Mediation Process from the Perspective of a Mediation Practitioner

Introduction

This essay examines the mediation process from the perspective of a mediation practitioner. It considers the approaches to mediation, advantages and disadvantages and the various stages involved in the process. It describes how a mediation process was dealt with in a private inter-company dispute the author is familiar with.

The Oxford Dictionary definition of a process is “a series of actions or steps taken in order to achieve a particular end” and mediation as “intervention in a dispute in order to resolve it”. It is the ‘feminine face of dispute resolution’ (Ashley Phillips, 2001) and it is about “storytelling” where each client presents their story and the mediator helps to develop a mutual story (Haynes et al, 2004). Mediation provides space between the participants to the dispute, considers values (relationships, emotions, meanings etc.) and the process (communication styles, structures, procedures etc.), not just the presenting the

problem or conflict (Beer, 1997). The strengths of mediation lie in it being an alternative to the adversarial process but others may see it as ‘ a ‘touchy feely’ activity carried out by do-gooders with little practical relevance to actual disputes and, worse, foisting a goal of ‘transformation’ onto unwilling customers. (Irvine, 2007). Whatever your view the debates on the merits or demerits of mediation will continue.

What does mediation look like? ‘Each mediation presents its own set of challenges with its unique issues, personalities, sensitivities and impediments to settlement. Who is at the table, what is on the table, when the discussions should take place, the sequence and manner in which parties and issues are addressed, all have tremendous impact on the likelihood of a successful resolution’ (Sussman, 2008). Mediation usually reflects an acute desire to preserve the continuing relationship of the participants.

In an Irish context publicised data on the use of mediation is provided by the Equality Tribunal in its Annual Reports. In 2008 44 cases were resolved at mediation and in 2009 the corresponding figure was 64 cases (source: Equality Tribunal Mediation Review Reports) . This would indicate that the use of mediation is increasing each year particularly in equality arena. The Tribunal’s Mediation Service is ‘to provide an alternative dispute resolution process to that of investigation in respect of claims for equal pay in employment and complaints of discrimination, harassment, sexual harassment and victimisation under the Employment Equality Acts 1998 to 2008, the Equal Status Act, 2000 – 2008 and the Pensions Acts 1990 – 2008’ (www.equalitytribunal.ie)

Approaches to the Mediation Process

Different models are helpful in the choice of approach to be adopted with mediation. The Promise of Mediation (Folger & Bush, 1994) outlined four diverging views. The first is the “satisfaction story” which contends that ‘mediation is better than adversarial dispute resolution because it uses collaborative and integrative approaches in order to reach win-win outcome for the participants’. The second view is the “social justice story” suggests participants can be organised around common interest to obtain social justice. The third “transformation story” argues participants problems and goals can be defined in their own terms. The final story is the “oppression story” suggests mediation is dangerous because of its informality which can allow the stronger party to manipulate the weaker one. According to Folger and Bush the satisfaction story is the dominant one and it is based on the notion that conflict is a problem that needs to be solved. In contrast transformative mediation encourages empowerment and recognition. Consequently mediators have to choose between transformative or problem solving approaches as they cannot be successfully combined.

The current problem-solving mediation model considers conflicts ‘neither good nor bad, but as situations of competing interests and needs among parties that are generally neither right nor wrong’ (Chupp, 1991). Which is best transformative or problems solving mediation? In the book Mediation Dangerously it is suggested that ‘conflicts are not just to be solved, but to be learned from-when mediation becomes dangerous, is when mediation becomes truly enlightening and transformational’ (Cloke, 2001).

Different styles of mediation have emerged. These are generic (1970), settlement driven (1980), cognitive and systemic (1980), humanistic style (1990) and narrative (1990) (Boserup, 2003). Each varies to the degree that they focus on feelings, emotions, problems, needs and interests of the parties.

Advantages & Disadvantages of Mediation

‘ We are aware that conflict is dangerous, but we expect mediation to be safe..recognise that in order to resolve our conflicts we have to move towards them which is inherently dangerous because it can cause them to escalate’(Cloke, 2001). In his book Mediating Dangerously, Kenneth Cloke argues that conflict is laden with information essential for growth, learning, intimacy and change. Honest communication poses risks with the inevitability of opening ‘Pandora’s box’. Conflict suppression (tolerance of evil and acceptance of injustice) and conflict settlement (suppressing and denying underlying causes) does not lead to conflict resolution which recognises the inevitability of conflict and its potential to generate a positive outcome.

Mediation, like most things that are good in the world, is not perfect. It has its risks and drawbacks which must be evaluated before embarking on a mediation process. Some would argue that its risks are small compared to its advantages. Others would adopt a different view ‘mediation’s extreme malleability makes it an inherently flawed and dangerous forum for handling conflict’ (Folger, 1994).

Advantages offered by mediation are its speed, confidentiality, low cost, fairness, reduced stress, flexibility and success. The disadvantages are that of an imposed solution, non-binding, power imbalance, compromise and showing your hand. Proponents of ‘positional bargaining’ in negotiation and some legal advisors would see mediation as giving up your rights. Advocates of mediation would hold the view that the only discernible disadvantage of mediation is that it may prove to be a waste of time, effort, and resources.

