Mediation Approaches, Components, and Culture

CHAPTER 1

Introduction to Mediation

Why Mediation? 2 Benefits for the Disputants 3

Benefits for the Mediator 4

How Do People find Their Way to Mediation? 5 Family Mediation 5

Community Mediation 6 Victim-Offender Mediation 6 School-Based Peer Mediation 6 Business Mediation 7 Government and Court-Annexed Mediation 7

Power, Rights, and Interests 8 Resolving through Power 8

Resolving through Rights 9

Resolving through Interests 11

The Dispute Resolution Continuum 12 Litigation 12 Arbitration 13

Med-Arb 14 Mediation 14 Informal Conflict Management 16

ADisclaimer about Mediation Training 16

Summary 16

Portfolio Assignment 1.1: Starting Your Mediator Portfolio 17

1

2 3

MEDIATION THEORY AND PRACTICE

WHY MEDIATION?

CASE 1.1: A Neighborhood Misunderstanding

Dana moved from urban Chicago to a small town to be nearer to her grandmother. Prior to moving, Dana lived for 27 years in an apartment with her mom in a rather rough urban neighborhood. Dana was raised to "mind your own business" and not to engage the neigh­ bors in conflict. As she put it, "You never know who is living next to you-they could be dangerous!"

Across the street in her new neighborhood live Tommy and Mary Klimes. The older couple was retired, with a grown son who lived elsewhere in town and an elderly Boston terrier named Button. The couple didn't have a fence, but Button didn't wander too much. Besides, all the neighbors knew Button belonged to the Klimes.

Button didn't like Dana from the first moment they saw each other, and anytime both were outside, Button would bark and run at the new neighbor. Dana felt threatened by the dog. She also was apprehensive about talking to the neighbors directly, so she called the police instead. The police came, stopping first at Dana's house to get her statement and then crossed the street to speak to the Klimes. The Klimes were not given the name of the person who complained about the dog, but later another neighbor told them that the police had stopped at the "new neighbor lady's" house. Tommy, noticing Dana's car in her driveway, promptly walked across the street to introduce himself and apologize for the dog. He rang the bell and knocked, but there was no answer.

Several days later, Button barked at Dana again and came into the street as she got into her car. Again, Dana summoned the police. This time, the Klimes were issued a citation. When Dana returned home from work, the neighbors' son was outside of his parents' home and yelled obscenities at her as she walked into her house. Mr. Klimes heard the comments, came outside, and admonished his son, and then walked across the street to apologize to his neighbor.

However, Dana, feeling threatened, didn't answer the door. Tommy knew she was in there and peeked in the front window to see whether she just didn't hear the bell. Finally giving up, he went home. Afew minutes later, the police arrived for the second time that day. Dana had called reporting that her male neighbor was peeping in her windows.

Welcome to the world of mediation! You are about to study an activity that spans many cultures and thousands of years. Mediation, one form of alternative dispute resolution (ADR), is a process where a third party helps others manage their conflict-a worthwhile activity in itself. However, mediation is more than just another alternative to the court sys­ tem or an offshoot of community problem solving. For many practitioners, mediation is a philosophy of human nature, or as Phyllis Beck Kritek argues, "the resolution of human conflicts is a moral enterprise that is the responsibility of every human" (2002, p. 17).

CHAPTER 1: Introduction to Mediation

Individuals trained as mediators find that the skills they learn are applicable to daily communication in their personal and professional lives. People from all walks of life have become mediators-attorneys, counselors, teachers, police officers, human resource professionals, homemakers, college students, and even young children. Some who are trained have found a calling in mediation-an outlet for their lifelong goal of helping peopl_e. Others use mediation in their career path or integrate the skills into their existing vocations.

What is it about mediation that appeals to so many different kinds of people and is use­ ful in so many different contexts? Mediation is about empowering people to make their own informed choices rather than having a third party (such as a judge) make a decision for them. Mediation is grounded in the belief that conflict offers an opportunity to build stronger individuals, more satisfying relationships, and better communities. As a student of mediation, you will learn the philosophies and theories that underlie mediation, as well as foundational skills any mediator must possess.

