The Mediation Process: Practical Strategies for Resolving Conflict

By Christopher W. Moore

The Fourth Edition of a seminal work in the field of mediation and conflict resolution

For almost thirty years, conflict resolution practitioners, faculty, and students have depended on The Mediation Process as the all-inclusive guide to the discipline. The most comprehensive book written on mediation, this text is perfect for new and experienced conflict managers working in any area of dispute resolution—family, community, employment, business, environmental, public policy multicultural, or international. This is the expert's guide, and the Fourth Edition has been expanded and revised to keep pace with developments in the field. It includes new resources that will promote excellence in mediation and help disputants reach durable agreements and enhance their working relationships.

• Includes expanded information on the latest approaches for providing mediation assistance
• Features comprehensive guidelines for selecting the right strategy for both common and unique problems
• Utilizes updated, contemporary case studies of all types of disputes
• Offers expanded coverage of the growing field and practice of intercultural and international mediation

• Language: English
• Publisher: Wiley
• Release date: Apr 7, 2014
• ISBN: 9781118421529

Book preview

Preface

All interpersonal relationships, communities, organizations, societies, and nations experience disputes or conflicts at one time or another. Conflict and disputes exist when people or groups engage in competition to achieve goals that they perceive to be, or that actually are, incompatible. Conflict is not necessarily bad, abnormal, or dysfunctional; it is a fact of life. But when it goes beyond competitive behavior and acquires the additional purpose of inflicting serious physical or psychological damage on another person or group, it is then that the negative and harmful dynamics of conflict exact their full costs.

Conflicts and disputes do not inherently have to follow a destructive course; they can lead to growth and be productive for those who are involved. Whether this happens or not often depends on the participants' ability to devise mutually acceptable procedures for cooperative problem solving, their capacity to lay aside distrust and animosity while they work together to resolve differences, and on their ability to develop solutions that satisfactorily meet their individual and common needs and interests. Many people in conflict are unable to do this on their own. They often need the help of a third party, an individual or group of people who are not directly involved in the conflict, to assist then to reach mutually acceptable solutions.

Mediation, one form of third-party assistance, has long been used to help disputants voluntarily settle their differences. It has been effectively practiced in almost all periods of history, in most cultures, and used to resolve a wide variety of types of disputes. Until relatively recently, however, there have been few works that detail what mediators actually do to aid people in conflict to reach agreements.

For the past thirty-five years, I have been actively engaged as a mediator of international, public policy, environmental, ethnic, organizational, personnel, community, and family disputes, and as a conflict management consultant, trainer, and designer of dispute resolution systems. My practice has taken me across the United States, more than fifty countries in Africa, Asia, Latin America, North America, the Middle East, Eastern and Western Europe, and the South Pacific, and to multiple indigenous communities. This broad experience has convinced me that there are some common mediation principles and procedures that can be applied effectively to help address and resolve a wide range of conflicts in many contexts and cultures. My belief has been confirmed by the expanding experience and literature in the field of mediation.

There is a continuing need for integrative how-to books on the various ways that mediation is and can be practiced. The Mediation Process: Practical Strategies for Resolving Conflict is my contribution to meet this need. It integrates the practice and research of others and my personal experience and describes some of what we have learned about the mediation process as it has been applied in diverse contexts and settings. The contents for this fourth edition have been greatly expanded and significantly rewritten since the first, second, and third editions, to encompass some of the exciting new developments and applications of mediation in the commercial, interpersonal, and public disputes arenas, and incorporate some of what I have learned about the practice of mediation in different cultures. The book outlines how mediation fits into the larger field of dispute resolution and negotiation and presents a comprehensive, stage-by-stage sequence of activities that can be used by mediators to assist disputants to reach mutually beneficial agreements.

Audience

This book has been written for several important groups of people. First are potential or practicing mediators who are or will work in a wide variety of arenas and who have repeatedly expressed a need for a comprehensive description of mediation theory and process. The book should be helpful to future or current practitioners in international, public policy, environmental, organizational, community, family, and interpersonal mediation, as well as in many other areas of practice.

Second are professionals—lawyers, managers, therapists, social workers, planners, and teachers—who handle conflicts on a daily basis. Although these professionals may choose to become full-time mediators, they are more likely to use mediation principles and procedures as additional tools to help them within their chosen fields of work. The material presented here will aid any professional who wishes to promote cooperative problem solving between or among people or groups with whom he or she engages.

Third are people who have to negotiate solutions to complex problems. Because mediation is an extension of the negotiation process and, in fact, is a collection of techniques to promote more efficient negotiations, an understanding of the mediation process can be tremendously helpful to people directly involved in bargaining. Mediation can teach negotiators how to be cooperative rather than competitive problem solvers, facilitative negotiators, and how to achieve win-win rather than win-lose outcomes. An understanding of mediation can also aid negotiators in deciding when to call in a third party and what an intermediary can do for them. For readers who want more information on negotiation, I suggest reading The Handbook of Global and Multicultural Negotiation (San Francisco: Jossey-Bass, 2008) written by my colleague Peter Woodrow and me, as a companion volume to The Mediation Process.

Fourth are university, professional school, or college faculty members and students, and trainers and trainees presenting or participating in academic programs on dispute resolution or shorter mediation training programs. This book is suitable for use as a text in mediation, conflict resolution, law, business, management, planning, social work, counseling, education, sociology, and psychology seminars or training programs. Undergraduates as well as graduate students will find it useful in learning mediation and dispute resolution concepts and skills.

Overview of the Contents

The Mediation Process is divided into five sections and appendices. Part One, Understanding Disputes, Conflict Resolution, and Mediation, provides an overview of dispute resolution procedures, defines mediation, presents a variety of mediator orientations toward providing dispute resolution assistance, and describes how mediation is practiced around the world. Chapter 1, Approaches for Managing and Resolving Disputes, describes a spectrum of dispute resolution approaches and procedures, and when each may be appropriate means for the resolution of conflicts.

Chapter 2, The Mediation Process: Mediator Roles, Functions, Approaches, and Procedures, describes three broad types of mediators—social network, authoritative, and independent—the kinds of relationships they have with disputing parties, and their orientation toward providing mediation assistance in terms of eliciting input from disputants or being directive. It examines potential areas of mediator focus—substantive issues in dispute, enhancing negotiation procedures, or the psychological/relational concerns of disputants—and a number of schools of mediation related to each.

