Despite this ambivalent initiative, the use of mediation to resolve employment disputes gained wide acceptability within the US Postal Service. Among the reasons were the long, well-established history of employment mediation within the federal government; the largely intraorganizational nature of employment disputes, which allows agencies such as the Post Office to reap the benefits of ADR directly; the development of a unified and heavily promoted nationwide system of mediation; and strong external pressure to implement ADR by the General Accounting Office and the Equal Employment Opportunity Commission.
In American corporations, as in the federal government, the response to institutionalizing mediation and other forms of ADR has been highly variable (Lipsky, Seeber, and Fincher, 2003). ADR is most likely to be institutionalized in companies in which management believes that significant amounts of time and money can be saved by handling the problems through consensual procedures; management faces the same type of dispute on a regular basis (especially when these disputes do not involve a lot of money or matters of principle); and the dispute concerns the interpretation of contracts rather than of statutes.
Lipsky et al. reach the dour conclusion that while the use of mediation may be widespread in the corporate world, institutionalized ADR has not occurred in most large American businesses because evidence for the benefits of institutionalized mediation and arbitration programs is typically lacking, and because corporate ADR is invariably a reactive response to managing particular disputes, not by the desire to make corporate culture more fair and procedurally just.
Perceptions of the Disputants.
A decision to mediate often depends on the parties’ attitudes toward alternative means of attaining their objectives. Thus, a nation may choose to mediate when the human and financial costs of continuing conflict become too high; divorcing parents may mediate as a preferred alternative to the expense and unpredictability of relying entirely on lawyers and the court. A modicum of goodwill also appears helpful. Compared to nonmediating divorcing couples, those who choose mediation have a more positive view of their spouse, more optimism about the prospects for cooperating as parents, and greater willingness to accept responsibility for the marital breakup.
The choice of mediation may also hinge on whether a party perceives that the mediator has leverage with the adversary. Thus, industrial mediators report that management sometimes prefers a mediator with whom the union is comfortable. In the sphere of international mediation, the classic illustration is Egypt’s eagerness to have its 1974 dispute with Israel mediated by the United States because of its known affinities with and strong economic influence over Israel. Receptivity to mediation may also be a function of the justice orientation of the party; a disputant with a strong desire for revenge is likely to find mediation unappealing because of the wish to retaliate.
Characteristics of the Potential Mediator.
The crucial distinction here is between contractual and emergent mediation. In contractual mediation, the mediator is an outsider with whom the parties contract for the specific purpose of helping them resolve their dispute. The contractual mediator’s relationship with the parties usually ends when the mediation ends. Moore (1996) points out that this form of mediation is common in cultures with an independent judiciary that provides a model of fair procedures and use of third parties as impartial decision makers.
In emergent mediation, the parties and the mediator have enduring ties to one another. Emergent mediation is found in families, friendship groups, organizations of all kinds, and international relations. Emergent mediators often have a strong vested interest in the outcome of the dispute (e.g., family stability) and are usually willing and able to mobilize considerable social and other pressure toward resolving the conflict.
In the contractual case, getting mediation started is comparatively straightforward. All that is required is that the disputants (or a party such as the court that controls their interests) decide on mediation. In emergent mediation, by contrast, potential mediators may decline to serve even if the parties wish assistance or the parties themselves may need to be persuaded to mediate. For these reasons, mediator characteristics are especially important in determining whether emergent mediation occurs.
Third parties may choose to mediate if important interests of their own are at stake. Thus, in organizational settings, managers are willing to take on the mediational role if an important agreement between organizational task forces is being negotiated; in an international conflict, nation-states are willing to mediate to protect or extend their own spheres of influence. Whether in international politics or communal affairs, powerful mediators with self-interested motives for mediating a conflict are more likely than less powerful ones to be able to convince (or oblige) the disputants to make use of their services.
There is some evidence about variables that deter third parties from mediating. In organizational settings, mediation does not appear to be a popular choice among managers, despite some lip-service to the contrary. Speculation about why this is so includes lack of training in mediational skills and the perception that the informal mediational role is not generally valued or may not be highly visible to the would-be mediator’s superiors. There is also evidence that third parties decline to mediate if they feel there is little common ground between the parties or if they are not concerned about whether the parties attain their aspirations (Carnevale, 1986).
Mediator Behavior
It is impossible to give a universally accurate account of what transpires in mediation since the process occurs across so many domains of conflict and since mediators often strive for quite contrasting goals, ranging from settling the substantive issues narrowly defined to accomplishing broad relational, psychological, or social objectives.
