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M o D u l e

III MeDIAtIoN

C hapter 1 defines mediation as assisted negotiation. T wo or more people involved in a conflict sit down with someone they trust to talk about their differences. This broad definition encompasses a wide range of possible interventions. Although programs, practitioners, and research studies have produced more specific defi- nitions of mediation, these definitions are really describing specific models or variations of mediation. Because there is no universally accepted understanding of mediation, it is often difficult to discern what people are talking about when they say they are mediating. Mediation has been defined differently for different times, cultures, and contexts of conflict (Moore, 2014).

LEARNING OBJECTIVES

Upon successful completion of this chapter, you will be able to:

• Assess whether mediation is appropriate for particular people and their conflicts. • Explain the mediation process, including issues related to collaboration, neutrality,

confidentiality power, and voluntariness. • Prepare people for participation in mediation. • Help people share their stories and identify key issues for mediation. • Help people negotiate based on their underling interests, rather than positions,

power, and rights. • Implement creative and collaborative problem- solving strategies to help people

move toward resolution. • Help people write and formalize clear, balanced, and constructive agreements. • Ensure that mediation processes address cultural diversity issues.

Although conflict resolution (CR) literature frequently describes mediation as a new alternative, the mediation role has existed throughout history and in a variety of forms.

Barsky, Allan. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771. Created from liberty on 2019-11-26 07:15:41.

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Mediation is a natural way in which people help oth- ers deal with problems. Friends, neighbors, elders, clergy, parents, or community leaders have tradition- ally assumed the role of mediator on an informal basis. Virtually every society has had some form of mediation. Anthropological research on mediation in different societies ranges from modern Liberia to 6th- century Gaul, 13th- century France, early China,

contemporary Singapore, and the Kalahari Desert among the bush people (Bossy, 2003; Cappelletti, 1979; Chia, Lee- Partridge, & Chong, 2004; Moore, 2014; Noone, 1997). In many countries, traditional and faith- based models of mediation continue to this day ( Johnstone & Svensson, 2013). Mediation as a distinct profession and as an institu- tionalized alternative to court and other dispute resolution systems is relatively new. For example, the first court- based family mediation service began in 1961 at the Los Angeles County Conciliation Court. California became the first state to mandate fam- ily mediation in 1989 (Milne, Folberg, & Salem, 2004). Licensure and accreditation for family mediators began in the 1980s, as did development of professional media- tion courses and academic programs. The first textbook on mediation specifically for helping professionals was published by Kruk in 1997. W hile many mediation programs and associations have focused on developing professional standards and models of prac- tice for mediators, other proponents of mediation have been looking at how to support mediation as a skill set or approach to conflict that can be used by everyone, regardless of professional status.

As the profession of mediation evolves, different approaches to mediation have devel- oped. These approaches continue to be refined, critiqued, and evaluated for effectiveness. The following section begins with an overview of four of the more popular approaches to mediation: settlement- focused mediation, interest- based mediation, therapeutic media- tion, and transformative mediation. After this overview, we will explore six key premises or assumptions about the mediation process. We will then study settlement- focused and inter- est- based mediation in greater depth, using a case study to demonstrate how various strate- gies and skills fit into a seven- phase framework for mediation. While this chapter focuses on settlement- focused and interest- based mediation, Chapter 7 provides a detailed explora- tion of transformative mediation. Chapter 8 explores therapeutic mediation in the context of family conflicts. The fourth section of the present chapter contrasts mediation with inter- ventions used by other helping professionals. The next section describes how mediators can address cultural diversity concerns. The role- plays at the end of this chapter provide opportunities to practice each of the seven phases of mediation. Each role- play includes an inventory of skills and activities that can be used for each phase. As you develop your own model of mediation, you can draw from these inventories and identify which skills and activities to incorporate.

APPROACHES TO MEDIATION

Settlement- focused mediation1 is geared toward helping people terminate overt forms of con- flict by bringing them to agreement in an expeditious manner. Settlement- focused mediation (SFM) is related to the rights- based approach to negotiation, as the mediator encour- ages parties to solve their differences according to pre- existing rules, laws, or notions

1 SFM is sometimes called rule- based or structured mediation.

Take the first step in faith.

You don’t have to see the whole

staircase … just take the first step.

—Martin Luther King Jr.

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of fairness (State Justice Institute, 1998). Under SFM, mediators are task oriented and relatively directive. They keep the parties focused on the key issues in dispute. They do not delve into underlying issues such as emotions, relationships, and the history of the dispute. Settlement- focused mediators may use a range of friendly persuasion techniques to help move parties toward agreement. For instance, they may encourage each side to make compromises, express dissatisfaction for lack of progress, and offer suggestions for how the parties could settle the issues in dispute (Wall & Chan- Serafan, 2014). Although settlement- focused mediators may be somewhat assertive with the parties, they do not pound away at the parties or their positions. Rather, they honor the parties’ rights to make self- determined choices, including the possibility of not reaching settlement. They also balance their use of persuasion skills with strategies that establish their neutrality and legitimacy: empathic listening, expressions of concern, trust building, and balanced atten- tion to both parties (Wall & Chan- Serafan, 2014).

SFM is often used by judges in pretrial settlement conferences and by mediators helping clients with financial or business disputes (Noone, 1997). Government officials who are mandated by legislation to resolve certain types of disputes in accordance with the law may also adopt this approach.2 The primary advantage of SFM is efficiency, as matters can typically be settled in just one or two sessions (Woolford & Ratner, 2009). A settlement- focused approach may save time, emotional energy, and financial costs (including the costs of lawyers who may attend mediation with their clients). SFM may be popular among people who do not want to delve into relational or emotional issues, perhaps because of cultural reasons or because they believe that doing so will just stir up further controversy. Although SFM is not specifically intended to help people resolve underlying issues, it tends to de- escalate conflict by discouraging engagement in fighting, litigating, and other adversarial processes. Some settlement- focused mediators meet only separately with the parties, shuttling back and forth between them. This model allows the mediator to focus the parties on problem solving, as well as allowing the mediator to apply certain levels of pressure on each party to settle without embarrassing them in front of the other party.

Some mediators use an approach related to SFM called evaluative or advisory mediation. Evaluative mediators make assessments about the conflict and the best ways to resolve the conflict (Moore, 2014; Pickar & Kahn, 2011). Evaluative mediators communicate these assessments to the parties to encourage settlements of their disputes (Zumeta, 2015). There are many risks in evaluative mediation: (a) the mediator’s assessment may be wrong, (b) the parties may surrender their self- determination and simply acquiesce with the mediator’s assessment, (c) the parties may abandon any attempt at collaboration in order to sway the evaluator’s assessment in their own favor, and (d) the parties may become confused about whether the role of the mediator is more like that of a facilitator or a judge. Proponents of evaluative mediation suggest that it is a more efficient way of mediating, given higher rates of settlement, less time to reach solutions, and use of the mediator’s expertise to bring the parties to solution (rather than having to refer the parties to additional professionals for assessments) (Lowry, 2004). Some mediators begin their process using a facilitative approach, but will use some evaluative techniques in later stages to avoid impasse and to bring the parties to agreement (Moore, 2014). I use the term settlement- focused mediation in this book because, although it encompasses mediators who provide evaluations, the pri- mary goal is fostering settlements rather than providing evaluations. Providing evaluations

2 Such officials are often called conciliators rather than mediators. Conciliation may be used by human rights commissions, labor relations boards, and welfare review tribunals.

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is just one possible strategy that settlement- focused mediators can use to bring parties to settlement.

Interest- based mediation (IBM) encourages parties to resolve underlying interests rather than just their overt conflict. Interest- based mediators help parties move away from positional bargaining , selling the merits of a win- win, cooperative approach (Moore, 2014).3 The role of the mediator is basically to facilitate interest- based negotiation (as described in Chapter 6). IBM is designed to give parties voice, improve communication, and generate outcomes that are mutually satisfactory (Mayer, Stulberg, & Susskind, 2012). The mediator engages the parties in creative problem solving, giving them opportunities to synthesize novel solu- tions to resolve challenging conflict situations ( Johnson & Johnson, 2012). Among help- ing professionals, IBM is more popular than SFM because it attends more to relationship issues and encourages parties to make self- determined choices about how to resolve their conflicts. As compared to SFM, IBM provides clients with more time to generate creative options and enhance their relationships (Zumeta, 2015).

Therapeutic mediation is designed to help parties deal with psychological and social issues that have contributed to the conflict and have blocked their ability to resolve it. Therapeutic media- tors help parties restructure their relationships, enhance communication and problem- solving skills, and deal with underlying emotional issues (Irving & Benjamin, 2002/ 2012; Pruitt & Johnston, 2004). This model draws extensively from communication theory, eco- systems theory, insight- oriented cognitive therapy, structured family therapy, and strategic family therapy. Although therapeutic mediation has therapeutic aspects, it is not therapy per se. The focus of mediation is still to resolve specific conflicts that the parties bring to mediation.

Although therapeutic aspects occur throughout mediation, key differences from IBM occur at the beginning and end of the process. In the initial phases, therapeutic mediators conduct an assessment and premediation preparation to ensure that the clients are psy- chologically ready to participate constructively in mediation. After mediation, therapeutic mediators conduct follow- up sessions to see how the agreement has been working, includ- ing its impact on the parties’ relationships with each other and other social systems in their environment. Therapeutic mediation was developed for family conflicts, specifically in separation and divorce situations. It can be particularly useful in work with high- conflict parents, where the premediation interventions can help parents work through emotional challenges and develop insights into how to past interactive patterns were problematic and require change. Therapeutic mediation has also been used in victim– offender mediation and reconciliation programs for cases diverted from criminal court (Hallevi, 2011).

Transformative mediation promotes empowerment and recognition between the conflicting parties. This approach is designed to transform the way people deal with conflict by help- ing them develop mutual understanding and self- efficacy. It downplays the importance of settling specific issues in dispute (Bush & Folger, 2005; Gaynier, 2005). Transformation is a humanistic, healing process. Ideally, transformation transcends the immediate parties involved in the conflict. It engenders a philosophy that fosters social harmony and human- ism (Bush & Pope, 2004). Proponents of transformative mediation suggest that transfor- mative mediation is more empowering than other forms of mediation, giving clients greater control over both the process and the agreement (Zumeta, 2015). Agreement is not the goal of transformative mediation, though agreement may be a by- product.

Transformative mediation may be particularly useful in contexts where profession- als deal with ongoing conflict, for instance, educational institutions, social agencies,

3 Some mediators call this approach facilitative mediation, integrative mediation, or principled mediation.

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child welfare, criminal justice, and healthcare systems. Consider the Affordable Care Act, intended to make healthcare insurance and services more accessible (https:// www. healthcare.gov). Although Congress initially settled the issue by passing the law in 2010, implementing the new system depended on cooperation of various stakeholders, including insurance companies, states, citizens, and Congress. W hen new policies or laws are passed, each stakeholder may act in ways that support, resist, or subvert implementation (Prior & Barnes, 2011). Insurance companies have generally supported the Affordable Care Act, as it provided them with new customers and income opportunities. Opponents of the act have repeatedly tried to have it repealed through Congress or ruled unconstitutional in court. Some states opposing the new system have refused to implement its provisions for expanding Medicaid or for providing a state- run health insurance exchanges. Many Americans have simply refused to comply with the mandate to obtain health insurance. So, the conflict continues. Had a transformative approach been used and implemented effectively, the focus would not have been on passing a healthcare law, but transforming the way Congress manages conflict. Ideally, a transformative approach would have allowed members of Congress and other stakeholders to feel empowered, validated, respected, and understood. It would have helped with ongoing relations, fostering support for health- care reforms rather than resistance and subversion. Although transforming CR within Congress may be a particularly challenging task, transformation is possible across a range of institutions, agencies, and contexts of practice (Institute for the Study of Conflict Transformation, n.d.).

Proponents for particular approaches to mediation sometimes argue for mediation purity, that is, following a particular approach or model in a consistent manner. Other suggest that mediators should be eclectic, blending strategies and skills from different approaches as they see fit (G. Morris, 2015). In other words, mediators may use their professional discretion to determine what combination of approaches would be most effective in a particular situation. For learning purposes, I suggest learning each model on its own, enabling you to practice the skills and strategies of each approach separately. Practicing one model at a time can be enough of a challenge. At some point, you might decide to blend approaches. However, you will have gained a certain level of expertise and experience to help you determine whether and when a blending of approaches might be appropriate.

BASIC PREMISES OF MEDIATION

Mediation has been described as is a voluntary, confidential, nonadversarial CR process in which a neutral third party, the mediator, assists clients of relatively equal bargaining power reach a mutually satisfying agreement (Moore, 2014; Neuman, 1992). This defini- tion underscores a number of premises or assumptions about mediation:

• Mediation is voluntary. • Mediation is confidential. • Mediation is a nonadversarial process. • Mediation is facilitated by a neutral third party. • Mediation requires that the parties have equal bargaining power. • The function of the mediator is to help the parties reach a mutually satisfying agreement.

On the surface, these premises may appear valid, even obvious. However, each has led to significant debate among proponents of mediation. I will review each of these premises in light of the four approaches to mediation.

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https://www.healthcare.gov

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1. Voluntary

To say that “mediation is a voluntary process” suggests that it is not imposed on people. If they mediate, it is through free and informed choice. Although this may be true in some contexts, mandatory and coerced mediation have been used in various circumstances. In some jurisdictions, parties must try mediation before they have access to a court trial (Hanks, 2012). In others, parties are encouraged to go to mediation in order to avoid negative sanctions— for instance, police who advise citizens to go to community media- tion or victim– offender mediation to avoid criminal charges (Charkoudian & Bilick, 2015; Villanueva et al., 2014) or educators who ask misbehaving students to try peer mediation rather than receive detention or suspension (Conflict Resolution Education Connection, n.d.).

