Basic Conflict Frames…………………………………………………..71
References…………………………………………………………………………...….73
Abstract
Today, mediation exists as an alternative to litigation and the court system. However, there are conceptual roadblocks that hamper its extension and usefulness. For many, mediation remains tied to the legal tradition from which it is distinguished as an alternative. Often combined with legalistic abuses of mediation for discovery and strategic delay are those who see mediation as a mere game to be played for financial gain or leverage. Opposed to these are the ambitions of social activists and the therapeutically inclined practitioners who see in mediation an opportunity for social and personal transformation. In this paper, legal, economic, political and therapeutic paradigms for explaining mediation and mediation pedagogy are rejected- for the bias they impart- in favor of a more communications-centered approach. Key concepts for examination include neutrality, agenda-setting, and framing.
Preface
Mediating The Straightjacket of Reason
“Look around. manufacturing is contracting, wages are stagnant, good paying jobs have headed overseas, unemployment is rising, and the middle class has shrunk every year since Bush took office. Is this the miracle of the "Washington consensus" and neoliberalism?”
-Mike Whitney (http://www.counterpunch.org/whitney10062008.html)
Neo-liberalism sounds like a topic for journalists and political analysts and might seem far afield from the daily concerns of mediators engaged in alternative conflict resolution. But it is precisely neo-liberal assumptions about human nature and behavior that limit the usefulness of academic and professional explanations of how mediation works. The persistence of the neo-liberal worldview makes it difficult to recognize what is truly alternative about mediation and how mediation differs significantly from litigation. By encouraging blindness to what is unique about mediation as a communication situation, neo-liberalism actively retards the ability of mediation to relieve our overburdened and antiquated relic of a legal system.
In order to understand why I urge that mediation should be “reframed” requires that conflict resolution be considered in its specific aspect as a communicative performance or ‘event’. It is important to ask how we understand the reasoning that underlies conflict negotiation. Unfortunately neoliberalism implicitly advocates “…the Old Enlightenment view of reason [as] conscious, logical, literal, universal, unemotional, disembodied, with the function of serving interests, own’s own or those of others” (p.51) Such a view of rationality completely skews how mediation is described in theory, which, in turn, fouls how mediation is studied by researchers. What is worse is that such faith in universal reason actively inhibits how mediation is taught and practiced in this country.
It is imperative to develop methods and techniques for mediation training that acknowledge the rhetorical qualities of how people actually understand themselves and one another in order to grapple with the world around them. My goal is to utilize the resources of communication theory and rhetorical criticism to challenge the flawed assumptions of neo-liberal social thought as well as move beyond these errors and to point the way toward more sane and effective practices for teaching and practicing mediation.
The rhetorical tradition certainly has a history much longer than the rise of neo-liberal thinking during the last twenty years of American (US) history. Yet since rhetorical studies have often taken their cues and training tips from the legal and political professions, there are still those who advocate the more rationalistic orientation of Enlightenment philosophies of language – especially in matters of law and politics. Nonetheless, the rhetor’s classical preoccupation with making speeches has always inclined most of those with a rhetorical mindset to see language as a tool rather than a merely transparent medium for the exercise of rationality. Thankfully - in my view - this pragmatic streak imparts a healthier and more practical component to the rhetorical vison.
For Aristotle, language was primarily a tool for effecting persuasion through logic. (Brandt, 1970) Since the Renaissance, this view has been challenged by humanist scholars. (Herrick, 2005) Helping to inaugurate the 2oth century ‘revival’ of rhetoric in the U.S., the landmark studies of Kenneth Burke cautioned that persuasion is not merely a deductive chaining of reasons. Instead, with detailed readings of cultural artifacts from his day, Burke advanced an alternative vision of how language stimulates the imagination to participate in various forms and patterns of audience identification. (Burke, 1945,1965) Aristotle’s view of rhetoric as rational persuasion is attractive for those whose views on conflict management lean toward the certainty of legislation and the iron precedence of law. On the other hand, Burke’s expanded view of rhetorical persuasion has proven to be much more useful for understanding the ‘soft logics’ of communicative rationality and dialog that specifically inform the mediation process.