Accurate descriptions of mediator activity are also hampered by a surprising lack of research. When Dean Pruitt and I edited our book on mediation research in 1989, we believed that we were at the beginning of an exciting era in the empirical study of mediation and that our book would help stimulate many more such contributions. The golden era we envisaged has, by and large, not occurred. In the past decade, there have been only a handful of studies on such important matters as mediator-disputant interactions, informal third-party mediation in the workplace and among family or friends (Goldman et al., 2008), and institutionalized ADR systems in businesses and organizations. Observational studies continue to be infrequent, and the study of the mediation process largely occurs in a theoretical vacuum (Wall and Dunne, 2012). Social psychologists, who were once in the vanguard of mediation research and who, by the nature of their training are very well qualified to do the kinds of studies Pruitt and I recommended, have made limited contributions to the mediation research literature since the high point of mediation research in the 1980s and 1990s (Pruitt, 2012).
Despite these disappointments, researchers and reflective practitioners have captured certain regularities in mediator behavior and, since the previous edition of this Handbook, there have been some valuable new studies on mediator stylistic behavior and thinking.
I have divided my overview of mediator behavior into two parts. The first deals with discrete mediator tactical behavior; the second with mediator stylistic orientation of a more global kind.
Mediator Tactical Behavior.
Wall and Dunne (2012) have recently estimated that mediators have more than one hundred discrete tactical interventions to choose among. In describing these choices, I use a typology that I developed while studying experienced labor mediators. With modifications, the typology has also been used to describe other forms of mediation (Feld and Simm, 1998; Kressel, 1972, 1985; Kressel and Deutsch, 1977; Kressel and Pruitt, 1985; Carnevale, Lim, and McLaughlin, 1989). It divides mediator behavior into reflexive, contextual, and substantive strategies. Mediator behavior also varies in its degree of assertiveness, a dimension that cuts across these three categories. I shall not attempt a comprehensive catalogue in each area but rather try to convey
the overall flavor.
Before proceeding, three preliminary observations may be helpful. First, any typology of mediator tactical behavior involves obvious oversimplifications. Mediation is a fluid, multifaceted activity in which the same act may serve several purposes. Second, mediator behavior is a function of the context in which mediation is embedded. While researchers have made this point for a while, especially in regard to national culture (Wall and Dunne, 2012), it has now become a standard perspective among practice-oriented scholars (Frenkel and Stark, 2012).
Third, it is commonplace among practitioners that successful mediation is a structured activity proceeding in distinctive stages, with various mediator behaviors predominating in each stage. Empirical evidence supports this general proposition, although the precise number and characteristics of such stages may vary considerably. Figure 34.1 presents Moore’s twelve-stage model (1996) for professional mediators dealing with complex conflicts, and exhibit 34.1 (Deutsch and Brickman, 1994) presents a simpler stage model for students, parents, or other nonprofessionals to use in mediating simple conflicts.
Figure 34.1 Twelve Stages of Mediator Moves
Source: C. W. Moore, The Mediation Process, 2nd ed. San Francisco: Jossey-Bass, 1996, pp. 66–67. Reprinted by permission.
Exhibit 34.1 A Mediation Outline for Parents
I. Introduction
Get the quarreling children’s or adolescents’ attention.
Ask them if they want help in solving their problem.
If they do, move to a “quiet area” to talk.
Explain and get their agreement to four rules: Agree to solve the problem.
Do not use name-calling.
Do not interrupt.
Be as honest as possible.
Listening
Decide which child will speak first.
Ask Child #1 what happened, how he or she feels, and his or her reasons.
Repeat what Child #1 said so that Child #2 can understand.
Ask Child #2 what happened, how he or she feels, and his or her reasons.
Repeat what Child #2 said so that Child #1 can understand.
Solution
Ask Child #1 what he or she can do here and now.
Ask Child #2 what he or she can do here and now.
Ask Child #1 what he or she can do differently in the future if the same problem arises.
Ask Child #2 what he or she can do differently in the future if the same problem arises.
Help the children agree on a solution they both think is fair.
Wrap-up
Put the agreement in writing, read agreement out loud if necessary, and have both sign it.
Congratulate them both.
Source: Deutsch, M. and Brickman, E. “Conflict Resolution.” Pediatrics in Review, 1994, 15, p. 21. Reprinted by permission.
Reflexive Interventions.
By reflexive intervention, I refer to mediators’ efforts to orient themselves to the dispute and establish the groundwork on which later activities will be built. Of necessity, they are of primary importance early in mediation, although they occur throughout the process. Establishing rapport and diagnosis are the most important of the reflexive activities.
Absent rapport with the parties, mediators can hope to accomplish little. Among the many things mediators can do to establish rapport include giving a convincing and credible introduction to the mediation process and the role of the mediator, conveying sincere concern about the dispute, showing empathic understanding of each side, and behaving evenhandedly. Although rapport building is a central tenet of the practitioner community, it has not received wide attention from researchers. Such strategies are associated with favorable outcomes in studies of labor mediation and mediation of interpersonal disputes in a community justice center.
Maintaining impartiality toward the parties and neutrality about the issues is often invoked as the sine qua non of rapport building and effective mediation generally, but as we have seen, many mediators (especially those of the emergent variety) hold decided preferences and biases and are often selected by the parties for precisely this reason. Perhaps more crucial than neutrality and impartiality is mediator acceptability, which can be established through rapport-building activities.
