Article about mediator Roslyn Zinner

 "Core Values, Theory, and Practice"

by Traci Nichols              June 2005

Roslyn Zinner, LCSW-C, has been a divorce and family mediator for the past 5 years. She has her own practice in Columbia and Glen Burnie, MD called Divorce and Family Mediation Services. She is a court-appointed mediator for the Circuit Courts of Howard County and Anne Arundel County, but also mediates private cases. The private cases that she mediates are usually divorce cases, and the court-appointed cases are usually child-custody cases. In addition to mediating cases, Zinner is a member of the Maryland Council for Dispute Resolution and the co-editor of the councils’ newsletter, "Resolving Issues." Zinner is trained only in divorce mediation, and received her 40 hours practical training from Mediation Matters, another 20 hours of advanced training in custody and visitation with the Maryland Institute for Continuing Professional Education for Lawyers (MCPEL), training in foster care cases with the court’s Children In Need of Assistance (CINA) program, and frequently attends many 1-2 day alternative dispute resolution (ADR) conferences. Zinner has mostly been trained on the practical applications of mediation. On April 22, 2005, I had the chance to interview Zinner at her home office in Columbia, to discuss her practice. What I learned from that interview concerning the practice of mediation will be compared to what I learned about various theories of mediation in class, to determine whether Zinner’s practice of mediation is consistent to what the literature reveals about mediation.

Lang and Taylor (2000) contends that "all mediators have a constellation of theories that guides and informs their practice whether they are aware of it or not" (p. 93). A constellation of theories is what a mediator understands, experiences, and believes—the facts, models, theories, and core beliefs—that impacts their practice (Lang and Taylor, 2000, p. 93). Lang and Taylor (2000) asserts that when mediators become aware about how their fundamental beliefs about life, the world, and their experiences shape how they explain conflict, the approach they use to help resolve conflict and the assistance they give parties in making decisions, then they will become effective mediators (p. 94). Lang and Taylor acknowledges, "When mediators know their constellation of theories and understand how it guides and inform their work, they are better able to integrate this knowledge during a session, and this integration of theory with practice contributes to their artistry" (p. 94). Core beliefs and values are at the center of the constellation of theories because they affect the theories, approaches, and facts that mediators utilize. Core beliefs and values are how people view life, what they believe about life, what they have been taught, what they have experienced, and what they think is fair and just (Lang and Taylor, 2000, p. 103). "These beliefs and values are deeply rooted theories that all people carry with them that help them to explain complex, abstract ideas, such as truth, justice, love, fairness, and trust. These core theories are developed early in life and are grounded in experiences," as Lang and Taylor (2000) affirms (p. 103).

Zinner certainly has this awareness of how her core beliefs and values have shaped her mediation practice. Zinner (personal communication, April 22, 2005) claims that since she was a teenager she always felt that, "If I had a career, it should be in helping people and making the world a better place." Zinner remarks, "I could never see any point in doing anything else." Zinner points out that this "want" to help people springs from her religious background of Judaism. She explains that there is a belief in Judaism that everybody is supposed to participate in "Tikkun Olam," repairing the world. Zinner responds, "No one is expected to do all the repairs, but everyone is expected to contribute to repairing the world in some way." This value and belief in helping people is grounded in every career that Zinner has held. Besides being a mediator, for the past 30 years, Zinner has been a licensed clinical social worker and psychotherapist, counseling families and working with couples. Her belief in helping people and passion for working with married couples led her to form her own mediation practice. Zinner gives a theoretical explanation for choosing to change her career to mediation. She liked the interchange between the couples, having both people in the same room, working directly with the problem, and helping them to improve their relationships. She felt that she had more of an opportunity to make an intervention with both sides than she did while counseling. Through mediation, she could help people to get along at where both parties could feel respect for one another. Zinner adds that over the years, she witnessed how damaging litigation was to families as well as being too expensive. She views mediation as a better alternative especially in repairing family relationships. Thus, working with families in mediation was consistent with Zinner’s social work career and values. Her beliefs and theories are reflected in her practice. She likes helping people to resolve conflicts in a peaceful way.

