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Cohen, Richard; Winslade, John --- "Narrative Mediation" [1995] WkoLawRw 5; (1995) 3 Waikato Law Review 83

NARRATIVE MEDIATION:

WAIKATO MEDIATION SERVICE'S ANSWER TO COMMUNITYCONCERNS, THEORETICAL SHIFTS AND PRACTICE DEMANDS

BY JOHN WINSLADE[*] AND RICHARD COHEN [**]

I. INTRODUCTION

There is a growing recognition of the range of circumstances which call for mediation. In New Zealand, mediation is established by statute in situations such as landlord/tenant disputes, family court separation and custody matters, human rights violations, environmental and planning disputes, small claims disputes, and employment grievance and contract interpretation situations.[1] There is growing community interest in restorative justice[2] and in mediation as methods of choice for resolving a range of conflicts in the community, whether they involve individuals, businesses and their customers, employers and employees, professionals and their clients, or officials and the public. In some ways this heightened interest is not surprising. Common sense and ordinary experience suggest that sitting down and talking about differences so as to sort them out is worth trying.

It was with this climate in mind that a group of interested people from a variety of professional backgrounds began meeting and planning a mediation service for the Waikato. The result was the eventual formation of Waikato Mediation Services. We are a mix of academics, lawyers, counsellors, psychologists, probation officers and other professionals with a wide range of mediation and facilitation experience. We wanted to understand better the needs of the community with regard to mediation services. We also wanted to assure ourselves that whatever process we designed would include as wide a sampling of community interests as possible. We all agreed that empowerment was to be a general goal of any process we designed and as such it was essential to consult with prospective users. To determine these interests and needs we sent out an initial questionnaire to individuals whom we believed would be interested in mediation services. We followed up this questionnaire with a summary of the comments received and from this posed another round of questions from which we again received responses. It was from this process that we formed our specific goals and began to set our course.

The questionnaire asked a specific question about the philosophy or purposes which respondents saw as important for a community mediation service. In answer to this question, interested people in the community in which we were planning to work offered the following responses. Respondents stressed their wish for a mediation service to be empowering through giving responsibility for solving problems back to the community. They wanted a bicultural emphasis in the service from the start. They wanted a public education role to be prominent in the service's functions and they wanted this to reflect a concern with alternatives to violence and to adversarial processes of dispute resolution. They wanted the service to draw on the contributions of a variety of disciplinary traditions (such as law, counselling, psychology and community corrections). They wanted to promote alternatives to the justice system. These wishes were then fed back to all who had participated, and those with an interest in making these concepts materialise into a service began to meet regularly through 1994 with these aims in mind.

II. THE PROBLEM-SOLVING TRADITION

We were beginning with the awareness that a range of societal problems had been stimulating mediators and negotiators during the period of the mid-seventies, the eighties and the nineties to work at describing creative ways to facilitate conflict resolution. The key effort seemed to be to shift disputing parties away from win-lose competitive outcomes to win-win cooperative outcomes. Thanks to the pioneering work of Mary Parker Follett,[3] and the practical and influential work of Fisher and Ury[4] and the Program on Negotiation at Harvard Law School,[5] much progress in developing mediation methods was achieved in a short period of time. Problem-solving mediation was seen as a kinder, gentler process, one that was sensitive to all parties' needs and one that sought outcomes primarily through dialogue rather than argumentation.

The theoretical basis of problem-solving mediation has always been rather sketchy. Perhaps the major theoretical construct was and is that of neutrality. That is, the mediator's role is characterised as being neutral and impartial. This idea grew out of the neutral and impartial role of the judge. In order to distance the mediator from the judge a process of integrative or principled negotiation was developed. This involved focusing on interests rather than positions, separating the people from the problems, inventing options for mutual gain and insisting on objective criteria.[6] By following these steps negotiators and mediators were able to assist parties to resolve their own problems. Although emotions and other issues were discussed, the focus was always on “the problem” presented and it was this problem that needed resolution.

Part of the problem-solving focus of mediation has been an emphasis on needs fulfillment of the parties. Needs theory draws upon ideas in the fields of humanistic psychology and applied social psychology.[7] Needs theory suggests that everyone is primarily motivated by having his or her individual needs met. We believe this heavy reliance on individualism to be too narrow a focus and inconsistent with perhaps our greater responsibility to recognise our interconnectedness and mutual obligations.

Along with progress in developing mediation came doubts and criticism. Power always remained problematic. We were aware that by continuing to focus on “the problem” we were risking the perpetuation of old discourses, a kind of instrumentalism which we were sensitive to and conscious not to perpetuate.[8] For example in custody cases, if we focussed on the primary discourse of “the best interest of the child”, we were in danger of overlooking how the child's interests had become interwoven or sited within the parents' interests and those of extended families and communities in general.