Before they can intervene effectively, mediators must also educate themselves about the dispute. Among the diagnostic tasks, we may count deciding whether mediation is an appropriate and mutually acceptable forum (in a case of extreme power imbalance or where there is a history of violence and intimidation, it may not be), separating the manifest from the latent (and more genuine) issues, identifying the real leaders and power brokers (in complex, multiparty disputes), and understanding the relationship dynamics of the parties. Among the mediator’s common diagnostic tactics are use of sustained interrogatories (often in conjunction with separate caucuses with each side, where sensitive questions can be asked easily) and keen observation of the parties’ behavior in joint sessions.
Contextual Interventions.
Contextual interventions refer to the mediator’s attempts to produce a climate conducive to constructive dialogue and problem solving. This class of strategy embodies the traditional view that a mediator ought to be a facilitator, not an arm-twister or proponent of a specific solution. Among the contextual strategies, we may include improving communications, establishing norms for respectful listening, managing anger constructively, maintaining the privacy of negotiations, educating the parties about the negotiating process, and establishing mutually acceptable procedures for fact finding. There is evidence that many of these behaviors, especially those associated with improving communication flow, are associated with favorable mediation outcome.
Structural intervention, such as deciding who should be present at negotiation sessions and conducting separate meetings with the parties (caucusing), may also be used as a method of “climate control.” Using the caucus is both common and somewhat controversial. The majority of practitioners see caucusing as an essential mediation tool for managing intense emotions, getting at sensitive information, and overcoming impasse. But some mediators avoid the caucus on the grounds that it fosters distrust between the parties, places an undue burden on the mediator for maintaining confidentiality, and engenders secrecy and scheming. Research on mediation of interpersonal disputes in a community justice center (Pruitt, McGillicuddy, Welton, and Fry, 1989) documents that mediators spent approximately one-third of their time in caucus and tended to do so when hostility was high and positions rigid. Although many disputants used the caucus as an occasion to bad-mouth the other side to the mediator, the results were a strong decline in direct hostility between the parties and an increase in problem-solving activity. More equivocal results for the caucus have been reported in labor mediation under particularly unfavorable conditions (unmotivated parties, large positional differences, and high hostility), where mediators sometimes fared better by eschewing the caucus altogether.
Substantive Interventions.
Substantive interventions refer to tactics by which the mediator deals directly with the issues in dispute. All mediators are obliged to deal with the issues in some way, although some philosophies of the mediator’s role de-emphasize a substantive, problem-solving focus in favor of relational objectives, such as increased understanding of self and other (Bush and Folger, 1994). Competence at formulating an overarching strategic direction for the negotiations—a flexible plan for reaching agreement informed by a sound understanding of each party’s interests, constraints, and limitations—is considered a central cognitive ability for the mediator in models that emphasize a problem-solving focus (Honoroff, Matz, and O’Connor, 1990). Certain contexts appear to promote a substantive focus for the mediator. This appears to be the case for mediators who work directly in the shadow of the law, such as divorce mediators or judges who elect to play a mediational role as part of pretrial conferencing.
Research on mediator tactical behavior suggests three distinct but overlapping
substantive domains for mediator activity: issue identification and agenda setting, proposal shaping, and proposal making. Mediator interventions in all of these domains have been associated with favorable mediation outcomes, although the pattern is not always uniform.
There is also increasing awareness of the importance of substantive activities aimed at increasing the probability that agreements reached in mediation are implemented and complied with. The risk of noncompliance may rise with the increasing number and complexity of the issues, the number of parties involved, the level of tension and distrust between the disputants, the strength and number of internal factions within each party whose cooperation is needed to implement the agreement, and the length of time during which the obligations set forth in the agreement must be performed (Moore, 1996). Among the important substantive activities of the mediator in this final stage of agreement implementation, we may assist in selling the agreement to various constituencies; help in developing criteria and procedures for monitoring and evaluating compliance, and procedures for dealing with intentional or unwitting noncompliance; encourage a return to mediation if disagreements arise during the implementation stage; and prepare the parties to maintain their agreements in the face of opposition and resistance from extremist factions (Coleman and Deutsch, 1995).
Assertiveness.
Assertiveness refers to how forcefully the mediator behaves along a continuum ranging from mild and nondirective at one end to forceful and highly directive at the other. Assertive behavior is most common in the substantive domain. Mediators frequently engage in arm twisting to persuade reluctant parties to accept particular agreements, particularly during the later phases of mediation (Wall and Chan-Serafin, 2009). Reflexive and contextual activities are not generally insistent, but even here mediators can act forcefully to overcome obstacles. Thus, judicious diagnostic questioning can yield to demanding and pointed interrogatories if the mediator suspects dishonesty or concealment; interventions aimed at improving the flow of communications can become stern and more assertive if one or both parties persist abrasively or provocatively.
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