Chapter 3, The Practice of Mediation, provides an overview of the different types of disputes where mediation is being applied, and examples of the diverse practices of the process around the world. Chapter 4, Conflict Analysis, provides a detailed framework and process for analyzing and understanding multiple potential causes of conflicts as well as factors that promote collaboration. It presents core concepts related conflict drivers, dividers, and connectors (factors that push disputants apart or pull them together) and information about issues, needs, and interests as well as potential options and outcomes of mediation.

Chapter 5, Negotiation and Conflict Resolution, defines negotiation and explains how it is the context for mediation. It presents various negotiation approaches and procedures focused on relationships, positions, needs, and interests that are commonly used by negotiators to try and achieve their goals and desired outcomes.

Part Two, Laying the Groundwork for Effective Mediation, focuses on work conducted by mediators separately with parties to help them determine whether mediation is the appropriate method to use to resolve a specific dispute and, if so, how to prepare for joint engagement. Chapter 6, The Mediation Process, provides an outline of mediation procedures that will be explored in detail in the rest of the book. Chapter 7, Making Initial Contacts with Disputing Parties, explores various means of mediator entry. Chapter 8, Collecting and Analyzing Background Information, presents a range of methods, procedures, and skills that are useful for gathering data about the parties, issues and needs, and interests involved in disputes. Chapter 9, Designing a Plan for Mediation, explores considerations of mediators and disputing parties as they prepare for direct engagement.

Part Three, Conducting Effective Mediation Meetings, includes seven chapters focused on how to conduct mediation sessions with parties principally working together. Chapter 10, Beginning Mediation, focuses on the mediator's opening comments or statements in a joint session, and how they are used to promote productive talks. Chapter 11, Presenting Parties' Initial Perspectives and Developing an Agenda, explores how mediators help parties to begin talking, identify topics for future discussions, and order them into a sequence that will help promote productive deliberations.

Chapter 12, Educating about Issues, Needs, and Interests and Framing Problems to Be Resolved, presents a range of procedures for how to elicit detailed information about parties' issues, and understand the critical needs and interests that are important to them. It also introduces procedures for describing them—either framing or reframing—in a manner that makes them more amenable to joint problem solving.

Chapter 13, Generating Options and Problem Solving, explores a range of procedures that can be used by parties to develop possible solutions to their dispute. Chapter 14, Evaluating and Refining Options for Understandings and Agreements, presents methods that mediators can use with parties to help them to assess the viability and acceptability of some of the potential solutions or outcomes that they have developed.

Chapters 15, Reaching Understandings and Agreements and Achieving Closure, and 16, Implementing and Monitoring Agreements and Understandings, focus on the final stages of the mediation process: reaching accords and executing them. They explore in depth how mediators help parties reach substantive, procedural, or psychological/relational closure, write agreements, and promote voluntary compliance with the terms of their agreements.

Part Four, Strategies for Responding to Special Situations, contains two chapters. Chapter 17, with the same name as this part of the book, explores how mediators use private meetings; handle time and timing; work with cultural and gender-related issues; manage and exercise power and influence; develop grand strategies for responding to past, present, and potential future conflicts; and help parties with differing beliefs or values to productively engage with each other. Chapter 18, Strategies for Multiparty Mediation, examines intermediary strategies for assisting in disputes that involve multiple participants—teams, groups, or large numbers of individuals.

Part Five, Toward an Excellent Practice of Mediation, includes Chapter 19 with the same name as this part of the book, focuses on the process, issues, and problems related to the professionalization of mediation and how the practice has become a profession. It looks at the development of literature in the field, educational developments, qualifications of trainees and trainers, and the development of ethical codes and standards.

At the conclusion of the book are several appendices that present Professional Practice Guidelines: Model Standards of Conduct for Mediators, a sample Mediation Services Agreement, a Checklist for Mediator Opening Remarks/Statement, and a sample Settlement Documentation Form. There is also an extensive list of references for readers' further reading and research.

Acknowledgments

All knowledge is socially produced. Although I bear responsibility for the identification, elaboration, and development of the ideas presented in this book, I have clearly drawn on the experiences and advice of colleagues and researchers engaged in the practice of mediation.

The first group of people to whom I am indebted is my fellow mediators. Since 1973, when I first became involved in mediating an intense interracial community dispute, I have worked with four active groups of mediators and conflict resolvers. Each group has contributed significant insights and pushed me to develop my thinking.

First and foremost are my partners and colleagues at CDR Associates in Boulder, Colorado—Susan Wildau, Mary Margaret Golten, Bernard Mayer, Louise Smart, and Peter Woodrow—and our other program staff, notably Jonathan Bartsch, CDR's CEO, and Laura Sneeringer, my co-mediator of a recent federal regulatory negotiation. They have been my colleagues in developing and practicing many of the ideas contained in this book.

Susan Carpenter and W.J.D. Kennedy of ACCORD Associates also provided insights and support in researching and refining mediation theory and practice while I worked in the late 1970s as a mediator and director of training for that organization.

The members of the Training Action Affinity Group of the Movement for a New Society—Suzanne Terry, Stephen Parker, Peter Woodrow, and Berit Lakey—and my coauthors on the Resource Manual for a Living Revolution—Virginia Coover, Charles Esser, and Ellen Deacon—worked with me to develop intervention skills for multiparty disputes and effective training techniques in conflict resolution.

Bill Lincoln and Josh Stulberg provided my first excellent exposure to mediation training. Norman Wilson, Paul Wehr, and Martin Oppenheimer, academic colleagues, encouraged and supported my research on mediation as a graduate student. P. H. Gulliver, John Paul Lederach, Roger Fisher, and William Ury also made significant contributions to my understanding of dispute resolution, negotiation, and mediation theory and processes.

