The Handbook of Conflict Resolution (3rd ed)

by Peter T Coleman

  Although the practitioner literature conveys a decidedly ambivalent attitude about behaviors at the assertive end of the spectrum, it is clear that pressure tactics are commonly used, especially if the dispute involves very high levels of tension and hostility, if a mediator’s own interests or values are at stake, if the mediator is under strong institutional pressure to avoid the costs of adjudication, or if the mediator wields power over the disputants (a far-from-rare occurrence in some settings, as with judicial mediators). It is also clear from the research literature and more than a few case studies that assertive and even downright heavy-handed and coercive mediator tactics are often effective in producing settlements, particularly if conflict is intense and positions badly polarized (Wall and Chan-Serafin, 2009). What is not yet clear are the long-term effects of exercising such pressure, particularly on compliance and future willingness to use mediation.

  Mediator Stylistic Orientation

  Although most empirical studies of mediator behavior have focused on discrete intervention of the kinds just summarized, it is clear that mediators also have distinctive stylistic leanings. It is these stylistic predilections that organize and direct the tactical behaviors described in the preceding section (Kressel and Gadlin, 2009; Kressel, Henderson, Reich, and Cohen, 2012).

  Mediator style may be defined as a set of interrelated behaviors that are strongly shaped by the mediator’s ideas about the causes of dysfunctional conflict, the goals to be achieved in mediation, and the behaviors that are acceptable (and unacceptable) for achieving those goals.

  Mediator style occupies a central place in the world of practice. Wall and Dunne (2012) estimate that about twenty-five styles are described in the literature, although many of them seem like minor variations around some major themes. Identifying with a particular style (or styles) helps mediators clarify for themselves the inherent ambiguities in the mediation role (e.g., between task and relational demands) and provides a guide to intervention decision making under stressful and uncertain conditions (Kressel et al., 2012). In the practitioner literature, depictions of facilitative, evaluative, and transformative styles are common (Bush and Folger, 1994; Riskin, 1996), and proponents of one style or the other often argue about which approach is “best” (Bush and Folger, 1994; Lande, 2000; Love, 1997; Winslade and Monk, 2006). Courts and agencies offering mediation services have been urged to decide what mediator style they wish to promote for reasons of quality assurance and the obligation to tell consumers what they can expect (Charkoudian, 2012; McDermott, 2012). In one important instance—the US Postal Service nationwide mediation program—this advice was explicitly followed (Bingham, 2012).

  Research on mediator style has not, unfortunately, kept up with practice. Since the groundbreaking ethnographic studies of mediator style decades ago that first made clear the ubiquity of stylistic inclinations in the life of practicing mediators (Kolb, 1983; Silbey and Merry, 1986), there have been, by my search, only six observational studies of this central phenomenon (Kressel et al., 2012).

  Progress is being made, however. Recently, Jim Wall and I, and our respective colleagues, have published studies of mediator style (Kressel et al., 2012; Kressel, 2013; Wall and Chan-Serafin, 2009), and Wall and I coedited a special issue of Negotiation and Conflict Management Research devoted exclusively to mediator stylistic orientation (Kressel and Wall, 2012). The material that follows draws heavily on these sources.

  Any summary of mediator stylistic inclinations is bound to ignore significant areas of overlap among mediators practicing in broadly different styles. However, a discussion of mediator stylistic differences alerts us to the distinctively different worlds of practice encompassed by the term mediation and the extent to which practice is powerfully shaped by context and experience. Most stylistic accounts portray the mediator acting in either a problem-solving or relational style.

  Problem-Solving Styles.

  The problem-solving style has been, until fairly recently, the presumptive approach of nearly all mediators. It gives priority to unblocking the parties’ stalled efforts to reach agreements (the “problem” to be solved) through the mediator’s active grappling with the issues. Within the problem-solving mode are three major stylistic subtypes: facilitative, evaluative, and strategic.

  In the facilitative subtype (Riskin, 1996), mediators focus on helping the parties identify and express their underlying interests and needs on the assumption that doing so will bring to the surface underlying compatibilities or areas for trade-offs and compromises. Mediator neutrality (as to outcomes) and impartiality (regarding the disputants) are emphasized. This is the classic integrative approach to agreement seeking enshrined in Fisher et al.’s (1981) best-selling Getting to Yes. Among mediators, it is also the most popular philosophy of the mediator’s role, albeit one that is frequently contradicted by empirical studies of their behavior. The facilitative approach appears to be most often used in complex disputes involving parties with an ongoing relationship (e.g., divorcing spouses) and multiple tangible and intangible issues.

