Thanks To The Mediate-com.
|by Barbara Wilson This article was first published at Caribbeanlawdigestonline.com.
Reframing is often considered a core technique in mediation. Moore defines reframing as redefining or interpreting to make problem solving more feasible and the communication more acceptable to the receiving party (214).
Reframing has a long history in structural and other forms of family therapy. Colapinto (14) asserts that “the consultant is feeding into the system his own reading of an on-going transaction…reframing is based on an underlying attitude on the part of the therapist” (14). Writing of conflict, Mayer argues “…our choice of when to intervene and about what will be guided by our view of the substantive issues” (136).
Reframing thus takes us far from a merely process-oriented view of mediation practice (Stack 37), and undermines claims of a neo-liberal concept of mediator impartiality and neutrality. Despite being an accepted means of effecting therapeutic change, reframing does not sit easily with the ADR field’s cherished ideal that mediators should hold a disinterested role.
In this brief piece I argue that it is time to revisit some of the existing critiques of mediation.
I look again at the function of reframing, question whether it still warrants the essentialism attributed to it in practice, and explore some alternative strategies. I also argue that, as a consequence of contemporary manoeuvring by the state and the media, disputants may perceive reframing in mediation as a form of “spin”, defined by the Oxford Dictionary as “the presentation of information in a particular way; a slant, especially a favourable one”.
Because news is instantaneously disseminated worldwide by numerous agencies and social networks, it is increasingly difficult to establish the reliability of what one hears and reads. This has inevitably given rise to a degree of public scepticism and doubt. Although such scepticism is not always warranted, people may be justifiably cynical about at least some of the messages they receive. In this sensitised environment, spin and reframing can appear very much the same to those on the receiving end.
It is impossible to consider framing, reframing and spin without mentioning the vexed issues of mediator neutrality and impartiality. There is a longstanding literature on these topics which is too extensive to discuss here, except to note that mediators’ reframing inevitably involves perspective-taking – even temporarily – in the interests of attempting to assist the parties. However, framing and reframing are not innocent or value-free activities, nor are they neutral or impartial in the conventional sense of those terms (Stack 14).
Framing, reframing, spin, and mediation:
Lakoff argues that language implicitly constructs reality by guiding both perceptions and descriptions of experience, thus creating what he terms the cognitive unconscious (15). According to Entman (52), to frame is to select some aspects of a perceived reality and make them more salient in a communicating text (echoing Moore’s definition cited above). Stack (26), citing Fisher, reminds us of some of the sources of the framing interventions which mediators use (although not necessarily with awareness as to their origins): these origins include the work of Gregory Bateson, Erving Goffman, literary theorist Edmund Burke, and others.
Stack further points out that most mediators share a basic worldview because they are similarly interested in promoting certain frames for understanding conflict and negotiation (22). This communal worldview not only influences why and how mediators intervene, but determines the concept of mediation itself, especially in the global north.
According to Dewulf et al, divergent framing theories have resulted in conceptual confusion in conflict research (155). The authors review six approaches to understanding ‘frames’, including cognitive representations (“surface evidence that reveals underlying structures of the participants’ cognitions”), or interactional co-constructions (“the co-constructions of issues, identities and interactions that are negotiated in the talk”) (76-177, emphases added). They propose that methods directed at changing people’s minds represent a different logic from those aimed at re-aligning differences between people through an interaction process (185).
Advice abounds on how to spin material – for example, a resumé can be spun when applying for jobs in the hope that this will improve one’s chance of being selected (DeChasare; Adams). Political spin doctors are notorious for burying potentially unpalatable news under cover of major events, including tragedies such as terrorist attacks or other disasters (Sparrow).
Strategies such as tactically worded press releases, or other official announcements, are everyday examples of spin in our media-savvy times. Arguably there is sometimes little difference between reframing and spin, although the intentionality behind spin and a mediator’s reframing is significantly different, at least in principle. If properly used in mediation, reframing should be based on an ethically sound intention to assist the disputants, rather than to dissemble or mislead anyone.
Reframing and mutual influence
Dewulf et al (186) describe a construct in the ADR literature, which they term realist-objectivist. This construct treats issues, relationships and interactions as part of external reality, and thus available for careful observation by the neutral observer. This interpretation of conflict management forms the basis of most codes of practice, and positions mediators as neutral, impartial, and above the fray.
However, as Benjamin, Mayer, and numerous other critics have observed, mediators are not neutral or disengaged. They have responsibilities and duties to discharge, are proactive in helping the parties to negotiate, and are themselves intrinsic to the process. To deny mediators’ agency is not honest, nor helpful to the parties.
It is also important to recognise that reframing is not the mediator’s sole prerogative, or an exclusive ‘doing unto’ by practitioners – as if the parties were somehow simply objects to be manipulated (Bodtker & Jameson; Duffy 57).