We liv~ in a society replete with conflict. We also live in a litigious society. Every day we hear stones about someone being sued for serving coffee that is too hot, having icy side­ walks, or failing to fulfill an agreement. Although litigation has a respectable and important place in society, sometimes there are less adversarial, cheaper, and quicker ways to resolve conflic~. As we hear strange tales about neighbors who sue each other about where they put their trash on garbage collection day, we wonder, "Why didn't these neighbors just talk it out?" In a nutshell, that is what mediation offers disputants: a chance to "talk it out" in a safe and controlled environment.

Benefits for the Disputants

The situation in Case 1. 1 with Dana and the Klimes seems like a simple misunderstand­ ing. However, each party is seeing only a limited picture of reality. In each person's view, the other is acting inappropriately. Dana has legal rights to protection from harassment fro~ h~r neighbors and their dog. She has the right to involve the police and to press for J~St~ce. When the cas~ appeared in court, the judge referred them to the community mediation program. The Judge wanted to see whether these neighbors could resolve the issues together before assigning time in her already overloaded court calendar. In short, the parties in this case were ordered to mediation to work out their dispute, if possible. The judge also believed that the parties' interests would be served best in a place where they could explore not only the legal aspects of the case but also the issues surrounding how they experienced the event. In court, only the legal issues would be resolved and a neighborhood could be left in turmoil.

WHAT ISSUES in Case 1.1 fall outside the scope of the legal system? What would happen to these issues if the neighborhood misunderstanding case were to be settled in court?

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MEDIATION THEORY AND PRACTICE

Mediation often is better equipped to explore the relational and emotional issues of a dis­ pute than a formal court proceeding. Research indicates disputants in court-related media­ tion programs have favorable views of the mediation process, and they have settled their cases between 2 7 and 63 percent of the time without having to go before a judge. Moreover, people complied with their mediated agreements up to 90 percent of the time (Baksi, 2010; Wissler, 2004).

When the individuals will have a continued relationship, such as in the case of the Klimes and Dana, mediation is particularly appropriate. In this case, the parties met one afternoon with a mediator. A very tense session began. The Klimes explained that they were offended by how Dana treated them; Dana was adamant about the righteousness of her complaints. Through the process of mediation, Dana was able to express her feelings about neighbors and, subsequently, created a way for the Klimes to understand her actions. The Klimes, not having the opportunity in the past to apologize for the dog and for their son's behavior, were allowed to assert their desire for a friendly relationship. The result of this real-world mediation was an offer for Dana to come to the Klimes's house for coffee and to get to know Button, the dog. Dana agreed-but only if she could bring some of the chocolate chip cookies that she baked that morning. With a mediated agreement in hand, the court case was dismissed.

Benefits for the Mediator

Mediation not only adds value for society and to disputants, it also benefits the individuals who learn mediation skills. Those who become mediators express feelings of accomplish­ ment when they help others solve thorny problems. Students of mediation claim they see a microcosm of life during fieldwork practice.

Roger Cockerille, Idaho 4th District Court Magistrate Judge, tells the individuals sitting in his courtroom waiting for a trial that he orders most of the contested small claims cases to mediation for two reasons: It is their last chance to work things out together before a judge makes a decision that may not please either of them, and about 70 percent of the mediations result in a settlement. Of those who settle, over 90 percent follow through and comply with the agreement they negotiated. If the court makes the judgment, people can appeal, which delays getting the settlement that was awarded. It also is the winner's job in Idaho to collect on the judgment, which means the plaintiff has to find the defendant and try to garnish wages or collect through some other legal means, which is not easy. Many people never see a dime when they "win" in small claims court.

When people arrive at court, they are prepared for a fight. Then they are sent to media­ tion. While everybody who goes to mediation doesn't have the same experience, many leave transformed. We held a conversation with graduates of the Boise State University Dispute Resolution Program who served as small claims court mediators. Deanna's comment about

CHAPTER l: Introduction to Mediation

(Continued)

being surprised that sometimes money wasn't the issue was representative of the group's experiences. "I had a neighborhood case where the people bought a house in the winter and when summer rolled around the sprinkler system didn't work. They tried to fix it, but couldn't figure out how the previous owners had it rigged and couldn't find the other cou­ ple. They ended up bringing the former owner to court because it was the only way to find them." During the mediation session, they came to an agreement that the former owner would buy all the replacement parts and train the new owner on how to work the sprinkler system-and they would get together and repair it. They even made plans to have dinner the next weekend. Deanna concluded, "It feels good when you help."

