The purpose of mediation is to provide a forum for consensual dispute resolution by the parties. Mediation is based on concepts of communication, negotiation, facilitation, and prob

MEDIATION THEORY AND PRACTICE 2nd Edition

Suzanne McCorkle and Melanie J. Reese

Chapter Two: The Basic Components of Mediation

Copyright © 2015 by SAGE Publications, Inc.

Philosophical Assumptions

Transformative Approach Problem-Solving Approach Balanced Approach

Copyright © 2015 by SAGE Publications, Inc.

Functional Models of Mediation

 Introduction Introduce parties, process, provide clarification,

offer encouragement

 Storytelling  Problem solving

Defining the problem, setting agenda, generate options

 Resolution

Copyright © 2015 by SAGE Publications, Inc.

Variables in Mediation Models

 Pre-mediation or no pre-mediation  Allow interruptions or control speaker’s

time  Allow, require, or forbid caucuses  Require initial agenda or develop as

mediation evolves

Copyright © 2015 by SAGE Publications, Inc.

Variables in Mediation Models  Consider steps functional or

chronological  Focus on the problem, the emotions, or

balance the focus  Prescribe moves or allow mediator

choice  Allow or prohibit parties talking to each

other  Writing agreement or not writing

agreements

Copyright © 2015 by SAGE Publications, Inc.

Variables in Mediation Models

 Allow or prohibit parties talking to each other

 Writing agreement or not writing agreements

Copyright © 2015 by SAGE Publications, Inc.

Copyright©2015 by SAGE Publications, Inc.

Opening Statements

 Welcome parties to the mediation  Introductions  Establish mediator credibility  Confirm decision-makers at table

Copyright©2015 by SAGE Publications, Inc.

Opening Statements (cont.)

 Explain nature and scope of mediation  Detail mediator’s role  Discuss possibility of private meetings  Define impartiality and neutrality

Copyright©2015 by SAGE Publications, Inc.

Opening Statements (cont.)

 Cover confidentiality and limitations  Explain mediator’s notes  Establish ground rules for

communication  Establish logistics

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Opening Statements (cont.)

 Review outside resources  Secure commitment to begin  Transition to storytelling and issue

identification

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Culture Styles of Conflict (Hammer: 2002, 2005)

Discussant cultural conflict style  Engagement cultural conflict style Accommodation cultural conflict style Dynamic cultural conflict style

Copyright©2015 by SAGE Publications, Inc.

Hofstede’s Cultural Dimensions

 Power Distance  Individualistic/Collectivist  Masculinity/Femininity  Uncertainty Avoidance  Short vs. Long Term Perspective

Copyright©2015 by SAGE Publications, Inc.

Compare Cultures at the Hofstede Center

http://geert-hofstede.com/countries.html

Copyright©2015 by SAGE Publications, Inc.

CHAPTER 2

The Basic Components of Mediation

Philosophical Assumptions 20 Transformative Approach 20 Problem-Solving Approach 21

Functional Models 22 Integrating Philosophies 23

Variables That Make a Difference in Mediation Models 24 Pre-Mediation or No Pre-Mediation 24 Allow Uninterrupted Disputant First Statements or Control When and How Long Each Person Speaks 25 Allow, Require, or Forbid Private Meetings between the Mediator and the Parties 25 Require an Agenda before Negotiating, Negotiate as You Go, or Slide Back and Forth between Issue

Identification and Negotiation 26 Consider the Parts of the Mediation as Functional Phases or as Chronological Steps 26 Focus on the Problem, the Emotions, or Balance Problems and Emotions 26 Prescribe Automatic First Moves within Phases or Allow Mediator Choice 27 Allowing or Prohibiting Parties to Speak to Each Other 27 Writing and Signing or Not Signing Agreements 27

Phases in the Balanced Mediation Model 28 Pre-Mediation 29 Mediation Session 30 Post-Mediation 33

Does Culture Matter in Mediation? 34 Summary 36

19

20 MEDIATION THEORY AND PRACTICE

Mediation is a term that encompasses a wide array of models, strategies, and out­ comes. Because the profession of mediation encompasses so much variety, we can~ot simply offer a "mediation model" without first determining the philosophical underpin­

0nings guiding the purpose of mediation. Before we can answer the _question "How ? we mediate?" we must first establish our reasons for mediating. In this chapter, we discuss assumptions that guide the choices mediators make, compare several models, _Present the balanced mediation model used in this book, and consider how culture impacts

mediation. The phases, steps, or processes recommended for specific mediation co~te~ts are

organized into what are termed mediation models. Different models of mediation ~re used throughout the world and vary according to their philosophical appro~ch to confhct management style, the emphasis given to specific components, and the unique deman~s of specialized contexts. What mediation models share in common is that ?nee a m~de_l is adopted, it becomes a prescription for what will and will not happen dunng a mediation

session-what is essential and what is forbidden.