Another concern was that mediation was seen to be disadvantageous at times for women since the power imbalances favour men so much that neutral mediators simply end up validating these imbalances. Further, the emphasis in mediation practice on confidentiality was seen by some as a process that lacked accountability and was subject to mediator dominance and due process or natural justice demands that everyone have their “day in court”.[9] Mediation was seen to be secretive and not open to public scrutiny and, particularly where violence is involved, subject to abuse.[10] We were also aware of the monocultural nature of the problem-solving model as well as cultural biases implicit therein.[11] Again, the individual and the individual's problems were made the primary focus, with little consideration of the connections between individuals and the social contexts that constrain them.

The group of us who were interested in developing Waikato Mediation Services were aware of these criticisms and did not want to ignore them. Indeed we wanted to take seriously the issues raised in relation to the standard approaches to mediation. The time seemed right for some fresh thinking about mediation practice. Since we were in the process of establishing a new service we felt that we were in a good place to try to develop some new practices which were not tied to conventional ways of working. We began to search for a new method. Moreover, it became clear that we would have to train ourselves in a consistent approach to mediation if we were to become a coherent and credible service. And if we were setting out to train ourselves in a new method, we could not rely on training imported from other ways of practising that might be available. We made a decision to work from the beginning to establish our own style of mediation, our own models of practice, and our own methods of training.

III. THE THIRD WAVE: THE NARRATIVE APPROACH[12]

In developing a new method, we were not starting from a position that resembled a vacuum. We were aware of some new developments in the mediation field. If win-lose approaches to conflict resolution can be classified as the first wave of disputing, and win-win problem-solving can be classified as the second wave, then close on the crest of the second wave we could see emerging the third wave. The third wave can be characterised as moving beyond problem-solving. Third wavers are concerned with how conflict is constructed and what stories people tell about themselves and how they come to dwell upon these stories or situate themselves within these stories. Problems may be solved but only after a deeper reflective understanding has been achieved. For example, in an extended family conflict over the selling of a jointly purchased home, problem-solving mediation would focus on “the problem” of how to divide up the property in a fair and equitable manner, using some objective standards of fairness. From a third wave or narrative approach, discussion first focuses upon non-conflict saturated family stories, drawing upon the rich mosaic of lived experience of the various family members. Examples of situations in which the family members were able either individually or collectively to protest against conflict in the past would be emphasised and we would reaffirm each party's competency and ability to get beyond conflict.

1. The narrative metaphor

Our ideas about narrative approaches to mediation had been maturing over recent years. On a study tour in the United States in 1994, I (Richard) had met a number of people who were thinking about mediation from a narrative perspective.[13] I had also been teaching negotiation and mediation practice from a narrative perspective as part of a required third year law course in Dispute Resolution at the Waikato Law School for the past two years. My ideas in this regard had been evolving over the past five years. We also had a number of people in the group who had encountered narrative thinking in the context of counselling. Moreover, the counsellor education programme at Waikato University in which I (John) am involved had made a strong commitment to developing a training programme for counsellors based on the narrative ideas that have developed in family therapy. These ideas have been most strongly identified with two people from Australasia: Michael White in Adelaide and David Epston in Auckland.[14] The group as a whole felt encouraged by what they heard from these two directions to explore an approach to mediation that was informed by the narrative metaphor. We wanted to demonstrate how this metaphor could be materialised.

2. Philosophical shifts

We were also aware that the shifts in practice and method that we were contemplating were heralded by some wider movements in the world of ideas. When each of us came to teach at Waikato University (Richard in 1990 and John in 1993) some of our colleagues introduced us to the idea that a theoretical shift in thought was emerging in many fields of inquiry - a shift from the Modern to the Postmodern. I (Richard) remember doing a library catalogue search for book titles under “Postmodernism”. In 1990 I found no titles under that subject heading. At the time of writing this article (August 1995) the library catalogue lists 143 books.

That development has been described in Kuhn's[15] terms as a paradigm shift of some magnitude, especially in the social sciences. It is having a fundamental impact on how we see our place in the universe. Some of the ideas that impressed us include the following. Postmodernism was and is attempting to shift thinking from reliance upon the grand narratives or meta-narratives that explain things in terms of systems or scientific certainty, to an emphasis upon understanding the various discourses both historical and present within which knowledge is constructed and perpetuated. The phrase “no essences only discourses”[16] captures this concept. Knowledge (with a capital K) is giving way to a raft of knowledges (written with a lower case k) which are in contest for legitimacy. Akin to this is the idea that everything, all knowledge, meaning, emotions and even ways of being, like male and female, are socially constructed. We saw this type of thinking as multi-contextual and a way of accommodating diversity without heavy reliance on universalist thinking, with all of its exclusionary repercussions.