Those who advocate for mandatory or coerced mediation suggest that people embroiled in disputes need an incentive to try mediation, particularly if they have had no prior experi- ence with it. If they do not like the way mediation progresses, they can terminate the pro- cess without coming to an agreement (Hanks, 2012). Mandatory or coerced mediation fits best with SFM or IBM. Both approaches view dispute settlement as a primary function of mediation. They also allow the mediator to use some authority or pressure to move the par- ties toward settlement. In contrast, therapeutic and transformative mediation place more emphasis on empowering the parties to make their own decisions, including the right to reject mediation.

One aspect of mediation where consensus exists is that mediators do not decide the outcome for the parties (Shapira, 2014). Rather, they encourage clients to take responsibil- ity for making their own decisions about how to handle their conflict. Mediators do not try to suppress or eliminate conflict. Instead, they help parties deal with conflict deliberately, consciously, and constructively (Moore, 2014).

The assumption of voluntariness raises three important questions for helping profes- sionals: (1) Is it ethical to send people to mediation against their will? (2) Is it effective, or will people simply resist the process? (3) Can mandatory mediation be provided in a manner that is safe and fair, particularly when there may be a history of violence or power imbalances (Patterson, 2009; Ricci, 2004; Semple, 2012)?

2. Confidential

One advantage of mediation often cited by proponents is that it is a confidential or pri- vate process. Whereas court proceedings are open to the public, matters discussed within mediation are generally supposed to “stay in the room.” Mediators offer clients confiden- tiality to encourage them to trust the process and open up, even if the discussions turn to potentially embarrassing topics. To protect the confidential nature of mediation, many jurisdictions have passed laws that provide mediation the protections of privilege. Privilege means that neither the mediator nor the parties can be subpoenaed and compelled to tes- tify in court about what was said in mediation. Similar to confidentiality, privilege encour- ages parties to communicate openly in mediation without fearing that what they say might be used against them in a subsequent proceeding (American Arbitration Association, American Bar Association, & Association for Conflict Resolution, 2005, Standard V; Association of Family and Conciliation Courts, 2000; Family Mediation Canada, n.d.; S. Goldberg et al., 2012; Uniform Mediation Act, 2003). Privilege promotes resolving cases out of court, reducing the burden on courts as well as legal costs to the parties. Parties can agree that mediation is confidential and privileged even if there is no specific law protect- ing the privacy of information shared in mediation. Courts generally honor confidentiality

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agreements; however, privilege is not guaranteed unless there is a specific law providing privilege to the mediation process.

Mediators may also help parties distinguish the privacy of the mediation process versus privacy of the outcomes. The parties may agree to confidentiality of the mediation process to foster a safe, confidential place to negotiate. Thus, international diplomacy, healthcare debates, collective bargaining, and family mediation are typically presented as confidential processes. When agreements are reached, however, there may be a need for others to know the results of mediation. In divorce mediation, the results may need to be communicated to children and grandparents. In international diplomacy, the results may need to be com- municated to the public; further, the participants may need to explain how they reached particular decisions.

Although many mediators view confidentiality as vital to an effective mediation pro- cess, there are many exceptions to both confidentiality and privilege. Information about child abuse, elder abuse, or abuse of people with disabilities, for instance, may be subject to mandatory reporting requirements. Furthermore, confidentiality and privilege do not apply for court or disciplinary proceedings concerning allegations against a mediator for professional misconduct or malpractice. Some laws also allow courts to compel mediators or parties to testify in matters related to criminal acts (e.g., if one client threatened to kill the other) or matters of national security (e.g., under the Patriot Act).

Some mediators offer clients a mediation process that is neither confidential nor privileged. Mediation should be open to the public, for instance, if it pertains to a policy issue for a governmental organization that is subject to laws requiring all meetings to be open. Some mediators offer “open,” “recommending,” or “nonconfidential” mediation to parties as part of hybrid mediation processes such as mediation- arbitration (med- arb) or mediation- evaluation (Pickar & Kahn, 2011; Ricci, 2004). Initially, the mediator tries to help the parties negotiate their own agreement. If the parties cannot reach agree- ment on their own, then the mediator changes hats (or roles) and becomes an arbitrator or evaluator. A med- arbiter uses information from the mediation stage to help inform the arbitrated decision. A med- evaluator4 uses information from the mediation to help inform his or her evaluation and recommendations, which the med- evaluator may pro- vide to court. W hereas some mediators believe that hybrid roles are effective and ethi- cal processes, others question whether these hybrid roles actually defeat the purpose of mediation (Barsky, 2013a; Shienvold, 2004). In terms of confidentiality, mediators must consider whether parties will be able to openly discuss all their concerns and all the possible solutions, if they know that their communications may be disclosed in court or other forums.

SFM fits best with hybrid models such as med- arb, in which information from the mediation can be used in later processes. During the mediation stage, parties are not expected to discuss relational or emotional issues. Accordingly, they will not be as con- cerned about information from mediation being used at a follow- up hearing. Their main goal is to settle the dispute, whether in mediation or in the follow- up process. The other approaches to mediation invite parties to disclose various levels of personal information related to emotions and relationships. Offering confidentiality and privilege in these pro- cesses is important if the mediator wants to encourage parties to trust the process and open up. Even when mediators offer confidentiality, however, absolute confidentiality can- not be assured.

4 Often, the professional is simply referred to as an evaluator, rather than a med- evaluator, even though the professional’s role includes both mediative and evaluative functions (Barsky, 2013b).

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3. Nonadversarial

Mediation is frequently viewed as an alternative to adversarial processes such as court, arbi- tration (Ferguson, 2013), and adjudicative grievance procedures. This perspective suggests the mediator’s role is to encourage the parties to cooperate rather than compete. If the par- ties adopt power or rights- based approaches, the mediator may have difficulty moving them away from adversarial positions and tactics. However, the mediator may be able to help them work toward settlement despite their adversarial relations. SFM would view settle- ment as success. The other models, however, suggest that the mediators should also resolve underlying issues or foster more positive relations between the parties.

Historically, some cultures viewed reconciliation (restoring relationships) as the ultimate goal of mediative processes (Bossy, 2003). The predominant view in professional literature suggests that success in mediation does not require reconciliation, although it might include fostering better relations. Paradoxically, mediation and reconciliation sometimes work in opposite directions. For instance, when a separated couple is involved in mediation over child custody and visitation issues, the purpose of mediation is to come to an amicable resolution whereby parents remain separated from each other. In contrast, reconciliation counseling is designed to help bring parents back together as a couple and as a reunited family. Some writers suggest that mediation is better suited to conflicts requiring some type of ongoing relation- ship, rather than when there is no prospect of a future relationship (Ojelabi, Fisher, Cleak, Vernon, & Balvin, 2011). Mediation can be used to help the parties renegotiate their roles into a different form of relationship instead of reconciling into the pre- existing one (Emery, 2011).

Consider this: Is it necessary for mediators to help parties move toward more amicable relations, or is settlement of the immediate issues in dispute sufficient? Will settlements endure if the parties have not resolved their relational problems? Is reconciliation the ulti- mate goal of mediation?

4. Neutral Third Party

Most mediation literature and codes of ethics suggest that mediators must be independent, neutral, or impartial. However, the authorities differ as to which terms to use and what each of these terms mean (Mayer, 2015; Mayer et al., 2012).

Independence suggests that the mediator has no economic, emotional, psychological, or authoritative affiliations with any party involved in the conflict. If the mediator is related to one party— for example, as a therapist, parent, lawyer, or teacher— then the other party might have concerns that the mediator will be biased. Thus, many professional codes of ethics suggest that professionals (including mediators) should avoid dual relationships with their clients. If the mediator discloses any affiliations to the parties, the parties have the option of accepting or rejecting the mediator. Independence also provides the mediator with profes- sional distance, the ability to look at the situation from an objective perspective.

Some authors equate neutrality with independence, but others go further. To be neutral, the mediator should have no pre- existing biases, no decision- making authority, and no stake in a specific type of outcome. In addition, the mediator should not demonstrate bias toward one side or the other (Fehrenbach & Hubbard, 2014). Each of these aspects of neutrality poses certain challenges.

First, all mediators have pre- existing biases (C. Beck, Sales, & Emery, 2004). At the very least, aren’t all mediators interested in helping the parties resolve their conflicts— amicably, constructively, efficiently, fairly, or effectively? Don’t all people carry certain values and biases? One response to these concerns suggests that mediators should be mindful of their biases (through reflection or other self- awareness processes described in Chapter 1). In some situations, mediators can try to suspend their biases so they do not impose them on the parties. For example, a mediator who believes that religion is important must recognize

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that clients have a right to make their own decisions about religion. Mediators should be clear and transparent about any biases or predispositions that they intend to bring into the mediation (Mayer et al., 2012). During the initial phases of mediation, for instance, media- tors describe their mediation approach and strategies. If the mediator values promotion of amicable relations, the parties will know this from the start and will have an opportunity to accept or reject services from this mediator.

In terms of no decision- making authority, most mediators would agree that they cannot mediate if they also have the ability to impose decisions on the parties. Mediation is designed to promote self- determination, not tell the parties what to do (American Arbitration Association et al., 2005, Standard I; Mayer et al., 2012). However, some CR practitioners use med- arb, a hybrid process in which they begin the process as mediators. If the parties do not come to a resolution in mediation, then the CR practitioner becomes an arbitrator and makes a decision for the parties (Barsky, 2013b). Similarly, a judge in a pretrial conference uses mediative strategies to try to bring the parties to a settlement. If the parties do not settle, then the judge hears the case and makes a decision for the parties. In most jurisdictions, the judge who conducts the pretrial does not hear the case if it goes to trial. If conflicting parties know that their mediator may become their judge or arbitrator, they may act differently in the mediation process. During mediation, a mediator wants the parties to feel free to disclose information, even if it might be embarrassing. If the information may be used in arbitration or court, the parties may be less willing to divulge information.

Although all four contemporary approaches to mediation say that the parties have a right to make their own decisions, some approaches allow for greater mediator influence than oth- ers. Settlement- focused mediators are most likely to use directive techniques in mediation in order to expedite a settlement (e.g., making decisions about process issues such as sequencing, staging, ground rules, and timing, rather than allowing the parties to negotiate these decisions). Interest- based and therapeutic mediators are less directive but still adopt strategies where the mediator encourages amicable solutions. Transformative mediators are the least directive mediators. They focus on facilitating communication and understanding rather than facili- tating settlements. Still, they cannot deny that they have an influence on how agreements are reached. Some mediation theorists suggest that as soon as mediators start to evaluate the merits of the case or use their own knowledge to influence the outcome, they are not acting in a strictly neutral manner (Fehrenbach & Hubbard, 2014). Research suggests that parties involved in high- conflict situations may be more amenable to more directive mediators (Lewicki et al., 2010). In situations with lower levels of hostility, the parties are better able to negotiate on their own. They may be less amenable to pressure or overt direction from the mediator.

The third aspect of neutrality, having no stake in a particular outcome, suggests that the parties are free to make their own decisions about how to resolve their conflicts. Whereas traditional mediators such as clergy and elders were able to influence people to conform to religious or community norms, most contemporary, professional mediators do not ascribe to the view that they are entitled to play the role of social conscience, law enforcement, or other agent of social control (Mayer et al., 2012; Moore, 2014).5 Still, mediators are subject to constraints and incentives created by the systems they work for. For example, if success

5 Whereas traditional mediators were often chosen because of their position and what they represented in the community, professional mediators are usually chosen because they are viewed to be neutral. They empha- size the rights of the parties to resolve disputes according to their own values and interests. Still, some mediators are chosen not because of professional mediation training but because of knowledge, status, and experience in a particular field relevant to the type of conflict; lawyers for legal matters; accountants for financial issues; helping professionals for psychosocial, family, and community conflicts; business managers for organizational matters; and former heads of state for international conflicts are some examples.

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in mediation is measured by the percent of cases that settle, then mediators may be enticed to pressure parties into settling. If a mediator receives funding from a body with a particular political viewpoint, then the mediator may feel pressure to guide the parties to solutions that fit this view.

The final aspect of neutrality is not siding with one party or another. This ensures that the process is fair and perceived by the parties to be fair. In some cases, this means treating everyone even- handedly: giving both parties equal time to speak, ensuring that both parties feel heard, creating symmetry in enforcing ground rules, and providing the same negotia- tion support to both parties (Fehrenbach & Hubbard, 2014). One of the biggest controver- sies in mediation concerns how to handle an imbalance of bargaining power between the parties (described later). If the mediator intervenes to redistribute bargaining power, then is the mediator being neutral? If the mediator does not intervene, then is the process fair?

Consider the place of neutrality in bioethics mediation. In bioethics mediation, the mediator helps healthcare providers work through ethical conflicts with patients and fam- ily members concerning the care of the patient (e.g., the family of an unconscious patient wants to keep the patient in intensive care, but the doctor views this as futile because the patient is going to die and the hospital can use the intensive care bed for another person who has a greater chance of living). Bioethics mediators are usually employed by the hospi- tal. Although the patient and family might have initial concerns that the hospital’s mediator will side with the healthcare staff, there are benefits to having an in- house mediator. First, an in- house mediator is available to handle urgent situations. There may not be time to hire an outsider. Second, an in- house mediator has specialized knowledge of medical ethics, laws and policies governing what can and cannot be done, and mediation processes that fit best with this type of situation (Dubler & Liebman, 2004). In order for the family to trust the mediator, the mediator needs to establish neutrality by the way he or she responds to the parties. Also, the hospital must be supportive of the mediator being neutral rather than supportive of staff positions and preferences.