PHILOSOPHICAL ASSUMPTIONS

Every choice a mediator makes throughout the process alters the cour_se of the mediation. Determining "why we mediate" provides a direction for those ch_01ces. There are two primary philosophical approaches to mediation: the transformative approach and the

problem-solving approach.

Transformative Approach The goal of transformative mediation (also called concil~atory mediation) is ~o build healthy relationships, improve communication between parties, create understanding, and promote healthy communities. Robert A. Baruch Bush and ~~se_ph ~- Folg_er, in their_ 1994 book The Promise of Mediation, capture the spirit of reconciliation in their exploration of

transformative mediation. Bush and Folger (1994) believe every choice is biased on the mediator's worldview and

past experience. A major concern for Bush and Folger is the "~ias to settle,:· which they view as a weakness of the problem-solving approach where mediators subtly influence the parties toward settlement. Instead of focusing on the problems to be solved, the transfor­ mative mediator should focus on the growth of the individuals.

Transformation mediators assist the parties in discovering their personal values, empower the disputants' inner strengths, and help each pe~son to reco~nize and ~1:1pa­ thize with the other party. Self-determination (letting the parties make their o_wn dec1~10ns) is of paramount consideration (Nace, Bush, & Folger, 2002~. Transform~tlve mediators arrive with a mental map and list of questions to help the parties through a Journey of self­ discovery that may or may not lead to problem resolution. Fr_om t~is perspective, mediators assume that once the parties are transformed, problem solving will follow naturally.

CHAPTER 2: The Basic Components of Mediation 21

The transformative approach is neither unconcerned with the issues in a conflict nor uninterested in resolution. The hallmark of this approach lies in the mediator's acumen in transforming the conflicting individuals from adversaries to collaborators. The by-product of this approach will be a transformed relationship where the conflict is addressed in light of who the parties are to one another.

CASE 2.1: My Old friend Is My New Boss

Reymundo and Noah work together in the same department at a warehouse distributing company as supply clerks. They graduated in the same year from Central High School, but they didn't know each other well at that time. While working at the same firm for the last two years, they have become good friends, sometimes getting together after work for a cold drink.

Afew weeks ago, the section manager quit. The company posted the job opening, which included a substantial raise and other promotion opportunities down the road. Reymundo and Noah both applied for the job. After saying it was a "close decision," the company pro­ moted Reymundo. The company said that Reymundo had been taking management classes at the university at night and that gave him the edge.

On the first day Reymundo became the section manager, Noah arrived at work 20 minutes after the start of shift. The previous manager always asked Noah to pick up the monthly reports on the 10th of each month. Noah picked the reports up in the main office across the complex without thinking about it because it was the regular routine. When Noah arrived at his workstation, the first words from Reymundo's mouth were "You're late and I can't overlook it just because we're friends." Noah was stunned and thought, "Wow! My former friend has turned into a tyrant already." Noah spent the rest of the day fuming over how he was embarrassed in front of the rest of the staff.

When there was some slack time that afternoon, Reymundo thought he should follow up on the lateness issue and find out more about what was going on-maybe he was a little abrupt that morning. When the afternoon break time arrived, Reymundo asked Noah to step into the break room for a cup of coffee. As he left to go outside, Noah replied, "There is no rule I have to spend my break time with my supervisor."

One week has passed. The friendship seems gone, and the work relationship is stressed. The strain between Noah and Reymundo has started to affect others at work. A special pro­ ject that Reymundo and Noah were working on has ground to a halt. The general manager of the company sent Reymundo and Noah to mediation.