George Lakoff, a prominent cognitive linguist at the University of California’s Berkeley campus has perhaps done the most in recent years to keep a Burkean sense for rhetoric active in public discourse. Lakoff has been deeply involved in advising the leadership of Democratic Party in the arts of rhetoric: of metaphor and poetics, the role of narratives in the understanding of complex propositions and importance of issue framing in public understandings of political policy. (Lakoff, 2007) The power of these elements of rhetoric lies in what Lakoff describes, from the standpoint of his discipline, as the cognitive unconscious; the name he gives to how language implicitly constructs reality by guiding both perceptions and descriptions of experience. (Lakoff, 2008,p.15)
The alternatives recommended by Lakoff and his fellow cognitive scientists are similar to those that have been proposed by communication scholars for several decades now. Some of these alternatives in communication research include Walter Fisher’s narrative paradigm, the rhetorical analysis of metaphor and more sociological analyses of media framing and agenda setting. A thread of consensus can be drawn however, through these divergent approaches to language. For Lakoff, such a thread can be summarized by the fact that: “The neo-liberal failure to understand how brains and minds really work hides ideas and moral principles…” (Lakoff, 2008,p.56) To understand what people seek when they accept or reject the invitation to mediation requires a deeper investigation of how disagreement is framed, of how justice is narrated and how metaphors inform the worldviews that clash when individuals end up in conflict.
Because the neo-liberal worldview leads people to believe that thinking must be both literal and logical, “…they cannot make sense of the reality that people can simultaneously have two inconsistent worldviews and use them in different areas of life without even noticing.” Such ‘bi-conceptualism’ is important for conflict negotiation because it indicates important resources the mediator can explore to assist in negotiating dispute. According to Lakoff, the straightjacket of the neo-liberal worldview is that reasoning is held to be universal with only one rational ‘mode of thought’. This leads to massive misunderstandings of how dialog actively functions in the conflict situation: “Anyone who argues against you must either be mistaken (in need of the facts), irrational (needing to have their reasoning corrected), or downright immoral” (pp. 58-9) There are strong reasons to believe that such pigeon-holing of how disagreement works is anathema to the success of the mediation process.
Finally, we come to the greatest challenge: how to persuade those who are primed to disagree with all viewpoints not endorsed by neo-liberalism? Brain research in cognitive psychology and linguistics has amply demonstrated that we all live richly rhetorical lives where our worldviews are unconsciously oriented by categories and frames, metaphors and narratives, images and emotions. But the problem is that neo-liberal ideology is exactly one such worldview. Moreover, it is the broadly mainstream, ‘hegemonic’ worldview shared by both political parties in the U.S. today. (Benn-Micheals, New Left Review 52, July-August 2008)
One cannot simply challenge such a dominant worldview merely by presenting the facts. This is because, as Lakoff notes, “…neo-liberal thought cannot even recognize its own framing as framing” (Lakoff, 2008, p.56) But not only ardent neo-liberals are blinded by the light of the sheer dominance of their ideology. Lakoff reminds us to be realistic: “Overcoming misleading metaphors that are physically in your brain, is never easy.” (p. 47) For the majority today, the persistent metaphors that frame reality are those of the neo-liberal consensus.
For these reasons, it is all the more urgent to build upon the activities of those who have taken their research and practice of mediation “outside the box” of the rationalistic view of conflict and have then, both in theory and practice, ‘deconstructed’ that most sacred cow of the mediation ‘tool-kit’: the myth of mediator neutrality. It is here that we can begin to build upon and expand the resources needed to create the ‘conflict-positive’ society of tomorrow. I have profited greatly by locating some of these resources in works by authors such as Bernard Mayer, Winslade and Monk, Dean Pruitt, Barbara Gray, Cobb and Rifkin and the collected studies in The Blackwell Handbook on Mediation.
Chapter One
Neutrality In Meditation
“…the existing rhetoric about neutrality does not promote reflective critical examination of the discursive processes…. Mediators talk about neutrality as an internal attribute of self that they either possess or lose. That being the case, mediators naturally attend to psychological processes and are not trained to track discourse processes.”