Individuals who mediate cases have the opportunity to complete a voluntary, confi­ dential survey. In 2006, data show that 86 percent of respondents in Idaho's 4th District Court program agreed or strongly agreed that they would use mediation again. Seventy-nine percent agreed or strongly agreed that they thought the mediated agreement would work. Seventy-four percent were satisfied with the mediated agreement. Citizen satisfaction with the program's services is high. The court also can hear more cases more quickly than before the university-court partnership program was established.

Those who study mediation-but never become professional mediators-also accrue benefits. The skills useful to mediators are transferable to everyday life. Listening, refram­ ing issues, and problem solving are trademarks of a good mediator and are characteristic ~f effective leaders. Mediator skills enhance individual competence and can be applied informally at home, work, or in social situations.

HOW DO PEOPLE FIND THEIR WAY TO MEDIATION?

There are many paths to mediation. Mediation can be sought by disputants, recom­ mended by a friend or coworker, or mandated by a third party such as the courts or a work supervisor. Counselors, agency workers, and concerned friends may suggest mediation to help solve problems. Mediation occurs throughout society in many contexts. Families, communities, organizations, courts, and schools are common contexts for mediation.

Family Mediation

Family mediation takes on many forms and can be referred by a variety of sources. For example, a family was having difficulty re-integrating their son who had run away back ~nto the family home. A social worker recommended a mediator to help the family negotiate rules and expectations. In another example, an advocacy agency specializing in resources for the aging regularly refers families to mediation when negotiating elder care issues. A minister recommended mediation to members of her congregation who could not amicably work out the details on an estate settlement after the death of their

6 7 MEDIATION THEORY AND PRACTICE

parent. Divorcing parents in many states are required to mediate parenting plans for their children prior to bringing their case to a judge. Research indicates the disputants in divorce cases see the mediator's ability to provide guidance, empathize, foster a civil conversation, and focus on the facts as critical to success (Cohen, 0., 2009).

Community Mediation

One of the early applications of mediation was in promoting community peace. Police who are called about noisy parties or wayward pets may refer the neighbors to mediation. Neighbors who do not get along well, but who would like to, may attend mediation as a way to open lines of communication. On a bigger scale, mediation can address concerns citizens have with police departments, transportation agencies, or across neighborhoods. In one example, community members from a specific racial group felt targeted by police, and a critical incident resulting in the death of a community member exacerbated an already vol­ atile situation. Mediators held community meetings to help parties air concerns and work together to create solutions. Within many cities, community mediation programs are avail­ able. Other types of mediation specialists work with faith congregations who are in conflict over management approach, personnel, or doctrinal issues.

Tribal councils perhaps were the original large-group conflict resolution system. For example, Navajo peoples may create a forum for hearing concerns and helping members resolve issues that may affect the public good ("Peacemaking Program," 2012). In discus­ sion circles, issues may be brought to tribal elders or community leaders and addressed communally among the troubled participants, family members, workmates, or those affected by the conflict ("Peacemaking Program," 2012).

Victim-Offender Mediation (VOM)

Victim-Offender mediation (also called Victim-Offender Dialogue and restorative justice) holds offenders accountable for their actions and offers a means to bring closure to victims. Judges may refer juvenile or adults to victim-offender mediation so the affected individuals can tell their stories and negotiate a restitution plan rather than a judge decid­ ing the sentence for the offender-a procedure that leaves victims out of the process. In one case, two teenage boys were responsible for vandalizing a city park. The teens were brought face-to-face with a woman who had been responsible for the placement of a defaced monument, commissioned as a memorial to her soldier son who had been killed in action. In the process, the teens learned the effect their actions had for this mom. A meta­ analysis of victim-offender mediation studies found VOM reduced recidivism in juveniles (Bradshaw, Roseborough, & Umbreit, 2006). VOM provides a means to help offenders by "holding them accountable in respectful ways that may develop a sense of shame and heightened empathy" (Choi, Green, & Gilbert, 2011, p. 352).

School-Based Peer Mediation

Gaining momentum in the wake of high-profile bullying and violent incidents, peer mediation is employed in many schools. Although school mediation may not be an answer

CHAPTER 1: Introduction to Mediation

to existing bullying, it may help prevent some situations from deteriorating. In elementary schools, peer-mediators trained in very basic conflict management steps help resolve play­ ground conflicts on the spot without escalation, and they have been shown to reduce early stage bullying behavior (Vreeman & Carroll, 2007).