Problem-Solving Approach

Problem-solving mediation generally assumes that, regardless of the context or the people involved, mediation is about helping people resolve their substantive issues. In the process of helping people resolve their issues, mediators may or may not delve into

22 MEDIATION THEORY AND PRACTICE

the emotional aspects that caused the conflict and may or may not help the individuals improve their relationship and communicative habits. A problem-solving mediator usually subscribes to a model with a more orderly and stately movement from one phase of the process to another, culminating in negotiation and settlement on the problem that brought

the individuals to mediation. Small claims mediation programs typically use the problem-solving approach. These

cases involve parties who do not have a long-standing relationship and who may never see each other again. For example, determining restitution for a damaged car fender or settling a disagreement about water rights on adjacent properties might be what brings the parties to court-annexed mediation. The problem-solving approach focuses the mediation on the solutions that will resolve the issues that gave rise to the complaint.

IS A conciliation or problem-solving approach better for Reymundo and Noah in Case 2.1? If conciliation needs and substantive issues exist in the same case, which should be worked

on first?

FUNCTIONAL MODELS

Most mediation models are functional, meaning they focus on tasks that must be performed (or results that must be achieved) in a sequential order. At its most basic, a functional media­ tion model has several steps, with each one requiring unique mediator skills and processes. For example, Kathy Domenici and Stephen W. Littlejohn (2001, pp. 63-98) posit a four-step model with subfunctions embedded within each step:

1. Introduction (of parties, words of encouragement, explanation of process, ask

questions prior to beginning)

2. Storytelling

3. Problem solving (defining the problem, agenda-setting, option generation)

4. Resolution (including closure)

There are innumerable varieties of functional models. Some models are very prescriptive and require that a specific skill be applied at a particular point during the mediation session. For example, a model might require a caucus where the mediator speaks with each individual separately. Other models may prohibit the mediator from bringing the parties together in the same room. Models have been created for panels of two or three mediators. Cross-cultural models focus on establishing shared understanding (United States Institute of Peace, 2001). Community mediation programs using volunteers with minimal training sometimes adopt

CHAPTER 2: The Basic Components of Mediation 23

a "trust the model" philosophy that involves lock-step phases proven to be effective with relatively simple cases involving neighbors. The therapeutic family mediation model includes an assessment step to detect families with violence or other issues that could make child custody mediation problematic (Irving & Benjamin, 2002). Juvenile victim-offender models include steps that change depending on the age of the offender. Public school or playground peer mediation models are simplified to fit the sophistication level of child mediators. One peer mediation model for grades 6 through 12 (Cohen, R., 2005, p. 209) instructs the adult coordinator to select and screen the cases that are then mediated by students using a five-step model similar to Domenici and Littlejohn's (2001):

1. Agree to solve the conflict

2. Explain the conflict

3. Brainstorm possible solutions

4. Choose a solution

5. Do the solution

INTEGRATING PHILOSOPHIES

James R. Antes, Donna Turner Hudson, Erling 0. Jorgensen, and Janet Kelly Moen (1999) observe that mediation models claiming to have steps rarely have strict adherence to their rules. Many factors affect the flow of a mediation session. For example, someone may balk at the end of negotiation because that disputant has unresolved interests that were not dis­ covered earlier. Other anomalies include skipping stages or using the steps out of sequence; reaching solutions without the aid of the mediator; and mediators affecting the substance of the mediation, not just the process. As Antes et al. contend, "good things happen even without reaching agreement" (pp. 288-291). A strict step model may prove too rigid for actual practice.

Antes et al. (1999) suggest the facets ofmediation model to embrace the conciliation phi­ losophy and to correct the anomalies in a lock-step perspective. The mediator completes a set of nonsequential tasks that address several questions:

• What are we doing here?

• What is this about?

• What is important to self?

• What is important to other?

• What do we do? (p. 293)

The balanced mediation model in this book has an inherent problem-solving orientation, but one that is strongly influenced by the desire to engage in reconciliation strategies when appropriate. We also acknowledge that mediation phases may progress in a nonlinear

24 MEDIATION THEORY AND PRACTICE

fashion. To balance the transformative and problem-solving functions, a mediator must be aware of the many choices to be made throughout the course of a mediation and be aware of the possible consequences to the process of each choice.

CASE 2.2: What's Best for Eli?