There are many varied styles of mediation that mediators utilize. The three basic styles are facilitative, evaluative, and transformative. Facilitative mediation is the traditional model of mediation in which a neutral third party helps disputant parties to problem-solve to reach their own solutions (Menkel-Meadow, 1995, p. 228). According to Zumeta, "The facilitative mediator does not make recommendations to parties, give his or her advice, or opinion to the outcome of the case, or predict what a court would do in the case" (para. 2). The facilitative mediator controls the process while the disputants reach solutions (Zumeta, para. 2). Evaluative mediation is court-mandated mediation in which the mediator assists the parties in reaching solutions by making recommendations and predicting what a judge and jury might do, offering advice, and suggesting possible outcomes (Zumeta, para. 5). Evaluative mediators practice "shuttle diplomacy" by meeting with parties and attorneys most often in separate meetings (Zumeta, para. 5). Evaluative mediators directly influence the outcome. Transformative mediation, the newest approach, is when mediators assist the parties in transforming themselves or their relationships (Zumeta, para. 7). In transformative mediation, resolving the conflict is not essential. According to Zumeta, "Transformative mediation is based on the values of ‘empowerment’ of each of the parties as much as possible and ‘recognition’ of each of the parties needs, interests, values, and points of view" (para. 7). The parties are practically left with complete autonomy in the transformative process.

Pros and cons in the ADR field exist for all three styles. Zumeta lists these pros and cons. Supporters of facilitative and transformative mediation argue that these approaches empower disputants by allowing them to be in charge and take full responsibility for the outcome of their disputes. The cons of both methods are that both styles take too long and an agreement is often not reached. Arguments in support of evaluative mediation declare that it is a quicker process that pushes for a solution because people want fair answers if they cannot resolve their disputes. Arguments against evaluative mediation point out that mediators may not be correct in their suggestions or recommendation and parties are pressured to reach solutions (para. 9-11). Despite concerns that exist in the ADR field over the styles and debates over whether a style is truly mediation, some ADR practitioners affirm that all three styles can be utilized in the field. Zumeta asserts, "Each [three styles] has its usefulness and its place in the pantheon of dispute resolution processes" (para. 18). Foster reports that "any kind of purist approach would no doubt prove effective at times and ineffective at other times" (Evaluation of Styles section, para. 2). Imperati argues, "Most mediators use a combination of these styles, depending on the case and the parties in mediation, as well as their own main approach to mediation" (as cited in Zumeta, para. 18).

Zinner uses a combination of these styles. She notes that her approach "falls squarely in the facilitative model and occasionally uses evaluative." In Zinner’s case, using the evaluative model is practical because she mediates child-custody cases because many states have laws protecting the "best interests of the children," and these laws require mediators to give couples their suggestions or beliefs if they feel the proposed agreement is not protecting the child’s best interests (Zumeta, para. 12). Zinner reveals that she does not know much about transformative mediation, so she does not practice the model. She read the recent book about the approach and claims that "it really did not click at all."