From the early grades to universities, schools instituted programs where students are trained to mediate cases involving peers. Public school teachers refer students in conflict to a peer mediation program. Dormitory roommates may be referred to a campus mediation center to talk about competing study habits and social time issues. Students involved in group projects may seek mediation to work through issues about assignments, leadership, or work accountability.

Business Mediation

Mediation can be included as part of the standard conflict management processes in an organization. Bosses refer employees who cannot work well together to the human resources department for mediation or, if trained, conduct a mediation intervention (a s~eci~li~ed area called supervisor mediation). Abusiness threatened with a lawsuit by a d1ssat1sfled customer may suggest mediation rather than going directly to court. When a real estate purchase falls through, the buyer and seller can elect to mediate a fair distribu­ tion of the earnest money deposit. Many contracts require mediation of any disagreements between customers and the business provider.

Government and Court-Annexed Mediation

Some situations involve several stakeholder groups who share a common dilemma, such as whether to build a nuclear power plant in their community (Susskind & Field, 1996) or how to manage the declining population of a particular species of animal on public lands. For example, the Department of the Interior uses mediation to involve the public_ in decision-making processes (Ruell, Burkardt, & Clark, 2010). The Department of Agriculture participates in mediation with farmers who have violated environmental rules or have past due loans. Government officials negotiate the creation and enforce­ ment of rules in a process called negotiated rule-making (neg-reg), where businesses, individuals, or other entities who violate regulations meet and create a plan for future compliance (Stephenson & Pops, 1991). Federal regulation requires each state to over­ see mediation processes to aid parents and school districts to resolve special education disputes.

In the western United States, mediation and arbitration established who has first rights to scarce water resources. Courts refer many types of civil and criminal cases to media­ tion, including eviction courts that encourage landlords and tenants to create an amicable plan for departure from a rental unit (rather than having the sheriff force an eviction). Home foreclosure mediation has emerged as a means of keeping families in their homes during an upside down real estate market (Khader, 2010). State taxation entities and the Internal Revenue Service use mediators when negotiating past due taxes (Meyercord, 2010). The REDRESS© program has been adopted by the U.S. Postal Services to mediate Equal Employment Opportunity Commission (EEOC) conflicts. Some organizations have

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MEDIATION THEORY AND PRACTICE

professional conflict managers on retainer should a potentially volatile workplace conflict arise. Internationally, mediators meet with cultural and political rivals to negotiate innu­ merable issues-including matters of war and peace.

In sum, people find their way to mediation because it offers a relatively speedy and efficient way to resolve disputes. Instead of filing a case in the courts or attempting to strong-arm an opponent into compliance, mediation brings the parties together to consider their mutual options. Mediation can be considered an alternative to systems that focus primarily on the rights of individuals and to systems that rely on power to determine outcomes.

POWER, RIGHTS, AND INTERESTS

In 1988 William L. Ury, Jeanne M. Brett, and Stephen B. Goldberg proposed that conflict management could be viewed from three perspectives: power, rights, and interests.

Resolving through Power

Power-based approaches to conflict can be summed up with the following adage: "Might makes right." Power is the ability to influence another person. In the scenario earlier in this chapter, Dana could kick the dog and thus exert her superior physical power to put the dog in his place. However, other affected parties also could exert their power. The couple's son may be stronger than Dana and have a physical power advantage. Conversely, Dana's grandmother might be quite wealthy-giving Dana monetary power to obtain a better attorney than the Klimes could afford. If Mary Klimes were the former prosecuting attor­ ney for the city, her power resources could trump those of the others, as networking and influence are very potent resources.

The power approach to conflict resolution is used widely. War, violence, and revenge are extreme examples of the power system. The consequences of the use of power may be highly detrimental to relationships (between individuals, businesses, or countries). Reliance on power to "win" leads to distrust and what Johan Galtung (1969) calls nega­ tive peace: peace resulting from forced submission rather than from a change of heart. As illustrated in international conflicts, such negative peace rarely is long lasting. There is some evidence that people who "lose" in disputes may resort to retaliation, sometimes manifested on college campuses through vandalism or theft (Hebein, 1999). In Chapter 7, we will discuss how power comes into play during a mediation session and what a media­ tor can do to "balance" power for the disputants.