Some writers suggest that mediators need to be impartial rather than neutral (Fehrenbach & Hubbard, 2014). Although some mediators equate neutrality and impar- tiality (Mayer, 2015), others suggest that impartiality specifically refers to absence of bias, prejudice, or favoritism to either party (American Arbitration Association et al., 2005, Standard II). The mediator should not side with one party or the other. Furthermore, the mediator should not be seen to side for one party or the other. Mediators’ backgrounds and prior affiliations are not problematic as long as the mediators can demonstrate by word and by deed that they are treating the parties fairly (Lewicki et al., 2010). Although this concept deals with some of the issues around neutrality, the question still arises about what it means to be impartial when there is an imbalance of power between the parties. Rifkin, Millen, and Cobb (1991) suggest that a mediator should demonstrate “equidis- tance” as well as impartiality. Equidistance refers to the ability of the mediator to assist all parties express their “sides.” Equidistance requires even- handedness. It allows the mediator to align temporarily with each party, so long as the mediator eventually assists all parties equally (C. Beck et al., 2004; Mayer, 2015).6

Must a mediator be independent, neutral, equidistant, or impartial? Why are these qualities important? Are they values that are inherent to all forms mediation, and within

6 To maintain equidistance, mediators should use mindfulness to ensure “equipoise.” Equipoise refers to assess- ing information, thoughts, and emotions in a deliberate manner, rather than being affected by automatic, habit- uated reactions (Coates, 2015). In other words, self- awareness is key to avoiding biased assessments and responses.

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all cultures? Are they simply means to an end? Can mediation be effective if mediators are not independent, neutral, equidistant, or impartial? Does the legitimacy and effectiveness depend on whether a mediator is neutral or whether the mediator is creative, compassion- ate, smart, trustworthy, and fair (Mayer et al., 2012)?

5. Equal Bargaining Power

Power imbalances occur when one party has more information, better negotiation skills, greater resources, or more strength than the other party. Power balancing refers to mediation strategies aimed at rectifying power imbalances to promote productive and effective negotiations (Lang, 2004). If the mediation process is patently unfair, at least one party is likely to be dis- satisfied with the process (Howieson, 2011). Further, the outcome is also likely to be unfair, leading to instability of the agreements (Mayer et al., 2012). Power- balancing strategies include ensuring that the disadvantaged party has access to information (del Campo, Vilà, Martí, & Vinuesa, 2011), time to reflect before making decisions, opportunities to enhance negotiation skills, or support from others to counter the greater strength or resources of the advantaged party. Mediators may also meet individually with the disadvantaged party to help that party articulate concerns and feel more secure in the process (Patterson, 2009).

The issue of bargaining power raises important concerns for both proponents and crit- ics of mediation. Basically, four views exist: (a) Mediators should only mediate if there is relatively equal bargaining power between the parties; (b) mediators should only mediate if there is equal bargaining power between the parties or if they can balance bargaining power through their interventions; (c) mediators should mediate regardless of bargaining power between the parties and have no obligation to rebalance power when an imbalance exists; and (d) mediators should never mediate, because they cannot properly assess for power imbalances and because they cannot properly redress power imbalances when they do exist. My own view is, “It depends.” Therapeutic mediators7 are most likely to view power balancing as an integral role of the mediation process (Irving & Benjamin, 2002/ 2012). Therapeutic mediators often deal with family disputes rather than commercial or public policy disputes. In family disputes, therapeutic mediators are aware that power imbalances frequently exist between spouses, as well as between parents and children. Balancing power is necessary in order to protect spouses, children, or elders from coercion, exploitation, and abuse. Accordingly, family mediators must be knowledgeable about how to deal with issues related to safety and power imbalance (A. Crampton, 2013). Challenging power imbal- ances may also be necessary in conflicts involving social injustices (McCormick, 1997), such as racism, homophobia, and discrimination against people with disabilities.

Mediators who do not view power balancing as legitimate often specialize in mediat- ing commercial disputes. Although power imbalances exist in commercial relationships, businesses operate in a capitalistic, competitive environment. If the parties do not use a mediator, they would still negotiate under the dynamics of a power imbalance. Many com- mercial mediators believe that they should not interfere with the parties’ relative strength in negotiating with one another. According to this view, power balancing runs contrary to neutrality and impartiality (Mayer et al., 2012). On the one hand, why would a more powerful party submit to mediation if she knows the mediator will power balance in favor of the weaker party? On the other hand, how is it fair to a party who is less articulate, less knowledgeable, or less assertive, for a mediator to say, “It’s not my responsibility to help you with such issues.”

7 Particularly feminist- informed therapeutic mediators.

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Transformative mediators also view power balancing as inappropriate (Bush & Folger, 2012). They emphasize the rights of the parties to make self- determined choices. This includes the right of the parties to choose whether to participate in mediation. If a weaker party believes that mediation will not be fair, then that party can refuse to participate in mediation. Transformative mediators do support the use of empowerment interventions, but differentiate these from power rebalancing. The purpose of power balancing is to redis- tribute power to the weaker party in order to ensure that the mediation process is fair. The purpose of empowerment is to provide both parties with skills and support to enable them to make self- determined, conscious choices (Bush & Folger, 2005). This still raises the ethi- cal dilemma of the mediator’s role when self- determination, fairness, and impartiality con- flict (Menkel- Meadow & Wheeler, 2004).

Settlement- focused and interest- based models of mediation do not specifically indicate how mediators should deal with power imbalances. It may depend on the context of media- tion or the values of the particular mediator.

Some feminist critiques suggest that family mediation between men and women is inherently unfair given the systemic disadvantages of women in society. Some are con- cerned that mediators are incapable of assessing for power imbalances, particularly woman abuse. Others believe that mediators are not able to power balance and assure the safety of women, even if mediators were able to assess for such problems (Pearson, 1997; Semple, 2012). During the 1990s, feminist- informed models began to develop in order to respond to these concerns (Irving & Benjamin, 1995). Feminist- informed mediators conduct more thorough assessments for power imbalances and abuse. They establish firm ground rules to minimize the risk of exploitation or abuse. They are also very interventionist when abuse or power imbalance issues do arise (Flynn, 2005; Milne, 2004).

6. Mutually Satisfying Agreement

Although most definitions of mediation suggest that one of the mediator’s functions is to help the parties reach a mutually satisfying agreement, this description fits best with the settlement- focused and interest- based paradigms of mediation. On the surface, this role seems obvious. Why would parties go to a mediator if not to get help to settle their dispute? If a mediator adopts a transformative approach, however, the role is to facilitate empower- ment and recognition (Bush & Folger, 2012). Likewise, if a mediator adopts a therapeu- tic approach, then reaching a mutually satisfying agreement is not the only role (Irving & Benjamin, 2002/ 2012). Therapeutic mediators foster more positive communication and relationships between the parties, as well as help them resolve underlying issues.

Although many mediators view agreement as a central goal for mediation, media- tors must ask whether any agreement is sufficient. Must the agreement be fair? Durable? Reasonable? Legal? If the parties are satisfied with an agreement, then why should a media- tor question their decision?

* * * * * In summary, various mediation approaches lend themselves to different ways of handling cases. Further research is needed to answer questions about which approaches are most effective and for what purposes (C. Beck et al., 2004). Mediators tend to have different ori- entations depending on their professional backgrounds (Baitar, Buysse, Brondeel, De Mol, & Rober, 2013). Mediators with mental health backgrounds tend to focus on family systems, affective issues, needs, and subjective criteria for fairness; mediators with legal backgrounds tend to emphasize the contract, cognitive negotiation, rights, and objective criteria for fair- ness (Hermann, Hollett, Eaker, & Gale, 2003). Professional background may affect one’s approach to mediation. However, the field of mediation has encouraged crosspollination

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between professions, in which people of different professional backgrounds are learning mediation from each other and blurring boundaries traditionally associated with their pro- fessional backgrounds (Baitar et al., 2013).

Individual mediators and programs must determine which approaches to adopt. As you work through this chapter, consider how you will determine your model of practice. Will it depend on your values, the agency context, the clients’ request, or which approach has proven clinically to be most effective?

CONTEXTS FOR MEDIATION

One area of talent that helping professionals bring to mediation is their ability to deal with process— for instance, facilitation skills, active listening, and helping people express feel- ings. Helping professionals also have content knowledge and expertise that are advanta- geous for mediating in specific contexts: divorce and separation, intergenerational family disputes, child abuse and neglect, community conflict, teacher– student conflict, alterca- tions in healthcare and residential treatment settings, social policy development, workplace harassment, cross- cultural disputes, and criminal justice (Conflict Resolution Education Connection, n.d.). Some helping professionals focus on mediation between individuals. Others mediate primarily between groups and larger social systems (Kirst- Ashman & Hull, 2015). The following two sections illustrate informal and formal roles for helping profes- sionals as mediators.

1. Emergent Mediation

Emergent mediation refers to an informal process of mediation that develops (or emerges) from other forms of relationships (Morasso, 2011). In emergent mediation, helping pro- fessionals retain their primary professional identification (e.g., as a psychologist, teacher, social worker, therapist, nurse, or counselor). They do not become mediators as such, and they do not even identify themselves as mediators. However, they draw from a broad range of mediative techniques without becoming a formal mediator. Consider the following examples:

• Two professional colleagues are debating the ethics of a particular intervention. You offer to help them work through the problem. They see you as a professional peer rather than a mediator, though you are using a mediative approach.

• You are a community development worker. Your community is split about its goals. You use mediative techniques to help them build consensus.

• You are a physician who has an elder patient with advanced dementia and is seriously ill. During the course of treatment, family members disagree about the use of a feeding tube. As a physician, you have a professional opinion on this matter, but you also want to help family members reach agreement about how to proceed. You decide to assume a role as informal mediator (Back & Arnold, 2005).

• You are working with a family in which the teenager has rejected the parents’ religion. In your role as therapist, you employ mediative strategies to help them reach a mutual understanding.

Professional codes of ethics for mediators (including rules related to competence, confi- dentiality, dual roles, and informed consent) do not specifically apply to emergent media- tors. When acting as an emergent mediator, the professional is guided by the codes of ethics of his or her primary role (e.g., nurse, psychologist, teacher, parole officer).

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2. Contractual Mediation

Unlike an emergent mediator, a contractual mediator is hired specifically to mediate (Morasso, 2011). The process typically begins with an explicit Agreement to Mediate. The Agreement to Mediate, sometimes called a retainer, delineates the roles of the parties, the role of the media- tor, and the parameters of the mediation process. Contractual mediators typically subscribe to a code of ethics for mediators. When a helping professional assumes the role of a contractual mediator, for example, it is generally inappropriate to carry on a dual role. Accordingly, it is important to consider whether a conflict of interest exists between your usual helping role and your potential role as a mediator. The following cases illustrate possible conflicts of interest:

• Priscilla is a psychologist who has conducted a battery of psychological tests with a client named Clint. Clint is going through a divorce and asks Priscilla to mediate. If Priscilla accepts the mediation role, what happens to the information from the psychological tests? Can Priscilla use this information in mediation? Does Clint’s former spouse have access to this information?

• Charles and Chester are child protection workers. Chester is having a dispute with a family that is upset that Chester has put their children into foster care. If Charles offers to mediate this dispute, what concerns might the family have regarding neutrality and fairness?

• Alex is an antipoverty advocate. A government official asks Alex to mediate a dispute between two agencies that serve unemployed individuals. If Alex accepts this role, must he relinquish his advocacy role?

• Stephanie is a student who has been suspended from school. Her teacher, Tony, is also the chief mediator in the school’s CR program. If Tony were involved in the original sus- pension, how could he act as a neutral or impartial mediator in Stephanie’s case?

Dual relationships and conflicts of interest are particularly problematic in small, isolated communities (Gonyea, Wright, & Earl- Kulkosky, 2014). In small communities, it is virtu- ally impossible for mediators to have no prior relationships with the parties. While bringing a mediator from outside the community may be the answer, this is not always practical or desirable. Aside from the costs of bringing in a mediator, local mediators have the advantage of understanding the local culture and context of the dispute.

While some helping professionals work exclusively as mediators, most mediate as just one part of their practice. Social agencies and court- affiliated services are able to hire full- time mediators if they have sufficient referrals. Mediators in private practice, however, need to build referral sources over time to be able to generate sufficient cases to support a full- time practice. In most jurisdictions, mediators cannot expect to simply hang up a shingle and wait for cases to show up at the door (Raines, Kumar Pokhrel, & Poitras, 2013). Mediators need to become known in their communities, educating potential referral sources about mediation, generally, and their own services, in particular.

MEDIATION BET WEEN INDIVIDUAL S: A CASE ILLUSTRATION

To demonstrate mediation in practice, the following case provides a comparative analysis, incorporating skills and strategies from SFM and IBM. Both approaches follow the same general phases; however, settlement- focused mediators tend to be more directive and task- oriented, whereas interest- based mediators tend to be more facilitative and process- ori- ented. Arguably, these two approaches are not categorically different; mediators may use various combinations of facilitative and directive skills. By providing a case that compares

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facilitative and directive approaches, you can see how different mediators approach similar issues. When you are mediating a particular conflict, you will want to assess the needs of the clients and make deliberate decisions about how facilitative or how directive to be.

The basic mediation framework consists of seven phases: preparation, orientation to mediation, storytelling and issue definition, exploring interests and needs, negotiation and problem solving, finalizing an agreement, and follow- up. Consider the following situation.

Elvis and Englebert are two employees at Conflictia Software Enterprises (C- Soft). Elvis is 28 years old and has been with the company for 5 years. He is considered a senior employee in this young, progressive company. Englebert is 22, fresh out of college. In the 2 months Englebert has been working for C- Soft, Elvis has subjected Englebert to a series of hazing rituals— shaving his head, making offensive messages pop up on his computer, and posting embarrassing photos of him on Facebook.

The next seven sections demonstrate how each phase of mediation could be implemented by settlement- focused and interest- based mediators. Toward the end of this chapter are seven role- play exercises, each focusing on one of the seven phases. Each role- play includes an inventory of skills and activities to be considered at each phase of mediation.

