Mediation Approaches, Components, and Culture

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.

Writing and Signing or Not Signing Agreements

Agreement formats vary widely depending on the purpose of the mediation. Some agreements must follow specific formats initiated by a company, regulatory agency, court, or program. Other agreements are for the disputants' eyes only. In some states that have adopted the standards in the Uniform Mediation Act, written agreements are required or strongly encouraged. Agreements will be discussed in Chapter 10.

28 MEDIATION THEORY AND PRACTICE

In the case of Reymundo and Noah, the mediator recorded the points of agreement, each party signed the agreement before closing the session, and the mediator made cop­ ies for each individual. In Eli's school case, the state agency required a written and signed agreement. In workplace and other contexts of mediation, the parties will want to know prior to the session whether the agreement will be private between the two of them, if it will be placed in their personnel files, or if it is open to other forms of public disclosure.

REFLECT ON variables that affect a case. What might happen in the Reymundo and Noah mediation if the mediator made any of the following choices?

1. Allowing uninterrupted talk from each party

2. Holding a private meeting with each party

3. Focusing mostly on the emotions of the parties or mostly on the special project

4. Not allowing parties to speak to one another during the mediation

5. Not writing a formal agreement

6. Having the agreement private between the parties or sharing the agreement with their

supervisor

PHASES IN THE BALANCED MEDIATION MODEL

This book presents the balanced mediation model as a useful approach for beginning media­ tors. The balanced model contains functional phases that were selected to cover the neces­ sary components and skills essential to entry-level mediation or for skill enhancement of practicing mediators. As the mediator enters a specific arena of mediation (victim-offender, community, business, environment, child custody, and so on), the model of mediation prac­ ticed in the field may vary considerably from the balanced model presented in this book. However, the balanced model introduces the primary concepts and skills essential to most models of mediation. Chapters 3 and 11 discuss mediator competencies in more detail.

The balanced mediation model (Figure 2 .1) is a phased approach. We assume, however, that the phases are fluid and that the mediator will return in a cyclical fashion to previous phases as new information, issues, or emotional barriers emerge. In addition, the model offered is a balanced approach, focusing on both the relational dynamics of the parties and the content aspects of the issues. The balanced model teaches a variety of skills and options so the mediator can adapt to the unfolding needs of each specific case. This chapter outlines the phases of the balanced model. Each aspect will be discussed in-depth in later

chapters.

CHAPTER 2: The Basic Components of Mediation 29

Pre-Mediation

Mediation Session

Opening Statement

Storytelling Issue Identification

Establishing Commonalities

Agenda Building

Negotiation and Problem Solving

Testing and Writing the Agreement

Closure

Post-Mediation

Pre-Mediation

Pre-mediation includes all activities that occur before the mediation session begins. Contact with the parties usually is desirable and often is necessary to persuade one or both parties that mediation is a good option for resolving their disagreement. While not all contexts of mediation allow for pre-mediation, mediators should be knowledgeable of, and competent in, pre-mediation activities when the need arises.

Pre-mediation serves three general purposes. First, if one party has contacted the media­ tor unilaterally, the mediator must approach the other person to determine her or his will­ ingness to mediate. Second, pre-mediation is a time to discover who is involved and should come to the mediation session, develop a preliminary sense of the issues, and determine the presence of power imbalances or other unique personal dynamics. Third, during pre­ mediation, the mediator has an opportunity to educate the parties about the process and to begin building trustworthiness and credibility.

30 MEDIATION THEORY AND PRACTICE

Pre-mediation is discussed in Chapter 4. Activities during pre-mediation may include:

• Establishing initial contact with one or both parties

• Determining information about the parties and the conflict

• Gathering of documents about the conflict

• Creating a case file

• Distributing mediation forms and documents

• Screening for appropriateness of issues in comparison with the mediator's skill

• Selecting an appropriate time and place for the session

• Assigning "homework" to the parties to prepare for the session

• Building trust in the mediator and the mediation process

CONSIDER THE benefits and drawbacks if the mediator conducted or did not conduct pre­ mediation activities in the two cases in this chapter.

Mediation Session

During the session, the mediator leads the disputants through a series of phases. The phases are sequential in the sense that most of the functions of one phase must be a~com­ plished to make success in the next phase more likely. However, it is incorrect to thmk of the phases as a linear, one-way, lock-step procedure. Mediators often move back and forth across phases, as each unique case requires. This chapter highlights the functions that occur in each phase, with later chapters delving more deeply into the details.