For mediation, the implications are that the process is not aimed at the discovery of the verifiable truth of conflict and the arrival of solutions based on the application of reason in the situation. Rather, it is aimed at finding ways forward in situations where different truths are in contest. If the hallmark of the era of Enlightenment, the Modern era, was Descartes' statement, “I think therefore I am”, with its emphasis on reason and individual identity as the building blocks of knowledge, then we might reframe Descartes’ statement in the Postmodern era as “we relate, therefore we become”. This is a shift from a discoverable and fixed rational reality to an indeterminate and relational reality, one that is contingent and malleable. By de-emphasising individualism in favour of a relational reality, we are returning to some aspects of the pre-modern era. Tribal peoples, then and now, tend to view themselves from a relational perspective.[17] Thus, instead of the mediator(s) trying to stand outside time and space in some sort of objective reality, the mediator(s) and the parties become interdependent parts of both the construction of the process as well as the unravelling of the conflict.

Another aspect of postmodernism that we consider relevant is the understanding that all of human knowledge is multi-contextual. We are never free from history or culture but are the products of it as we produce it. All of our understanding is the product of a particular historical moment and the particular discourses at work on us at that given moment. So, when Descartes said “I think therefore I am”, he was speaking from within the historical context in which the church with its transcendental explanations dominated Western culture. The rational self and the understanding of various rationally knowable systems or structures became the new foundationalism replacing the dominance of ecclesiastical thought, that is, reason replaced faith. This historical understanding helped us move beyond a kind of pragmatic dependence on reason as represented in the problem-solving models to a narrative model which allowed us to see how reason has been constructed. We learned to ask the question: “Whose reason and what standards of reason are to be followed?”

As mediators we are no longer limited by categories constructed by the dominant culture. This move from monoculturalism to biculturalism or multiculturalism enables us to construct processes that do not exclude the “outsider”, and lets us construct standards that are eclectic and elicited from all the parties. There are limits: there remains a moral, ethical, pragmatic or legal backdrop. But the backdrop is just that, the backdrop, not the standard, and is always subject to negotiation.

A key tool of postmodernism is the process of deconstruction.[18] Deconstruction is a process that enables us to look behind the presented conflict, to make “visible that which is invisible”.[19] It is a process that challenges the parties to reflect upon how they have constructed conflict or how conflict has been constructed.[20] Where critique dismantles processes and leaves the parties naked, deconstruction examines those discourses in which people are sited and site themselves with the goal of bringing a richer, fuller meaning to their lives. Deconstruction “is not a bombsite”.[21] We saw no need to give up all prior knowledge. Prior knowledge is always subjective: we can never objectively know the universe but can recognise that what we know or understand is a product of a particular historical moment, a moment in time that will never exist again. The key is that there is no need to be dominated by any standards, ideologies, or theories. These constructs exist, not to be slavishly followed, but to be questioned and ultimately to be renegotiated within the particular context in which we perform our lives.

To illustrate deconstruction we might look at an example taken from problem-solving mediation in the employment field. The example is a contract dispute between a medical clinic and a staff doctor working for the clinic under a five-year contract with a no-competition clause. The doctor wishes to leave her job because she and her medical doctor husband who also works for the clinic are getting divorced. The usual mediation discourse would revolve around the legal discourse introduced through the word “contract”. Problem-solving analysis would suggest that this matter may be resolved by negotiating for mutual gain solutions. One of these solutions could be that the clinic open a subsidiary clinic so that the contract need not be breached and everyone's needs can be fulfilled.[22]

If we were to approach this example with deconstructive curiosity, we might ask about the relationship between the discourse and the people in the situation. For example the clinic director may be questioned about the non-competition clause of the employment contract. He may relate that he is afraid that, if the clause is not enforced, the clinic will lose business and as such lose profit, certainly a valid concern of any business. The clinic director may be asked if there are values other than profit with which he is concerned. If he suggests that there are, then questions are asked to explore what those other values may be. It may develop that values such as caring for employees’ welfare play a significant role in the clinic's ethics. Caring for employees’ welfare can be further deconstructed to discover what welfare means. Does it include looking after those employees who are experiencing great stress, from death, from divorce? This theme may be further related to communitarian values such as taking more responsibility for each other.[23] By looking at the political and economic context it may also be discovered that many of the clinic's decisions and attitudes are being affected by market economics, which in turn reinforce competition, individualism and emphasise profit above all other considerations.