1. Preparation

People can find their way into mediation through various avenues: self- referral, referral by third parties, or imposition by judges or other third parties (Charkoudian & Bilick, 2015).8 Englebert might request mediation, Englebert’s friend might suggest mediation and contact a media- tor, or Englebert and Elvis’s supervisor might demand that they go to mediation. The super- visor might decide to mediate the conflict personally, as an emergent mediator. One role of a supervisor is to deal with relations between employees. Emergent mediation is less formal than contractual mediation. The supervisor would abbreviate, omit, and combine many of the skills and activities of mediation. For example, there would be no formal Agreement to Mediate. Introductions could be relatively brief because the parties already have a relation- ship with their supervisor.

If the parties go to a contractual mediator, this could be someone who works for the agency (e.g., in their human resources department9 or employee assistance program10). Alternatively, the mediator could be from outside the agency (e.g., a private mediator, a mediator who works for a human rights tribunal, or a mediator who works for a service that receives cases diverted from court).

Assume that Englebert goes to his supervisor, Sheryl, to file a formal harassment com- plaint about Elvis. Sheryl suggests that they use the services of a human resources counselor to mediate their dispute. Neither Elvis nor Englebert knows anything about mediation. Englebert says, “You can’t force me to go to meditation … medication … whatever.” Sheryl suggests that they each meet individually with the mediator, so they can make informed choices. Contractual mediation does not formally begin until the parties have signed or orally

8 Third- party referrals include referrals by family members, neighbors, employers, schools, police, government agencies, private companies, social agencies, probation, religious institutions, and housing associations.

9 The human resources department is sometimes called a personnel department. 10 Employee assistance programs traditionally provide counseling, vocational, and therapeutic services.

Some employers also offer mediation services as part of their employee assistance programs, antiharass- ment processes, or legal assistance programs.

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committed to an Agreement to Mediate. Sheryl believes that mediation should be voluntary, so she says there will be no negative consequences from C- Soft if they decide not to mediate.

The mediator, Medina, receives the mediation referral from Sheryl. The mediator accepts basic information about the conflict from the referral source, including who is involved, how can they be contacted, and whether the case includes any special concerns, such as a risk of violence. Medina does not want to gather too much information at this phase so the parties can present the information themselves. If Medina accepts more information from the referral source, she risks having the parties believe that she has pre- existing biases when they enter the process.

To prepare for mediation, the mediator contacts the parties, conducts preliminary assess- ments to ensure that the situation is appropriate for mediation, arranges for interaction between the parties, and strategizes how to begin the mediation process. Because Medina knows this case includes a claim about workplace harassment, she inquires whether there are safety issues: (a) Is the alleged harassment ongoing? (b) Are the parties continuing to go to work during mediation? and (c) Has either party’s employment been suspended? Sheryl says both parties are continuing to work, but they have been placed in separate departments. She does not believe there are safety issues. Medina asks whether either party has an uncon- trolled substance abuse problem, mental illness, or other concerns that might hinder their ability to mediate (Barsky, 2013b). Sheryl says she does not know of problems in these areas.

Medina contacts each party by telephone to arrange for the first mediation session. Settlement- focused mediators generally use this phase to schedule meetings, without fur- ther assessments. Interest- based mediators might assess the parties’ willingness and ability to negotiate more thoroughly. Elvis indicates reluctance to mediate. He does not think he did anything wrong, so why should he be punished? Medina assures him that she is not there to judge or punish him. She has no power to judge or sanction either party. Englebert hints that he feels intimidated by Elvis but says he does not fear face- to- face contact with him.

When inviting prospective clients to participate in mediation, the language used by the mediator can affect whether they agree to mediate. Mediators may use noncoercive persuasion, encouraging people to participate without pressuring or manipulating them. If Medina were to ask, “Do you see any benefit in mediating?” Elvis might be inclined to say, “No,” and then elaborate on his reasons that mediation would not be helpful. Instead, Medina explains mediation and then inquires, “Would you be willing to try mediation?” Most people have a tendency to agree. They want others to see them as reasonable and will- ing to try something that might be helpful (Sikveland & Stokoe, 2016).

To ensure that both parties can negotiate fairly, Medina meets with both parties indi- vidually before bringing them together. If Medina took a settlement- focused approach, she might prefer to meet with both parties together right from the start. However, interest- based mediators are more likely to meet individually first if they are concerned about safety or power imbalance issues.

Medina considers possible legal issues that might arise in this case. Neither party has a lawyer. However, if harassment were proven, C- Soft could fire or discipline Elvis; Englebert could also sue Elvis for damages. Medina informs the parties about the benefits of obtain- ing independent legal advice and ensures that they have access to legal advice should they be concerned about their rights or other legal issues. Both parties decline legal advice at this phase. Both interest- based and settlement- focused mediators should consider whether legal advice is important. The extent to which they encourage or direct parties to obtain legal advice depends more on the nature of the legal issues than their approach to media- tion. Still, settlement- focused mediators may be more likely to encourage parties to bring attorneys to mediation because they view the dispute as based in rights. Interest- based mediators sometimes prefer to meet without attorneys present to encourage collaboration and to foster communication between the parties rather than through their attorneys.

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The mediator considers who should be included in the mediation process: Englebert, Elvis, Sheryl, witnesses, people who have participated in other hazing rituals, and support per- sons for both parties. She decides to begin with Elvis and Englebert, the two people directly involved in the conflict. Initially, most mediators tend to limit the number of people to keep the process simple. Bringing in additional parties as the process progresses is generally eas- ier than asking parties to leave mediation. Accordingly, mediators can limit the number of people involved at the beginning and bring in others on an as- needed basis— for example, to balance power, to offer suggestions, or to help implement decisions made in mediation. If attorneys or interpreters are needed, they should be included from the start.

Medina arranges appointments with each party in her office. The office is arranged in a manner that is conducive to mediation: private, quiet, impartial, and comfortable. The room has a round table, enabling parties to sit around it and take notes. The light and color schemes are soft. Ventilation is good. The office is housed in the same building where Elvis and Englebert work. This presents two potential problems. First, others in C- Soft can see when they come to mediation, partially infringing Elvis and Englebert’s right to confidentiality. Second, the office is affiliated with C- Soft, giving the impression that Medina might use the authority of the employer to influence the outcome of mediation (e.g., pressuring the parties to agree to terms that reflect the norms and policies of C- Soft). Settlement- focused mediators may be less concerned about this type of issue than interest- based mediators. However, Medina can raise this issue to see whether the parties are really concerned about Medina’s affiliation with C- Soft.

2. Orientation to Mediation

The orientation phase begins with the first meeting with the parties, either jointly or individu- ally, and ends with the parties agreeing to mediate. The primary purposes of this phase are to help the parties understand mediation and to obtain their commitment to a particular process. The mediator tries to establish norms that will ensure that the parties participate constructively. Mediators encourage the parties to trust them by demonstrating warmth, unconditional positive regard, honesty, concern, and empathy with each party, as well as neutrality, knowledge, and competence as a mediator (S. Goldberg & Shaw, 2007; Moore, 2014; Poitras, 2009). The orientation phase of mediation is particularly important as mediators can use their explanations of mediation to establish their credibility and compassion as mediators.

As Medina goes to the reception area, she conducts a preliminary assessment based on a visual scan. She notes that Englebert and Elvis are sitting at opposite ends of the reception area. They are giving each other no eye contact. They appear uncomfortable simply being in the same room as each other. Englebert is nervously tapping his hand on his leg. Elvis is humming to himself, perhaps trying to imagine he is somewhere else. Elvis’s clothes are immaculate, whereas Englebert looks a bit disheveled. Medina wonders whether this could indicate Elvis is more organized and perhaps more powerful in nego- tiating. She is mindful that these assessments are tentative and that she must be careful to avoid stereotypes.

Medina welcomes Elvis and Englebert by name, shakes their hands, and invites them into her office. As they walk back to her office, she reviews key points that she wants to cover in the opening of her session. She notes that it is important to model effective communica- tion skills and encourage the parties to follow suit. She also wants to build trust by dem- onstrating impartiality. For settlement- focused mediators, the orientation phase is relatively short. The mediator provides an introductory statement that explains the goals of mediation, the role of the mediator, confidentiality, what happens if the parties come to an agreement,

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and what happens if they do not.11 Each mediator personalizes the opening statement, so that it feels comfortable to the mediator and so that it is tailored to the needs of the parties. As a settlement- focused mediator, Medina might begin with the following statement:

My name is Medina. Your supervisor has asked me to help you settle a conflict that has arisen in recent weeks. Sheryl has not given me the details of your concerns except to say that both of you are considering whether you can work things out through mediation. At this point, all you have committed to is today’s session. If both of you agree to mediate, I will ask you to sign the Agreement to Mediate. [Medina provides copies to the parties.]

As a mediator, my job is to help you discuss your concerns and work toward a solution that both of you can support. I am not a judge, and I am not going to make decisions for you. I may be able to make suggestions, but it is up to the two of you to decide what you want to do. I will do my best to remain impartial. In other words, I will not take sides with either one of you. If you have concerns about my ability to be impartial, please feel free to raise these so we can discuss them. Mediation does not work unless you believe that I am impartial. [Medina pauses to see whether the parties have any questions and to check what their body language may be indicating.]

If you are able to reach agreement, then we will decide how to ensure that both of you are able to fulfill your commitments. This may mean having lawyers draft a legally binding agree- ment. Most often, these types of disputes can be worked out informally. We simply write a letter of understanding. This letter states your expectations, but it is not a legal document. I understand that you do not want legal advice at this time, but we will discuss it again if any legal issues arise.

If you are not able to reach an agreement, then we can discuss other alternatives. I understand there is a possibility that this conflict could go to the Harassment Committee at C- Soft. However, the Agreement to Mediate that I will ask you to sign says that mediation is confidential and privi- leged. I will not share any information with the Harassment Committee, your supervisor, or anyone else at C- Soft. At the end of mediation, you may agree to share certain information to implement the decision. C- Soft has assured me that it will honor your right to confidentiality in mediation. The main exception to confidentiality arises if someone may be at risk of physical harm. I have a profes- sional obligation to take reasonable steps to help prevent the harm from occurring. Even if this comes up, I will try to obtain your consent to disclose information before taking further steps.

You probably have some questions about mediation and some of the things I have just said . . .

Other issues that can be included are the credentials of the mediator, the length of time the parties can expect to spend in mediation, and ground rules for the process (e.g., behavioral guidelines such as one person speaks at a time, everyone will use respectful language, no smoking dur- ing mediation sessions, and everyone will turn off cell phones). Some mediators are direc- tive about the ground rules, indicating that the mediator is in control of the process. Other mediators have the parties suggest ground rules, supporting the clients’ ownership of the process. If there is a high level of conflict at the outset, the parties may be unable to negoti- ate ground rules. Accordingly, the mediator may be wise to provide at least basic ground rules at this phase. Some mediators discuss ground virtues rather than ground rules. Ground virtues identify aspirational qualities or ways of being during the mediation process, for instance, the parties may agree to be respectful, honest, open, patient, and collaborative. To ensure that these commitments are not mere platitudes, the mediator could ask the parties what it means to be respectful and so on. In this manner, the mediator can ensure that both parties truly understand and are committed to implementing the ground virtues. In one mediation, I had one client define respect as “not spitting on the other person,” so both par- ties wisely agreed not to spit on each other.

11 In some jurisdictions, the laws dictate specifically what court- appointed mediators must include in their opening statements.

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Mediators select language that is neutral, positive, and future focused. For example, the introductory statement speaks of “concerns” rather than problems or disputes. The focus is on resolving concerns and coming to agreement, rather than finding out what has happened or determining who is to blame. One of the key goals in the initial phases of mediation is to facilitate positive conditions for problem solving: a spirit of collaboration, a sense of emotional and physical security, and assurance that everyone will be treated with respect, regardless of their culture, history, or roles in the conflict. As the Chapter 1 discussion on mindfulness reminds us, people are better able to problem- solve when they are put at ease.

The introductory statement can be broken down into components to allow the parties to ask questions as the mediator explains various aspects of mediation. Each introductory statement needs to be tailored to the particular situation, including the nature of the dis- pute, the agency’s policies, the clients’ level of language, and the mediator’s model of media- tion. If either party is not fluent in the same language as the mediator, an interpreter should be used from the outset. The interpreter should be independent. Having one party interpret for the other creates a conflict of interest.

The forgoing introductory statement was based on a settlement- focused approach. The following example illustrates verbiage that fits with IBM, focusing on collaboration, com- mon ground, and resolving underlying interests:

Mediation is a nonadversarial process. In other words, I will encourage you to problem solve together. I will begin by asking each of you, “What are your primary concerns?” As you explain where you are coming from, I’ll make sure that we are all on the same page by asking clarifying questions and summarizing your concerns. We will then take this information to develop a list of issues to work on. I will help you prioritize which issues to work on first. For each issue that we address, I’ll help you identify common interests. These are concerns or hopes that both of you share. We will then work on how to resolve these concerns. What types of solutions can we find where both of you are satisfied with the results? There are no winners and losers. Both of you need to be satisfied in order for us to come to an agreement.

As noted earlier, interest- based mediators are less directive than settlement- focused medi- ators. Interest- based mediators emphasize the parties’ ownership of the dispute and any agreements they conclude. Interest- based mediators often highlight the advantages of mediation over adjudication:

Mediation is less formal than the hearings conducted by the Harassment Committee. Mediation allows you to come to your own decisions rather than have someone impose them on you. You are the best judges of how to resolve your concerns. If you are happy with the solution, you are more likely to follow through12 than if a third party, such as the Harassment Committee, imposed a decision on you.