Power, however, can be appropriate in some circumstances. As a parent, it may be nec­ essary to use physical power to control a two-year-old running toward a busy street. The act of forcing, or in this case grabbing the child and removing her from danger, is an act of power. However, reliance on power as a sole source for resolving conflicts would create a tumultuous society, one with people of low power being trampled by those in high power. Fortunately, humans have created other alternatives.

CHAPTER 1: Introduction to Mediation

WHAT ARE the benefits of resolving disputes with power? What are the possible harms? What might be the consequence of the power approach in the neighborhood misunderstanding case?

Resolving through Rights

The second major approach to conflict resolution is derived from the science of rights, a finely tuned system developed throughout European history and adapted into the U.S. legal system. In this approach, the rights of individuals (as laid forth in the law) are keys to fair and just resolution to conflict. In the U.S. system of justice, the rights of the individuals are outlined in the Constitution, modified by lawmakers, and interpreted by judges. The legal system offers a highly ritualized process for resolving issues that have legal merit (and for dismissing those that do not). In theory, the legal system provides equal access to justice for everyone. All who appear before a judge are governed by the same rules of evidence and legal criteria-regardless of race, creed, or social status. The legal system promises disputants a structured means of resolving their disputes.

However, few would argue that power is not wielded in the halls of justice. Money buys better legal representation. Those who are lacking in resources may find going to court not worth the effort, time, or expense. In one case, a couple had divorced, and then a few months later, they reconciled and resumed their married life (without the formality of remarrying). For six years, they lived together, sharing all expenses. They separated again and created a custody agreement without the courts. Five years after their second separation, the ex-wife sued for back child support from the date of the original divorce 11 years earlier. The amount of money in dispute was $17,000. The cost to each party for attorneys was approximately $8,000. The case was heard over a year later. The ex-husband prevailed, the ex-wife didn't receive any additional support, and $16,000 was paid for attorney fees. Litigation was an expensive way to resolve this dispute for the two single parents living under the poverty level.

Approach Benefits Disadvantages..----------- Power • Clear winner and loser • Negative peace/retaliation

• Often expedient • Lack of satisfaction by one party • Power resources usually • May lead to violence

easy to identify • Little room for positive expression of concerns

• Power is tenuous and may be lost • People with low power resources use what

power resources they do have to be heard

(Continued)

10 MEDIATION THEORY AND PRACTICE

Benefits DisadvantagesApproach

Rights • Clear rules for engagement • Specific requirements for

evidence • The law is the same for

everyone • People can be represented

by attorneys • Process may be open to

public scrutiny • Precedents are set

Interests • Open to exploring feelings • Solutions can be unique

to the parties • Not limited to precedence

or conventional approaches

• Structurally flexible as decision making stays with the parties

• May be more expedient than litigation

• May be less costly than litigation

• Emotional issues and interests are not allowed

• Usually expensive • Usually very time consuming • Quality of legal representation may affect

the outcome • Decisions are made by judges or juries • Laws may prohibit creative solutions

• May have little or no public scrutiny • Private justice instead of public; therefore

open to bias and malpractice by mediators • Some may not be able to negotiate

effectively and may be better served by representation

• Lack of consistency in outcome • May deter the establishment of important

precedents

CHAPTER 1: Introduction to Mediation 11

WHY DOES society require a rights-based approach to resolving legal conflicts? What kind of conflicts would be best served through a rights-based approach? What type of cases would not be served well through a rights-based approach?

Resolving through Interests

The third approach to conflict provides a forum for issues that do not require resolution in a legal setting. Interest-based resolution was popularized by Roger Fisher and William L. Ury from the Harvard Negotiation Project in their book, Getting to Yes: Interest-based Conflict Management (2011 ). An interest-based approach encompasses any process that focuses on the underlying needs of the parties and permits their feelings, concerns, and needs to gain a foot­ hold in the negotiations. The interests of the parties may include issues of power or rights but also the less tangible issues of respect, esteem, and feelings. An interest-based process might be the best choice for disputants who have engaged in a power struggle or who have posi­ tioned themselves into inescapable corners. "Those who start negotiation with an unyielding position find it difficult to compromise or think creatively. Changing one's mind is perceived as backing down, creating a loss of face" (Mccorkle & Reese, 2010, p. 36). An interest-based mediation process can unlock positions and make more creative thinking possible.