It is from this deeper exploration that a new picture of the clinic may begin to emerge which in turn opens up new possibilities for accommodating its staff and for resolving what on the surface appears as simply a contract problem. The contract still remains as a backdrop but the larger context is considered, subjected to further exploration and given value. It may be that a win-win solution as suggested by Moore may still emerge, but other possibilities which go beyond winning may also be considered.

There has been some expression of concern that postmodernism shows a kind of pessimism, a kind of fragmented relativism. For us it is just the opposite. The narrative approach embodies a postmodern interest in how power becomes constituted in conflict relations. It invites us to take a determined stand against the kinds of privilege that frequently gets ignored in the Modernist era's emphasis on foundational knowledge, universal truths or colonising cultures under nationalistic banners. We believe that we can devise conflict resolution processes that give us a chance to learn how not to perpetuate these Modernist developments.

By using a social constructionist approach we believe that we can help disputants become aware of how they are constructing and perpetuating conflict, and also how conflicts are constructing them. If we continue to work from a problem-solving approach we are in danger of missing those stories or narratives that make up the rich tapestry of people's lives. By only focussing on the conflict-saturated stories we would be limiting the parties' abilities to find the resources to transform these conflict-saturated stories into opportunities for real change, change in ways of relating and ways of creating meaning. In this regard we are reminded of Lyotard's suggestion that “[h]umanity is not made of creatures in the process of redeeming themselves, but of wills in the process of emancipating themselves”.[24]

We therefore came to the conclusion that we had some starting points from which to develop an approach to mediation that drew upon local knowledge and would be sufficiently distinctive to make a contribution to mediation in general. We wanted this approach to be emancipatory in Lyotard’s sense. We also were prepared to take ourselves seriously enough to think that we were in as good a position as anyone to develop this distinctive approach, given the particular mix of academics and practitioners of various disciplines that we had in our group.

IV. THE DISTINCTIVE NATURE OF THE NARRATIVE APPROACH

What does a narrative approach to mediation look like and how is it distinctive from the more usual problem-solving approach? The rest of this article sets out to answer this question. We shall argue that the narrative approach can be distinguished by its background assumptions, its goals and its methods.

1. Background assumptions

We would assume that the stories by which we make sense of our lives are shaped by the underlying language patterns or discourses that grant privilege to certain understandings over others, even though we are seldom aware of this process because it is so familiar. But these discourses, from a narrative perspective, have real effects in people's lives. For example, stories of conflict frequently feature people verbally abusing others while at the same time validating their own actions by referring to them in the language of popular psychology: “I am entitled to express my anger, aren't I?” If the mediation process goes along with this kind of description of what has taken place, it risks excluding and invalidating the experience of the person who has been abused verbally in this way. That person’s voice of protest is easily disqualified by default since it is given no ground on which to stand.

Simply working towards a meeting of the needs of the individual in the process of mediation is not as central to the narrative philosophy. This is because we do not assume that such needs are experienced as the result of some internally valid reference point for each person. Rather, personal needs are defined from a narrative perspective in social and linguistic terms. Pervasive discourses about race, gender and class as well as other more localised discourses shape people's experience of the world. What we understand to be our needs and entitlements are not exempt from these influences. We are not implying that we would somehow ignore people's needs, but we would at times engage in a deconstructive curiosity as to the history, the social influences and the discursive trajectories of such needs. Some people's “needs” can be distinctly patriarchal in nature, or racist, or classist. To negotiate win-win solutions on the basis of these without examining the discourses that constitute these needs can lead to the perpetuation of injustice through mediation.

For these reasons, we cannot subscribe to a view of the mediator as a neutral actor, objective and impartial with regard to the outcome of the mediation process. Rather, we would prefer to start from the assumption that the mediator works from a position of social location. As we open our mouths and choose from the available language we become implicated in the discourses embodied in such language. Often without intention or awareness we can exert influence over the possible outcomes of a mediation process in this way. Rather than neutrality, we prefer to emphasise transparency and reflexivity and to strive for accountability processes which require us to take note of the concerns of people who are in positions of social disadvantage or exclusion, lest we participate in their further oppression through mediation.

2. Goals of mediation

One of our concerns with the problem-solving approach is the emphasis on solutions as a measure of the success of the mediation process. This can produce a pressure, in the minds of the mediators and participants, to settle disputes in ways that may not always be in the best interests of at least one of the parties. Moreover, there are areas of mediation practice (for example in family mediation and restorative justice mediation work) where participants are not always looking for outcomes that are best described in terms that look like legal contracts. Therefore we would want to subsume the goal of reaching solutions to problems under the wider goal of developing greater understandings of others’ positions in a given conflict situation. We believe that sometimes a satisfactory solution in a conflict situation is simply not possible. However, increased understanding can still be possible.