-Sara Cobb and Jane Rifkin “Practice and Paradox”
How does mediation facilitate dispute resolution? What makes mediation different from litigation and the legal process in general? Explanations of the efficacy of the mediation, most commonly begin by focusing on the presumed neutrality of the mediator. Cobb and Rifkin (1991) point to the centrality of this concept in mediation discourse. They note that mediator ‘neutrality’ is widely assumed to create a kind of antidote to personal bias. The tendency is to assume that the neutrality of a third party is the key ingredient for communication where “grievances can be voiced, claims to justice made, and agreements mutually constructed.” (p.35) Without denying that these conditions might possibly contribute to a successful mediation, how mediators use this presumed neutrality to facilitate dispute resolution constitutes a major controversy in communication research on the mediation process. (Mayer, 2004; Winslade and Monk, 2008, Cobb and Rifkin 1991)
The place to begin when developing a more effective mediation pedagogy is to check the relation between explanatory concepts and basic practices. First we should inquire what neutrality actually means in mediation discourse. It is striking to note that there is no empirical research which documents the actual practice of neutrality in mediation sessions. (Cobb and Rifkin, p.36) Are we certain that this term has a single and clear meaning for the variety of ways it is used?
‘Neutrality’ is often used as a kind of liberal mantra - often invoked yet weakly understood. This could be because the idea of being ‘neutral’ rings a bell in the democratic landscape of American political culture or because the idea of being ‘neutral’ sounds clinically antiseptic and value-free in a scientific kind of way… but for whatever reason, ‘neutrality’ became the catchword in mainstream American mediation handbooks and training literature for describing what is unique about mediation and what gives efficacy to dispute resolution. ( Lovenheim, 1989; Fisher and Ury 1981; Moore, 2003)
On the one hand, neutrality seems to refer to the idea of an “even playing field” where an ideal of fairness based on an equality of forces is upheld. This ideal borrows from the Euro-American legal and political heritage which puts an ideological premium on the procedural equality and the proclaimed ‘disinterestedness’ of justice. (Cobb and Rifkin, p.82) Within this tradition – and in the context of mediation - the notion of neutrality can be taken to mean two things. In the first, it is deemed necessary that the mediator be entirely free of bias and opinion regarding both the nature of the dispute and the character of the disputants. In a second, but related interpretation, the ‘disinterest’ of the mediator hinges on maintaining an entirely passive attitude or ambivalence toward the possible outcomes of the resolution.
It is interesting to map these understandings of neutrality in mediation discourse onto Aristotle’s artistic proofs of logos, ethos and pathos. When the logos or reasoning that informs the mediation situation is in question, we are directed to guide our thinking with goals of equality and fairness to promote the proverbial ‘even playing field’. When the mediator’s ethos comes into focus, neutrality requires the mediator’s character to be perfectly bland and free of personal dispositions -- as well as not harboring any certain opinions nor undue bias regarding the dispute under consideration. Finally, the perfect blandness of neutrality is outfitted with a necessary ambivalence about outcomes that is considered the key emotional projection or pathos of the ideal mediator.
a sheen of overall objectivity - if not a generous dollop of right holy purity - to the mediator’s role in the mediation process. Who wouldn’t When stated this way - as constraints on the human actors engaged in the communication acts of mediation - we can see that the burdens of the concept of neutrality seem almost impossible for any actual person to fully embody. Whenever behavior is judged by an impossible to achieve standard like this, one wonders whether ‘neutrality’ might be yet another ideal (like audio fidelity or patriotic commitment) that distracts people from taking seriously the practical ‘nuts and bolts’ of the actual communicative exchanges taking place in a mediation context. Another possible reason the concept is so over-emphasized is that mediators are often at a loss for how to claim authority for themselves and by claiming to be ‘neutral’ they hope to add want to believe that they improve the world, by adding nothing, showing only restraint, pledging utter non-interference and holding oneself out as politely passive facilitator of the good ?