Jodi is a single mom of two boys ages six and four. She lives in the small town of Ridgeman-population 2,400. Jodi's six-year-old has an emotional and attention deficit disorder manifesting in high impulsivity and aggressiveness whenever he is frustrated. Eli has hit and kicked his first grade teacher, Miss Davies, on more than one occasion. Although she was not injured, Miss Davies is worried about the safety of her other 23 students and how Eli's behavior may affect the entire class. Miss Davies is a first-year teacher and feels stress from the extra time spent dealing with Eli's behaviors. Eli's special education plan states he is to have an aide available at all times, and the school district hired a young student teacher to fill that role.

In October, Eli was frustrated by a handwriting assignment and threw a pencil at Miss Davies, missing her and hitting a classmate. Miss Davies sent him to the office for the tenth time that year. The Vice Principal suspended Eli for five days and called Jodi, Eli's mom, to pick him up. During the five-day suspension, Jodi and the special education team met to determine how best to handle Eli. The school personnel presented Jodi with the option of bussing Eli to a special school 30 miles away. Confused and overwhelmed, Jodi felt pres-

sured to agree. Jodi decided to research her legal options. She discovered Eli has a right to a special-

ist trained to manage emotional disorders and that the school district is required by law to develop a plan to manage Eli's outbursts. She doesn't want Eli to be bussed 30 miles away. Ridgeman Elementary is feeling pressure from other parents not to let Eli back into the classroom. Miss Davies cares about Eli and worries that Eli's return will not be good for anyone involved. As required by law, the State Department of Education provided a special education mediation specialist to help the parties work through these issues.

VARIABLES THAT MAKE A DIFFERENCE IN MEDIATION MODELS

Our analysis of the principles discussed earlier uncovered several variables that-when included or excluded-dramatically alter the flow of the mediated session and the experi­ ences of the disputing parties. The variables and the skills introduced in this chapter will be discussed in later chapters in more depth.

Pre-Mediation or No Pre-Mediation

some models depend on the mediator (or someone working on the mediator's behalf) to screen the case in advance of the mediation session. The disputants are interviewed

CHAPTER 2: The Basic Components of Mediation 25

during intake to discover their issues and the appropriateness of the case for mediation. In other models, pre-mediation or screening never occurs and the mediator starts the ses­ sion cold-with no knowledge of the issues or the disputants. Pre-mediation is a standard procedure in victim-offender mediation where the comfort and safety of the victim is paramount. Some divorce and family mediators use pre-mediation meetings to ascertain family dynamics and safety issues in high-conflict situations. In the case of Reymundo and Noah, in-depth pre-mediation probably would not be used, as the parties can be educated about the process during the opening statement phase. In Case 2.2, the mediator would pre-mediate separately with the parents and the school district to determine issues so the agenda for a meeting with limited time includes the concerns of all parties.

Allow Uninterrupted Disputant First Statements or Control When and How Long Each Person Speaks

Some models (see Beer and Stief, 1997) provide time for disputants to speak without interruption from the other party or the mediator-occasionally with no limits to the length of time a person may speak! Other models assume the mediator will actively, but constructively, interrupt the disputants to validate emotions, clarify ambiguities, reduce negativity, summarize, focus on the immediate task, or divert attacks on the other party. In the case of Reymundo and Noah, allowing uninterrupted comments at the outset probably would lead to an extensive diatribe against the other person-behavior not helpful to the goals of mediation. When accusatory comments persist, the mediator may choose to inter­ rupt the negative trend with emotional paraphrases, reframes, or other skills to moderate emotionality. In the more formal setting with Eli's school in Case 2.2, however, allowing Jodi an uninterrupted chance to share her fears might be appropriate and cathartic.

Allow, Require, or Forbid Private Meetings between the Mediator and the Parties

A caucus is required by some models-a private meeting during the session between the mediator and each disputant. When time is short, the caucus can be used to speed up negotiation about distributive issues (like money). A few models forbid use of a caucus. Most models present the caucus as an option that the mediator may employ strategically. Even then, how a caucus is conducted varies. Some models require that if a meeting is held with one party, then the mediator must meet with the second party. Other approaches allow mediators to meet with only one person and then to return to the session. What is discussed in caucus in most models is considered confidential communication, although some models may allow the mediator to provide a range of offers to both parties derived from information garnered in caucus. Parties must be apprised of the confidentiality parameters of the caucus prior to any disclosure of information.