The special kind of understanding that we would work towards in narrative mediation would involve a location of the conflict in a dominant story which is not of the participants' own making. Then we would work towards the articulation of an alternative story which features respect for difference and cooperation. This alternative story might have a neglected history that we would seek to bring out and it might offer the participants a chance to state a preference for a different kind of relationship in which conflict is relegated to the corner. Once such a preference has been stated we would aim to create openings for the performance of this new story and for the ongoing building of the story in relation to each act in its performance.

3. Narrative Methods

(a) Co-mediation

In Waikato Mediation Services we have adopted a policy of favouring the use of two mediators working in partnership rather than single mediators working alone. This co-mediation arrangement offers us several advantages. One is a chance to introduce greater reflexivity into our practice. The two mediators have the opportunity to discuss with each other and at times to question each other about their purposes, strategies and responses during the mediation. Sometimes this can be done in front of the participants who are invited to overhear the mediators talking about them. This is akin to the reflecting team conversations developed in family therapy.[25] Such conversations are opportunities to reflect upon things that have been happening in the mediation process and to communicate slightly indirectly some challenges to the fixed positions participants may be taking up in a given conflict.

Another advantage is that some safety checks can be introduced against the mediation process colluding with power relations between the participants. Matching the gender or cultural differences between participants can frequently be possible. We can have a male and female pair of mediators or one Mori and one Pakeha mediator. With two mediators there is always the chance for one of the pair to sit back and observe the process for a few minutes during a mediation session and in so doing to notice more easily some of the influential processes at work including the effects of the power relations on the process. Such noticing can then lead to changes in the process to address these issues.

(b) Questioning style

The narrative questioning style that we try to adopt differs in purpose from that used in other approaches to mediation and counselling. Narrative questioning does not take place from an objective stance where the aim is to discover the facts of the situation. The mediators are not setting themselves up as neutral agents outside of the discursive world in which the conflicts have developed. Nor are they claiming any kind of privileged position of being able to see solutions because of their impartiality or expertise. Rather the narrative questioning style that we are working to develop focuses on the ways that people create meaning through telling their stories in mediation. We ask people about the meaning they make of the events that have taken place in the evolution of the conflict. Our emphasis is on addressing our curiosity to the meanings the participants are making rather than the more “expert” role of inquiring about the facts and then bending our experience to an interpretation of these facts. We don't want to offer the participants a diminished role of letting them tell us about events and then hoping that they will become curious about what we have to say about them.[26] Instead we want to engage them fully in exploring the possible meanings they can make about the facts they have told us.

We are also keen to direct attention to the background narratives that might be giving shape to these meanings. Background narratives might lay down culturally dominant understandings or power relations. In this way we intend our questions to have a deconstructive effect, unpacking the historical and discursive contexts in which the conflict has emerged. For example in a custody dispute we might ask participants to reflect on the extent to which background narratives about gender roles in marriage might operate on their sense of what they are entitled to expect in a custody mediation. Rather than painting the participants into the centre of their own stories, we are interested in tracing with them how they are positioned by the dominant discursive influences on them. In addition we are interested in how they view these discursive influences and in their preferences for any alternative positions available to them.

(c) Externalising conversations

One of the methods for achieving the above purpose is the linguistic shift that is involved in the use of externalising conversations. This use of the term “externalising” originates in the Narrative Therapies of Michael White and David Epston.[27] It refers to a way of talking that locates problem issues, such as conflicts, outside of individual persons' heads, and squarely in the world of the discourses that we share in our language communities. So, for example in a tenancy mediation, tenants may say, “I feel really guilty about my failure to keep up to date with rent payments”. The mediator may respond by asking about how “rent arrears” are tricking the tenants into thinking less of themselves or how “rent arrears” are influencing the relationship between tenant and landlord.

Our attempt is to objectify the problem issue rather than the person and to begin to separate the person from an identification with the problem. The reason for this is that we are concerned about the ways in which problems often objectify people and leave them in positions where their voice cannot be heard. As conflicts develop, blame usually is traded and each party engages in efforts to get the other to admit that he or she should take blame on board as guilt. But blame does not taste good and people usually spit out blame given to them by others. Or if they swallow it they suffer some sort of pain or indigestion. Externalising conversations try to detach people from blaming interactions. Instead of people becoming objectified, the conflict issue itself is objectified and the people are invited to begin to take up a subjective stance which is less under the influence of the problem.