  The evaluative subtype (Riskin, 1996) is a more distributive version of the problem-solving approach. In this variant, the mediator’s implicit assumption is that the primary obstacle to settlement is the parties’ unrealistic confidence in the validity of their respective positions. A primary job of the mediator is to provide the parties with a more balanced and realistic positional assessment. The approach is often highly directive and appears most common in settings where the disputants have no ongoing relationship, are contending around a single issue, usually money, and there is an emphasis on speedy resolutions to conserve time and money (as in many court settings). The model is often favored by mediators used to exercising considerable decision-making authority such as judges or former judges. Wall and Chan-Serafin’s (2009) observational study of experienced mediators dealing with civil disputes identified a variant of the evaluative approach, which the authors consider sufficiently distinctive in its highly assertive attempts to lower the parties’ expectations and push them toward settlement, to be considered a separate “pressing” style.

  The strategic subtype is far less commonly discussed in the mediation literature, perhaps because it rests on an assumption alien to the labor-relations and legal traditions from which professional mediation arose: that destructive conflict is often the result of powerful latent causes of which the parties are unaware. A primary focus of the strategically oriented mediator is to help the parties identify such causes and modify them to the extent necessary to produce agreements on substantive issues. The approach is associated with mediators who have had training in disciplines where the notion of latent causes is familiar (e.g., psychotherapy or organizational development) and who work with parties who are deeply interdependent and have the time, capacity, and motivation to engage in the requisite analytical work.

  In intensive case studies I conducted with Howard Gadlin and his colleagues at the Office of the Ombudsman at the National Institutes of Health (Kressel and Gadlin, 2009), the strategic approach was the default intervention style. The NIH ombudsmen were adept at recognizing and addressing three primary latent causes of dysfunctional conflict: impaired communication patterns (typically avoidance or coercion), a blocked trajectory toward scientific autonomy in the mentor-protégé relationship, and systemic dysfunction (e.g., ineffectual leadership) in the unit in which the conflict was occurring. The preference for the strategic model appeared to be significantly augmented by the ombudsmen’s repeated opportunities as institutional insiders to develop expertise in recognizing these latent causes, their formal responsibility for facilitating systemic change within NIH, and regular consultation with each other in the management of cases.

  Relational Styles.

  In contrast to problem-solving styles, relational styles focus less on agreement making and more on opening lines of communication and clarifying underlying feelings and perceptions. Relational styles gain at least some of their impetus from a dissatisfact
ion with the perceived limitations of the problem-solving approach. They tend to be optimistic about the parties’ ability to manage their own affairs and emphasize the need of the parties to work through to their own solution. The orientation is ordinarily combined with interest in improving the parties’ long-term relationship and has a strongly humanistic flavor. Transformational (Bush and Folger, 1994), narrative (Monk and Winslade, 2001), and victim-offender mediation (Umbreit, 2001) are examples.

  Transformational mediation is perhaps the best articulated, and certainly the most popular, of the relational approaches to the mediation role. It served as the basis for the US Postal Service’s ambitious and successful approach to managing employee grievances (Bingham, 2012). The transformational mediator’s allegiance is to the twin objectives of empowerment and recognition. Empowerment refers to strengthening each party’s ability to analyze its respective needs in the conflict and to make effective decisions; recognition refers to improving the capacity of the disputants to become responsive to the needs and perspectives of the other. The approach is avowedly critical of mediator activities to produce settlement, direct problem solving, or substitute mediator judgment or analysis for that of the parties. All of these activities are felt to narrow the parties’ opportunity for self-reflection and mutual recognition.

  Despite the polemical tone that often characterizes discussions of problem-solving and relational styles, there is no strong empirical evidence for preferring one approach over another. In several correlational studies, disputing parties have been found to be more satisfied with a facilitative approach than a more evaluative one (Alberts, Heisterkamp, and McPhee, 2005; Kressel et al., 2012; McDermott and Obar, 2004; Wissler, 2004). However, in conflicts involving significant financial concerns, measures such as settlement rates and dollar amounts gained (by plaintiffs) have favored more aggressive, evaluative mediator behaviors (McDermott and Obar, 2004; Wall and Chan-Serafin, 2009). In international conflicts, where tangible consequences may be enormous, directive tactics (e.g., proposing a particular settlement and pressing for it) have been found more likely to produce successful outcomes than nondirective ones (Bercovitch and Lee, 2003).

  The reported differences between styles are of considerable interest, but the number of studies is small and the measures of stylistic difference are primarily of the self-report variety. No studies use the gold standard of randomized experimental designs based on observed mediator behavior to make systematic stylistic comparisons. Such designs are very much needed, but there are significant practical barriers to conducting them (Wall and Kressel, 2012).

  Mediator style is also almost certainly a function of the context in which mediation is occurring. Mediators are often encouraged to be stylistically flexible on the sensible grounds that under different circumstances, different adaptive behaviors are required and significant numbers of mediators present themselves as stylistically eclectic (Charkoudian, 2012; McDermott and Obar, 2004; Picard, 2004). Whether they are actually stylistically adaptive is an open empirical question. There are observational studies that report mediator stylistic inflexibility (Charkoudian, 2012; Kolb, 1983; Kressel et al., 2012; Kruk, 1998) and a few that report mediators moving between styles in the same case (Golann, 2000; Silbey and Merry, 1986; Wall, Dunne, and Chan-Serafin, 2011) or between cases. In the National Institutes of Health study (Kressel and Gadlin, 2009), ombudsmen had a default preference for the strategic problem-solving approach described above but used a narrower tactical approach (facilitative or evaluative), depending on their assessment of the degree to which latent causes were fueling a particular conflict and, if they were, of the parties’ capacity and motivation to address them. Part of the difficulty in measuring the extent of mediator stylistic flexibility is that we lack a meaningful taxonomy of mediation situations against which to measure mediator stylistic activity. Preliminary ideas on this matter have been suggested (Coleman, Gozzi, Katsimpras, and Ng, 2012; Kressel, 2007), but more work is clearly needed.