Mediation makes sense where the law cannot provide the remedy you want i.e. as a participant you may want to end a problem, but not a relationship, your dispute is no one else’s business and you want to keep it that way. Mediation may not be your choice if you want to vindicate your rights or to set a legal precedent, you want to go for the jackpot, other party refuses to mediate and if the dispute involves a serious crime (Lovenheim, 2004).

The Mediation Process

The mediator is the manager of the mediation process. The disputing parties are in charge of the content that they bring to that process. The mediator who is in charge of the process helps them work through the process by asking parties to be creative and expand their view and thinking about what the conflict so that they can find a way to work through it. The mediator also facilitates the parties by asking questions to help them develop other attitudes and ways of thinking about what they are dealing with so that they can find a good outcome for themselves. The mediator is not a passive facilitator but a person stirring people to get them to focus on what they need to do to move forward. Rather than rush the parties to find a solution or ‘thoughtless outcome’ the mediator needs to help them to bring everything to the process, put it all out and then begin to look at what can be done to enable a ‘wise outcome’.

The mediation process or the “anatomy” of that process (Beer, 1997) can take many different forms and may be structured in the following stages or variations of these:

Preparing

Opening

Exploring

Negotiating

Concluding

(Source: www.mata.org.uk )

The Preparing Phase includes preparations prior to the mediation day. Arrangements such as the date, venue, attendees, documentation exchange and the mediator’s fee need to be attended to. There may also be a pre-mediation with other professionals (legal, employer etc.)

or with the disputing parties direct. The mediator may get a feel of the personalities, needs of the parties and what settlement discussions may already have taken place.

The Opening Phase will commence once the mediator has been appointed and he/she will convene a meeting with the parties. The meeting will typically begin with introductions. The mediator will outline the process, set the tone for the process and hopefully create a positive

resolution-finding approach with the parties. A key element will be to establish and maintain trust and confidence in the process, rapport between the parties, negotiate and establish ground rules. The ground rules might include speaking in turn, without interruption, civility and respect. Mediation is more than an opening statement by parties followed by a negotiation. The steps involved in a mediation attempt to minimise the advocacy and posturing between parties that typically occur in negotiations. ‘During mediation, advocacy of one’s position must ultimately give way to a more objective evaluation of the conflict to arrive at a mutually agreed solution’. (IBEC, 2006)

The Exploring Phase will involve each party telling their respective stories of their perspective of the dispute preferably without interruption. Parties will present:

A version of the events that led them to mediation. Each participant gives a version in a way that demonstrates how good that person is. It is a statement of innocence.

The second part of the story is the complaint against the other[s], which demonstrates how bad the other person is. Each story usually maximizes gain and minimized loss to themselves. It is a statement of responsibility.

The third part of the presenting story is the teller’s definition of the problem.

(Haynes et al, 2004)

The exploring phase helps the parties to understand each other’s perspective. It provides the mediator with an understanding of the parties interests and issues and to identify obstacles to resolution. The mediator needs to be an active listener, may ask questions and may seek clarification during this stage of the mediation process. He/she can confirm the interests of the disputants by summarising for each disputant and to ensure the accuracy of mediators understanding of the disputants. Parties may also be encouraged to speak directly to one another.

The Negotiating Phase helps parties to focus on the specific matters or items, which must be

resolved. ‘Mediation is the management of other people’s negotiations….. is all about helping people to negotiate a settlement of their dispute’. (Haynes et al, 2004). The mediator should frame the issues in a way that promotes problem solving i.e. in a positive way and using neutral language to invites option generation. He/she should also encourage the parties to be as creative as possible.

The Concluding Phase is where hopefully the mediation will result in agreement. The mediator assists in moving from a preferred option to a settlement agreement. He/she should ensure that the settlement deals with all the issues. If no agreement is possible the mediator should acknowledge progress made and perhaps suggest prospects for use of mediation in the future.

Overcoming Concerns with The Mediation Process

Disputing parties come to the mediation process with an number of inhibitions and concerns that must be allayed by the mediator. They are sometimes confused and concerned about forfeiting their rights and advantage being taken of them. While disputants may like the idea of resolving conflicts in a less adversarial way, they may sometimes not be clear about the role mediator and what the process entails. For mediation to be properly considered, concerns, misconceptions about the process and he risks need to be evaluated.

A ‘caring approach’ should be adopted by the mediator as well as ‘setting the tone of the mediation process’. This entails giving ‘each side equal respect and power of their position being equally valid and meaningful (Hope, 2009). Establishing ground rules is important. The parties must feel safe. Disputants may have genuine concerns about their ability to negotiate with the other person/party and they may also have fear of losing. The mediator has a duty and responsibility to protect both parties.