Most mediators have a standard Agreement to Mediate that they ask parties to sign during the first joint session. This gives them the opportunity to review the agreement with their law- yers after their individual sessions. The Agreement to Mediate describes the parties involved, the role of the mediator, the terms of confidentiality and privilege, the issues to be mediated, remuneration for the mediator, and important ground rules. Some mediators include a state- ment about legal advice, clearly establishing they have suggested that the parties obtain inde- pendent legal advice from the outset of the process. The signatures of the parties indicate their commitment to the process. Facilitative mediators could encourage parties to build

12 Research suggests that parties are more likely to follow through on mediated agreements, particularly if they feel the process was fair (Howieson, 2011).

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their own Agreement to Mediate or tailor the mediator’s standard form in order to meet their needs. Negotiating the Agreement to Mediate may be difficult because of the initial level of conflict between the parties, their lack of experience with mediation, and the possibility that they will insist on terms that are inconsistent with the mediator’s model of practice. Medina asks Elvis and Englebert to sign the Agreement to Mediate as per Box III.1.

BOX III.1 AGREEMENT TO MEDIATE

1. PARTIES: Elvis John Cameron and Englebert Younas are employees of Conflictia Software Enterprises (C- Soft) who agree to mediate a conflict that arose between them at work. They agree to act in good faith and to share all relevant information so they can work out an agreement in an amicable manner.

2. MEDIATOR: Medina Sellers has been hired by C- Soft to help employees resolve workplace conflicts. Her role is to help the employees discuss their concerns and work toward an agreement that satisfies both of their interests. Medina will act as an impartial mediator, meaning that she will not side with either employee or make decisions for them.

3. VOLUNTARY: Mediation is a voluntary process. Although C- Soft encourages its employees to resolve disputes in an amicable manner, C- Soft will not impose sanc- tions on the parties for refusing to mediate or for failure to come to an agreement. Either employee may terminate mediation at any time in the process.

4. CONFIDENTIAL AND PRIVILEGED: All information provided by the parties during mediation will be kept confidential and privileged, unless the parties provide express written consent or the mediator is required by law to disclose information (e.g., if a person is put at risk of physical harm). The mediator’s records will not be shared with other employees of the organization. The parties agree that they will not subpoena the mediator or her records for any trial, hearing, or other legal proceeding.

5. AGREEMENT: If the parties reach agreement during mediation, the mediator will write down the terms of the agreement in a letter to the parties. The agreement will not become a legally binding agreement unless the parties agree to have their law- yers draft a formal contract based on the terms set out in the letter.

6. LEGAL ADVICE: The mediator has explained the benefits of independent legal advice to the parties. They have both chosen not to hire lawyers at this time. The mediator will not provide legal advice to the parties but will ensure that they have time to meet with a lawyer during mediation, on their request.

7. FEES: C- Soft will pay the mediator $250 per hour for up to 6 hours of media- tion. If the parties choose to mediate beyond 6 hours, then they will each pay the mediator $120 per hour for any time beyond the initial 6 hours. All fees are due prior to the mediation session.

signed on April 23, 20XX indicating our understanding and agreement to the terms

above:

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englebert Younas Medina sellers

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elvis John Cameron

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This Agreement to Mediate is relatively simple, using plain language. Some mediators use more detailed and legalistic agreements. The Agreement to Mediate should reflect the mediator’s approach to mediation and legal issues that may arise in the context of the con- flict. Consider which approach to mediation this document seems to reflect. How would you alter it to suit one of the other approaches to mediation?

Parties who have never mediated before often require repeated explanations of the mediation process. They may be self- absorbed in their feelings about the conflict, making it difficult to focus on the mediator’s explanation of mediation. People frequently confuse mediation with adjudication, thinking the mediator will make decisions for them in spite of the mediator’s opening statement.

If the parties do not agree to participate in mediation, the mediator can help them explore other alternatives to resolving their dispute. Depending on the context, clients may be interested in information about therapy, adjudication, evaluation, or other pro- cesses. To maintain neutrality, the mediator provides information but avoids providing suggestions or opinions. Regardless of whether the parties are interested in other pro- cesses, mediators can leave the door open for parties to return to mediation if they change their minds.

3. Storytelling and Issue Definition

The storytelling and issue definition phase begins with storytelling by each party and concludes with the parties agreeing on the specific issues to be dealt with in mediation. Issues are the ques- tions, matters of concern, or topics that the parties wish to resolve through mediation (Moore, 2014). The issues that the parties initially identify may not be the ones that they eventually agree upon, as the mediator helps the parties frame their concerns in a construc- tive manner.

As the parties tell their stories, they may express anger, frustration, or other strong feel- ings. The mediator absorbs some of the conflict, allowing the parties to ventilate, listen- ing attentively, demonstrating empathy, and avoiding defensive responses. Medina’s earlier assessment suggested that Englebert tends to avoid conflict, only responding more assert- ively when the cause of the conflict has exacerbated. Accordingly, she decides to have him tell his story first. She tells the parties that Englebert will go first since he is the one that originally raised the concerns about what was happening at C- Soft. She reassures Elvis that he will have an equal opportunity to speak. She provides both Elvis and Englebert with paper and pens to write down any thoughts that come to mind as they are listening to the other person. Elvis expresses concern that he is being put on trial. Medina notes the pur- pose of this phase of mediation is to allow each of them to hear what the other is concerned about; she is not going to make any judgments.

If Medina adopted a SFM, she would ask the parties to focus on present concerns. “What concerns do you want to resolve here in mediation?” She would put relatively tight limits on their storytelling or expression of feelings. If Englebert started to discuss why he took a job at C- Soft or how angry he felt when Elvis shaved his head, Medina would acknowledge Englebert’s views but quickly refocus Englebert on what needed to be resolved in media- tion. A settlement- focused mediator wants to get to the crux of the negotiable issues as expeditiously as possible.

If Medina used IBM, she would allow for more storytelling, historical detail, and expres- sion of feelings. She might begin by asking each party, “What concerns bring you to media- tion?” Interest- based mediators are interested in having the parties identify negotiable issues, but they realize giving the parties time to process feelings is an integral part of CR . People need to feel heard— by the mediator and by the other party— in order to be able

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to move forward and negotiate solutions. When people say, “I want my day in court,” they typically mean that they want an objective third person to hear their story. Paradoxically, “getting one’s day in court” is more likely to happen in mediation than court. In court, law- yers and judges control what the parties can say and when. A mediator will use active listen- ing skills to demonstrate empathy, without taking sides. The mediator may also encourage each party to use active listening skills to validate each other’s feelings.

Englebert, thank you for sharing your concerns with us. Elvis, what were some of the main points that you heard from Englebert? You don’t have to agree with him— I am just asking what messages you understand from what he said.

Empathy refers to demonstrating emotional identification or communicating a sense of understanding (Ivey et al., 2014). The active listening skills identified in Chapter 1 form the basis of providing empathy and validation. Whereas most helping professionals use these skills to demonstrate empathy themselves, the mediator’s role is somewhat differ- ent. Mediators teach these skills to the parties so they can demonstrate empathy to one another. Each party learns about the other’s perspective. In the process, they may develop joint understandings.

Englebert tells of 10 different incidents in which Elvis harassed him but does not spe- cifically identify what he wants to deal with in mediation. Given that this is the issue defi- nition phase, Medina helps Englebert clarify which concerns he would like to address in mediation.

From what you’ve been saying , I understand that you believe that Elvis has mistreated you ever since you began working for C- Soft. Now, given all that has happened, what specifically do you think we need to work on during mediation?

Note how the language directs Englebert to identif y issues for work, not positions or possible solutions. Parties often want to move to solutions early in the process. Unfortunately, this may cause them to become entrenched in positions before trust has been built and before the underlying interests have been identified. The process of help- ing parties clarif y interests contributes to their empowerment. If they do not have a clear sense of the issues and their underlying interests, they cannot help but operate out of ignorance.

While settlement- focused mediators keep storytelling relatively brief, more facilitative mediators may encourage parties to share details of their experiences and perceptions. As each person reviews the history of events, the mediator encourages the other person to acknowledge new insights or information. Elvis says that he thought Englebert was con- senting to the hazing process. Elvis tells how surprised and angry he was when his supervi- sor came up to him one day and said a harassment complaint had been laid against him. Englebert believes Elvis is minimizing his actions. He also has trouble believing that Elvis thought he had consented to the hazing. Medina responds:

You think Elvis knew that you were opposed to being hazed. Is there anything Elvis has said today that you did not realize before?

This allows Englebert to acknowledge that he did not know Elvis was shocked and angry when he received the harassment complaint. Elvis has not agreed with Englebert’s points, but he has demonstrated some understanding from Englebert’s perspective. This helps build trust between the parties.

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13 For instance, blame, judgment, anger, or aggressiveness.

Maintaining mediator impartiality can be difficult where, as in the present case, one party is the obvious aggressor and instigator. However, mediation is not about blaming. If Elvis feels judged by the mediator, he is likely to withdraw from the process. The mediator might believe that an appropriate solution includes an apology, compensation, or even punishment. The mediator needs to be aware of these biases and allow the parties to come to their own solutions.

Throughout the storytelling, Medina takes notes to help her identify issues and to keep track of important information from one mediation session to the next. She limits her note- taking so she can give the parties generous eye contact. Further, she does not want to appear as though she is gathering evidence. She allows both parties to see her notes. Her notes are not particularly interesting to either of them, because they do not include any of the media- tor’s interpretations or suggestions.

To help the parties clarify the issues to carry forward in mediation, Medina lists both of their concerns on a flipchart. The issues may be listed as questions or brief bullets to indicate topics to be discussed. As she lists them, she frames the issues so they are positive, mutual, and future- focused (see Exercises 17 and 18 at the end of the chapter for further descriptions of reframing). By framing the issues in this manner, the mediator removes the sting13 from the conflict and sets the stage for collaborative problem solving. Medina lists the issues as follows:

• What to do about the hazing that has already occurred? • Will Englebert press his concerns forward with the Harassment Committee? • What type of work relationship do Englebert and Elvis want, if any? • How will Elvis and Englebert handle any future conflicts at work?

Medina checks to see whether the list of issues is exhaustive, balanced, and clear. She tries to frame the issues as open- ended questions to promote creative problem solving; yes– no ques- tions may limit the parties to thinking there are only two choices. Upon checking complete- ness of the list of issues, Englebert and Elvis say they have no further concerns. For the first issue, Medina tries to reframe “hazing that has already occurred” to “past treatment between Englebert and Elvis.” Englebert objects because he did not mistreat Elvis. Elvis admits to hazing, so he is comfortable with the initial phrasing. Both parties summarize the issues, indicating they have a common understanding about the issues that need to be resolved in mediation. They begin to prioritize which issue to deal with first. The mediator helps the parties identify their priorities, as well as which issues can be resolved more easily. Englebert says that he is not currently planning to take the case to the Harassment Committee, so that issue is not urgent. They agree that the first issue needs to be dealt with first, before they can move on the other issues. Medina believes it would be easier to talk about their relationship first, to help build trust and collaborative spirit. Dealing with easier issues first also fosters momentum of agreement. If she adopted SFM, she might be more directive. However, the more facilitative IBM suggests giving the parties greater control over the process, particularly if they can readily agree on process issues. Medina congratulates them on being able to come to a clear and comprehensive agreement about the issues for mediation.

4. Exploring Needs and Interests

Exploring needs and interests is the crux of IBM. It may also be used SFM, though it may receive less emphasis. During this phase, the mediator encourages both parties to identify their individual interests as well as interests that they have in common. Settlement- focused mediators

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move through this phase quickly, allocating more time to problem solving than to analyzing the problem. To deal with the issue of past hazing, Medina asks each party to identify their own feelings about what has happened. Englebert says he feels embarrassed, degraded, and alienated. Medina explores why he feels embarrassed. Englebert admits that he was not able to confront Elvis directly and had to go to his supervisor for help. He thinks he should have been able to stand up for himself.

Elvis says he is “pissed off ” at Englebert for putting his job in jeopardy when all he was doing was fooling around. Medina validates Elvis’s feelings and explores what is underneath them:

I can see you’re very angry with Englebert. This tells me these issues are very important to you. Besides feeling angry at Englebert, what else do you feel?

Elvis says he’s not into this “touchy- feely stuff.” Medina responds nondefensively:

You don’t need to talk about anything you don’t want to. I’m just wondering , when you men- tioned you were “pissed off,” what exactly were you trying to say?

This gives Elvis the opportunity to say that he was scared he might lose his job over a couple of pranks. If Elvis is still uncomfortable disclosing feelings, the mediator will not push the issue too far.

Medina explores underlying issues concerning how the conflict has affected them at work.

How do you think your coworkers see you? And how has this conflict affected their opinions about you?

Elvis says his coworkers used to respect him. They thought he had a good sense of humor. Once rumors of a harassment case got out, they started to think he was a bully. Englebert, however, always felt his coworkers thought he was a wimp. Having to go to his supervisor for help probably just confirmed this opinion. Englebert starts repeating his life history of being hazed and bullied. Medina refocuses him on the present issues. She explains the process of interest- based negotiations and asks them to identify their underlying interests.

We’ve talked about many different issues. Now, let’s focus on your key interests. When you think about what needs to be done to deal with the hazing that’s already occurred, what is most important to you?

Elvis responds that he wants Englebert to drop the harassment charges and advise their supervisor that they had worked things out. This is a position or solution rather than an interest. Medina helps him explore what interests underlie his suggestion.

When you say you want the harassment charges dropped, why is this important to you?

From this line of questioning, Elvis identifies “job security” as a primary interest. Medina continues the process of helping Elvis and Englebert identify underlying concerns. Eventually, they arrive at the following list:

• job security (financial security) • respect from coworkers

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• respect from each other • an end to the dispute, as soon as possible

They agree that these are mutual interests, although they may have different meanings or levels of importance to each party. Medina writes these on the flipchart and commends them once again for their hard work and good faith.

