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CHAPTER THIRTY-FOUR
THE MEDIATION OF CONFLICT Context, Cognition, and Practice
Kenneth Kressel
Mediation may be defined as a process in which disputants attempt to resolve their differences with the assistance of a third party whom they find acceptable. The mediator’s objectives are typically to help the parties search for a mutually acceptable solution to their conflict and to counter tendencies toward competitive win-lose strategies and objectives. Mediators are most commonly single individuals, but they also can be twosomes, threesomes, or even larger groups.
Although mediation is a pervasive and fundamental human activity—try to imagine family life devoid of parents’ interceding in their children’s squabbles—in the past several decades, formal mediation has begun to play a role in virtually every significant area of social conflict. Some of the most prominent examples are divorce mediation, peer mediation in the schools, community mediation, victim-offender mediation, mediation of public resource disputes, mediation of disputes within organizations, and the increasing visibility of mediation in conflicts between and within nations. Within the United States, the federal and state governments have become active sponsors of mediation programs, ranging from personnel and employment dispute to public conflicts in health care, economic development, governance, and the environment. Federal sponsorship of mediation and related programs has been characterized as “one of the most significant movements in U.S. law in the latter half of the 20th century” with “profound effects on the way the federal government handles conflict” (Nabatchi, 2007, p. 646).
THEORY AND RESEARCH
The use of mediation in its myriad forms far outstrips systematic research on the process. Nonetheless, with increased use has come widening understanding. Our knowledge of mediation as a social psychological process has three major sources: extrapolation from theories of conflict (Deutsch, 1973; Fisher, Ury, and Patton, 1981), empirical research (Kressel and Pruitt, 1989; “Conflict Resolution in the Field,” 2004), and the in-depth case wisdom of practitioners (Kolb and others, 1994; Moore, 1996; Riskin, 1996).
In this chapter, my primary goal is to give a concise account of what this collective literature has to tell us about the factors influencing the use of mediation and what happens during the mediation process, particularly in terms of mediator behavior.
Since I last summarized these matters in the second edition of this Handbook, mediation services have expanded into domains as diverse as mental health, insurance, debt, taxation, and intergang conflict. As has been true since the beginning, research on mediation has not kept pace with practical developments. However, recent studies have clarified the role of social context in shaping what mediators do and the important divergence between what mediators espouse as their formal model of practice and the tacit and often unacknowledged ideas that influence their actual behavior. This chapter describes those developments.
I begin with what is known about the efficacy of mediation and the types of conflict for which it appears most (and least) effective.1
The Efficacy of Mediation
The rise in mediation services over the past three decades has generally occurred in the context of offering disputing parties an alternative to the traditional use of lawyers and the courts. The proponents of mediation have argued that it should provide superior outcomes because it is based on a model of cooperative conflict rather than the win-lose orientation of the adversarial legal system and because it involves the parties directly in searching for solutions to their differences rather than imposing a solution on them.
Research on the efficacy of mediation has distinctive strengths and weaknesses. Among the problems are the failure (or inability) to randomly assign disputing parties to mediation or control conditions, the absence of standardized mediation protocols and checks on mediator adherence to such protocols, the paucity of well-defined outcome measures, and the atheoretic, one-shot nature of most studies (Beck and Sales, 2001; “Conflict Resolution in the Field,” 2004; Wall and Dunne, 2012).
On the positive side, the cumulative record has assessments of thousands of disputes across numerous domains of conflict and employs a wide array of methods. This large and methodologically diverse literature is remarkably consist
ent in its overall picture of mediation as an imperfect but highly useful and satisfying adjunct or alternative to more traditional means of conflict management. (Despite its shortcomings, mediation research also compares favorably in its vigor and extensiveness to the far more limited empirical record on the conflict management results produced by lawyers, judges, arbitrators, and governmental administrators.)
The most positive results are in terms of client satisfaction, settlement rates, and compliance. Thus, on the order of 70 to 90 percent of disputing parties who have tried mediation say they were pleased with the process, and for those who fail to reach agreement in mediation, the satisfaction rate is typically above 75 percent. These results compare favorably with public satisfaction with kindred services, such as the use of attorneys (66 percent) and the role of the courts (40 to 50 percent).
Mediation also fares reasonably well in terms of its ability to produce agreements, around 80 percent on average—an impressive figure bearing in mind that this figure includes many intractable cases in which attorneys have already tried and failed to produce settlement.
Compliance with mediated agreements has also been reported at around the 80 percent level (compared to 48 percent for those using traditional adjudication). Although there are occasional nonconfirmatory findings, there is also evidence that compared to adjudication, mediation produces more compromise, more equal sharing of resources, and more detailed terms designed to improve the likelihood of compliance (Wissler, 2004).
The record is more equivocal for mediation as an instrument for saving time and money. A few studies report appreciable savings for mediation compared to more adversarial methods, and mediation has been found to reduce court dockets and case overload for government agencies (Wall and Dunne, 2012). The evidence from other studies is more uncertain. Thus, in general civil cases, Wissler (2004) reports a few studies finding in favor of mediation and a nearly equal number finding no cost savings compared to adjudication.
Perhaps the most ambitious claims made for mediation is that it can be a vehicle for personal and social change. When mediation began to expand significantly beyond its industrial relations base in the 1970s, such claims were often extravagant. The research record paints a more modest but still favorable picture.
Impact on Individuals.
On the positive side, divorce mediation has been found to produce agreements that are more favorable to children (Wall and Dunne, 2012), and offenders participating in victim-offender mediation have lower levels of offending in the future than they did before or compared with a similar group of offenders who did not meet with their victims (Umbreit and others, 2004). In studies of peer mediation in elementary schools, students who have served as peer mediators have been found to have improved social skills, decreased aggressiveness, a greater capacity for perspective taking, and higher academic achievement compared to students who lack such training.