Good mediators are not neutral. It is ‘impossible to be truly neutral while listening to any story’ and mediators should maintain ‘balance rather than neutrality’ (Haynes et al, 2004). Mediators will assist the parties to negotiate well and must maintain balance between the parties. They help each party to get the required information in order to come to an informed decision, clarify issues, discuss options, risks and evaluate the advantages of each. It is the job of the mediator to ensure each party feels the mediation environment is safe and that they trust and are comfortable with the mediator.

The “right way to mediate” is a contradiction in terms. There is no right way. Mediation is more a state of mind than it is specific skills. There is certain skills and strategies that can be developed, issues to be addressed in order to assure decisions made by the parties are informed and voluntary. It is thought that a mediator is humanistic, compassionate, patient and an empathetic listener and that qualifications and Myers-Briggs testing are important. But there is another ‘school of thought’ that natural mediators who rely on gut instinct and natural inquiry are more appropriate. Important attributes for such a mediator are seen as:

Confused. This trait is one of sitting on the fence, Recognising there are no easy answers, heroes can sometimes be scoundrels and victims can sometimes be perpetrators. It’s never easy or clear.

Voyeuristic. This is associated with a fascination of how human beings interact with each other, construct their own realities and pursue their intimate relations with others. This trait allows a greater ability to resist being judgemental.

Compulsive. These mediators have a penchant for bringing order out of chaos. They recognise that conflict is less about available resource allocation and more about parties being inundated, afraid of being taken advantage of made look a fool.

Marginal. Mediators are not allied to any cause or function other than to assist the participants in making decisions for themselves. Mediation is not about social justice.

(Source: Benjamin, The Natural Mediator, 1998)

Mediators sometimes have unrealistic and artificial expectations of what they should be to clients. It’s best to recognise this in mediation and use our basic nature and to harness the above attributes and vulnerabilities to our advantage.

Applying the Mediation Process to a dispute

This dispute concerned an allegation of workplace bullying and harassment due to performance management issue between an employee and his supervisor. Particular emphasis was placed on exploring options for resolution which focused on the future relationship of the parties i.e. the working relationship needed to be preserved. The neutral mediator appointed was neither a decision-maker nor an expert advisor.

The Company mediation process (as it was conducted) undertook 4 distinct stages:

Preparation

Hearing the Stories

Developing options

Reaching agreement

During the preparation stage the mediator met with and greeted the parties, explained the process, gained agreement on ground rules, answered any questions and looked for a willingness to engage.

In hearing the stories both employees were allowed to talk in turn and both listened. The mediator asked questions with a view to clarifying issues between them. He then asked if both understood each others issues (but not necessarily agreed). There was then a joint identification of the issues.

In developing options possible suggestions were made on how to resolve matters. This included involvement of Human Resources in monthly performance meetings for a period of six months. This option was agreed and that both employees would work to solve matters between them.

In reaching agreement it was decided that there would be no written agreement but a verbal one. This was to maintain an on-going ‘off the employee record’ relationship. The closing ceremony thanked both employees for participation and hopes were expressed for of non-recurrence of any verbal altercations. Both employees were reminded about confidentiality and the processes was closed.

The following goals were successfully achieved during this mediation:

Reduced the impact of the conflict zone between the parties.

Focused on areas where change was possible i.e. behaviour and performance.

By asking reflective questions and having both parties ponder the implications of not finding a solution it became apparent to them that there was a need for an on-going work relationship and improvement.

Achieved measurable outcomes with an agreed monthly review meeting.

There were also some aspects of the mediation that could have been dealt with better. Early in the mediation the level of conflict between the parties was quite intense. Initially there was more shock than listening. In hindsight it would have been better to allow this argument to continue rather than interrupting to diffuse matters. Once the intervention was made by the mediator both parties were asked and told their stories leading to clarifying what their needs were and what they expected from each other. Dialogue was then established and they agreed to move matters on.

Conclusion

The issues in respect of mediation and its challenges are numerous and complex. It

would be a mistake for a mediator to assume that all mediations are capable of being approached in the same way. Different models and approaches should be deployed to help the participants achieve the best outcome. ‘Mediation does not create a new world; it can only attempt to use the best possible strategies to arrange existing building blocks into an acceptable structure for all concerned’ (Stewart, 1998).

In terms of overcoming participant concerns with the mediation process, while there is “no right way” to mediate, there are key mediator skills mediator are essential. Compassion, patience and empathy are mediator traits visible to the participants. But mediators being human should also accept that natural attributes of being confused, voyeuristic (in a nice way), compulsive and marginal can be harnessed to good effect.

While mediation assists the decision making process to achieve a ‘wise outcome’, it does not lead to a perfect outcome but hopefully one that the participants can live with and preserves their relationship. As a process it is largely a balancing act (of participants need and interests). Indeed Kenny Rogers could just as easily have been singing about the mediation process in his song The Gambler:

‘You got to know when to hold ’em, know when to fold ’em,

Know when to walk away and know when to run.

You never count your money when you’re sittin’ at the table.

There’ll be time enough for countin’ when the dealin’s done’.