MEDIATION

Mediation can be defined as third parties helping disputants resolve their dif­ferences. Mediation may be formal, in the sense of involving specially trained third parties who offer their services to the public, or emergent, in the sense of involving third parties who are drawn from the same social milieu as the disputants.

Multiple Mediators

Sometimes more than one mediator is involved with a dispute. For example, in formal comediation, two trained mediators are assigned to a case. These medi­ators often differ in characteristics that reflect differences between the dis­putants, for example, a black and an Hispanic mediator when one disputant is black and the other Hispanic. The pluses and minuses of comediation need the­oretical analysis and empirical test.

In emergent mediation, two or more mediators may form a communication chain between the disputants; for example, in Northern Ireland in the 1980s and 1990s, a chain went from Sinn Fein (the political wing of the Irish Republic Army) to the SDLP (a moderate Catholic political party) to the government of Northern Ireland and thence to the government of Great Britain (Pruitt, forth­coming). It can be argued that such chains serve two functions: (1) there is greater understanding and trust between parties adjacent in the chain than between the parties at either end, and (2) chain length makes it hard for out­side observers to detect that sworn opponents—the parties at either end—are communicating with each other. Research is needed to fully understand the functions of such chains, the conditions under which they form, the extent of their success, and how chain users cope with the inevitable distortions in mes­sages that are transmitted through chains.

Sometimes disputants communicate with each other through several media­tors or mediator chains simultaneously. For example, during part of the time in which the chain just described was operating, Sinn Fein and the British gov­ernment were also communicating through a mysterious individual known as the “contact” (Mallie and McKittrick, 1996).

Rival Approaches to Mediation

Until recently, there has been a single, standard approach to mediation. (For example, see Kressel, 2000.) Mediation has been viewed as assisted negotiation, the goal being to help the disputants reach a viable agreement. The favored method has been guided problem solving. The mediator helps the parties locate the interests (goals, values, needs) underlying their initial positions and their priorities among these interests. Then a search is made for options that satisfy these interests and priorities. If the parties are unable to devise such options, the mediator throws out suggestions, but the final decision must be by agree­ment between the parties.

This standard approach has recently been challenged from a number of direc­tions. A friendly amendment comes from writers who stress the importance of perceived justice in both negotiation and mediation (Conlon, 2006; Tyler and Blader, 2004; Zartman, and others, 1996). The argument is that disputants are as concerned about justice as about satisfying their interests. Hence, if one or both parties feel that they are suffering an injustice, the standard approach to mediation may produce no agreement or an agreement that is not followed. There are at least three kinds of perceived justice to which the mediator must attend. One is distributive justice, a sense that the outcome is equally favorable to both parties or more favorable to the party with a more legitimate claim; the second is procedural justice, a belief that the mediation session was conducted fairly; and the third is interpersonal justice, a perception that the mediator was sensitive, polite, and respectful. Several studies, including one by Lind, Kulik, Amtrose, and de Vera Park (1993) have demonstrated the importance of proce­dural justice for success in mediation.

The standard approach to mediation is more radically challenged by two other new schools of practice. One is narrative mediation, which sees the basic job of the mediator as flushing out and restructuring the parties’ narratives— the stories they tell abut the history of the conflict and how they think, feel, and speak about it (Cobb, 2003; Winslade and Monk, 2001). Narrative mediators have little use for the traditional effort to discover the parties’ interests, because they view these interests as deriving from narratives and as likely to change when the narratives change. Agreements may be reached as a result of narra­tive restructuring, but that is not the basic goal of mediation, which is to improve the parties’ capacity to deal effectively with each other.

The other dissenting voice comes from proponents of transformative media­tion (Bush and Folger, 2005). Transformative mediators seek to improve the rela­tionship between the parties and to give the parties a sense of empowerment rather than to find a viable agreement. Their technique is very nondirective. They provide little structure and no advice, instead encouraging the parties to make their own decisions and helping them to understand their own and the other party’s viewpoints.