Since writing the first edition of The Mediation Process, I have had the pleasure of working with a significant number of colleagues and mediators on institutional, public policy, international, and multicultural projects. Each has broadened and influenced my views about the range of effective mediation approaches that are practiced in diverse institutional, political, and national cultures. I would specifically like to thank the following individuals for their insights, being wonderful partners and terrific practitioners in the field: Jack Lang y Marques of the Colorado Civil Rights Commission; Cindy Cruz, Zell Steever, Richard Ives, Chris Kenney, and Kevin Price of the US Bureau of Reclamation; Jerome Delli Priscoli, Lester Edelman, and Frank Carr of the US Army Corps of Engineers; Ken Acton of the Saskatchewan Mediation Service; Jack Knight and Ellen Smeiser of the Continuing Legal Education Societies of British Columbia and Saskatchewan; Mary Ann DeSoet of the Rikswaterstaat in the Netherlands; Vasu Gounden, Karthi Govender, and Jerome Sachane of the African Center for the Constructive Resolution of Disputes (ACCORD); Sandra Fowkes, a private consultant in South Africa; H. W. van der Merwe of the Centre for Intergroup Studies (currently the Centre for Dispute Resolution) in South Africa; Azikwewa Zikhalala of the Negotiation Skills Project in South Africa; Loet Dowes Dekker of the University of Witwatersrand in South Africa; Athol Jennings and Vuyi Nxasana of the Vuleka Trust in South Africa; P. B. Herat, Dhara Wijayatilake, and Kamalini de Silva, Ministry of Justice, Sri Lanka; Nilan Fernando, Dinesha de Silva, Ramani Jayasundere, Niro Nayagam, Eric Jensen, Nick Langton, and Kim Mckay, Asia Foundation, Sri Lanka; P. Dematagoda, M.N.S. Gunawardena, M. Thirunavukarusu, L. Amarajeewa, K. Ganisha Raja, M. Bandula, T.Y. Sylva, M.T. Mubaris, S. Parathasarathy, and A. De Seram of the Center for Mediation and Me­­diation Training (CMMT) in Sri Lanka; Sandra Dunsmore, Roberto Menendez, and Philip Thomas of the PROPAZ Program, Organization of American States in Guatemala; Zbjeck and Ela Czwartos, colleagues at the University of Warsaw, and Kinga Markert of Markert Mediacje in Poland; Rumen Valchev and colleagues of the Bulgarian Center for Negotiations and Conflict Resolution; Mas Achmad Santosa, Wiwiek Awiati, Mega Adam, and Takdir Ramadi of the Indonesian Center for Environmental Law (ICEL) and Indonesian Center for Conflict Transformation (ICCT); Mehmet and Ipek Gurkanyak of the Hope Foundation in Turkey: John Marks and Bonnie Pearlman of Search for Common Ground; Connie and Jeff Peck, Tim Murithi, Tricia Reidy, Hiroko Nakayama, Gao Pronove, and Lata Chandiramani, United Nations Institute for Training and Research; Gillian Martin, LEAD International; Winfried Hamacher and Stephan Paulus, GTZ Germany; Meg Taylor, Amar Inamdar, Kate Kopishke, Rachel Kyte, and Henrik Linders, Office of the Compliance Advisor/Ombudsman at the International Finance Corporation; Steve Del Rosso, Pew Charitable Trusts; Pedro de Sousa, and Edwin Urresta, Land and Property Directorate, Ministry of Justice, East Timor: Jonathan Stromseth and Ji Hongbo of the Asia Foundation, People's Republic of China; Szilard Frickska, and Antony Lamba, UN HABITAT; Fernando de Medina Rosales, Monica Sanchez Bermudez, Laura Cunial, Greg Kitt, Ana Palao, Zamina Khalilova, Greg Norton, Gabriel Sostein Bathuel, and Barbara Cole of the Norwegian Refugee Council; Dr. C.T.O. Brandy, Commissioner Lwopu Kandakai, and Kuloboh Jensen of the Liberia Land Commission; and James MacPherson, of the Bahrain Chamber of Dispute Resolution.

The individuals mentioned above are the theoretical and experiential contributors to this book. Also important are the people who edited the drafts and provide clerical support. I would like to thank my editors at Jossey-Bass—Kathe Sweeney, Mark Karmendy, and Donna J. Weinson—who ably helped me see this work through to completion, and Lieschen Gargano, CDR Associates' office manager, who provided research for references and clerical support.

A final word of thanks to Susan Wildau, my life and professional partner, for her support during writing this, and previous editions of The Mediation Process.

Christopher W. Moore

Boulder, Colorado

March, 2014

Part One

Understanding Disputes, Conflict Resolution, and Mediation

1

Approaches for Managing and Resolving Disputes and Conflicts

disputes or conflicts occur in all human relationships, societies, and cultures. From the beginning of recorded history, there is evidence of disputes between children, spouses, neighbors, coworkers, superiors and subordinates, organizations, communities, people and their governments, ethnic and racial groups, and nations. Because of the pervasive presence of conflict and the emotional, physical, and other costs that are often associated with it, people have always sought ways to peacefully handle their differences. In seeking to manage and resolve conflicts, they have tried to develop procedures that are effective and efficient, satisfy their interests, build or change relationships for the better, minimize suffering, and control unnecessary expenditures of emotional and physical energy or tangible resources.

In most situations, the involved parties have a range of approaches and procedures at their disposal to respond to or resolve their disputes; however, procedures available to them vary considerably in the way conflicts are addressed and settled. This chapter begins with an analysis of a specific interpersonal and organizational conflict and explores some of the procedural options available to the involved parties for managing and resolving their differences. Mediation, one of the options, is examined in depth.

The Whittamore-Singson Dispute

Singson and Whittamore are in conflict. It all started three years ago when Dr. Richard Singson, director of the Fairview Medical Clinic, one of the few medical service providers in a small rural town, was seeking two physicians to fill open positions on his staff. After several months of extensive and difficult recruiting, he hired two doctors, Andrew and Janelle Whittamore, to fill the positions of pediatrician and gynecologist, respectively. The fact that the doctors were married was not a problem at the time they were hired.

Fairview likes to keep its doctors and generally pays them well for their services. The clinic is also concerned about maintaining its patient load and income. It requires every doctor who joins the medical practice to sign a five-year contract detailing what he or she is to be paid and conditions that will apply should the contract be broken by either party. One of these conditions is a covenant not to compete, or a no-competition clause, stating that should a doctor choose to leave the clinic prior to the expiration of the agreement, he or she will not be allowed to open a competing practice in that town or county during the time remaining on the contract. Violation of the clause will result in an undefined financial penalty. The clause is designed to prevent a staff doctor from building up his or her reputation and clients at the clinic, leaving before the term of the contract has expired, starting a new and competitive practice in the community, and taking patients with him or her.