Christopher W. Moore (2003) divides needs into substantive, procedural, and psycho­ logical interests. Substantive interests relate to tangible or measurable things such as time, specific goods, behaviors, money, or other resources. Two substantive issues for Dana from the case study are trespassing and the dog not being contained. Procedural interests arise from stylistic differences about how to communicate with each other, organize tasks, complete work, or structure rules and settlements. The Klimes wanted to meet informally with Dana and talk out the situation. However, through the process of trying to meet with her, Dana felt threatened and an informal interaction was not acceptable to her. Dana pursued legal means to resolve the dispute, but the judge had other procedural interests and sent the case to mediation. Psychological interests underlie all of the emotions and feelings that disputants bring to a session. The confusion the Klimes felt over Dana's behavior, their need to be seen as good and nonthreatening neighbors, Dana's feelings of intimidation and her discomfort with the dog, and the desire of all parties to have a peace­ ful existence are psychological interests. While there are no guarantees that relationships will be improved through interest-based resolution, engaging in a process that explores the motivations of disputants may be less damaging than adversarial approaches.

Kritek (2002) in Negotiating at an Uneven Table discusses how interest-based approaches may seem counterintuitive to cultures that rely on "being right" to maintain their power. Humans, however, see the world from many vantage points and have different views of what is "right." Each individual's interests stem from a highly personal perspective on real­ ity. Through interest-based negotiations and the assistance of a mediator, each disputant has the opportunity to view the world as others see it.

Some disputes are inappropriate for the courts because they lack legal merit. A court is not the place to settle hurt feelings. When these cases somehow are framed in legal terms and taken to court, relationships may suffer as a result of the adversarial nature of the rights-based process. In addition, the anger, frustration, and hurt that brought the dispu­ tants to court could be deemed not relevant to the findings of legal facts.

Consider the relationship of Dana and the Klimes. In the rights-based system, each would take an adversarial position and attempt to convince a judge or jury to rule in her or his favor. While individuals may represent themselves in some courts, more often attorneys speak on behalf of the client-further removing those who have the conflict from the decision-making process. One side would "win" while the other would lose, leaving at least one person feeling unsatisfied with the outcome. At worst, the individuals will invest time waiting for their day in court, spend con­ siderable money on attorneys and fees, and still lack a guarantee that the judge will make a ruling that satisfies either party. Their future relationship could be marred by the escalation of the scenario to the courts and tainted by mistrust and anger. Possible consequences in Case 1.1 include other neighbors choosing sides and continued

unpleasant confrontations.

13 12 MEDIATION THEORY AND PRACTICE

When the neighborhood misunderstanding case was referred to mediation, an interest­ based process ensued. Through the promptings and guidance of a mediator in a safe con­ text, Dana shared her personal background, feelings of distrust, and genuine fear of the dog and strangers. The Klimes were able to have their apology heard, state their views of what it means to be good neighbors, and express their frustration that Dana would not talk to them when the conflict first occurred. Through interest-based negotiations, each party began to see the other as a partner in fixing the problem. The mediator was able to assist the neighbors in resolving the conflict, and they worked out a plan for Dana to choose other alternatives than the police department when dealing with the dog.

WHAT TYPES of disputes would be inappropriate for interest-based resolution? What are the risks to the parties in this approach? What should individuals consider before engaging in an interest-based negotiation?

The three approaches to conflict-power, rights, and interests-all have their place in society. While the interest-based approach seems from the previous example to be an ideal choice for resolving disputes, each of the three approaches offers risks and advantages not met by the others. No one approach can be considered appropriate for all cases. Tuble 1.1 presents some advantages and disadvantages of each approach. The needs of the clients, the issues involved, the power resources of each side, and the concerns for legal precedent should be considered in the determination of the most appropriate approach to conflict management.

The need to explore differences in safe environments while working together toward resolution is underscored by increasing diversity and globalization. As neighborhoods and businesses become more diverse in ethnicity, gender, nationality, age, and lifestyle, it is imperative to develop channels of communication to manage the predictable clashes of values, style, and goals that accompany diversity. Parts of the modern mediation move­ ment were born in communities dealing with inner-city racial and social tensions during the turbulent 1 960s.