There is considerable evidence favoring the claims of traditional mediation (Kressel and Pruitt, 1989). By contrast, narrative mediation and transformative mediation have not yet been evaluated empirically. Laboratory research does not seem appropriate for this purpose unless one can bring experienced medi­ators and genuine disputes into the laboratory, which is likely to be very diffi­cult. A more plausible setting would be a community mediation center that uses all three types of mediation, if such could be found. Otherwise, centers spe­cializing in each kind of mediation would have to be used.

What is needed first is a careful study of how traditional, narrative, and trans­formative mediators actually behave, to pinpoint similarities and differences.

Finding common measures of success for the three methods is likely to be a challenge, since the proponents of these methods have different goals. But one would certainly want to measure disputant satisfaction, adherence to any agree­ment reached, and long-term improvement in the relationship and the ability to cope with future conflict.

Contingent Mediation

Advocates of the three contrasting traditions just discussed usually assume that their method fits all cases. But this assumption is highly questionable, consid­ering the variety of conflicts that go to mediation. Contingent mediation, involving diagnosis followed by a choice among treatments, makes more sense.

A contingent approach is taken by Gray (2006), who recommends discover­ing the frame with which disputants enter mediation and trying to change that frame if it is inappropriate. Possible frames include (a) a “sell my position” frame, in which the goal is to dominate the session; (b) a “power struggle” frame, in which the goal is to gain authority or win allies; (c) a “hierarchist frame,” which accepts top-down decision making as legitimate; (d) a “hopeless dialog” frame, which views the mediation as a waste of time; and (e) a “potentially resolvable problem” frame, which is ideal for mediation. Gray’s diagnostic approach is plausible but needs evaluation.

Other advocates of a contingent approach challenge the notion that media­tors should always try to improve the relationship between the parties—a major goal of narrative and transformative mediation.

1. Discussion, in which the parties have a good relationship but are unable to solve a particular problem. Here, relationship building is unnecessary and traditional mediation is fully appropriate.

2. Polarization, in which “trust and respect are threatened, and distorted perceptions and simplified stereotypes emerge.” Here, relationship building should be attempted before moving to traditional mediation.

3. Segregation, in which the parties are competitive and hostile.

4. Destruction, “in which the main aim of the parties is to subjugate or even to destroy each other.”

At these last two levels of escalation, relationship building is not feasible, and the mediator should try to contain the conflict by taking firm steps to stop hostile action. If these steps are successful, it may be possible to work on relationships later. Firm action of this kind may require some element of mediator power.

Fisher and Keashly’s elegant model was developed in the context of interna­tional and ethnopolitical conflict, but it seems equally appropriate to conflict between individuals and between small groups. The model clearly needs empir­ical testing, preferably in several different settings. Taking firm steps to stop hos­tile action (which is also advocated by Saposnek [2006] for divorce mediation) is 180 degrees antithetical to the nondirective approach of transformative medi­ation, a discrepancy that needs to be sorted out empirically.

A contingent approach is also advocated by Dugan (2001), who suggests that the source of a conflict may lie at any of the following three levels: the issues under dispute, the relationship between the parties, and the broader social sys­tem. Many conflicts are initially presented as involving surface issues but on deeper probing are found to derive from a flaw in the social system.

In a study of the mediation methods used by the National Institutes of Health Office of the Ombudsman, Kressel and Gadlin (2005) found evidence of a search for underlying structures similar to that prescribed by Dugan. In a series of case studies, they showed that the mediators began with a diagnostic phase in which they classified most of the controversies as deriving from one of three underly­ing difficulties: a dysfunctional communication pattern, a supervisor blocking the scientific autonomy of a rising new investigator, or weak program adminis­tration. In some cases, they were able to work on the underlying difficulty, while in others, the disputants insisted on a more superficial, issue-based approach. Similar diagnostic templates are sometimes used by family therapists, who clas­sify cases as arising from such standard causes as parental blockage of adoles­cent efforts to break away or the husband retreats/wife pursues pattern of interaction.

It is possible that diagnostic templates are used by mediators in other set­tings as well. Conceivably, many professional mediators develop a typology of underlying causes in the realm of their practice and use this typology to diag­nose new cases. If so, our field needs more in-depth comparative case studies like that done by Kressel and Gadlin and broader theoretical work once these case studies have been done.