Externalisation also allows a repositioning of the parties in relation to each other. As the participants tell their stories of the conflict that they are engaged in, the mediator might ask them to listen to each other speak about the effect of the conflict on themselves. Both parties are positioned in the same place in opposition to the conflict rather than in opposition to each other. Often a metaphor might be developed by the mediator, in collaboration with the parties, to encompass the experiences of both parties and to name the problem. This metaphor can then be extended and developed in conversation until it starts to serve as the basis for a new perspective on the issue.

(d) Relative influence questions

Michael White has suggested to us a two stage process in the development of the kind of conversation which illuminates the problem issue.[28] The first part of this conversation is familiar enough to all those who engage people in dispute in telling their story. They are asked about the effect of the problem on them. The story is told and listened to carefully by the mediators with empathy and careful attention to detail. The mediators communicate through their listening a respect for each person's right to give voice to their experience. Gradually, as mediators, we find opportunities to introduce externalising language. The conflict story is not talked about as if it is inevitably attached to the participants. Instead we might ask persons to notice and speak about how the conflict has shaped their interactions, their thinking, their finances, their personal life, their work or whatever else the particular situation might suggest.

Because the story has been talked about in an externalising way, a gap is opened up which enables us to ask another set of questions. These questions, instead of asking about the influence of the conflict issue or problem on the persons, ask about the reverse influence. How have the people involved managed to have an influence on the problem? This is usually a surprising line of questioning for the participants. They have usually come to mediation because they are at a loss to know how to have an influence on the problem. They have experienced it as overwhelming. They have allowed it to narrow their focus in a way that makes the conflict appear to define their relationship and to kill off other kinds of interactions that are not viewed through the filtering lens of the conflict.

We find that this line of questioning, because it tends to take participants by surprise, often requires considerable confidence and persistence from us as mediators. We base this confidence in a faith that all discourses, even apparently dominant ones, are incomplete and somewhat unstable.[29] Life is rich enough in complexity that no problem issue, and no story that can be told about a particular conflict, can capture the totality of lived experience. There are always events that stand outside of the conflict story. And there are always efforts that the participants have made that might be the basis for a very different story of their relationship in which the conflict is managed in quite different ways, which they might find much more preferable. These events are very likely to have been overlooked, to have been paid little attention, to have been left out of the stories that have been told about the issue. Little meaning has been built around these events. And yet they might offer the potential for a completely different story of the conflict issue, which has its origins, not in the wisdom of the mediators, but in the unstoried repertoires of experience that the disputants bring with them into the mediation process.

(e) Developing alternative stories

Michael White has borrowed the term “unique outcomes”[30] to describe the nuggets of gold that stand outside the story in which conflict is central.[31] They may be examples of cooperation that, if developed, might lead to a very different set of relations between the participants. They may be events in the past which are seldom recalled now that the conflict-saturated story has come to dominate the consciousness of the participants. They may be inconsistencies in the story of conflicted relations that offer hope for a different version of reality to emerge.

In order for these events to compete with the conflict-saturated dominant story they need to have life breathed into them through the kind of narrative conversation that White and Epston[32] and others have suggested in the field of narrative therapy. The aim of this kind of conversation is to direct the attention of the participants selectively towards the areas of experience which the conflict saturated story would usually prevent them from noticing. The unique outcomes that speak about cooperation and agreement are focussed on, and as mediators we would ask questions that invite the participants to make meaning around these events. We would ask them to draw connections between isolated events that otherwise might remain unconnected. We would ask them to explain how they had achieved things that they would otherwise tend not to regard as achievements. We would ask them to develop an alternative story that might stand as a counterplot to the influence of the conflict on their relationship and then work together with them to identify new possibilities for the performance of this counterplot. We would name the influence of power relations in their relationship and ask them about occasions when they had managed to relate together in ways that constituted some sort of protest against such power relations. The history of such a protest can then be traced. Even if it is a short history, we can ask about other histories to which it might relate.

We believe from the experience we have had of putting these ideas into practice that this approach leads to a very different kind of interaction than the problem-solving approach. Rather than the somewhat harsh and bruising crunch points where negotiation over outcomes takes place, we give the participants the opportunity to build a relational context which means that agreements and solutions are seen to emerge out of the forgotten narratives of the participants' experience. They do not therefore seem so sharp a disjuncture from the story of conflict.

(f) Documenting the new story

We still see a place for the negotiation of agreements and solutions. Even the brainstorming processes recommended in the problem-solving format still have value within a narrative approach. However we would use these within the context of the development of the alternative story. As the proposals for the resolution of the problem issues that had led to the conflict were aired we would ask the participants not just about whether they were in agreement with these proposals but also about the meaning they would or could make of such a resolution. For example we could ask whether a particular agreement would be likely to undermine the salience of the conflict story.