Mediator Opening Statement

The opening of a session is the time when the mediator presents information and estab­ lishes a desired tone. The opening statement, sometimes called the mediator monologue, fulfills several functions. It is important to note that every mediation does not require all items. The opening statement functions to:

• Welcome the parties to the mediation

• Introduce the mediator to the parties and the parties to each other

• Provide information about the mediator's credibility

• Confirm that the right people are at the mediation table

CHAPTER 2: The Basic Components of Mediation 31

• Explain the nature and scope of mediation

• Detail the mediator's role

• Disclose that there might be private meetings with each party

• Define neutrality and impartiality

• Convey the confidentiality pledge and its limitations

• Reveal the purpose of the mediator's notes

• Establish rules for communication

• State the session length and other logistics

• Establish the role of outside resources or experts

• Secure a commitment to begin

• Transition to the storytelling and issue identification phase

The mediator chooses which functions from the list apply to each specific mediation context. The mediator's opening statement and associated skills are presented in Chapter 6.

Storytelling and Issue Identification

The name of this phase, storytelling and issue identification, is descriptive of the two functions that occur simultaneously once the disputants begin to speak. The media­ tor encourages disputants to tell their perspectives. As disputants relate what brought them to the point of needing third-party assistance, the mediator inserts a series of skills (discussed in Chapters 3 and 7) to reduce any emotional barriers to settlement. At the same time, the mediator listens to the stories for the relevant facts concerning the disputants' past relationship and the problems at hand, deducing from the facts a list of the issues to be negotiated. The mediator then can create a plan based on the type of issues that stand between the disputants and settlement and strategize how to proceed during the agenda and negotiation phases.

In the Case 2.1, Noah began by saying, "I couldn't believe it when on his first day as a supervisor, Reymundo became a management tyrant." This statement is infor­ mative to the mediator in several ways. First, the tone of the phrasing might suggest Reymundo is emotional about the situation, leading the mediator to think of ways to bring the feeling part of the story to the table. Second, Noah is pointing to the issue of respect or friendship as being very important to him. The mediator would note this relational issue to explore later. If, however, both parties were disinterested in a future relationship, the mediator would skip over relationship-building elements and focus more on the substantive issues. For example, in a landlord-tenant case, the parties may have no continuing relationship and will never see each other after an issue about the cleaning deposit is settled. In general practice, mediators often face a dual need to explore substantive and relationship issues, taking their cues from the parties on what is important to them.

32 MEDIATION THEORY AND PRACTICE

As the disputants tell their stories, the mediator also listens for what the two individu­ als have in common. At strategic points, the mediator will reveal these commonalities to the disputants-trying to stimulate a mutual bond or a motivation to resolve the problem together. In the case of Reymundo and Noah, each claimed that he wanted to be effective at work and treat the other person fairly. Their recognition of this commonality of purpose allowed the mediator to bring the two employees to a place where they could problem solve around the issue of effective workplace communication.

Mediators also work to enable the disputants to hear each other's concerns and to create a level of understanding even though they may still disagree about the facts. By focusing on the interests of the disputants (their underlying needs), mediators help them gain perspec­ tive from the other's point of view. People experiencing conflict often are so caught up in their emotions that they stop listening and literally cannot understand others' feelings or be open to a different point of view. A mediator works to frame one person's story into words that are less threatening and, thereby, easier to listen to (but always being cautious to avoid appearing to take sides). Chapter 7 details skills and mediator choices during storytelling, issue identification, and establishment of commonalities.

Agenda Building In the balanced mediation model, we highlight setting an agenda as a separate phase.

Experienced mediators may be successful intermixing storytelling and issue identification with negotiation activities. Novice mediators need to learn to distinguish between the skills of fact-finding and the skills of negotiation, as well as mastering how to set an agenda. The mediator's frame for the agenda links the two disputants together in searching for an outcome that is acceptable to each party. For example, a mediator might say, "From what I have heard thus far, what the two of you say you need is to find is a solution that enables Reymundo to meet his responsibilities as a manager while honoring the friend­ ship the two of you have." The principles and skills to establish an agenda are presented

in Chapter 8.

Negotiating and Problem Solving

During the negotiation and problem-solving phase, the mediator determines an order in which to address the issues, whether to treat each issue separately or combine them, and other strategic options. Communication techniques are applied to assist the parties in:

• Generating options for settlement

• Assessing options for settlement

• Making, modifying, rejecting, or accepting offers

The negotiation phase is a good example of how mediation steps are not linear. A return to storytelling and fact elaboration may be prudent if disputants reveal new information about the situation or hidden issues emerge. The tactical choices and skills necessary to assist disputants during negotiation are detailed in Chapter 9.