Improvement in Relationships.
Studies of court-connected mediation of civil disputes find little consistent evidence for an ameliorative impact of mediation (Wissler, 2004), but in domains such as environmental mediation (Dukes, 2004), employee grievances (Bingham, 2004), and divorce, there are more consistently positive results. For example, mediating parents are more likely than parents relying exclusively on lawyers and the courts to report an increased capacity to work together as parents and a reduction in parental conflict. In one of the rare studies employing random assignment, Emery et al. (2001) report that compared to fathers who litigated custody or visitation, fathers who were assigned to mediation remained more involved with their children as long as twelve years later.
Social Impact.
The capacity of mediation programs to alter wider social environments has been relatively little studied, but ameliorative effects have been reported. Peer mediation in elementary schools has been associated with student and teacher perceptions of improved classroom climate and with decreases in classroom management problems, discipline referrals, and suspension rates. Research on the impact of the US Postal Service’s implementation of a nationwide mediation program for dealing with employee grievances reports a significant impact on the USPS conflict management system, including a reduction of complaint caseloads and the number of chronic complainants (Bingham, 2004).
Conditions for Effective Mediation
Mediation is not a magic bullet. The accumulating evidence suggests that it is most likely to be successful in conflicts occupying a general middle range of difficulty—those with
Moderate rather than extreme levels of conflict
Parties who are motivated to resolve their difficulties and use mediation as a vehicle for doing so
Available resources, whether material, social, or emotional
Parties of more or less equal power
The absence of issues involving fundamental religious, political, or ethical principles
It is also important to note that mediation often succeeds because the skillful mediator is able to modify some of the initially inhospitable parameters of the dispute in a favorable direction. It is also true that even when the mediator cannot overcome barriers to collaboration, the parties may attain notable benefit from mediation even if they do not succeed in reaching an agreement: issues may be clarified, the opponent may be humanized, or partial agreement may be reached.
Factors Determining Use of Mediation
Mediation should be helpful in any conflict in which interdependent parties are identifiable; have the cognitive, interpersonal, and emotional capabilities to represent themselves; have interests that are not entirely incompatible; and face alternatives to consensual agreement that are undesirable—for example, a costly trial (Moore, 1996). Mediation is especially likely to prove useful whenever there are additional obstacles that would make unassisted negotiations likely to fail, such as intense negative feelings, a dysfunctional pattern of communicating, or serious differences about the “facts” or circumstances.
Although many disputes meet criteria of these kinds, getting mediation started turns out to be something of a challenge. In interpersonal disputes of all kinds, one-third to two-thirds of those given the opportunity to use formal mediation decline it. It is also apparent that in work settings where informal mediation could be used (as by a manager), the would-be mediator declines to intervene, looks the other way, or chooses to employ power and authority rather than the skills of facilitation. Characteristics of the social environment, the disputing parties, and the potential mediator are among the variables that determine whether mediation occurs.
Characteristics of the Social Environment.
In many nonindustrial societies, the community is frequently unwilling to tolerate the disruption in social life that would be triggered by intense conflicts between clans having many cross-cutting kinship ties. In such cases, much social pressure may be brought to bear for the parties to mediate, and powerful community leaders are likely to be involved in making sure that mediation occurs and that the parties take it seriously.
There are, of course, notable instances in our own society in which mediation is socially mandated, as in labor laws that require mediation once bargaining has reached an impasse. Less formal but equally powerful mandates occur, as when a judge to a small-claims or divorce dispute suggests to the parties that they try mediation before proceeding to a judicial hearing. One of the important research findings is that such pressure does not appear to decrease the effectiveness of divorce, small claims, or neighborhood mediation.
In work settings, the environment may work for and against the use of mediation. Support for the process may come from an organization’s need to get work done by means of a task force comprising individuals or groups with equal standing and no common superior. If conflict erupts in such a group, it presents an opportunity for informal mediation for a manager with conflict resolution skills.
Although the modern organization is comfortable with the notion of conflict with its competitors, it is often
much less disposed to acknowledge that conflict exists within the organization. Managers often behave accordingly, preferring conflict-avoidant strategies to mediation. They are inclined to bolster these approaches by defining conflicts as being rooted in the parties’ personalities and thus not amenable to resolution.
These competing attitudes toward using mediation in organizational settings are also affected by circumstances. Thus, people tend to prefer mediation when the parties must continue working with each other and there is sufficient time available to do mediated problem solving. When time is limited, the matter is complex, or strong managerial authority is perceived to be required, mediation is less likely to occur (Goldman, Cropanzano, Sterin, and Benson, 2008).
There are two extensive analyses of the importance of broader social forces on the institutionalization of mediation services. One comes from studies of the reaction within federal agencies to the government’s ambitious efforts to promote alternative dispute resolution methods; the other is on the stance of American corporations toward establishing internal alternative dispute resolution (ADR) systems.
The enactment by Congress of the Administrative Dispute Resolution Act in 1990 strongly encouraged all federal agencies to consider using ADR. The response was highly uneven, with some federal agencies implementing ambitious and widely used mediation programs and others reacting in a much more tepid manner. Nabatchi (2007) and Bingham (2004) describe the panoply of social factors associated with this diverse response.
Part of the variability in response was due to the legislation itself, which provided no sanctions for failing to implement ADR programs and no additional funding to mount them. In addition, although the legislation designated the Federal Mediation and Conciliation Service and the newly created Working Group on ADR to facilitate the spread of ADR programs, neither had much authority, experience, or resources to do so.