I-MEDIATION CONCEPTS
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Mediation is one way of making direct and immediate
contact with others in a manner that allows us to resolve disputes and, at
the same time, experience being part of a larger community. Gary Friedman Mediation is a key short term solution to intercultural
conflict. Jan Jung‑Min
Sunoo |
In a mediation session, the
Central American father of two daughters living in the United States faces his
daughters’ landlord across a table. He is sharply critical of the condition of
the property and demands a large reduction in monthly rent. He also refuses to
allow his daughters to handle the issue themselves. The landlord, a
mild-mannered man, looks distressed. The landlord thinks to himself that, rather
than try to hold on to and rent out the house in which he grew up, perhaps he
should just sell it. His sense of loss over his mother’s recent death makes
this option more attractive.
Guiding an exchange between the two,
a mediator helps each to understand the other’s true interests. The father
needs to “save face” in front of his daughters and maintain his
“head-of-household,” “father-knows-best” role. The landlord, still grieving
over the recent loss of his mother, is troubled by what appears to be
nit-picking on the part of the tenants’ father.
Following the mediator’s instructions, the men speak directly to each other in an atmosphere of acceptance and understanding. They reach a resolution in which the rent is lowered a minimal amount. The father saves face. The landlord achieves his goal of direct communication with his tenants when the father agrees to let the older daughter handle future negotiations.
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DEFINITION OF MEDIATION
Mediation is a process for
resolving conflict in which an impartial third party assists disputants to
negotiate an informed and consensual agreement for themselves. Decision-making
authority always rests with the disputants.
The role of the mediator is to
identify the interests or needs of those involved. The mediator can reduce
obstacles to communication through identifying cultural issues, such as the
importance of saving face. Since mediation is often confused with arbitration,
it is important to recognize that there is a critical distinction in terms of
who is responsible for the actual decision. Arbitrators make final decisions,
normally binding on both parties. In mediation, the parties themselves make
those decisions, as in the case at the beginning of this chapter.
Mediation is also sometimes
confused with counseling. The role of counselors is often to facilitate ongoing
and in-depth exploration of personal issues in order to deal with problems
rooted in the past. For a mediation to occur, there must be a discrete dispute.
Mediators remain outside the dispute, behaving impartially and seldom giving
advice or suggestions. The mediation process is designed to address future
behaviors, as the father/landlord case aptly illustrates.
When the “rules” of a workplace, a
neighborhood, or an interpersonal relationship allow limited flexibility within
narrowly defined standards of behavior, there is little latitude for
interpretation. In such situations, when norms are breached and conflict
erupts, parties often leave a traditional conflict process feeling dissatisfied
and unfairly treated. Blame, bitterness, and bad feelings are often the residue
that becomes the foundation for more conflict.
Besides providing an alternative
to court trials or other formal judicial processes, mediation is a different
way of resolving disputes. It is effective because:
·
Mediation is cost-efficient.
·
It is a relatively inexpensive alternative to
the legal system. Mediators rarely charge as much as attorneys, and
administration costs are minimal.
·
Mediation is flexible.
·
It is an informal, flexible structure that can
accommodate differences in cultural or personal styles and offer creative
approaches.
·
Agreements are kept.
·
Mediation agreements tend to be carried out
because participants are involved in the decision-making process. Comparisons
to court judgments indicate that personal commitment is often more powerful
than judges’ orders.
·
Ongoing relationships are honored.
·
Mediation is particularly effective in long-term
relationship situations, such as neighborhood conflicts or work situations, where
the disputing parties must continue to interact with each other regardless of
the outcome of the conflict.
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GENERAL PRINCIPLES OF MEDIATION
It might be
useful at this point for both the practitioner and the non-mediator to review
some general principles of mediation. The following list, while not exhaustive,
constitutes a “baker’s dozen” that contributes to a successful mediation
session:
1.
Mediation assumes that people can resolve conflicts and
are capable of discovering their own resources for doing so.
2.
Mediators define and control the structure of the
process but seldom make suggestions or give advice.
3.
Disputants control the content of conflict issues and
make the decisions.
4.
Feelings and interpretations, as well as facts, are
useful data in a mediation.
5.
Mediators use the data in a flexible structure that
they adapt to the context of each particular situation.
6.
Values, beliefs, and attitudes are not the focus of
mediation but can be discussed and may be useful in clarifying issues for both
parties.
7.
Mediation encourages understanding of and respect for
other people’s values. It does not require people to change their own values.