As the alternative story starts to emerge we would work with the participants towards some agreements that could be put into writing. These documents can serve as reference points for the continuing evolution of the new story. In later review meetings we might ask about the performance of the new story as written down in the documented agreements. We would not be asking about whether the agreed upon resolutions had “worked” or not. Indeed we would be likely to state openly that we would expect the old story of conflict still to have plenty of residual influence and that such influence might at times be undermining of the counterplot of cooperation. But we would be interested in any achievements that the participants had noticed in their relationship that contributed to the life of these resolutions. Some of these achievements might not even be part of the documented agreements but might have arisen spontaneously in the intervening time. If this occurs (and we would expect that it would) we would invite the participants to speculate about the meaning of such events for the story of cooperation and agreement.

V. CONCLUSION

We have attempted only a cursory description of the main features of the approach. We hope that this is enough to indicate the differences from the conventional approaches to mediation in the style of work that we have been developing in Waikato Mediation Services. In summary we would stress the following as distinctive features of our approach:

We are interested in, not just the stories that people tell mediators, but the background stories that give shape to experience and produce relations of conflict.

We do not want to rely on the cathartic venting of feeling to have a precipitating effect in bringing about change. Rather, we prefer a particular questioning style that calls forth new meanings for past and future events as the primary method of bringing about change.

We aim to create a conversational style that separates people from blame for conflict and avoids issuing invitations to internalise responsibility for the effects of socially constructed problem issues.

We want to take the effects of power relations seriously in the production of conflict and in the politics of the mediation process itself.

We aim to create the conditions that make possible for participants a movement from positions in dominant stories to positions in alternative stories, in preference to a movement from problem to solution.

These ideas draw clearly from emerging trajectories of thought in the area of social theory. They are Postmodern or Post-Structuralist in orientation. We believe that they are worth developing in a range of mediation contexts. We have been teaching them to tenancy mediators, social workers, environmental planners, probation officers and trade unionists. We have been practising them ourselves in contexts such as employment disputes, family court marriage counselling, organisational conflicts, restorative justice arenas and neighbourhood disputes. And we are looking to explore further the application of these ideas in other contexts, since, if they do represent paradigm shifts as we have argued above, then they might be expected to offer fresh perspectives for a range of human experiences.

[*] MA (Auckland), Dip Ed (Massey), Dip T, Lecturer in Counselling, Department of Education Studies, University of Waikato.

[**] BA (Florida), JD (Texas), Senior Lecturer in Law, School of Law, University of Waikato.

[1] Residential Tenancies Act 1986, ss 76, 88-90; Family Proceedings Act 1980, ss 8-19; Human Rights Act 1993, ss 77, 80; Resource Management Act 1991, ss 99, 267-268, 356; Disputes Tribunals Act 1988, s 18; Employment Contracts Act 1991, First Schedule s 8, Second Schedule s 9.

[2] The Department of Corrections is engaging in restorative justice mediations between those who offend and those who have been offended against under provisions of the Criminal Justice Act 1985, ss 22-23 and the Victims of Offences Act 1987, s 8. Proposals to expand this service are presently being considered by the Ministry of Justice. The most active form of restorative justice mediations presently occurring and in fact acting as an example for the world are the Youth Offending and Care and Protection Community Group Conferences being conducted by the Department of Social Welfare under provisions of the Children, Young Persons and Their Families Act 1989, ss 20-48, 245-271. Conceptually, restorative justice suggests that the traditional retributive justice paradigm is missing the mark and that the paradigm of restorative justice more clearly addresses the concerns of the victims of crime and is consistent with Mori and other indigenous justice models which emphasise healing and restoration of the imbalances caused by offending. For a detailed examination of restorative justice, see Consedine, J Restorative Justice: Healing the Effects of Crime (1995), Zehr, H Changing lenses: a new focus for crime and justice (1990), and Umbreit, M Victim Meets Offender: the Impact of Restorative Justice and Mediation (1994).

[3] Well ahead of her time and writing in 1920s and 1930s in the field of labour management relations, Mary Parker Follett developed what she referred to as integrative bargaining which foreshadowed what was to become principled (win-win) negotiation of the 1980s. For a summary of some of her key ideas, see Davies, “An Interview with Mary Parker Follett” (1989) 5 Negotiation Journal 1.

[4] Fisher, R & Ury, W Getting to Yes (1981).

[5] The Program on Negotiation at Harvard Law School is committed to improving and developing the theory and practice of negotiation and dispute resolution. In 1986 the Program on Negotiation Clearing House was created, and its customers went from 150 to 2000 by 1993. The Harvard Program produces an ever-evolving collection of materials, exercises and videotapes. See The Program on Negotiation Clearing House at Harvard Law School, Clearing House Catalog (1993).