The traditional mediation process follows the facilitative approach. This structure is also used in the evaluative approach, as well as in many other styles. Beer and Stief (1997) point out that the problem is the disputant parties’ responsibility and the process is the mediator’s responsibility (p. 89). Beer and Stief (1997) also note that the disputant parties rely on mediators for structure and protection (p. 89). Keltner (1994) admits that there are several stages in which mediation progresses. He claims that these stages appear to be successive, but do not have to follow an exact order. Keltner (1994) professes that the mediation process is more "cyclical than linear" (p. 123). Keltner identifies the following stages of the process: 1) setting the stage, meaning that the mediator contacts disputants, arranges a time, explain a little about the process, and assure confidentiality; 2) opening and development stage in which the mediator establishes a rapport with parties during this first join-session, builds trust, explains entire process, establishes ground rules, answers any questions, and provides alternatives to mediation; 3) exploration of the issues (storytelling), meaning that the parties present issues and tell their sides of the story, whereas mediators use questioning techniques, summarizing, elaboration, and feedback to make sure that there is clarity and to get at the root of the problem; 4) identifying alternatives, meaning that the mediator helps the parties to brainstorm about possible solutions and list alternative to the conflict and if the alternatives are too divisive, they mediator may have to caucus and meet with each of the parties privately; 5) in the evaluation and negotiation stage, parties weigh the alternatives that they derived against their goals, needs, and interests; 6) in decision-making and testing, parties begin to make decisions on the issues and problems, tackling the easier problems first and then the harder ones, and the mediator "reality tests," encouraging parties to explore the consequences of available decisions; and 7) in finalizing the process, if an agreement is reached, the mediator prepares a written record of the agreement and has all parties to sign after reviewing it (pp. 123-127). Some mediators co-mediate throughout the process. Pruitt and Kim (2004) describe co-mediation "as having two mediators whose backgrounds match those of the disputants and who work as a team" (p. 239). Mediators co-mediate to establish trust among disputants, to better understand the disputants, and to more effectively interpret what the disputants are trying to say to one another (Pruitt and Kim, 2004, p. 239).

Zinner follows a similar approach, but admits that she varies from it, meaning that she follows more of cyclical approach rather than a linear approach. Zinner’s pattern is as follows: first, she warms the parties up by introducing herself, finding out who the parties are, what they do for a living, explains what mediation is and the process, and answer any questions; secondly, she has parties to express the goals and issues that are important; and lastly, if parties are satisfied, she writes a formal agreement. Zinner asserts that she does not co-mediate simply because she cannot afford it. At times, she will allow a mentee to sit-in on the process. Nevertheless, she follows the same structure as the facilitative approach.

One ethical issue in the mediation process are power imbalances among disputants. Schrock-Shenk (2000) insists that power imbalances typically occur and exist when there are "disparities based on gender, class, age, and position; disparities of parties in skills, experience, ability to negotiate, and in access to information; and mental or physical intimidation (p. 197). According to Schrock-Shenk (2000), the ways to address and minimize power imbalances are to "set clear ground rules, intervene in the communication to inhibit control by one party, caucus with parties, suggest outside help from attorney, counselors, and financial planners or if the mediation is not appropriate for the particular power imbalance, terminate the process" (p. 197).

Zinner admits that usually power imbalances exist. She views power imbalances less in younger couples because younger women are going to school and making more money. She view power imbalances more in older couples. Zinner handles power imbalances by encouraging the parties to get outside help, like an attorney, or other support that they need. Zinner makes these suggestions universally without specifically directing them at the weaker party to remain neutral. The reason why she suggests outside support is to give the weaker party backup—more knowledge and more power. Zinner also will slow down the process for the weaker party. Zinner admits that mediators have to be careful in working with power imbalances because the other party will see the mediator as being less neutral.

Neutrality is another ethical issue in the mediation process. Moore defines neutrality in terms of the relationship between the mediator and disputants. Moore claims, "Ideally, the mediator has not had a previous relationship with any of the parties, nor should he or she expect a future relationship to result from the mediation process" (as cited in Burgess and Burgess, 1997, p. 192). Lang and Taylor (2000) proclaim that neutrality requires that the mediators do not have a stake or interest in the outcome (p. 180). Lang and Taylor (2000) argues that in regards to neutrality, the ADR field gives mediators contradictory demands because mediators are required to be fair, but are punished if the fail to support the weaker party (p. 180). Moore points out that there are criticisms about the mediators empowering the weaker party because it questions their neutral stance (as cited in Burgess and Burgess, 1997, p. 192). Moore contends that people cannot be entirely neutral. He avows, "What…neutrality [does] signify is that the mediator can separate his or her opinions about the outcome of the dispute from the desires of disputants and focus on ways to help parties make their own decisions without…favoring one of them" (as cited in Burgess and Burgess, 1997, p. 192).