The disputants themselves also use reframing, seeking to influence each other, the mediator, the mediation process and negotiation outcome. Awareness of this phenomenon recasts mediation as a site of mutual influence, where the parties’ positions, needs and wants emerge and evolve in an unfolding dynamic. Mediators must therefore manage more than the disputants’ conflicts of interest and differing perspectives; they must also be aware of their own influence and, conversely, the impact of the parties on them within the process. Despite the highly problematic nature of these interactions, reframing remains enshrined as a supposed key element of mediation practice.
Codes of practice, mediator interventions, and the questionable nature of reframing:
Returning to my own jurisdiction (England and Wales), family mediators seeking to work with legally aided clients here must first prove their competence by submitting a portfolio for approval by the Family Mediation Council (FMC). Portfolios must include case commentaries evidencing a candidate’s skills, amongst which the understanding and appropriate use of reframing are deemed essential (FMC portfolio checklist B6). This insistence on reframing begs two questions.
First, what is meant by the demand that candidates should “understand” reframing? Secondly, how should mediators determine the circumstances in which reframing is appropriate? Sometimes reframing may be a useful intervention; however, unless mediators understand the fundamentally problematic nature of reframing, how are they to decide when – or if – to use this technique appropriately in their work?
Mediator training courses do not appear to satisfactorily address this issue, as their primary focus is for trainees to acquire the ubiquitous tool-box skill-set, rather than the ability to critique the theoretical constructs underpinning practice. To insist that aspirant mediators must demonstrate their ability to reframe sets a standard that may well not be achievable, or even desirable.
The FMC Code of Practice uncritically adopts the position that mediators are disinterestedly distant. However, the same Code also mandates mediators to make protective interventions if considered necessary. Thus, the requirement for mediator impartiality in sub-section 5.4.1 is followed immediately by sub-section 5.4.2, which insists that mediators are responsible for addressing any power imbalances between the parties. These sequential, conflicting, injunctions border on schizoid: in the first section they attempt to establish realist-objectivism despite, in the next paragraph, enjoining mediators to intervene on behalf of any party perceived as weaker.
The Code seems to have been drafted without any comprehension that a mediator who decides to intervene because of a perceived power imbalance must already have formed the view that such action is justified. This means that the mediator’s decision cannot have been either neutral or impartial, at least at that point.
Conclusions – concerns and suggestions:
The transparent use of reframing may sometimes be helpful, but should be exercised with caution. Any reframing should demonstrate respect for the parties’ autonomy and awareness, be used with their knowledge and consent, and should recognise that mediation is a mutually influential process. Applied on this basis, reframing is much more likely to be appropriate; however, even then, much will depend on the nature of the conflict, and the parties in question.
I believe that disputants are now much more likely to be sensitive to reframing interventions, even if undertaken with benign intentions. It is reasonable to suppose that the parties might perceive reframes as strategies designed to shift them from their current positions or views, using methods very much akin to those they have already come to distrust, i.e. the more notorious features of spin. I therefore contend that reframing is often contraindicated in contemporary practice. This is especially true if mediators do not make it abundantly clear to the parties that they are using reframing, and why.
Codes of practice/conduct should be overhauled so as to convey a much more accurate account of the mediator’s role. They should no longer adopt an untenable realist-objectivist position, but instead reflect the critiques of neutrality and impartiality as advanced by the authorities mentioned above (and many other commentators)
This means that those codes in question should be much more nuanced, and not self-contradictory. Because claims that mediators are neutral and impartial are in any case countermanded by injunctions that they must take protective action when considered necessary, disputants should be expressly informed in advance that the mediator will frame their conflict from the perspective of the child (where relevant), or any adult perceived less powerful. This, of course, begs the question of who is best placed to determine what is in a child’s best interests.
It also assumes that power imbalances between adults are static (which is not always the case), and that it is permissible and safe to discuss the mediator’s perceptions of the parties’ power differentials – even though these might sometimes be misjudged by the practitioner.
Redrafted codes of conduct would ideally reflect how some experienced mediators are already positioning themselves. For example, Davies describes having removed the term “neutral” from his marketing literature, instead describing his role as omnipartial (a term he attributes to Cloke). I no longer introduce myself as neutral or impartial, but explain that I shall try to help the parties in as balanced a way as possible. I also invite them to comment if they think I am failing to do so.
This means that a person who already appears (or feels) disempowered should feel able to speak up if they find the process is, or becomes, unbalanced: as the mediator, I remain responsible for trying to ensure that everyone is dealt with fairly. Even then, it is impossible to be entirely either neutral or impartial in pursuit of this goal, although I can try hard to be operationally neutral (Goldberg 410) – assuming this position is actually feasible, especially when mediating within the context of overarching legislation.