When Janelle and Andrew joined the Fairview staff, they each signed the contract and initialed all the clauses, including the one related to noncompetition with the clinic during the term of the contract. Both doctors performed well in their jobs and were respected by their colleagues and patients. Unfortunately, their personal life did not fare so well.

The Whittamores' marriage went into a steady decline almost as soon as they began working at Fairview. Their arguments increased, and the tension between them mounted to the point that they decided to divorce. Because they both wanted to continue to co-parent and be near their two young children, they agreed that they would like to continue living in the same town.

Every physician at the clinic has a specialty, and all rely on consultations with colleagues, so some interaction at work between the estranged couple was inevitable. Over time, however, their mutual hostility grew to such an extent that they had difficulty being in the same room while performing their duties. Ultimately, the Whittamores decided that one of them should leave the clinic—for their own good, that of the clinic, and for other staff who became increasingly uncomfortable with the tensions between the couple. Because they believed that Andrew, as a pediatrician, would have an easier time finding patients outside the clinic, they agreed that he was the one who should leave.

Andrew explained his situation to Singson and noted that because he would be departing for the benefit of the clinic, he expected that no penalty would be assessed for breaking the contract two years early, and that the no-competition clause would not be invoked.

Singson was surprised and upset that his finely tuned staff was going to lose one of its most respected members. Furthermore, he was shocked by Whittamore's announcement that he planned to stay in town and open a new medical practice. Singson visualized the long-range impact of Whittamore's decision: the pediatrician would leave and set up a competing practice, taking many of his patients with him. The clinic would lose revenue from the doctor's fees, incur the cost of recruiting a new doctor, and (if the no-competition clause was not enforced) establish a bad precedent for managing its doctors. Singson responded that the no-competition clause would be enforced if Whittamore wanted to practice within the county, and that the clinic would impose a penalty for breach of contract. He intimated that the penalty could be as much as 100 percent of the revenues that Whittamore might earn in the two years remaining on his contract.

Whittamore was irate at Singson's response, and considered it to be unreasonable and irresponsible. If that was the way the game was to be played, he threatened, he would leave and set up a competing practice, and Singson could take him to court to try to get his money. Singson responded that if necessary, and if he was pushed into a corner, he would get an injunction against the new practice and would demand the full amount due to the clinic. Whittamore stormed out of Singson's office mumbling that he was going to get that son of a gun.

This conflict has multiple components: the Whittamores' relationship with each other, their relationship to other staff members at the clinic, potential conflicts between Andrew Whittamore's patients and the clinic, the relationship between Andrew Whittamore and Richard Singson and probably the clinic's board of directors, and the legal status and enforceability of the no-competition clause in the contract. For ease of analysis, we will examine only one of these components: the conflict between Richard Singson and Andrew Whittamore and the various means of resolution available to them.

Conflict Management and Resolution Approaches and Procedures

People involved in a conflict often have a range of possible approaches and procedures to choose from to resolve their differences. Figure 1.1 illustrates some of these possibilities.

c1-fig-0001

Figure 1.1.  Continuum of Conflict Management and Resolution Approaches and Procedures.

Approaches and procedures for the resolution of disputes vary regarding who participates, how collaborative or adversarial the process is, the degree of coercion that may be used by or on disputants, the level of formality of procedures, the degree of privacy afforded to parties, types and qualities of outcomes, and the roles and influence of third parties if they are present and used.

At the left end of the continuum in Figure 1.1 are informal, collab­orative, and private approaches and procedures that involve only the disputants or a third-party process assistant (a mediator) who does not have authority to make or impose a decision on those involved. At the other end of the continuum, one or more parties rely on coercion and often public action to force the opposing party, either nonviolently or violently, into submission. In between are a variety of third-party approaches that provide decision-making assistance, which we will examine in more detail later in the chapter.

Disagreements and problems can arise in almost any relationship. The majority of disagreements are usually handled informally. Initially, people may avoid each other because they dislike the discomfort that frequently accompanies conflict, do not consider the contested issues to be that important, lack the power to force a change, do not believe the situation can be improved, or are not yet ready to take an action to settle their differences.

When avoidance is no longer possible or tensions become so strong that the parties cannot let the disagreement continue, they usually resort to informal problem-solving discussions to resolve their differences. This is probably where the majority of disagreements in daily life are settled. Either they are resolved, more or less to the satisfaction of the people involved, or the issues are dropped for lack of interest or inability to push them through to a conclusion.

In the Whittamore-Singson case, the Whittamores avoided dealing with their potential conflict with the medical clinic until it was clear that their dispute was so serious that Andrew was going to have to leave. At that point, Andrew initiated informal discussions with Singson, but they failed to reach an acceptable conclusion. Clearly, their problem had escalated from a problem that each of them faced into a dispute. Gulliver (1979, p. 75) notes that a disagreement becomes a dispute only when the two parties are unable and/or unwilling to resolve their disagreement; that is, when one or both are not prepared to accept the status quo (should that any longer be a possibility) or to accede to the demand or denial of demand by the other. A dispute is precipitated by a crisis in the relationship.

People involved in differences that have reached this level have a variety of ways to resolve them. They can pursue more formal and structured means to voluntarily reach an agreement, resort to third-party decision makers, or try to leverage or coerce each other to reach a settlement.

Other than informal conversations, the most common way that disputing parties reach a mutually acceptable agreement on issues that divide them is through negotiation (Fisher and Ury, 1991; Fisher and Ury, with Patton, 2011; Shell, 1999; Thompson, 2001; Moore and Woodrow, 2010).

Negotiation is a structured communication and bargaining process that is commonly used to conduct transactions and reach agreements on issues where serious differences do not exist, or to resolve a dispute or conflict. In negotiations, parties who have perceived or actual competing or conflicting needs or interests voluntarily engage in a temporary relationship to discuss issues in question and develop and reach mutually acceptable agreements. During negotiations, participants educate each other about their needs and interests, make mutually acceptable exchanges that satisfy them and address less tangible issues such as concerns about trust, respect, or the form their relationship will take in the future. Negotiation is clearly an option for Whittamore and Singson, although the degree of emotional and substantive polarization will make the process difficult.