CHAPTER 2: The Basic Components of Mediation 33

Testing and Writing Settlement Agreements

Once a t_entative agreement is reached on each of the issues on the agenda, the mediator leads th_e_ disputants in ~ revision of each point in the agreement, testing for specificity and workab1hty. Because this book presents the theory and skills of basic mediation, settlement writing is highlighted with its own phase. Poorly written mediation agreements that dispu­ tants interpret differently can cause more damage than good. For example, if roommates agree to "respect each other's time for studying," but they do not determine what "respect" means for each of them, the agreement is open to interpretation. If Sarah wants to have a par~y o~ Frida~ nig~t, Elli can say, "That isn't very respectful!" But Sarah could argue that having ~ton Fnday instead of Sunday is very respectful. Only when the agreement is clear, unambiguous, and understood by both parties in the same way should an agreement be solidified. If the disputants do not reach agreement, the mediator will move to closure without a settlement or schedule additional sessions.

A key point in the balanced approach, however, is that writing agreements is not the goal ~f medi~tion, nor is it a measure of the mediator's success. Knowing how to assist in agreeing_ t? disagree or closing a session without an agreement is as important as agree­ ment wnting. Seasoned mediators recognize that not all mediations end in settlement and lack of settlement does not indicate a failed mediation. Chapter 10 presents the skills of agreement writing and closure.

Closure

~nee the agreement is signed, the disputants reach an insurmountable deadlock, or the ~ession must end for some other reason, the mediator moves to closure. In sessions ending in agreement, the mediator will praise the disputants for their work, acquire signatures on the agreement form, make all parties a copy of the written agreement (if there is one), and inform the parties of any post-mediation actions. In sessions that do not result in settlement the medi­ ator ':ill summar~ze any enhanced understanding or points of commonality for th~ parties or explain other opt10ns the disputants can take. Often the closure of a mediation that does not end in agreement starts a new topic of what the next steps are in moving forward from there.

HOW D~ES an on~in~ mediation environment affect the choices a mediator may make in structunng a med1at10n? What would be fundamentally different in the online context from ~ face-to~face m_ediation? Are there some types of mediation that would be inappropriate rn an onlrne environment?

Post-Mediation

After the session, several actions may be required. It is atypical for the mediator to have a role in enforcing or monitoring the agreement. However, the mediator may engage in the following activities:

34 MEDIATION THEORY AND PRACTICE

• Follow-up evaluation of the mediator's skillfulness or disputant satisfaction

• Typing final agreements

• Filing case records if required by agencies or courts

• Destroying notes

• Billing the disputants for services, as appropriate

• Discussing the case with superiors or co-mediators

DOES CULTURE MATTER IN MEDIATION?

The approach to mediation described in this book is a European American model. Each cul­ ture brings assumptions to mediation. Most European Americans believe that a mediator should be an impartial and neutral stranger. They also expect that the other person in the conflict will be direct about what the problem is and that conversation should proceed in an orderly and rational process where one person speaks at a time. Other cultures may feel these behaviors are odd, rude, or improper. For example, some Native American tribes (as well as other cultures) would prefer someone known to both parties, who cares about each of them and understands their background and values. The use of intermediaries to negoti­ ate conflicts has a long tradition in Hawaii where an extended family member fulfills the mediator or haku role. In many cultures, neutrality is not as important as a familiar person who has a stake in making sure the family or community remains peaceful (Ma, 1992).

Although understanding culture and how it impacts mediation is an advanced topic, the pervasiveness of cultural issues justifies its introduction in this basic textbook. Culture theories describe some of the ways groups approach conflict. For example, Mitchell R. Hammer (2002, 2005) argues cultural groups differ in their preferences on how to express emotion during conflict and how directly to speak about issues. Most European Americans and Northern Europeans prefer direct speech and restrained expression of emotion (dis­ cussant cultural conflict style). Eastern Europeans and some Black Americans exhibit direct speech and more passionate expression of emotions (engagement cultural conflict style). Many Southeastern Asian and Native American groups learn to be more indirect in discussing issues (to maintain social harmony) and to be restrained in emotional expres­ sion (accommodation cultural conflict style). Arab culture suggests exuberant expression of emotion is appropriate while using more indirect communication about issues (dynamic cultural conflict style).