Zinner agrees with the assertions on neutrality that being fair and trying to remain neutral conflict. She reveals that she tries to be neutral, but that it is challenging, especially when there are significant power imbalances. Zinner declares that on this issue, mediators have to make a judgment call. To be fair, Zinner ascertains, "I’ll just say something about my neutrality to make a point." However, if there are power imbalances and the weaker party’s interests are being usurped, Zinner affirms that she will make sure the weaker party has ample opportunity to not accept the agreement or to express their interests by reframing the issues and interests of the parties. Zinner even admits that she will ask disputants, "Are you sure you want to agree?" Zinner will also explain to the parties that she wants both parties to feel that the agreement is fair because certain agreements cannot be undone, especially when it concerns property. Zinner claims that she wants both parties to be equally satisfied with their agreement, even after a year from the time agreement was established.

Lastly, caucusing is a major ethical concern in the mediation process. Schrock-Shenk (2000) defines caucusing as "a closed meeting between the mediator(s) and one party at a time," and insists that it is needed at times to move toward direct exchange (p. 196). Schrock-Shenk (2000) asserts that caucusing should be rare (p. 196). Moore identifies three problems that may require a caucus: 1) relationships involve intense emotions, misperceptions, negative behavior, and miscommunications; 2) procedural matters of clarifying and modifying the process; and 3) substantive issues such as defining and clarifying positions, finding new offers, weighing proposals, and testing positions (as cited in Keltner, 1994, p. 135). Keltner (1994) responds that caucus is confidential because it allows the parties to be open and candid. Problems that arise with a caucus is when a disputant reveals an illegal act that has to be reported to law enforcement agencies or the other side, thus violating the party’s confidentiality (Keltner, 1994, p. 136). Another problem with caucusing is that it "puts a great deal of power in the hands of the mediator and this power can be used against the interests of either or both sides" (Keltner, 1994, p. 136).

Zinner proclaims that she does not caucus very much. To avoid caucusing, what she does that is different from other mediators is explain to the parties that, "if we caucus, anything that you say is not confidential." Zinner notes that she feels mediators get into trouble when they caucus, especially when a secret is revealed. She proclaims that a mediator does not know what do with that secret and maintains that the process is not fair anymore when that secret may affect the outcome and the mediator cannot reveal it. Zinner asserts that "it [caucus] puts the mediator in a real bind and makes them less neutral. Zinner only caucuses in extreme situations, like when she needs to reveal something that is going to be embarrassing to a particular party or to get past an impasse, when people cannot move forward to resolution. She admits that she uses other methods to get through an impasse, such as reframing alternatives, allowing disputants to express and hear each other’s feelings, stopping the session to give disputants a break to settle down and think about issues, and encouraging people to gather more information, before requiring a caucus. Zinner insists that she uses caucusing very little and asserts that it is often the very last resort.

For mediation in the United States, a standard set of skills and qualifications do not exist. Mediators do not have a standard certification process, mainly because the Society of Professionals in Dispute Resolution (SPIDR) has discovered that there is not one set of definitions that constitute being "qualified" (as cited in Burgess and Burgess, 1997, p. 193). Mediation encompasses all professions and realms of life—social workers, lawyers, school teachers, community activists, doctors, and therapists (Keltner, 1994, p. 106). Some states have required certification requirements for mediators and "most mediators’ qualifications include a mix of academic training, practical skill, knowledge of a particular subject in a dispute, like divorce and medical malpractice, and personality" (Burgess and Burgess, 1997, p. 193). There are a variety of skills that mediators need to have in order to be effective. According to SPIDR, mediators must have the following skills and abilities: active listening, using clear and neutral language in speaking and writing, sensitivity to gender and all cultural differences, earn trust, understand the negotiation process, deal with complex and factual materials, creating alternatives, reasoning, and being neutral (as cited in Keltner, 1994, p. 108). According to Burgess and Burgess (1997), "Some mediator skills cannot be taught but are innate. Some people are better listeners, better problem-solvers, better synthesizers of diverse or even divergent ideas than others" (p. 193).