5. Negotiation and Problem Solving

Negotiation and problem solving are the central foci of the settlement- focused approach, as well as integral parts of IBM. At this point, the mediator has established trust with the parties. They have committed themselves to dealing with particular issues and they have identified their underlying interests. This phase moves them from interests to solutions.

Strategies at this phase include option generation, identifying objective criteria, and draw- ing the parties’ awareness to the cost of nonagreement. These strategies are similar to the material presented in Chapter 6 on interest- based negotiation, except the mediator facili- tates the parties through these processes. For example, both parties have expressed an interest in job security. Medina asks them to brainstorm options for solution. She lists their suggestions: Both parties continue to work for C- Soft; Elvis quits and finds another job; Englebert quits and finds another job; they start their own company; they work for different divisions of the same company; they return to their old jobs; or one of them wins the lottery and they split the winnings. They cannot think of any other options at this time.

Englebert thinks Elvis should quit because he was responsible for the conflict in the first place. Elvis thinks Englebert should quit because Elvis has seniority and Englebert is still on probation. Medina explains the need for objective criteria for decision making.

Each of you has good arguments from your own point of view. What we need is an objec- tive way to analyze this problem. What factors would a complete stranger suggest for how to resolve this issue? Someone who doesn’t know either of you and has no stake in the outcome.

They agree that their decision should be based on two factors: fairness and practicality. They define fairness as equal treatment (Menkel- Meadow & Wheeler, 2004). If one person leaves the job, then both also have to. It would not be very practical for both to leave their jobs, so they agree to work out a solution where both continue to work for the company. They like their jobs and think that they can work things out where they can work together, side by side.

Englebert says that in order for him to gain respect from his colleagues, Elvis needs to get up in front of all of the employees and make a public apology. Elvis rejects this solution out of hand and threatens to terminate the mediation process. Both parties start raising their voices. Medina acknowledges their frustration but notes how hard they have worked to get this far. She suggests a brief break to allow them to regain their composure. A more facilitative mediator might avoid calling a break at this point, giving the parties an oppor- tunity to work through their emotions rather simply trying to calm them down so they can negotiate rationally and unemotionally.

After the break, Medina reviews the process, emphasizing their progress and acknowl- edging their feelings about the impasse. A settlement- focused mediator might be directive at this point, emphasizing the cost of disagreement (their Best Alternatives to a Negotiated Agreement [BATNAs]). In this case, if the parties do not come to an agreement, Englebert’s

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BATNA is to pursue the case through the Harassment Committee. This process could be lengthy, adversarial, and embarrassing to both parties. Neither one knows how the commit- tee would decide this case. An interest- based mediator may also draw the parties’ attention to their BATNAs, but in a less directive or explicit manner. The mediator could encourage the parties themselves to identify the consequences of nonagreement, rather than have the mediator suggest them.

In this case, Elvis and Englebert agree to move forward in mediation. Englebert is reluc- tant to back down from his request for a public apology, feeling that he will look like a wimp once more. Medina offers the following metaphor:14

Have you ever heard the story about the ship that sees a light shining through the fog? As the ship approaches the light, the captain sends a call on his radio: “This is the captain of the USS America. You are headed directly toward us. Please turn your vessel portside to avoid collision.” The reply comes, “I am sorry we cannot oblige. Please divert your course.” As the ship moves closer, the captain becomes more adamant: “We have the right of way. You must alter your course to avoid collision.” The reply comes once more, “I am sorry we cannot oblige. Please divert your course.” As collision is moments away, the captain says desperately, “You must divert your course. This is the USS America.” The reply comes, “You must divert your course. This is a lighthouse.”

The parties chuckle at the joke and then discuss its lesson. Sometimes it is better to back down; getting your own way is not beneficial if it means you will crash and burn.15 Medina reminds them that there is a difference between backing down from a position and back- ing down from an interest. She encourages both parties to pursue their interests, in this instance, the respect of their coworkers. A public apology is one option, but not the only one. Elvis says he respects Englebert for reconsidering this issue. He wants to come up with a solution that works for both of them.

They explore various options and create one that seems to satisfy both parties’ interests. Although Elvis is not prepared to make a public apology, he offers Englebert a sincere apol- ogy in private. They agree to send a memorandum to their coworkers, explaining that they had gone to mediation and come to an amicable agreement. They work through the exact wording of the memorandum and what each of them will disclose orally to their coworkers. They do not want to disclose the full details of the conflict, because both still felt embar- rassed about it.

Mediation continues until they come to tentative agreements about all of the issues in dispute. Some issues become immaterial when other solutions fall into place. By this point in the process, the parties are able to work together, collaboratively, with less direction from the mediator.

6. Finalizing an Agreement

Once an agreement in principle has been reached, the parties must decide how to finalize it: as an informal understanding , as a legally enforceable agreement, or as a court order on consent of the par- ties. This is not a case that has been filed in court, so initiating a case just to secure a court order is not practical. The parties agree that there is no need for a legally binding agreement. They

14 Original source unknown. 15 This story can be used for other lessons, including the importance of listening and clear communication.

Innocent misunderstandings can lead to grave consequences.

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believe the issues are more about their relationship than about their legal rights. The mediator offers them an opportunity to obtain legal advice, but both decline. They opt for an informal understanding that the mediator will summarize in a letter addressed to both parties.

Medina works through the letter with the parties. A settlement- focused mediator is likely to suggest the wording of the informal agreement because this is most expedient. An interest- based mediator is more facilitative and therefore more apt to ask the parties to suggest its wording. Medina uses plain language, avoiding legalese. Her letter includes the following paragraphs:

The purpose of this letter is to summarize my understanding of the terms of the agree- ment you reached in mediation. This is an informal agreement that is not intended to be legally binding. The agreement will work as long as both of you remain committed to it. If there are any problems with the agreement, you may return to mediation to work these out.

Both of you agree to treat each other with respect. To promote a positive working relationship, you have agreed that you will not participate in any hazing rituals at C- Soft. You have also agreed to circulate the attached memorandum to your coworkers. Neither of you will talk to coworkers about other details or issues discussed in mediation.

If either of you has a concern about how the other has treated you, your first step will be to meet with the other in private to discuss your concerns. If the issue cannot be resolved through one- to- one discussions, then either of you may request the help of a supervisor or mediator.

Medina reviews this agreement with the parties to ensure that it reflects their intentions accurately. She asks about potential problems in implementing the agreement. Elvis says that C- Soft needs to consent to distribution of the memorandum before they distribute it to their coworkers. Elvis and Englebert agree to take the agreement to their supervisor to ask for per- mission to circulate the memorandum. If they cannot work out the arrangements with the supervisor, they will contact the mediator to discuss other alternatives. Ideally, the mediation agreement is self- enforcing; that is, the agreement can be enforced by the parties themselves, without the need for a third party to monitor and enforce the agreement. If external monitor- ing or enforcement is needed, methods of enforcement should be specified.

Many mediators let the parties decide whether to return for follow- up. Some facilitative mediators include follow- up as part of their process. Follow- up provides the parties with a time and place to ensure that the agreement is being implemented and to problem- solve any areas of concern. Accordingly, they will schedule a specific time and place for follow- up before dismissing the clients.

The mediator concludes this phase by reinforcing the progress that the parties have made and by offering encouragement to move forward. Settlement- focused mediators reinforce the fact that the parties have come to their own agreement. Interest- based mediators congrat- ulate the parties on being able to work cooperatively and resolve their underlying interests.

7. Follow- up

Follow- up with the parties serves a number of purposes: The mediator can reinforce the parties’ prog- ress; new issues can be mediated; the mediator can refer the parties to additional services, as needed; and the mediator can solicit feedback for research and program development purposes. Facilitative mediators, in particular, recognize that conflict is not over just because an agreement has been reached. Implementation of the agreement can raise a whole new set of issues: resistance from other people or systems; problems with enforcement; frustration or despair when things do

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not work out as well as expected; and conflicts around issues that were not previously expected. Conflict is not necessarily resolved but managed. Ongoing issues are apt to arise, particularly if the parties expect to have an ongoing relationship. Ideally, the parties have gained CR skills through participation in mediation. This enables them to deal with conflict more effectively on their own. Sometimes, the mediator frames the parties’ agreement as a “nonbinding interim16 agreement” or “trial run.” This allows the parties to test whether the trial agreement is working and return to mediation to see if the agreement needs tinkering or more substantial renegotia- tion. Parties who seem headed toward impasse might be more inclined to agree to a trial run than a permanent agreement. If both try to follow the tentative agreement in good faith, they will be better able to reach a more permanent agreement at follow- up.

In general, settlement- focused mediators do not emphasize follow- up. Their goal is to help the parties reach settlement. Still, follow- up could be used to help the parties ensure that settlement endures. In other words, the mediator uses follow- up to monitor compli- ance.17 If there are problems with compliance, the mediator could help the parties mediate a revised agreement or explore different means of enforcement.

For interest- based mediators, the focal points of follow- up are satisfaction and ongo- ing collaboration. If the parties are not satisfied with the agreement, the mediator can help them renegotiate. If the relationship between the parties has soured, the mediator can refo- cus them on the importance of cooperation.

Follow- up acts as a booster session, providing support for their continued efforts and inoc- ulating them against returning to problematic patterns of managing conflict. In the present case, Elvis and Englebert return for follow- up 6 weeks after finalizing their agreement. They review implementation of the agreement, including successes and problems. Englebert reports that distribution of the memorandum and responses to it were positive. Elvis also affirms a more positive work environment at C- Soft. Medina cautions them that there may be rough spots in the future, pre- empting possible disappointment if things did not continue to go so well. She also congratulates them on making their agreement work.

Englebert does have one concern. C- Soft had just issued a policy against hazing new employees. He feels somewhat embarrassed because people were calling this the “Englebert Policy.” Elvis demonstrates recognition by acknowledging how these comments singled out Englebert. As Elvis and Englebert talk about the Englebert policy, they begin to realize that it was nothing to be embarrassed about. Elvis jokes that he is jealous that there was no “Elvis pol- icy.” Elvis and Englebert agree that when people at C- Soft referred to the Englebert policy, they would add, “You mean the Elvis and Englebert policy,” taking pride in ownership of this policy and removing the hurtful connotations that some coworkers may have intended.18 Medina commends them on the progress they had made since their first mediation session.

16 Interim refers to an agreement or court order that is only expected to be followed until a more perma- nent agreement or order is made. Sometimes, interim orders or agreements are made “without prejudice,” meaning that the parties’ rights and obligations are not prejudiced by the terms of the interim order or agreement. If there is a possibility that interim agreements will affect the parties’ rights, ensure that they have access to legal advice before agreeing to the interim arrangement. Consider a divorce situation in which the parents reach an interim agreement stating the children will have temporary residence with their mother. This could create a status quo that would be difficult for the father to contest in the future, because courts are reluctant to change a child’s residence once it has been established.

17 Follow- up could also be pursued by an administrative person from the agency rather than the mediator. 18 This fits with the children’s motto, “Sticks and stones may break my bones, but names will never hurt me.”

Name- calling hurts only if one lets it. Often, minority groups that have been labeled with derogatory terms will take these terms and adopt them as a badge of pride (e.g., gays who accept the moniker “queer”).

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265

This case demonstrates many of the decisions, skills, and activities that comprise media- tion. Some aspects of the process have been abbreviated for demonstration purposes. It is not intended to be “the perfect case.” Each of your own cases will present you with unique clients, diverse issues, varied levels of conflict, and distinct choices for how to implement the seven phases of mediation.

COMPARING MEDIATION WITH INTERVENTIONS OF O THER HELPING PROFESSIONS

One way to gain a deeper understanding of mediation is to learn how the role of a media- tor is similar to and different from other helping professions. For example, is SFM simply a form of legal practice? How is therapeutic or transformative mediation different from ther- apy (Irving & Benjamin, 2002/ 2012; Wall & Spira, 2012)? To what extent do you have to change your skills, strategies, and ethical standards when you switch hats from your original professional identification to that of a mediator? Table III.1 provides a comparison of three professions: mediation, social work, and law. I use the interest- based model of mediation, the generalist model of social work,19 and a traditional adversarial model of law for the pur- poses of demonstrating these comparisons.

Both law and social work view mediation as a possible role that these professions include. However, when you analyze the orientations, values, and methods of the three models as described in Table III.1, significant differences emerge. The traditional role of a lawyer is that of an advocate who pursues the rights and interests of one party involved in a conflict. Similarly, most social workers are used to advocating for particular clients or causes. To assume the role of a mediator, lawyers or social workers must suspend their ori- entation as advocates and become impartial facilitators. Mediators allow clients to nego- tiate on their own behalf. Although mediators support each party’s ability to negotiate, they do not support a particular position or solution. Impartiality is one of the most dif- ficult transitions for advocacy- oriented helping professionals to make when they become mediators.

In terms of values, each of the three professions emphasizes the right of clients to make self- determined choices. They respect individuality and the self- worth of all people. Some people view law as contrary to self- determination because courts impose solutions on parties. However, court is an avenue of last resort, even for lawyers. Preferably, conflicts are resolved through party- to- party or lawyer- led negotiations (Lastovka, 2015). Court is used only when the parties are unable to come to a solution on their own.

The similarities and differences between professions depend on the models of interven- tion being compared. For example, the therapeutic and transformative models of mediation adopt methods that are similar to those used by clinical social workers, psychologists, and other mental health professionals. The settlement- focused model of mediation focuses more on rights and resolving legal issues, similar to the traditional practice of law. As mediation continues to evolve, helping professionals should consider how it relates to their original professional identities and what changes they need to adopt in order to assume the role of a mediator.