THE DISPUTE RESOLUTION CONTINUUM

Litigation

Litigation, also referred to as adjudication, is the process of resolving disputes through a formal court or justice system. In litigation, disputants (either represented by attorneys or representing themselves) appear before a judge or jury to present their case. The case is evaluated based on legal merit and subjected to analysis via the well-defined science of

CHAPTER 1: Introduction to Mediation

rights. Litigation is a public forum (given the litigants are of legal age), and each case is weighed against existing precedent, constitutional rights, and interpretation of the law. In a jury trial, the case is presented and a judge instructs the jury of the applicable law(s) and the jury's options in making decisions. The jury returns a decision and the judge rules regard­ ing the outcome. In the United States, disputants have the right to appeal the decision to a higher court and continue to appeal to even higher courts through several levels, finally culminating at the Supreme Court of the United States. The other approaches of dispute resolution discussed in this section are considered alternatives to the adjudicative process.

Arbitration

In arbitration an expert third party knowledgeable about the context of the dispute is empowered to make a decision for the disputing parties. The American Arbitration Association defines arbitration as "the submission of a dispute to one or more impartial ~ersons for a final and binding decision." The parties can determine in advance of entering mto arbitration which issues will be resolved, the type of outcome, and other procedural aspects. Not unlike the judicial process where the judge and jury hold the decision-making authority, arbitrators offer the final solution for the dispute. An arbitrator is neutral and yet informed enough about the specific issues to conduct investigations and to make a good decision. Arbitrators typically are experts in their area of practice (such as real estate, labor, contracts, or wages). Arbitration usually is less expensive and more expedient than a trial, as well as offering more flexibility in decision making than litigation. Problems may arise from the lack of public disclosure allowed in some arbitration.

Binding arbitration is a process where the decision rendered by the arbitrator is contractual-the parties agree in advance to accept the arbitrator's ruling. If you read the small print on consumer or loan contracts, you may discover that you have agreed to binding arbitration and occasionally the waiver of the right to use other processes.

A situation that led to binding arbitration occurred when a real estate agent met a new client one afternoon who had pictures of a house she wanted to see. The agent showed her the home. An offer on the house was made and accepted by the seller that day. The problem was that another agent had been working for months with this client, and the pictures of the home came from the original agent. Which agent should get the commis­ sion from the sale-the agent who had worked with the client the longest or the new one who closed the deal? The case was brought before a Realtor's Association Arbitration Panel. The panel, in a very formal setting, heard from each realtor, asked questions, weighed the evidence, and decided that the agent who first showed the home would receive the com­ mission. Once the panel had made its decision, the parties were required to abide by it. The only recourse was through appeal, and then an appeals board within the association would hear the case.

Another approach is nonbinding arbitration. The parties may decide in advance to use the ruling as a suggestion rather than be bound by the arbitrator's decision. In the case of a farming dispute, a pilot of a crop-duster plane inadvertently sprayed the wrong fields and killed a half-million-dollar crop. Given the size of this case, the attorneys representing each side engaged in nonbinding arbitration. Hiring a retired judge, they each presented

14 MEDIATION THEORY AND PRACTICE

their case and asked him to make an informal decision on the legal merits of the case. This process enabled each side to weigh the strengths and weaknesses of their case and make a more informed decision about how to proceed. The judge sided with the farmer who lost the crops. The result was an offer of settlement by the crop-dusting company to the farmer. The nonbinding arbitration succeeded in keeping the case out of a lengthy and expensive

court hearing.

Med-Arb Med#Arb (mediation-arbitration) is a hybrid process where parties come together to medi­ ate their dispute. However, they agree in advance that if they do not reach an agreement, the third party will move into an arbitrator's role and render a decision (either binding or nonbinding). Med-Arb is defined as a process where disputants initially have control of the decision, but they consent to an arbitrated settlement if an agreement is not reached by a preset deadline. In a community resolution program designed to improve relations between the community and the police department, cases are brought to a mediator who neither represents the city nor the community. The mediator may hear a complaint by a citizen alleging a police officer did not follow proper procedure in arresting her juvenile son. In a med-arb situation, the mediator would bring in the parties to see whether a joint resolution could be reached. If the parties could not come to agreement, the mediator would then become an arbitrator who investigates the case and renders a decision. The right to appeal would be part of the process. Figure 1.1 illustrates who decides during

arbitration and mediation.