If negotiations are hard to initiate and start, or have begun and reached an impasse, parties may need to use another dispute resolution process that involves assistance from a third party who is not directly involved in the conflict. One common form of third-party assistance is mediation.

Mediation is a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist involved parties to improve their relationships, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues. The procedure is an extension of the negotiations. Mediation is commonly initiated when disputing parties on their own are not able to start productive talks or have begun discussions and reached an impasse.

Specifically, mediation and mediators help disputing parties to (a) open or improve communications between or among them, (b) establish or build more respectful and productive working relationships, (c) better identify, understand, and consider each other's needs, interests, and concerns, (d) propose and implement more effective problem-solving or negotiation procedures, and (e) recognize or build mutually acceptable agreements.

Mediators are generally individuals or groups who are independent, or in some cases somewhat autonomous, of disputing parties. They generally do not have specific substantive needs they want met by an agreement between or among disputants. They also commonly do not have predetermined, biased, or fixed opinions or views regarding how a dispute should be resolved, and are able to look at all parties' issues, needs, interests, problems, and relationships in a more objective, impartial, or multipartial manner than can the participants themselves. In addition, except on rare occasions and in some specific types of mediation that will be described later on, mediators do not have the power, authority, or permission to make binding decisions for those seeking to resolve their differences.

Whittamore and Singson might well consider mediation if they cannot negotiate a settlement of their issues on their own. We will return to this process later on, once we have explored and assessed other procedural options for their usefulness in helping Whittamore and Singson settle their differences.

Beyond negotiation and mediation, there are a number of approaches and procedures that decrease the control that people involved in a dispute have over the resolution process and outcome, increase the involvement of external third-party advisers or decision makers, and rely increasingly on adversarial procedures and win-lose outcomes. In general, these approaches and procedures can be divided into private and public, and legal and extralegal processes.

Administrative or managerial approaches and procedures are often available to disputants to resolve their differences if a conflict is between employees or members of an organization or, occasionally, between an organization and members of the public (Kolb and Sheppard, 1985; Morril, 1995; Gerzon, 2006). In these kinds of processes, a third party who has some decision-making authority concerning issues in dispute and the disputants, and who has a degree of distance from the conflict but is not necessarily neutral or impartial, may if necessary make a command decision on the topics in question. The procedures may be conducted in private, if the dispute arises within a private company or government agency, division, or work team and either the organization or participants want to keep the proceedings confidential. They may also be conducted in public, if the dispute is over a policy, law, regulation, or issue of concern to broader members of the public. In this latter case, the intervention may be conducted by a private sector, governmental, or nonprofit administrator. A managerial or administrative dispute resolution process generally attempts to balance the needs of the entire system with the interests of individuals or concerned groups.

In the Whittamore-Singson dispute, both parties might choose to forward their dispute to the board of directors of the Fairview Medical Clinic for a third-party decision. If both parties trust the integrity and judgment of these decision makers, the dispute might end there. However, Whittamore is not sure that he would get a fair hearing from the board.

Arbitration is an umbrella term that encompasses a range of voluntary and private dispute resolution procedures that involve the assistance of a third party to make decisions for disputants about how a conflict will be resolved when the parties cannot reach an agreement on their own. Arbitration is a private process in that the proceedings, and often the outcome, are not open to public scrutiny. People often select arbitration because of its private nature, and also because it is generally more informal, less expensive, and faster than a judicial proceeding.

Arbitration procedures begin with disputing parties jointly deciding to voluntarily submit their dispute to a mutually acceptable individual or panel of intermediaries to make a decision for them on how their differences should be resolved. Together, disputants generally select third parties who are independent of and not beholden to or subject to undue influence by any of the involved parties; are knowledgeable about the topics to be addressed and resolved and the relevant laws, rules, and regulations that may pertain to them; and are trusted and perceived to be objective and unbiased toward either the issues in question or the involved parties.

Once the intermediary or intermediaries have been selected, parties often discuss and decide with them the procedures that will be used to conduct the arbitration hearing. Discussion commonly includes how relevant information will be gathered and shared among the disputants and the third party prior to the decision-making meeting, the duration of the process, and sequencing for presentation of the parties' cases and rebuttals. They also decide if the outcome of the process will be a nonbinding recommendation by the intermediary on how the dispute should be settled (nonbinding arbitration) or a binding decision (binding arbitration), which parties agree to abide by prior to beginning the process.

Several variations of the arbitration process just described include med-arb and mediation-then-arbitration. In med-arb, disputants agree to use mediation as the procedure of first resort to resolve their dispute. If they fail to reach an agreement using the mediation process, however, they agree to submit all remaining contested issues to arbitration, which is conducted by the same person or panel that initially served as the mediator. Some disputants prefer this procedure over using a mediation process alone because, depending on agreements made by disputants prior to beginning the process, it guarantees they will get either a nonbinding recommendation by a trusted and authoritative third party that they can use to decide how to proceed, or a binding decision and outcome. A potential downside of this procedure is that parties may be reluctant to reveal information in mediation needed to make a voluntary agreement, if they believe that the same information may be used against them and result in an unfavorable decision by the arbitrator should they fail to reach an agreement. Mediation-then-arbitration involves the combination and sequential use of two dispute resolution procedures—mediation and arbitration—with a different third party for each process. Disputants first agree to try mediation to reach a voluntary settlement of their differences. However, if they fail to do so, they agree to submit all remaining contested issues to arbitration conducted by a different individual or panel from those who provided mediation assistance. This two-part procedure generally promotes more open and frank discussions by parties during the mediation process—and likely greater revelation of information about disputants' views, flexibility, and weaknesses—than might be the case if they believe that information shared during mediation might be used against them in a later arbitration process conducted by the same intermediary. Whittamore and Singson have both heard of arbitration but are reluctant to turn their problem over to a third party before they are sure that they cannot resolve it themselves. Neither wants to risk an unfavorable recommendation or decision. In addition, Singson fears an external decision that might erode the clinic's prerogative to control the terms and process for contracting with employees.