In the mediation between Reymundo and Noah, the parties were reluctant to talk to each other at the outset. In a private meeting with each disputant, the mediator explored the feelings that were preventing the discussion from moving forward. After discovering that they only had one negative encounter immediately after Reymundo's promotion, the

26 MEDIATION THEORY AND PRACTICE

mediator restarted the session with questions to draw out each individual's feelings. In the case with Eli's school, the mediator asked pointed questions to help the district explore its legal obligations in a caucus outside Jodi's presence.

Require an Agenda before Negotiating, Negotiate as You Go, or Slide Back and Forth between Issue Identification and Negotiation

Some mediators establish an agenda of specific issues that will be negotiated, usually after fairly lengthy information giving by the disputants and probing by the mediator. In these models, negotiation of issues is withheld until after the agenda is established, even if one or more of the parties make offers during opening remarks. Other models do not emphasize the establishment of a formal agenda and permit the mediator either to negotiate issues as they arise or to flow from issues identification to negotiation without

an agenda. After the storytelling phase, the mediator deduced that two issues needed to be settled

between Reymundo and Noah: (1) How could they communicate more effectively at work? and (2) What specifically could each party do to move their special project to completion? In Case 2.2, a very formal agenda was created because of the complexity of the concerns and the legal issues surrounding the case.

Consider the Parts of the Mediation as Functional Phases or as Chronological Steps

Most models present functional steps that emphasize what the mediator should accom­ plish during a particular portion or phase of the mediation, with an acknowledgment that the phases are not written in stone. A few models, particularly those intended for use by children or mediators with relatively little training, are extremely prescriptive in the pre­ sentation of chronological steps-even to the point of a manuscript of what the mediator should say at particular times during the session.

Approaching the mediation process as functional rather than as strict steps allows the mediator leeway in addressing concerns as they arise. For example, it is not unusual dur­ ing the problem-solving phase for parties to blame each other for the situation. When recrimination occurs during negotiation, the mediator uses emotional paraphrasing or other skills to moderate the strong feelings-even though these skills are more common to an earlier phase where storytelling occurs. In Eli's case, Miss Davies was quiet during the early phases of the process, but as the agreement began to take shape, she wanted to tell Jodi about her love for Eli. Recognizing that the teacher's story was important to the relationship between parent and teacher, the mediator interrupted the agreement-writing process to encourage her reflections.

Focus on the Problem, the Emotions, or Balance Problems and Emotions

Models differ on what the mediator is expected to do. Some focus exclusively on substan­ tive issues, such as "How much is the car worth?" or "What is the amount of the cleaning

CHAPTER 2: The Basic Components of Mediation 27

deposit to be returned, if any?" Transformative models focus mostly on psychological or emotional causes of conflict, such as "How did you feel when Reymundo's first words as a supervisor were criticism of you?" or "What concerns you as a parent about Eli riding the bus?"

In Case 2.1, because Reymundo and Noah had a friendship and have an ongoing work relationship, both emotions and substantive issues arise in their case. If the mediator focuses only on the substantive issue of the project, a large portion of the underlying prob­ lem would continue to fester. If the mediator focused only on the friendship, opportunities to improve workplace efforts might be missed. Likewise, because Eli will be a student at the Ridgeman School District for several years, building trust between parent and school is wiser than just focusing on the substantive legal facts.

Prescribe Automatic First Moves within Phases or Allow Mediator Choice

A few models contain specific opening moves within particular phases. For example, a model might prescribe that one must brainstorm (a problem-solving technique that will be discussed in Chapter 9) at the beginning of the negotiation phase. Most models prefer that the mediator select an opening move to fit the unique circumstance of each situation. In the case of Reymundo and Noah, the mediator chose to start the problem-solving phase with a question directed to both parties: "What ideas do either of you have to improve your work communication that would be good for both of you and the company?" In Eli's case, the mediator could start by asking Jodi what strategies she uses at home to manage Eli's angry outbursts.

Allowing or Prohibiting Parties to Speak to Each Other

Even when the parties are in the same room, a few models don't allow them to speak directly to each other. In other contexts where extreme power imbalances exist, a history of violence is present, or other safety issues arise, mediators may place disputants in dif­ ferent rooms and shuttle back and forth between them or conduct the session by phone or via the Web. However, most mediation models prefer face-to-face contact.

In the cases in this chapter, it makes sense to let the parties who have a continuing rela­ tionship talk to each other and to keep them in the same room. However, because emotions are high in each of these cases, the mediator may request that the parties only talk to her during the early stages of the session and only allow disputants to converse directly when emotions are calmer.

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