Mediators can learn several lessons from the study of Hammer's (2002, 2005) cultural typology. (1) Some disputants believe starting a conversation with a direct expression of the conflict is rude or embarrassing. More pre-mediation work or general background conversation may be needed before getting into the heart of the issue with those who prefer indirect expression of issues. With disputants at the extreme ends of the directness­ to-indirectness continuum, shuttle mediation may be the most efficient method, as the mediator can adapt to each disputant's style. (2) When one disputant is from a high

CHAPTER 2: The Basic Components of Mediation 35

emotionally expressive culture and the other is from a low one, the mismatch may make everyone uncomfortable (including the mediator). The high expression of emotion may be frightening to those unfamiliar with cultures that are louder, more exuberant, and use bigger gestures. Conversely, the low expression of emotion may be perceived as a lack of involvement or caring by those who prefer more energetic conversations. The mediator must parse what behaviors mean in their cultural contexts. Is a loud disputant trying to intimidate the other party or just from a highly expressive culture? Some Black Americans prefer a more emotionally expressive style of communication. If a mediator works with two Black American disputants who share a very expressive style, should the mediator follow the narrow strictures of the European American model or allow a more energetic exchange (see Davidheiser, 2008)? A study of culture raises many questions about how a mediator chooses to control the flow of a session.

Geert Hofstede's dimensions provide a starting point for a general study of culture. Using his website, a mediator could compare the general cultural characteristics of two cultures along five dimensions (see www.geert-hofstede.com): power distance, individu­ alistic culture/collectivist culture, masculinity/femininity, long- vs. short-term orientation, and uncertainty avoidance. Power distance indicates a group's comfort with social strati­ fication and authority. Disputants from high power-distance cultures may have distinct expectations that lower status individuals should defer to those in higher status, creating an inequitable condition in a mediation session. Likewise, high power-distance individu­ als will expect more direction from a high-status mediator. The individualism/collectivism dimension describes a cultural group's preference for a group identity or individual iden­ tity. Highly collective cultures may accept settlements that seem not in their personal best interest if issues are framed in terms of a larger social good. The masculinity(femininity dimension indicates a group's preference for competition for material rewards or social cooperation. Uncertainty avoidance identifies cultures that tolerate ambiguity and those who are uncomfortable with change or uncertain social situations. Individuals who are uncertainty averse would require very specific terms in any agreement, with contingency clauses to cover options that might arise. Short- vs. long-term thinking divides cultures by a value for resolving immediate issues and those who consider the immediate issue to be just one part of social relationships that extend back in time and into the future. Fatahillah Abdul Syuker and Dale Margaret Bagshaw (2013) argued that the use of a Western model of court-annexed mediation with a focus on short-term outcomes led to its lack of success in Indonesia where long-term group harmony is a cultural value. Navajo nation members who are accustomed to a well-known spiritual or community member acting as a mediator who restores peace (Pinto, 2000) might feel uncomfortable with the European American mediation model using a neutral and impartial third party.

Mediators should be aware of their personal cultural expectations and preferences, as well as those of their disputants. For example, Molly Inman, Roudabeh Kishi, Jonathan Wilkenfeld, Michele Gelfand, and Elizabeth Salmon (2013) warned that international mediation across cultures may put in-groups with out-groups, causing stereotypes and ethnocentrism to flourish. These effects also can arise in small-scale mediation sessions that cross cultural divides. Cultural traits can impact the choices a mediator makes during the process. Morgan Brigg (2003) explains how the Western mediator's goal is to create a

36 MEDIATION THEORY AND PRACTICE

place for rational individual expression that moves toward interpersonal peace-a per­ spective that could perplex disputants from other cultures. Although this book presents a European American approach to mediation, understanding and being open to modify­ ing the model to embrace cultural dynamics is important. Skilled mediators are adept at recognizing and mitigating their personal cultural assumptions, as well as at recognizing when the disputants may be operating from differing cultural worldviews. As you learn the model of mediation presented in this text, challenge yourself to find areas where cultural expectations could affect parties' interpretations of the process.

WHAT CULTURES are nearby in your location? How might these cultures' views of how to conduct conflict be different from your personal views?

The theoretical assumptions a mediator holds affect how a mediation proceeds. Transformative and problem-solving philosophies of mediation present the most striking differences. Conciliation mediation focuses primarily on building relationships and creat­ ing understanding between parties. Problem-solving mediation focuses on the process of issue resolution.

Determining "why we mediate" helps mediators make informed choices about the techniques and models they will use. An integrated model of mediation called the balanced mediation model incorporates both a reconciliation and a problem-solving approach. Unlike lock-step models that offer no room for adapting to fit the specific situation, the phases in the balanced mediation model are more flexible. This model is a teaching tool to master the key skills of mediation. The basic mediation model includes pre-mediation, mediation, and post-mediation. During the session, a mediator will proceed through an opening statement, storytelling and issue identification, establishing an agenda, negotia­ tion and problem solving, agreement testing and writing, and closure.

Culture can impact how the disputants perceive each other or the mediator, and vice versa. Mediators should acquire basic culture theory knowledge, as well as specific infor­ mation about specific cultural groups in their service area. The next chapter presents some basic skills deemed essential for entry-level mediators.