19 The Generalist Intervention Model is one of the more popular models of practice taught in schools of social work. This model provides the foundation of knowledge, strategies, and skills that frame many different interventions with individuals, families, groups, organizations, and communities. Generalist social work- ers work with various types of social systems, often focusing on the interactions between these different types of systems.

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TABLE III.1. Comparison of Mediation, Social Work, and Law

Mediation: Interest- Based Model20 Social Work: Generalist Intervention Model21

Law: Traditional Adversarial Model22

Definition A specialized problem- solving process

in which an impartial third party

helps disputing parties try to reach

a mutually acceptable settlement

by facilitating communication and

negotiation between them.

A planned- change framework that guides

practitioners to help clients deal with

biospsychosocial problems issues using

a broad range of knowledge, skills, roles,

and strategies, rather than specializing in a

narrow range of clinical interventions.

An approach to resolving disputes over legal

rights and responsibilities requiring each

attorney to advocate zealously on behalf of

the particular client he or she is serving.

Approaches helps clients deal with conflicts in a

manner that satisfies their underlying

interests.

helps clients cope and adapt to their social

environment, as well as change their social

environment.

provides each client with a specialized

advocate who uses positional negotiation

strategies in hopes of maximizing rights and

gains for the client.

focuses on relationships rather than

rules.

promotes social and economic justice. focuses on rules rather than relationships.

encourages joint problem solving. Incorporates generalist social work

knowledge, skills, and values throughout the

planned- change process.

provides each client with a legal representative

in court who will debate legal rights and

present evidence in favor of the client.

focuses on future. Avoids assigning

blame (restoration; remediation).

focuses on the present and future. Clients

and workers work together in a mutual

relationship to deal with identified problems

for work. focus is on responsibility for

change rather than judging or blaming.

In litigation role, focuses on determining

blame (or legal liability) and innocence (or

superior rights) for past acts.

Makes clients responsible for deciding

how to deal with the conflict.

targets a range of social systems for change,

including individuals (micro), families

and groups (mezzo), and organizations,

communities, and society (macro).

Discourages collaboration. gives attorneys

and judges control over how to deal with the

dispute (even though clients are responsible

for instructing their attorneys how to act).

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267

(continued)

premises Conflict is a natural phenomenon,

dealt with effectively through

collaborative processes.

Client problems relate to interactions and

stresses in various systems, including family,

community, work, and cultural systems.

truth and justice are most likely to emerge in

an adversarial process where each party has a

professional advocate.

Clients should be responsible for

making decisions over matters

affecting themselves.

Clients are often prevented from fulfilling

their potential because of lack of resources,

oppression, and discrimination.

Clients do not have sufficient legal knowledge

and advocacy skills to represent themselves in

a dispute.

Clients are more likely to follow

through on arrangements that they

have discussed and agreed on.

Clients are expert in their own lives

and are capable of handling a range of

biopsychosocial issues on their own.

Disputes should be resolved on the basis of

who has the best arguments, based on current

laws, case precedents, and the most credible

evidence to support a case.

Conflict should be resolved based on

ways to satisfy the clients’ interests

(rather than power, rights. or

precedents).

Clients are more likely to fulfill their

potential if they are allowed to function in

a more supportive environment, which can

include the support of helping professionals.

Constitutional and legal rights protect people

from being coerced or oppressed. lawyers help

by ensuring that these rights are enforced.

Roles Impartial facilitator, intermediary,

negotiation coach, coordinator,

educator (information, not advice).

enabler, mediator, coordinator, general

manager, educator, evaluator, broker,

facilitator, initiator, negotiator, mobilizer,

and advocate.

Advocate, mouthpiece, draftsperson;

interviewer, assessor, advisor, and counselor.

As a mediator, generalist social workers

enhance interactions between individual clients

and systems in their social environments.

(Alternative roles for attorneys include

arbitrator, judge, mediator, legislator, and

policy formation.)

Values and

ethics

self- determination. self- determination. Autonomy and freedom.

empowerment. Belief in the problem- solving capacities of

clients.

equality.

Respect for all people;

nonjudgmental.

Respect for uniqueness and individuality of

clients.

procedural rights (fair trial; innocent until

proven guilty; justice is blind).

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Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

Neutral/ impartial third party. Acceptance of and belief in the worth and

dignity of human beings.

full disclosure; sharing information

between parties.

Access to information (education as power). limited disclosure (only what is legally

required).

Confidentiality. Confidentiality. Confidentiality; privacy.

fair negotiation. Access to resources and opportunities to

realize one’s potential.

Justice.

Voluntariness. Ambivalence— tolerates coexistence of

different and opposing attitudes or beliefs.

Right to legal advice. Access to resources.

professional integrity. professional integrity. professional integrity.

Win- win solutions. social relationships. Competition and winning.

Clients have a right to competent

mediators.

Clients have a right to competent social

workers.

Clients have a right to competent lawyers.

focus Conflict between the parties and

others affected by the conflict.

Interface between the person and

environment.

legal rights and obligations.

future. Reciprocal and adaptive processes. Individual entitlements and social

responsibilities.

objective criteria.

problem solving.

Collaboration.

Combating oppression and abuses of power

in social structures (germain & gitterman,

1996).

Accountability for one’s actions.

Client-

professional

Relationship

Clients agree on the definition of

the problem and on the solution;

mediator is impartial.

Client and social worker agree on the

definition of the problem and on the

solution (mutuality).

Client defines the problem and decides upon

the solution, with advice of the lawyer.

Mediator neutrality is crucial to

establishing trust and fairness of the

process.

Worker neutrality and impartiality as part of

“professionalism” are rejected.

lawyers advocate for one party; neutrality is

rejected unless lawyer is acting as a mediator

rather than as an advocate.

Mediator is a reflective practitioner. Worker self- awareness is necessary to

minimize distorted or maladaptive

communication (emphasizes use of

supervision).

Ability to think like a lawyer requires

objectivity, but self- awareness is not

emphasized.

uses neutrality and empathy to

build trust.

uses empathy, genuineness, and

unconditional positive regard to

build trust.

trust depends on integrity and expertise of

lawyer.

Debate as to whether the mediator

needs to ensure a balance of power

between the parties (Mayer et al.,

2012).

Workers have specific obligation to challenge

social and economic injustice, including

oppression and discrimination.

lawyers have special obligations to serve

and protect those who are disadvantaged or

subjected to discrimination.

structure/

phases

• preparation • engagement— Worker builds rapport with

client through outreach, demonstrating

empathy and respect, and explaining

confidentiality and terms of service.

• problem Identification— lawyer helps

identify problem from client’s perspective.

• orientation • Assessment— Worker and client gather

information about clients strengths

and needs in order to jointly determine

problem(s) for work, goals, and priorities.

• option generation— lawyer involves

client in the process of exploring potential

solutions.

TABLE III.1. Continued

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269

Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

Neutral/ impartial third party. Acceptance of and belief in the worth and

dignity of human beings.

full disclosure; sharing information

between parties.

Access to information (education as power). limited disclosure (only what is legally

required).

Confidentiality. Confidentiality. Confidentiality; privacy.

fair negotiation. Access to resources and opportunities to

realize one’s potential.

Justice.

Voluntariness. Ambivalence— tolerates coexistence of

different and opposing attitudes or beliefs.

Right to legal advice. Access to resources.

professional integrity. professional integrity. professional integrity.

Win- win solutions. social relationships. Competition and winning.

Clients have a right to competent

mediators.

Clients have a right to competent social

workers.

Clients have a right to competent lawyers.

focus Conflict between the parties and

others affected by the conflict.

Interface between the person and

environment.

legal rights and obligations.

future. Reciprocal and adaptive processes. Individual entitlements and social

responsibilities.

objective criteria.

problem solving.

Collaboration.

Combating oppression and abuses of power

in social structures (germain & gitterman,

1996).

Accountability for one’s actions.

Client-

professional

Relationship

Clients agree on the definition of

the problem and on the solution;

mediator is impartial.

Client and social worker agree on the

definition of the problem and on the

solution (mutuality).

Client defines the problem and decides upon

the solution, with advice of the lawyer.

Mediator neutrality is crucial to

establishing trust and fairness of the

process.

Worker neutrality and impartiality as part of

“professionalism” are rejected.

lawyers advocate for one party; neutrality is

rejected unless lawyer is acting as a mediator

rather than as an advocate.

Mediator is a reflective practitioner. Worker self- awareness is necessary to

minimize distorted or maladaptive

communication (emphasizes use of

supervision).

Ability to think like a lawyer requires

objectivity, but self- awareness is not

emphasized.

uses neutrality and empathy to

build trust.

uses empathy, genuineness, and

unconditional positive regard to

build trust.

trust depends on integrity and expertise of

lawyer.

Debate as to whether the mediator

needs to ensure a balance of power

between the parties (Mayer et al.,

2012).

Workers have specific obligation to challenge

social and economic injustice, including

oppression and discrimination.

lawyers have special obligations to serve

and protect those who are disadvantaged or

subjected to discrimination.

structure/

phases

• preparation • engagement— Worker builds rapport with

client through outreach, demonstrating

empathy and respect, and explaining

confidentiality and terms of service.

• problem Identification— lawyer helps

identify problem from client’s perspective.

• orientation • Assessment— Worker and client gather

information about clients strengths

and needs in order to jointly determine

problem(s) for work, goals, and priorities.

• option generation— lawyer involves

client in the process of exploring potential

solutions.

(continued)

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Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

• storytelling and Issue definition • planning— Worker and client determine

best way to proceed.

• Advice— lawyer provides advice based on

client’s concerns and values.

• exploring interests and needs • Implementation— Worker and client

perform the plan (which could include

counseling, advocacy, mediation, problem

solving, referrals, etc.).

• Decisions on Action— lawyer encourages

client to make any decisions that are likely

to have a substantial legal or nonlegal

impact.

• Negotiation and problem solving • evaluation— Worker and client jointly

assess progress on goals and determine

next steps, if any.

• Implementation— lawyer pursues rights of

clients through negotiation or litigation,

as agreed.

• finalizing an agreement • termination— Worker and client work

through any outstanding issues, including

emotional issues and possible referrals.

• follow- up • follow- up— Worker contacts client

to evaluate ongoing results, offer

additional services, and promote ongoing

improvement.

Methods emphasis on relationship and

problem solving.

Dual emphasis on individual and situation. emphasis on problem rather than people;

deductive reasoning.

Attends to cognitive and affective

elements, but focuses on rational

decision making.

Attends to cognitive and affective elements. Attends to legal issues and rational decision

making.

historical material may be part of

storytelling and ventilation, but focus

is on the future.

historical material explored as it becomes

relevant to the client.

historical information may be relevant to

assigning blame, guilt, or responsibility for

compensation.

Mediator controls the process, clients

responsible for the decisions— clear

role boundaries.

Client relationship is integral part of

the helping process. Moderate degree of

mutuality is required.

Client relationship requires trust in lawyer

as expert with professional integrity. Does

not require mutual understanding of the

problem and what needs to be changed.

focus on the parties’ understanding

of the problem and what needs to be

changed.

Mutual understanding of the problem and

what needs to be changed.

lawyer receives instructions from client

about how to act, but ideal situation may be

compromised by power differentials (clients

often defer to expertise of the lawyer).

Contracting is used to submit to

the process— voluntary; consent to

ground rules, etc.

Contracting is essential to client– worker

mutuality.

Intervention geared to change of

roles, relationships, and concrete

issues.

Intervention geared to both personal

adaptation/ change and change in

environment.

Intervention geared to relationship between

disputing parties, or parties with conflicting

rights.

facilitates communication,

negotiating, and problem solving.

Cognitive restructuring, action, and

problem solving.

Negotiating, problem solving— instrumental

orientation.

Cultural issues addressed if they

pertain to underlying interests of the

parties.

understands and acknowledges differences

in age, race, gender, sexual orientation, and

socioeconomic status. Advocates for social

justice.

pursues legal remedies available for

discrimination.

20 For one of the more popular sources on interest- based mediation, see Moore (2014). 21 This column is based on Kirst- Ashman and Hull’s (2015) explanation of the Generalist Intervention Model. 22 Note that this column focuses on a traditional approach to legal advocacy. Many lawyers now use collaborative approaches to practice (see http:// www.mediate.com/

collaborativelaw).

TABLE III.1. Continued

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271

Mediation: Interest- Based Model Social Work: Generalist Intervention Model Law: Traditional Adversarial Model

• storytelling and Issue definition • planning— Worker and client determine

best way to proceed.

• Advice— lawyer provides advice based on

client’s concerns and values.

• exploring interests and needs • Implementation— Worker and client

perform the plan (which could include

counseling, advocacy, mediation, problem

solving, referrals, etc.).

• Decisions on Action— lawyer encourages

client to make any decisions that are likely

to have a substantial legal or nonlegal

impact.

• Negotiation and problem solving • evaluation— Worker and client jointly

assess progress on goals and determine

next steps, if any.

• Implementation— lawyer pursues rights of

clients through negotiation or litigation,

as agreed.

• finalizing an agreement • termination— Worker and client work

through any outstanding issues, including

emotional issues and possible referrals.

• follow- up • follow- up— Worker contacts client

to evaluate ongoing results, offer

additional services, and promote ongoing

improvement.

Methods emphasis on relationship and

problem solving.

Dual emphasis on individual and situation. emphasis on problem rather than people;

deductive reasoning.

Attends to cognitive and affective

elements, but focuses on rational

decision making.

Attends to cognitive and affective elements. Attends to legal issues and rational decision

making.

historical material may be part of

storytelling and ventilation, but focus

is on the future.

historical material explored as it becomes

relevant to the client.

historical information may be relevant to

assigning blame, guilt, or responsibility for

compensation.

Mediator controls the process, clients

responsible for the decisions— clear

role boundaries.

Client relationship is integral part of

the helping process. Moderate degree of

mutuality is required.