8.
Mediation encourages people to choose options for
resolving conflict based on jointly agreed upon and acceptable standards,
without regard to the mediator’s values.
9.
Because the mediators themselves are committed to
confidentiality, the disputants are often more open to the viewpoints of others
and willing to take risks.
10.
With the help of the mediator, parties generate
workable and unique options for resolving specific conflicts.
11.
Mediated agreements focus on measurable behavior rather
than vague attitude shifts.
12.
Participants in a mediation are likely to carry out
agreements because they are personally involved in making the decision and have
a stake in the outcome.
13.
In a mediation, agreements are consensual. This
equalizes power regardless of the background of the disputants.
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THE MEDIATION PROCESS
There are a
number of mediation models and styles. Some models require single mediators;
others use co-mediators or panels of mediators. Some models use caucuses or
separate meetings with individual participants; others involve all the
participants in an open joint session. Some models name three broadly defined
stages; others use as many as twelve more narrowly defined ones.
Although many
different mediation models exist, most include the following stages:
Stage 1: Opening the Mediation. The
mediator discusses the process and describes the mediator’s role, the roles of
the participants, and the general expectations for the mediation.
This opening
usually addresses ground rules that include agreements to allow each party to
speak without being interrupted, to treat each other with respect, and to allow
the mediator to direct the flow of conversation. The mediator reiterates that
most mediation sessions are confidential.
Stage 2: Information Sharing & Issue
Identification. Each party has an uninterrupted opportunity to describe the
conflict from his or her perspective. The mediator reviews the major issues
expressed by each party. At this stage, the goal is for the two parties to feel
heard and for the mediator to identify the major concerns and issues to be
resolved.
Stage 3: Exchange & Negotiation.
Issues are clarified and options for resolving the dispute are identified and
discussed. In many mediation models, a brainstorming session about options for
resolving the conflict is part of this stage. After the generation of options
and without any attempt to evaluate any of them, the mediator and disputants
develop criteria with which they will evaluate each of the options. The options
are then reviewed, clustered according to where there is the most agreement,
amended, and, finally, those options that best fit the criteria are selected to
become part of the final agreement.
Stage 4: Agreement & Conclusion.
The mediation proceedings are usually summarized in writing. This summary,
including the final agreements reached, may be confidential or part of a public
record depending on the wishes of the parties involved. The agreements are
written as much as possible in the disputants’ own words, with the mediator
playing the role of recording those agreements and helping to keep them balanced.
Agreements are focused around behavior changes that are specific and practical
rather than attitudes and promises to “be nice” that only lead to further
misunderstanding.
While in many mediations these various steps become blurred, it helps to consider them as distinct stages. For example, this chapter is organized as if a mediation were progressing in a linear fashion. Yet practitioners understand that a key to successful mediation is to allow these stages to shift back and forth to maximize communication and understanding between the parties.
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STAGES OF MEDIATION: A SAMPLE MODEL
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DETAILS OF THE PROCESS
For readers
unfamiliar with a particular mediation process, the following discussion
expands on the sample model.
Stage 1: Opening the Mediation. This
stage sets the tone for the mediation as an informal participatory process in
which first names are used, individuality is respected, and confidentiality is established
as an essential precondition for open discussion. (It should be noted here that
some cultures are more formal than others and first names may not always be an
acceptable form of address. Be sure to ask the participants what form of
address they prefer. This is an important opportunity for the mediator to show
respect for the participants’ cultural norms.)
Stage 1, Step 1
Set Expectations of Disputants
These expectations
include accepting personal responsibility, being willing to try to resolve issues
and to accept ground rules, allowing ample time for each disputant to speak,
showing mutual respect, and abiding by established time constraints.
Stage 1, Step 2
Explain Procedures
The mediator
should explain his or her non-judgmental role as a facilitator and explain how
the process works, confidentiality, scheduling additional sessions, use of a
caucus, and availability to answer questions.
Stage 1, Step 3
Transition & Summary of the Situation
The mediator
states in a few sentences what the issues are that have brought the disputants
together to seek mediation, e.g., “We are here today to talk about some issues
that have come up at school (work, neighborhood, etc.),” not “We are going to
talk about how to change your attitudes about each other.”
Stage 2: Information Sharing & Issue
Identification. This stage of the mediation should allow the participants
(perhaps for the first time) an opportunity to explain their individual
perspectives on the conflict. The mediator’s role is to listen, verify the
disputants’ understanding of the issues, and mentally construct an agenda for
the next stage.