Mediation For the purpose of this book, we define mediation as a process where a mutually accept­ able third party, who is neutral and impartial, facilitates an interest-based communicative process, enabling disputing parties to explore concerns and to create outcomes.

Judge The Decision Level

Party A l Party B

Attorney for A Attorney for B

1 I \/ Mediator

Party A Party B

CHAPTER 1: Introduction to Mediation 15

In the purest form of interest-based mediation, the following standards will be met:

Mutually acceptable: The mediator must be someone whom both parties agree is appro­ priate for the mediator role.

Neutral: The mediator must be someone who is invested in the well-being of both indi­ viduals, but who does not have a preference or affinity for one party over the other.

Impartial: The mediator has no stake in the outcome of the mediation and will not be affected by the decision. The mediator is free from preference toward any possible outcome.

Interest-based: The mediator assists disputants in identifying concerns that affect them and in exploring the specific needs that must be addressed in any outcome.

Communicative process: The mediator facilitates the discussion so parties may under­ stand one another, explore ideas in a safe environment, and approach their problem solving as empowered participants. The mediator strategically applies skills to keep the communication process balanced, fair, and productive.

Parties create the outcome: The mediator does not suggest, lead, or persuade parties to select specific outcomes. Ideas for possible solutions arise from the disputants. The mediator helps them examine the workability and appropriateness of their suggestions.

EACH ELEMENT of the definition of mediation is necessary to create the mediation process. What would happen to the mediation if one standard was missing or changed? For each of the standards, explain how removing it would change the nature of mediation.

Informal Peacemaking High Personal Control

Mediation

Med-Arb

Arbitration

Litigation Low Personal Control

16 MEDIATION THEORY AND PRACTICE

Informal Conflict Management

Individuals may attempt to resolve disputes directly with the other party. The success of these efforts are dependent on many factors including the skill levels of the parties, the investment in relationship, the urgency in finding an outcome, and the styles the parties employ to resolve their dispute.

Interpersonal conflict management, individual negotiation strategies, and other per­ sonal responses to conflict make up the broad realm of informal conflict management. Informal strategies for conflict management are presented in workshops and classes with titles such as Conflict Management, Negotiation, Interpersonal Conflict, Relational Dynamics, and Dealing with Difficult People.

A DISCLAIMER ABOUT MEDIATION TRAINING

The saying "a little knowledge is a dangerous thing" applies to mediation. This book pres­ ents the basic theory and foundational skills essential to any competent mediator. No single publication or training program, however, can provide all of the information, skill, and prac­ tical experience needed to be a competent practitioner. Most states or territories have stan­ dards of practice for mediators, and the information in this book covers only one portion of those standards. We encourage readers to explore the standards of practice in their home state or territory and to engage in supervised practice before venturing out as mediators.

The process of mediation is not new. In fact, many cultures dating back thousands of years have used some form of mediation in maintaining the health of their societies. Mediation offers disputants interest-based opportunities to play an active part in the resolution of conflict, instead of relying on a third party to make a decision for them. Other approaches to resolving disputes exist, such as rights-based approaches and power-based approaches. There are benefits and disadvantages to each type of resolution process, and all have an important role in society. People from all walks of life practice mediation, either as a career

or as part of another vocation. Disputants come to mediation from many divergent paths. Some are referred, some

mandated to attend, and some find mediation on their own. All disputants are looking for satisfaction of their needs, which are categorized into substantive, procedural, and psy­ chological interests.

Litigation, or the adjudication process, is a rights-based approach to resolving conflict. Alternative dispute resolution (ADR) offers paths other than litigation. ADR approaches include arbitration (binding and nonbinding), med-arb, mediation, and personal conflict management. Each method differs in where the locus of control lies for decision making.

CHAPTER 1: Introduction to Mediation 17

Most cultural traditions have some type of ADR process for handling conflicts. In the United States, the ADR movement was influenced by needs of business and government, as well as by cultural and religious traditions. Subsequently, there are many different approaches to mediation-leading to much confusion about what mediation entails. This text covers a pure, interest-based mediation model, with roots in the European American traditions of neutrality and impartiality. People who are beginning the study of media­ tion should be aware of the standards of practice in their state or territory. Becoming a practicing mediator requires much more than taking a class or reading a book.