Client relationship requires trust in lawyer

as expert with professional integrity. Does

not require mutual understanding of the

problem and what needs to be changed.

focus on the parties’ understanding

of the problem and what needs to be

changed.

Mutual understanding of the problem and

what needs to be changed.

lawyer receives instructions from client

about how to act, but ideal situation may be

compromised by power differentials (clients

often defer to expertise of the lawyer).

Contracting is used to submit to

the process— voluntary; consent to

ground rules, etc.

Contracting is essential to client– worker

mutuality.

Intervention geared to change of

roles, relationships, and concrete

issues.

Intervention geared to both personal

adaptation/ change and change in

environment.

Intervention geared to relationship between

disputing parties, or parties with conflicting

rights.

facilitates communication,

negotiating, and problem solving.

Cognitive restructuring, action, and

problem solving.

Negotiating, problem solving— instrumental

orientation.

Cultural issues addressed if they

pertain to underlying interests of the

parties.

understands and acknowledges differences

in age, race, gender, sexual orientation, and

socioeconomic status. Advocates for social

justice.

pursues legal remedies available for

discrimination.

collaborativelaw).

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272 C o N f l I C t R e s o l u t I o N f o R t h e h e l p I N g p R o f e s s I o N s

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CULTURAL ISSUES

Cultural issues affect mediation practice from a number of perspectives:

• If the conflict is between parties from different cultural backgrounds, the conflict may be based on cross- cultural miscommunication, conflicting cultural values or beliefs, or dividing resources between people from the different cultures.

• If the mediator is not from the same culture as either party, the mediator needs to deter- mine which knowledge, values, and skills are necessary in order to mediate in a culturally appropriate manner.

• Each model of mediation has a number of assumptions that may or may not be valid when working with people from different cultures (Davidheiser, 2008).

The following two sections deal with these concerns by exploring cross- cultural issues between clients, as well as between mediators and clients. Sections 3 to 5 re- examine the value, knowledge, and skill bases of mediation in light of cultural factors.

1. Clients from Differing Cultures

Mediators should be prepared to explore whether the nature of a conflict is rooted in cross- cultural issues. Some mediators are reluctant to explore issues such as prejudice and power because they are afraid about exacerbating the conflict. However, if cultural issues are left brewing below the surface, the parties cannot deal with the real basis of the conflict. Conversely, mediators must be careful not to assume that a conflict is caused by cultural issues simply because the parties come from different cultures. The following strategies may be useful in dealing with cross- cultural issues:

• Use recognition strategies from the transformative paradigm to facilitate understanding, reconcile past miscommunications, and foster mutual respect (Folger et al., 2010).

• Validate different cultural beliefs, values, and ways of doing things, because many conflicts do not have a right and a wrong; reinforce that conflict is a part of diversity (Bercovitch & Foulkes, 2012).

• Separate interests and values; help the parties understand the conflict between their val- ues and focus the problem- solving component of mediation on satisfying interests that exist regardless of their difference in values.23

• Use cultural interpreters to help each party gain better understandings of one another. If clients have lived most of their lives in a homogenous culture, they may have difficulty explaining cultural norms to others in language that they can understand. Cultural inter- preters have had experience with more than one culture, so they have learned how to translate cultural norms from one culture to another.

• If the conflict is based on intergroup conflict, consider group approaches rather than mediation between individuals (see Chapter 9).

Note that conflicts between helping professionals and clients may be rooted in cultural differences, including differences in levels of education, communication styles, and

23 Because values are so deep- rooted, they are difficult if not impossible to change in a brief intervention such as mediation. However, parties can learn to respect one another’s values without having to agree with them.

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definitions of successful outcomes (Oetzel & Ting- Toomey, 2013). Consider family members trying to negotiate end- of- life care for an elder parent at a hospice. Professionals serving at the hospice may be using language that is foreign to the family members, unintentionally making them feel patronized, dis- empowered, or frustrated. The mediator can bridge such differences by helping the parties communicate in language that both can understand, checking out assumptions and creating opportunities to correct misunderstandings.

2. Mediator’s Culture

Some proponents of mediation suggest that one of its advantages is that parties can select mediators who come from the same cultural background as themselves. Although this point may be true, it is not necessarily an advantage nor a given (Davidheiser, 2008). Some indi- viduals do prefer to deal with a mediator from their own cultural background: Such media- tors bring an understanding of cultural issues into the mediation process. Furthermore, some people do not like to air their conflicts in the general community. For example, if the parties come from a discriminated group in society, they may distrust mediators from outside their group. Conversely, some people prefer to take their conflicts to professionals outside their community. The cultural group may be small and closely knit. If the parties are concerned about confidentiality, they may believe their privacy is easier to protect with an outside mediator.

All mediators can expect to work with people from different cultures; thus, cultural- spe- cific education and experience are integral parts of professional development. Competence to work with people from one culture does not ensure competence to work with people from other cultures. Cultural competence requires specialized values, knowledge, and skills (Barsky, Este, & Collins, 1996).

3. Values

Two values that are particularly important for mediation with clients from different cul- tures are cultural relativism and respect for individuality. Cultural relativism suggests that no one culture is better or worse than another; they are simply different. Accordingly, media- tors must demonstrate respect for cultures that are different from their own, rather than judge or impose values on them. Respect for individuality suggests that individual differences among people from the same culture must also be respected. Mediators need to caution against stereotypes or other generalizations that ignore diversity within the cultural group.

Contemporary professional mediators value neutrality as a means to build trust with the parties (Moore, 2014). It allows the mediator to maintain objectivity when helping the parties work through their conflicts. Neutrality, however, is not a universal value. For some individuals and groups, demonstrations of neutrality might be seen as the mediator being uncaring or dispassionate. Within some cultural traditions, mediators assume the role of an “insider partial,” rather than “outsider neutral.” Insider partials provide moral guidance or encourage the parties to resolve conflicts in accordance with particular values or laws (Moore, 2014). Parties trust these mediators because of their local connection and moral authority, rather than their neutrality (Svensson & Lindgren, 2013). Although professional mediators from outside the parties’ culture must be wary of imposing values on the parties,

Let us not be blind to our differences—

but let us also direct attention to our

common interest and to the means by

which those differences can be resolved.

And if we cannot end our differences, at

least we can help make the world safe for

diversity. —John F. Kennedy

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a mediator from within the culture may have greater latitude to refer clients to moral prin- ciples accepted within their group. Such mediators should indicate their value biases to the clients up front (e.g., “Because this is an Ismaili mediation center, I may ask you to consider teachings from the Qur’an to help you resolve your concerns”). If the parties consent to a mediator’s biases, then neutrality may not be essential. They may desire a mediator who is more proactive, providing guidance and suggestions.

For an example of “insider partials,” consider traditional Chinese mediators. They live in the same communities as the parties and use their prior knowledge and relationships with the parties to assist with mediation. They use relatively directive strategies: calling for parties to respect each other, encouraging parties to abide by particular Chinese moral prin- ciples, highlighting the negative effects of the conflict on others, and providing parties with resources to resolve their issues. Social harmony and getting along are highly valued in tra- ditional Chinese culture. The mediator speaks on behalf the community, encouraging the parties to resolve issues and maintain harmony (Druckman & Diehl, 2006; Moore, 2014). Although Western, professional mediators might question the ethics of this approach, it may be perfectly appropriate given the cultural context.

4. Knowledge and Process

Knowledge required for cultural competence depends on the context of the conflict. In general, the mediator needs to inquire into how the parties and their cultures view each of the following:

• What constitutes a conflict? • How should conflict be approached? • Which process is most appropriate for intervention? • What constitutes resolution? (LeBaron, 1997)

Consider the following case.

Conflictia High School recently suspended Raphael Florez for acting violently in the schoolyard. The Florez family believes that Raphael, subjected to racist taunting, was justified in defending himself.

To answer questions about conflict with this particular family, the mediator can draw on a number of sources: the family members themselves, cultural interpreters, other help- ing professionals from their community, readings, and research. Mediators tend to view conflict as something to be resolved. Members of the Florez family, however, have expe- rienced ongoing racism. They believe that conflict of this sort needs to be confronted and challenged. To them, resolution sounds as if they are being told to accept the status quo.

In terms of whom to involve in mediation, the mediator needs to identify how the fam- ily members would identify the parties. This family views the affront to Raphael as a family issue rather than an individual one. Accordingly, the mediator should consider involving family members, not just Raphael (Sue, 2006). In some cases, conflict is viewed as a group issue. The mediator may need to involve leaders or representatives of the group.

In terms of how to approach the conflict, the mediator needs to accommodate the school and the family. In this case, the school prefers to deal with conflict through a ratio- nal, structured dialogue. The family is accustomed to more open expression of emotion and informal discussions. The family wants to have a public forum, whereas the school wants to keep the process confidential.

Regarding developing an appropriate process, mediators have three primary options: (1) Use their general model of practice, and try to be sensitive to the needs of

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people from different cultures within the general model; (2) adapt their model to meet the specific needs of the specific cultures; or (3) create a new CR model by learning about the means of CR used traditionally within the culture. For the last alternative, the media- tor works in partnership with the culture to develop the culturally specific approach to CR (LeBaron, 1997; Lederach, 1995). The process becomes more complicated when, as in the present example, the parties come from different cultures.

In this case, the mediator begins by having separate meetings with the family and with the school. This approach enables the mediator to explore their values and beliefs about conflict and the way it should be resolved. The mediator learns that the parties share certain values: Both want the conflict to be resolved, they are looking for a process that is fair, and they define fairness as having a mediator who does not take sides. Where the mediator identifies contradictory values or beliefs, the mediator will have to make tough choices. Believing that it will be more difficult to engage the family, the mediator decides to tailor some of the process to their needs. Also, the school is represented by teachers and the prin- cipal, professionals who should be self- aware and willing to make accommodations for the family. The mediator develops and proposes a hybrid process to the family and the school. The mediation process is voluntary. Mediation only proceeds if both parties consent to the process.

5. Skills

Culturally competent mediators adapt their use of skills to the needs of different groups. This requires an understanding of the group’s norms of communication and CR styles (Irving & Benjamin, 1995). The following mediator skills are particularly useful for situa- tions where the parties’ culture is different from that of the mediator:

• Check out assumptions on meanings of terms and phrases. • Present issues or ideas as they are perceived from the parties’ perspectives. • Use short, clear sentences. • Use concrete examples and specific language (Kirst- Ashman & Hull, 2015). • Avoid idiomatic expressions, mixed messages, abstractions, or unfamiliar terms. • Use appropriate self- disclosure to help build a positive working relationship. • Indicate appreciation and respect for the dignity of the parties and the groups to which

they belong. • Promote an environment that allows for sharing of selected (appropriate) cultural

information. • Tolerate ambiguity. • On making an interactive mistake, acknowledge it in a nondefensive manner (e.g., apolo-

gize, acknowledge your limitations, indicate your intent to learn how to avoid mistakes in the future).

• Acknowledge differences in beliefs, values, and norms (Saunders, Haskins, & Vasquez, 2015).

• Make tentative suggestions (“I wonder if …”). • Acknowledge interest in and unfamiliarity with the parties’ culture. • Recognize that the parties know more than the mediator about their culture. • Thank parties for helping the mediator understand the parties’ culture. • Ask about the parties’ natural or informal support systems (including who is involved in

making different types of decisions).

Mediators can expect to invest considerable time in order to learn how to work effectively with clients from a different culture. Fostering cultural competence is an ongoing journey

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of developing knowledge, values, awareness, and skills through experience, feedback, read- ing, and reflection (Saunders et al., 2015). Conflict occurs not only between the two par- ties, but also between each party and the mediator. Mediators can make positive use of conflict with the parties by modeling CR skills.

KEY POINTS

• The fundamental role of a mediator is to provide parties with support so they can negoti- ate more effectively.

• Mediation can be provided by both professionals and nonprofessionals, although each may operate on different assumptions about the nature of mediation and the appropriate roles of a mediator.

• A professional’s choice of approaches to mediation depends on the professional’s value base, agency mandate, professional role, client preferences, and how the mediator views success.

• Settlement- focused mediators use a relatively directive process to encourage agree- ment between parties, encouraging them to settle manifest conflict in an expeditious manner.

• Interest- based mediators use a facilitative process to engage the parties in a joint problem- solving process to help them resolve the conflict and their underlying interests in a mutu- ally satisfactory manner.

• Therapeutic mediators assist parties with emotional and relational issues to help them resolve conflicts and interact more effectively.

• Transformative mediators foster empowerment and recognition between the parties, helping them change the way they deal with conflict.

• When selecting and implementing a model of mediation, mediators need to consider the following issues: voluntary or coerced participation, neutrality, impartiality, fairness, power imbalances, confidentiality, and definitions of successful mediation.

• Helping professionals can act as emergent or contractual mediators in a range of con- texts, including family, mental health, cross- cultural, criminal justice, workplace, public policy, and community conflicts.

• Mediation can be broken down into seven phases: preparation, orientation, storytell- ing and issue definition, exploring interests and needs, negotiating and problem solving, finalizing an agreement, and follow- up.

• To switch from one’s conventional helping role to the role of mediator, a helping profes- sional needs to identify key differences in skills, strategies, values, and manners of inter- action with clients.

• When working with people from different cultural backgrounds, mediators need to decide whether to use a standard model of mediation, adapt their standard model, or develop a culturally specific model.

• Cultural competence in mediation requires that mediators develop knowledge, values, self- awareness, and skills to be able to work with people from specific cultural groups.

DISCUSSION QUESTIONS AND EXERCISES

1. MINDFULNESS AND MEDIATION: How can mindfulness (described in Chapter 1) be used to help mediators act in a neutral or impartial manner? What are the connec- tions between neutrality, nonjudgmentalism, awareness, and presence? Consider a mediator who has an impulse to agree with one side or evaluate which option is best for

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