Stage 2, Step 1
Disputants Free to Speak
Each of the
disputants speaks in turn without interruptions.
Stage 2, Step 2
Mediator Summarizes
The mediator lists key areas of
differences and notes commonalities.
Stage 2, Step 3
Transition to Problem-Solving Mode
The mediator
constructs an issue agenda, briefly reviewing areas of agreement and difference
and framing them as points to discuss.
Stage 3: Exchange & Negotiation.
The goal during this stage is to develop understanding by each participant of
the other’s point of view, and identify the real interests that underlie each
party’s position.
Stage 3, Step 1
Participants Speak to Each Other
Under the
mediator’s direction, participants speak to each other first on common human
subjects and then on conflict issues, as framed by the mediator. Whenever
possible, common issues that emphasize mutual interests are good beginning
topics that give disputants the opportunity to practice constructive
communication.
Stage 3, Step 2
Mediator Urges Strategic Paraphrasing
This paraphrasing
is designed to reinforce common understandings and to recognize that feelings
and concerns about issues are as much “data” as facts and figures, and to
encourage disputants to speak to each other. When parties discuss feelings or
reactions, mediators must take care to make sure that each person is being
heard in the way in which he or she wants to be heard. To do this, the parties
may be asked to explain in their own words what the other person’s position is
in a way that is acceptable to the other party.
Stage 3, Step 3
Transition to Agreement Stage
Using
brainstorming, an option-generating technique, will generate ideas that address
each party’s interests or concerns and encourage the consideration of a
wide-range of creative options before any evaluation. In this way, the mediator
increases the likelihood of reaching a solution that fits the unique needs of
the participants. Often, the most conventional options are raised early in a
brainstorming session; those suggestions more likely to lead to compliance,
however, often come after traditional solutions are exhausted. Mediators must
be careful not to be too free to inject their personal suggestions but instead
to make sure that the parties are moving toward their own voluntarily made
resolutions.
Stage 4: Agreement & Conclusion.
During this stage the disputants resolve or narrow the issues through exploring
options and realistic alternatives.
Stage 4, Step 1
Mediator Orchestrates Examination of
Creative Options
At this point,
each party is encouraged to suggest possible options for resolving the dispute
with a focus on personal responsibility: What you are willing to do rather than
what you want the other person to do.
Stage 4, Step 2
Criteria for Evaluation of Options
Under the
direction of the mediator, a list of criteria is generated with all disputants
contributing. These criteria are “objective” in the sense that they are a means
by which to evaluate the various options. They may be concrete like
professional appraisals of value or more intangible like “Whatever we decide
will have to include Tom’s need for more independence.” The point is that the
parties need to feel that the agreement is fair. This is more likely to happen
if the disputants can connect the options to criteria on which they have agreed
to evaluate those options.
Stage 4, Step 3
Selection of Options
Based on mutually
agreed-upon criteria, the parties select options. The mediator may write up an
agreement using the parties’ own terminology. Sometimes the parties prefer oral
agreements. Written agreements may be preferable because they are less subject
to misinterpretation as memories fade, but on the other hand, some parties may
feel more respected if their word is a bond rather than a piece of paper.
The non-judgmental nature of a mediation process and the practical nature of the agreements that emerge from it are reasons to support its use in resolving conflicts resulting from cultural “clashes.” Respect and acceptance are its desired results. Opportunities for disputants to broaden understanding and meet the challenge of taking personal responsibility are its hallmarks.
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PROFILE OF A GOOD MEDIATOR
A good mediator,
like a good diplomat, is pleasant, positive, polite, and persistent. Here is a description
of the qualities, role, and skills of a good mediator, as well as a list of
what they don’t have to be:
QUALITIES
·
accepting
·
self-confident
·
aware of own culture
·
sensitive to other cultures
·
creative
·
patient
· caring
ROLE
·
to stay neutral in thought, words, and body
language
·
to introduce the process and set the tone
·
to let disputants work through the problem
·
to avoid taking the role of counselor
·
to guide the process through various stages
· to understand the mediation process and have faith in it
SKILLS
·
impartial behavior
·
ability to challenge own assumptions
·
ability to focus
·
ability to identify interests of the disputants
· communication skills, such as active listening and questioning skills
WHAT MEDIATORS DON’T HAVE TO BE
·
lawyers or other professionals
·
people without opinions
·
problem solvers
·
advice givers
·
saints!
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