A judicial approach is another possibility for dispute resolution. It involves the use of an institutionalized and broadly supported dispute resolution mechanism and process, and the intervention of a recognized authority with the power and right to make a binding decision to resolve disputes. This approach shifts the resolution process from the private to the public domain, in that cases are heard in public, disputing parties no longer have significant control over the process to resolve their differences or the outcome, and, depending on the case, the government may be a party.

In the judicial approach, disputants usually hire lawyers to act as their advocates, although in some cases parties may represent themselves in pro se proceedings. Hearings are adversarial in nature with cases argued by each party before an impartial and neutral third party—a judge, or in some cases and countries, a jury. Decision makers in their deliberations and rulings take into consideration not only disputants' arguments in favor of their case but also broader societal values, standards, laws, regulations, and, as appropriate, precedents. Judges or juries generally use applicable laws, legal statutes, regulations, contracts, or common practices to guide their decision making and decisions. Outcomes of judicial proceedings are commonly win-lose in nature, with one party designated as the winner and the other the loser, or in some cases, one being guilty and the other innocent. Because the third party is socially sanctioned to make a decision, the results of the process are binding and enforceable.

Although in this approach disputants may have significantly less control over both the resolution process and the potential outcome of their dispute, they may also gain and potentially win as a result of forceful advocacy of their point of view. They may also be satisfied by a decision by an authoritative decision maker that reflects socially sanctioned laws or norms, or a ruling that determines and designates who is right or wrong, or guilty or innocent.

Whittamore and Singson have both considered using a judicial approach to resolve their dispute. Singson is willing, if necessary, to seek a court injunction that would enforce the no-competition clause in the contract and prohibit Whittamore from establishing a competitive private practice. Similarly, Whittamore is willing, if necessary, to go to court to challenge and test the legality of the no-competition clause. However, both see downsides and risks to using this procedure. First, it may take a long time and be expensive to get a decision. Neither of them wants to incur either delays or high costs. In addition, the potential outcome of a legal case is not entirely clear and is highly unpredictable. Each of them perceives that their cases have merits and strengths as well as weaknesses that would be tested and have to stand up in a court of law for them to prevail. Finally, a win-lose outcome could be highly detrimental to the satisfaction of many of their underlying interests.

A legislative approach to dispute resolution is another public means of solving a conflict that uses voting to secure a decision on a law, rule, or regulation that will have an impact on disputants' relationships, interests, and perceived or actual benefits. This procedure is generally employed to resolve larger disputes and public issues that are of concern and affect a wider population. However, a legislative decision may also have significant utility for and impacts on individuals or smaller groups.

In this approach, a decision and outcome of a conflict is determined by voting, another potentially win-lose process. (The exception is when compromise is reached by parties drafting and ultimately passing a bill that shares costs, benefits, and risks in a mutually acceptable way.) In this procedure, an individual has only as much influence on the final outcome as he or she, and those who share his or her beliefs, can bring to bear on those who vote on the proposed legislation. In addition, the outcome of legislation may not resolve fundamental differences and may be less than satisfactory for all concerned because of compromises that had to be made to pass it.

Whittamore has considered using this approach to resolve his dispute. He believes there should be a law against no-competition clauses, and some of his patients agree with him. One patient has suggested a campaign to pass a bill prohibiting this type of contract. But Whittamore also realizes that a legislative approach to this problem might take a long time—time he does not have at his disposal. Also a change in the law might not cover contracts entered into before the new law was passed.

An extralegal approach and related procedures are final methods for resolving conflicts. Approaches and procedures examined so far are either private means initiated by parties on their own or with the assistance of a third party to negotiate a settlement, or third-party decision making that is either privately or publicly sanctioned. This last set of processes are extralegal in that they are generally conducted outside of legal or institutional structures or procedures for dispute resolution, and often rely on methods that are not socially mandated or necessarily broadly accepted. They commonly involve the use of stronger means to persuade or coerce an opposing party to accept, comply with, or submit to the outcome desired by the party with adequate power and influence to enforce their view. In general, there are two types of extralegal approaches: nonviolent action and violence.

Nonviolent action involves a person or group committing acts or abstaining from acts so that an opponent is either persuaded or forced to behave in a desired manner (Gregg, 2012; King, 2010; Ackerman and DuVall, 2000; Schell, 2003; Bondurant, 1988; Sharp, 1973; Alinsky, 1969 and 1971). These methods of conflict resolution and change do not involve physical coercion or violence and may also be designed to minimize psychological harm as well. Nonviolent action works best when the parties are interdependent and must rely on each other for their well-being or to get what they want. When this is the case, one of the parties may force the other to change attitudes or behaviors and make concessions by refusing to cooperate or by committing undesirable acts.

Nonviolent action often involves civil disobedience—violation of widely accepted social norms or laws—to raise an opponent's consciousness or bring into public view practices that the nonviolent activist considers to be unjust or unfair. Nonviolent action can be conducted by an individual or a group and may be either public or private.

Whittamore has contemplated nonviolent action on both the personal and group levels to resolve his dispute. On the individual level, he considered fasting or occupying Singson's office until the director agrees to bargain in good faith and give him a fair settlement. He has also considered opening a private practice, challenging the terms of the contract, and forcing the clinic to either take legal action or drop the case. If he has to go to court, he could exploit the publicity and place the clinic in a dilemma: dismiss a widely respected doctor and earn the wrath of the community and bad publicity, or reach a negotiated settlement favorable to Whittamore and avoid the bad press.

One of his patients also suggested organizing a demonstration, picket line, or vigil by Whittamore's patients and supporters outside the clinic or a boycott of its medical services to embarrass Singson and the organization and persuade or force them to agree to a favorable settlement with the departing doctor. If these tactics are unsuccessful, another patient supporter suggested a group sit-in at the clinic. Whittamore is unsure of the likely effects of these approaches, as well as of the costs. Although he would like to be in a position to force a favorable settlement, he does not want to damage his relations with members of the community or, for that matter, with Singson and other clinic staff upon whom his future practice may depend.

The last approach to dispute resolution is physical coercion or violence. This approach assumes that if the risks and costs to a person's property or the person him- or herself are high enough, the person will be forced to make concessions. For physical coercion to work, the initiating party must possess enough power to actually damage the other party, be able to convince the other side that it has the power, and be willing to use it.