Lastly, and to return to the assessment of mediator competence here, I argue that it is misguided to insist that reframing still constitutes an essential element of practitioner competence. Useful though reframing may be, it should no longer be deemed a core skill since, as argued above, reframing and spin may be indistinguishable for the disputants. The field should have the courage and will to revisit the concept of reframing, even though this would inevitably mean changing some aspects of how practitioners are trained. We should not continue with a discredited account of mediation, even though this would mean changing the contents of training courses, altering competence assessment criteria and working practices and – ultimately – revising our rhetoric about how we think and act.
Adams, Katie. Revamp Your Resume: The Power of Positive Spin. Forbes. 19 Mar. 2010. Web. 21 Jan. 2014.
Benjamin, Robert. A Critique of Mediation, Challenging Misconceptions, Assessing Risks, And Weighing The Advantages. Apr 1999. mediate.com. Web. 22 Apr. 2014.
Bodtker, Andrea. M. & Jessica K. Jameson. Mediation as Mutual Influence: Re-examining the Use of Framing and Reframing. Mediation Quarterly. 14.3 (1997): 237–249. Web. 22 Apr. 2014.
Cloke, Kenneth. Mediating Dangerously: The Frontiers of Conflict Resolution. California: Jossey-Bass, 2001. Print.
Colapinto, Jorge. Structural Family Therapy. n.p. www.Colapinto.com 1982. Web. 22 Apr. 2014.
Davies, Aled W. Neutrality is an unattainable ideal and should be abandoned. 4th CIArb Mediation Symposium. 14 Oct. 2011. Paper.
DeChasare, Brian. How to Spin and BS Your Way to Success in Investment Banking. Mergers & Acquisitions. n.d. Web. 31 Jan. 2014.
Dewulf, Art. Barbara Gray, Linda Putnam, Roy Lewicki, Noelle Aarts, Rene Bouwen and Cees van Woerkum. Disentangling approaches to framing in conflict and negotiation research: ?A meta-paradigmatic perspective. Human Relations. 6.2 (2009): 155-193. Web. 22 Jan. 2014.
Duffy, James. Empathy, Neutrality and Emotional Intelligence. A Balancing Act for the Emotional Einstein. Queensland University of Technology Law and Justice Journal. 10 (2010): 44-61. Web. 22 Jan. 2014.
Entman, Robert. M. Towards Clarification of a Fractured Paradigm. Journal of Communication, 43.4 (1993): 51-58. Web. 22 Jan. 2014.
Family Mediation Council. Code of Practice for Family Mediators n.d. Web. 14 May 2014.
Family Mediation Council. Portfolio Template n.d. Web. 14 May 2014.
Fisher, Kimberly. Locating Frames in the Discursive Universe. Sociological Research Online. (1997). Web. 22 Jan. 2014.
Goldberg, Rachel M. How our worldviews shape our practice. Conflict Resolution Quarterly. 26.4. (2009): 405-431. Web. 22 Jan. 2014.
Lakoff, George. The Political Mind: Why You Can’t Understand 21st Century Politics with an 18th Century Brain. Penguin Press: New York. 2008. Print.
Mayer, Bernard. Beyond Neutrality Confronting the Crisis in Conflict Resolution. San Francisco: Jossey-Bass. 2004. Print.
Moore, Christopher. W. Mediator Communication and Influence in Conflict Management Interventions A Practitioner’s Reflection on Theory and Practice. New Directions in Mediation Communication Research and Perspectives. Eds. Joseph. P. Folger & Tricia. S. Jones. Thousand Oaks, California: Sage Publications Inc. 1994: 209-221. Print.
Oxford Dictionary. n.d. Web. 13 Mar. 2014.
Sparrow, Andrew. “Sept 11: ‘a good day to bury bad news’”. The Telegraph. 9 Oct. 2001. Web. 22nd Jan. 2014.
Stack, Charles P. Reframing Mediation: Rhetorical Awareness in Mediation Training Pedagogy. 11 Dec. 2008. Web. 22 Jan. 2014.
Barbara Wilson, PhD CQSW, MSc, MCFM is an independent family and workplace mediator, and has been in practice since 1990. She mediates in the south of England, including London, and is published in the UK, USA, Denmark and Australia, where she is also Accredited with LEADR. She is a visiting scholar at the Faculty of Law, University of Strathclyde, where she teaches gender issues on the LLM/MSc/PgDip/PgCert Courses in Mediation and Conflict Resolution. She is also a Family Mediation Council Competence Assessor and a Freeman of the Worshipful Company of Arbitrators. Barbara taught on MSc and Graduate Certificate ADR courses previously run by the Institute of Family Therapy (partnered with Birkbeck College, University of London).
She has presented at international conferences and workshops in Australia, Denmark, Eire, New Zealand, Scotland and the US, and co-facilitates an advanced international mediation workshop run annually in Tuscany, Italy with Greg Rooney and Margaret Ross of Adelaide, South Australia. She is also a professional practice consultant (PPC) in private practice, and supports a number of experienced mediators and other professionals working with conflict. Her academic interests include applied ADR theory, ethics, and the development of mediator expertise. Barbara welcomes contact at email@example.com