Transformative mediation: is it possible in a numbers game?

Abstract

Government programs advancing mediation to resolve disputes as an alternative to more formal and adversarial processes have become the norm across Canada. Beyond focusing on efficiency measures such as cost, timeliness, and outcome to define success, these programs also implicitly pursue cultural and systemic transformation, goals that are less tangible and more difficult to measure. These non-efficiency goals are worthy of attention when considering the unique opportunity mediation provides; however, there is concern whether mediators practicing in these programs understand the different styles and approaches needed to support such goals. Since the early piloting and adoption of government mediation programs, an abundance of opinions, theories and debates surrounding the ideal style and approach have created a dichotomous teaching, learning and practicing environment. The focus of the debates mainly concerns the more commonly referenced styles and approaches: facilitative, evaluative, and transformative. Discourse from the debates has created confusion about the application of these theoretical styles and approaches at best and the complete avoidance of them at worst. Through a qualitative analysis of interviews with 15 mediators from Manitoba, Ontario, and Saskatchewan practicing within the civil litigation system or analogous administrative law programs, this study aimed to uncover how mediators understand the styles and approaches. Further, drawing from stories shared by the mediator participants, this research explores additional synthesis and discourse between what these mediators value and the style and approach they claim to practice. The results of this exploratory study uncovered two interconnected findings illuminating the tension between theory and practice.