Although Whittamore and Singson are very angry with each other, they have not come to blows. Both are physically fit and could conceivably harm each other, but neither feels he could force the issue with a private fight. Whittamore, in the heat of anger, mumbled that he ought to sabotage some of the clinic's valuable equipment, but such an action would go against some of his deeply held values and would also hurt patients. Singson, in a moment of rage and fantasy, also considered violence and wondered what Whittamore's reaction would be if the tires on his car were slashed, or if he were to be assaulted by thugs Singson could hire. He too, however, has decided against physical violence to Whittamore's property or person as too risky, costly, and unpredictable, as well as probably irrational and ineffective.

So the question remains: Which of the approaches presented in Figure 1.1 will Whittamore and Singson choose to resolve their dispute?

Whittamore wants to stay in town to be near his children. He also wants to practice medicine. Establishing a new practice will be expensive, thus he wants to minimize the costs of resolving his dispute with the clinic. He hopes for a quick decision so that he may leave the clinic as soon as possible to avoid more negative interactions with Janelle and to minimize any harm to his personal relationships with other staff members.

A positive ongoing relationship with the clinic and its staff is important because the clinic has the only laboratory and high-tech medical equipment in town. Whittamore also needs to establish a private practice quickly so that he can generate income.

Judicial and legislative approaches seem unfeasible at this point because of the cost and the length of time they will take to achieve the desired change. Nonviolent action is still a possibility if the clinic does not yield. Physical violence was a fleeting fantasy. Singson too, is trying to decide what action he will take.

He wants to keep management control over the contract process; seeks to solve the problem himself and not rely on outside agents; and wants to minimize costs such as legal fees, patient attrition, bad publicity, and damage to his and the clinic's reputation. He wants to find an amicable solution but feels that his feelings toward and interactions with Whittamore have resulted in an impasse.

In general, Whittamore and Singson's conflict is ripe for negotiation. The two parties are

The primary and critical people involved in the dispute who could potentially engage in a joint problem-solving process

Interdependent and must rely on the cooperation of one another to meet their goals or satisfy their interests

Able to identify and agree on the major issues in dispute

In a situation where their interests are not necessarily or entirely incompatible

Able to influence one another and undertake or prevent actions that can either harm or reward each other

Pressured by deadlines and time constraints and share a motivation for early settlement

Aware that their Best Alternatives to a Negotiated Agreement, or BATNAs, such as using an arbitrator, going to court, or using legislative action, are probably not as viable, efficient, or desirable as a bargain that they might reach themselves (Fisher and Ury, 1991; Fisher and Ury, with Patton, 2011)

Influenced by external constraints—such as the unpredictability of a judicial decision, potentially angry patients or staff, costs of establishing a new practice, and expenses of recruiting a new physician—that encourage them to reach a negotiated settlement

These conditions are critical for successful negotiation. However, there are a range of tensions and problems between Singson and Whittamore that will make unassisted talks very difficult. First, their strained relationship will make reopening discussions very hard. Second, how they feel about each other is likely to limit the possibility of civil communications. Third, they are locked into what appear to be mutually exclusive positions, and to date have not figured out how to retreat from them and find solutions that will meet and satisfy their individual and joint interests. Finally, the process they are using for negotiation and their preferred outcomes—positional bargaining and advocacy of mutually exclusive hard positions that they have refused to relinquish, rather than jointly developing mutually acceptable solutions that meet their individual and joint interests—appears to be a major barrier to reaching agreement. To overcome these problems, they will probably need the help of a third party and a collaborative dispute resolution process, in this case a mediator and mediation, to help them address and resolve their differences. A mediator may be called into negotiations when

Parties are having difficulty contacting each other, convening a meeting, or starting talks

Disputants cannot reach agreement on an acceptable forum or structure for negotiations

Parties' emotions or expression of negative feelings about the situation or toward each other are intense and are preventing a focused or calm discussion or agreement

There is a significant lack of trust and respect between or among disputants that is hindering productive talks

Communication between parties is poor in quantity or quality, and they cannot improve it on their own

Misperceptions or stereotypes are hindering productive exchanges

Repetitive negative behaviors by one or more disputants are creating barriers to effective communication or problem solving

There are serious disagreements between or among parties over data—what information is important, how it is collected, and how it is evaluated

There are multiple issues in dispute, and disputants disagree about whether or how each should be addressed or resolved

Disputants are stuck in bargaining over positions, each of their preferred solutions, and are unable to identify each other's interests and develop mutually acceptable interest-based solutions

There is only one contested issue and parties cannot find a way to divide it into multiple smaller ones, each of which could potentially be addressed and solved, or to find other issues or items of value to trade

There are multiple issues in dispute and disputants are trying to resolve them one at a time, rather than linking issues and exchanges or developing a package agreement in which costs and benefits are shared in a mutually acceptable manner

There are perceived or actual incompatible interests that parties are having difficulty reconciling

Perceived or actual beliefs or differences over values divide disputants

Parties do not have an effective negotiating process, are using the wrong one, or are not using a potentially viable procedure to its best advantage

Disputants are reluctant to settle because they fear creating or not creating a precedent for settlement of similar disputes in the future

Parties are feeling pressure not to settle from circumstances or parties beyond those in negotiations

Disputants are reluctant to commit to an agreement because of potential unknowns, risks, or potential changed circumstances in the future

Parties lack trust in each other and are concerned that the settlement will not be implemented as agreed

Because Whittamore and Singson's situation and relationship have many of the characteristics and problems listed above, they have decided to use mediated negotiations to try to resolve their differences. For the moment, let us leave this case and take a more detailed look at the process they have selected to resolve their conflict, which is the focus of Chapter 2. We will return to the Whittamore-Singson dispute in later chapters as we explore how the mediation process works.

2

The Mediation Process: Mediator Roles, Functions, Approaches, and Procedures

chapter 1 presented a general description of mediation and circumstances in which it may be appropriate. This chapter provides more detail about the mediation process, roles of mediators, their relationships to disputants, and the broad range of assistance they can provide. It also introduces several general schools of mediation and related approaches and procedures for providing assistance.