[6] Fisher and Ury, supra note 4.

[7] See Fisher, “Needs Theory, Social Identity and an Eclectic Model of Conflict” in Burton, J (ed), Conflict: Human Needs Theory (1990) 89.

[8] In the mediation field a number of writers have been challenging traditional problem- solving mediation. A compilation of some of these writings can be found in Folger, J & Jones, T New Directions in Mediation Communication Research and Perspectives (1994). Another recent text, Baruch Bush, R & Folger, J The Promise of Mediation Responding to Conflict Through Empowerment and Recognition (1994), establishes a theoretical basis for transformative mediation. See also Putnam, “Challenging the Assumptions of Traditional Approaches to Negotiation” (1994) 10(4) Negotiation Journal 336, for similar challenges in the field of negotiation.

[9] See Bryan, “Killing Us Softly: Divorce Mediation and The Politics of Power” (1992) 40(2) Buffalo Law Rev 441; and Grillo, “The Mediation Alternatives: Process Dangers for Women” (1991) 100 Yale Law Journal 1545.

[10] Busch and Robertson, “'What's Love Got To Do With It'“ [1993] WkoLawRw 7; (1993) 1 Waikato Law Review 109.

[11] See Lederach, J P Preparing for Peace: Conflict Transformation Across Cultures (1995), and Durea, M Conflict and Culture: A Literature Review and Bibliography (1992).

[12] This term is borrowed from the Narrative Counselling literature. See O'Hanlon, “The Third Wave” (Nov-Dec 1994) Networker 19.

[13] Of the many people I interviewed and met on this trip I would like to acknowledge in particular the encouragement given me by Albie Davis and Sara Cobb: Albie, who first brought to my attention the work of Mary Parker Follett, and Sara, for her creative and pioneering work in post-structural narrative mediation.

[14] White, M & Epston, D Literate Means to Therapeutic Ends (1989).

[15] Kuhn, T The Structure of Scientific Revolutions (1970).

[16] See Madigan and Law, “Discourse Not Language: The shift from a modernist view of language to the postmodern analysis of discourse in family therapy” (1992) 1 Dulwich Centre Newsletter 31, 33, quoting Lowe, “Postmodern themes and therapeutic practice: Notes towards the definition of 'Family Therapy: Part 2” (1991) 3 Dulwich Centre Newsletter 41, 45.

[17] We find consistent with our concept of relational reality Mori concepts such as Puutahi (everything is connected to everything else) and Manaakitanga (in everything you do care for the people). See Ritchie, J Becoming Bicultural (1992).

[18] Deconstruction is a concept associated with the ideas of Jacques Derrida. For a fuller description and analysis of deconstruction see Davies, M Asking the law question (1994) 254-274 and Cornell, D The Philosophy of the Limit (1992).

[19] Law, “A conversation with Kiwi Tamasese & Charles Waldergrave” (1994) 1 Dulwich Centre Newsletter 20, 23.

[20] We see similarities in deconstruction and the Mori concept of Whakakitenga (never presume to understand or, as Ritchie concludes, “the task of understanding is never complete”) (supra note 17, at 64).

[21] Davies, supra note 18, at 262.

[22] This example and the solution posited is used by Chris Moore in his text The Mediation Process (1986) to illustrate win-win mediation.

[23] See Frazier and Lacey, The Politics of Community: A Feminist Critique of the Liberal-Communitarian Debate (1993) 1, where the writers suggest that communitarianism “can be briefly characterised as the thesis that the community, rather than the individual, the state, the nation or any other entity is and should be at the centre of our analysis and our value system”.

[24] Lyotard, J-F The Differend Phases in Dispute (1988) 161.

[25] See Andersen, “The reflecting team: Dialogue and meta-dialogue in clinical work” (1987) 26 Family Process 415-428, and White, “Reflecting teamwork as definitional ceremony”, in Re-authoring lives (1995) chapter 7.

[26] See Anderson, and Goolishian, “The Client is the Expert: A Not-Knowing Approach to Therapy” in McNamee, S & Geregen, K Therapy as Social Construction (1992) 25.

[27] Supra, note 14.

[28] White, “The process of questioning: a therapy of literary merit?” in Selected Papers-Michael White (1989).

[29] Foucault, M Power/knowledge: selected interviews and other writings (1980).

[30] Goffman, E Asylums: essays in the social situation of mental patients and other inmates (1961) 127.

[31] White, “Deconstruction and Therapy” in Gilligan, S & Price, R (eds) Therapeutic conversations (1993).

[32] Supra, note 14.