  Finally, it is important to realize that mediator-conscious identification with a stylistic orientation is unlikely to be the complete story behind how mediators behave. A formal, prescriptive model cannot possibly account for the unique elements of every conflict. In addition, the highly unpredictable and rapid interactions unfolding in front of the mediator require a blend of conscious deliberation and unconscious, reflexive responding based on each mediator’s unique beliefs, values, and experiences.

  In recognition of these considerations, my colleagues and I have begun exploring the tacit thinking that lies behind mediator decision making. To do so, we invited seventeen experienced mediators and five novices into the lab and asked them to mediate The Angry Roommates, a simulated conflict between two college women, and then to watch a video recording of the session and report on their in-session thinking (Kressel et al., 2012; Kressel, 2013). Trained observers also reviewed the videos of the mediation sessions with instructions to describe what the mediators might have plausibly been thinking to behave in the way that they did.

  Our analysis of the Angry Roommates study indicated that while familiar formal models of practice were clearly influencing mediator intervention choices, mediator behavior was also being influenced by tacit schema. These schema could be at variance with the mediator’s conscious stylistic allegiance and with the schema of other mediators identified with and trained in the same style of practice; could block mediator access to potentially useful knowledge they possessed from other contexts (e.g., as a therapist); and were associated with differing capacities for self-reflection that participating in the study provided.

  This initial foray into identifying the idiosyncratic schemas of practice that lie behind mediator conscious stylistic orientations suggests strongly that describing such schema, especially through efforts to get at the thinking of our most skilled practitioners, should be a central research goal. I return to this theme in the next section.

  IMPLICATIONS FOR UNDERSTANDING AND MANAGING CONFLICT

  I divide my thoughts on the practical meaning of our knowledge about mediation into two segments: the relevance of this knowledge for the user (or would-be user) of mediation and its relevance for the mediation practitioner.

  Implications for the Mediation User

  Although mediation has become more familiar in recent years, this chapter reviews evidence that its use is often hindered by ignorance, resistance, and a lack of social support. Embroiled parties and the individuals with formal or informal authority over them can do a number of things to offset these tendencies.

  Encourage Use of Mediation.

  Whereas research indicates that mediation is effective in many conflicts, parties are often reluctant to try it because they are unfamiliar with the process and distrustful of their adversary. For this reason, exercising tactful but firm pressure on antagonists to try mediation is often extremely helpful. Those in a position to exercise such pressure can take comfort from the evidence that it has not been found damaging to the mediation process so long as the parties retain the right to withdraw from mediation at any time.

  A more pervasive issue is the unavailability of mediation in many settings, particularly in the workplace. There are at least two things that people with organizational authority can do in this regard. The first is to promote establishment of formal mediation services. Typical settings for such services are as part of a human resource department or ombuds office, but other creative locations can be found; in one university, a faculty development center became the locus for informal mediation of faculty disputes (Kressel, Bailey, and Forman, 1999).

  A second way to foster use of mediation in the workplace is to give managers mediation training. Such education can be useful in helping them make informed and appropriate referrals to mediation and promoting the acceptance of mediation services. Mediation training can also empower managers and other emergent mediators to intervene directly in conflict between subordinates in new and productive ways. Although managers often
fear to mediate the conflicts of their subordinates on the grounds that they are not neutral, it is clear that neutrality is not a sine qua non for effective mediation. More important is acceptability built on rapport and the mediator’s evenhandedness. These qualities depend on skills and attitudes basic to all good human interaction: active listening, patient inquiry, respect for differences, skepticism about win-lose solutions, and avoidance of premature closure whenever complex issues and feelings are involved. People taught such skills and attitudes as part of a mediation training program often report general improvement in their interactions with others, quite apart from their usefulness in mediation proper.

  Be Prepared to Participate.

  Voluntarily seeking or accepting referral to mediation is almost always sensible in any conflict. Disputants should enter mediation willing to suspend distrust and competitive stratagems at least long enough to give the process a chance. It is also important to keep in mind that active participation in the mediation process is likely to produce benefits even if a comprehensive settlement is not reached. Benefits include such things as gaining a clearer perspective on your interests and objectives as well as those of the other, making progress toward agreement on some issues, and the satisfaction of knowing that a thorough and sincere effort to work collaboratively has been made. In addition, parties who have made a good-faith initial effort at mediation often return to the process later in the trajectory of their dispute with positive results.