A Definition of Mediation

Consider these scenarios. A mediator from the United Nations intervenes in a violent civil war and helps parties to reach a cease fire and, ultimately, a peace accord. A labor mediator successfully convenes negotiations between highly adversarial labor and management teams, prevents a threatened strike, and helps them reach a mutually acceptable collective bargaining contract. An environmental mediator helps several states reach agreement on how they will allocate water from a shared river. A commercial mediator settles a contentious business dispute over a patent infringement. A lawyer acting as a mediator resolves a contentious personal injury legal suit. A family mediator assists a disputing couple to reach a divorce settlement and determine how they will parent their children in the future. A community mediator enables two neighbors to settle their differences over a barking dog. An elder who is a customary leader of an indigenous group helps family members to resolve an inheritance and land dispute between a war widow and her deceased husband's brother, which enables her to secure a livelihood for herself and her children. Who are these individuals? What relationship do they have with disputing parties? What do they do to help disputants manage and improve their conflicted relationships and resolve contested issues? What are their goals and objectives in the mediation process?

As stated in Chapter 1, mediation is a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist the parties to improve their relationships, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues. The procedure is an extension of the negotiation process. Mediation is commonly initiated when disputing parties on their own are not able to start productive talks or have initiated discussions and reached an impasse. Let's look at some aspects of this definition of mediation.

A third party is an individual or group of people that works between or among parties in dispute. Third parties are generally somewhat independent of disputants in that they are neither one of the primary parties involved in a conflict, a secondary party who either sides with or supports one or more disputants, nor a party who is likely to be significantly affected or receive direct benefits from the resolution of disputants' differences.

Acceptability refers to disputing parties' willingness to welcome, accept, tolerate, or at a minimum, not oppose the involvement of a third party who assists them in settling contested issues. It does not mean that the parties eagerly welcome the mediator's involvement, nor is it an indication that they will accept his or her recommendations regarding process and, in some mediations, his or her input on substantive issues. It merely means that disputants are willing to listen to and seriously consider his or her suggestions regarding process, and on occasion substantive considerations, to resolve their differences.

Acceptability of a mediator by disputing parties may be grounded in a number of factors. Some include individual or multiple parties' perceptions about the third party's impartiality and independence, lack of connections, or, in some cases, desirable links to one or more disputants; and whether or not they are perceived to be neutral, unbiased, fair, and objective toward any of the issues in question. Other factors may include the intermediary's personality, personal chemistry with disputants, reputation, past experience resolving similar issues, knowledge about issues in question, affiliation with an institution or organization, status, age, gender, ethnicity, recommendation from a trusted friend, and so forth.

In many circumstances, especially in Western models of mediation practiced in many developed countries, the independence, or lack of personal connections of a third party to one or more parties, which is commonly referred to as impartiality, is a desirable quality and a major factor in his or her acceptability as an intermediary. Impartiality involves the ability of the mediator … to maintain an unbiased relationship with the disputants (Yarn, 1999, p. 216) and to remain somewhat equidistant from them. In many cultures that adhere to the Western model of mediation, disputants often refuse to accept an intermediary who has a preexisting relationship with one or more disputing parties, or is likely to have a relationship in the future with one or more of them that could be personally beneficial to the third party.

However, in some other forms of mediation or in different cultures, such as in some diplomatic negotiations or in mediation conducted by customary authorities in developing countries, a mediator with connections to one or more of the parties may be highly desirable. In these contexts, one or more parties may want an intermediary with links to a counterpart. The assumption behind securing the assistance of a partial intermediary with connections is that he or she may have more ability to open talks, communicate views, and influence a counterpart perceived to be difficult than the party requesting assistance may have him- or herself.

Also related to an intermediary's acceptability are parties' perceptions about a mediator's views, potential biases, and objectivity toward issues in question. This relationship of a third party's views toward the issues is often referred to as neutrality. The word neutrality is derived "from the Latin neuter, meaning ‘neither of them,’ a condition in which attitude and action reflect a refusal to take sides in a dispute, or a lack of bias or favoritism (Yarn, 1999, p. 322). In Western models of mediation, parties generally want a mediator who is unbiased and neutral toward contested issues and potential outcomes or agreements that may result from a mediation process. They may also want an intermediary who is multipartial" regarding his or her views, in that he or she is dedicated to respecting all parties' concerns and trying to find or develop solutions that satisfy them to the greatest extent possible. In other situations, specifically in customary dispute resolution, parties may want a mediator who is biased toward maintaining the norms, traditions, and welfare of the community over any individual disputant's interests; and in some cases, parties may want an intermediary who is able to develop solutions that consider the status and positions of the involved parties even though they may not be considered equitable according to some other standards (Comaroff and Roberts, 1981).

No authority to make a binding decision for disputants refers to the fact that only the involved parties are decision makers on issues in question. Although intermediaries may be invited to help by one or more disputing parties, may step in at the behest of an organization concerned about the conflict, or may take unilateral action on their own, they generally do not have the power, authority, or permission of disputants to make decisions for them. They cannot unilaterally force parties to resolve their differences, or enforce a judgment that they make. This characteristic distinguishes the mediator from a judge or arbitrator, who is generally empowered by a government, law, or willingness of the disputants to allow the third party to determine which of the disputants is right or wrong or guilty or innocent, and what measures are to be taken by one or more parties, or, in some judicial proceedings in which the state is a party, to redress past actions, violations, or harm. The judge examines the past and evaluates agreements that the parties have entered into, violations which one has inflicted on the other and the norms concerning acquisition of rights, responsibilities, etc. which are connected with these events. When he has taken his standpoint on this basis, his task is finished (Eckhoff, 1966–67, p. 161).

A mediator, on the other hand, works to reconcile the competing needs and interests of involved parties. The mediator's tasks are to assist disputants to identify, understand, and articulate their needs and interests to each other; identify mutually acceptable ways to address and meet them; negotiate an exchange of promises or tangible benefits that meet their standards of fairness; and redefine their relationship in a manner that is mutually acceptable.

The fact that mediators do not have decision-making authority makes mediation attractive to many parties in dispute because they retain ultimate control of the outcome. However, mediators are not without influence. The mediator's authority, such as it is, resides in his or her personality, personal credibility and trustworthiness, expertise in enhancing the negotiation process, experience in handling similar issues, ability to