Zinner standards are consistent with those of SPIDR. She claims that in order to be an effective mediator, you have to be a good listener, analytical, be tolerant of conflict, be creative in coming up with ideas, and be able to handle different emotions. Zinner supports the contention that mediators need to have backgrounds or experience in the type of cases that they are mediating. For example, she does divorce mediation and has a work history of working with married couples in her psychotherapy sessions.

Arguments exist in the ADR field over whether mediation should become a profession. Keltner (1994) argues that many people who enter mediation from other field "have no perception of the fundamental nature of mediation, the qualifications for effective performance, or the standards of performance" (p. 107). Keltner (1994) contends, "What is needed is greater competence by the volunteers and professionals in the business. The [field] needs to be supplanted with the solid professional respectability that comes from thorough and careful selection, training, and performance" (p. 107). Keltner (1994) declares that the field will be overburdened with unqualified people who "meddle" in disputes unless there is some standard way to develop competent mediators (p. 107). On the other hand, SPIDR has found significant evidence that some individuals who did not have academic degrees made excellent mediators (as cited in Burgess and Burgess, 1997, p. 193).

Like Keltner and other ADR practitioners, Zinner declares that she feels strongly about mediation becoming a profession. When performed right, Zinner maintains that mediation is a specialized and difficult skill. Zinner does not downplay community mediators, claiming that they are very good at mediation; however, she points out that if it is to be done well, "people need to have good training, keep up with their training, and get paid well enough to make a living. Zinner contends that the biggest problem in the field is that mediators cannot make a living. Zinner argues that there are many people who want to become mediators, but cannot earn a decent salary, so they mediate through community centers as volunteers or mediate on the side in addition to another job. Zinner proclaims that some professions, like the legal profession, play into the fact that mediation is not a profession. Zinner observes that the courts will have attorneys do pro bono work instead of hiring mediators. She notes that people do not want to pay for mediation and think it should be free. Zinner asserts, "In our capitalistic society, nothing in our society if free that is valued." Zinner reveals that she still has to keep her psychotherapy practice until her mediation practice builds up, which takes a lot of time. Zinner avows that mediation will not move forward with the times unless it is really a profession.

Lang and Taylor (2000) confirms that "artistry is attained when professionals are sufficiently grounded in, skilled at, and knowledgeable about key components of their professions or activities that they can bring their own unique perspective and interpretation to bear on the practice" (p. 9). Lang and Taylor (2000) identify three essential elements to achieving artistry: 1) practical skills; 2) theoretical knowledge; and 3) the ability to make useful and appropriate connections between theory and practice (p. 18). After interviewing Zinner, I discovered that she has achieved artistry. Her core values and theories about helping people are reflected in her practice of helping families and couples. Her years of experience and the skills she has obtained from social work and psychotherapy is reflected in her practice. Zinner follows a facilitative approach mostly in her mediation of cases, is aware of the issues and concerns of the ADR field, and is aware of the skills it takes to be an effective mediator. The information that I obtained from in the interview is consistent with theories contained in the literature of the ADR field. Zinner walked Lang and Taylor’s "path to artistry" from having a religious belief early in life of repairing the world, incorporating these beliefs into her first careers of social work and psychotherapy, and then receiving training in mediation and establishing her own practice. What I discovered from this interview is how closely connected theory is to practice and how ingrained in our professions are those values and beliefs that we learned and held as child or early in our lives. The interview was a rewarding experience and valuable in teaching me how to develop my "path to artistry."

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