Common Language, Different Meaning: What Meidators Mean When They Talk About Their Work

Mediators, for the most part, descrive their work as "facilitation" but what they actually mean varies considerably. Based on an exploratory study with nealy 90 mediators in Canada (all of whom are also mediation trainers), the author describes the great diversity among mediators'understanding of commonly-used terms like facilitation, transformative, settlement, and humansitic. She also reports on how such factors as context, gender, and number of years mediating affect mediator perceptions of what they do. In addition, the author shows how perceptions affect the overall philosophy and goal of hte meidation practitioner: One implication of this research is that we can no longer presume to know what people men by "mediation," nor can we assume mediators are like-minded in how they understand their work. Thus, practitionsner, scholars and policymakers are encouraged to be purposefully clear when describing and writting about the practice of mediation.     

Improvisation and Teaching Negotiation: Developing Three Essential Skills

The notion of an adaptable negotiator, who can respond to any situation he or she encounters, resonates with every negotiation expert. Unexpected things happen in negotiation, and negotiators must be able to adapt in fleet and effective ways. Dealing with the unexpected, responding “in the moment,” and adapting effectively to sudden changes — these are the skills of an improvisational artist, and they are effective skills for negotiators to learn. How can improvisational skills be taught to negotiation students so that they will be able to draw upon these skills in the heat of a negotiation or mediation? By bringing together teachers of improvisation in various disciplines, we explored how improvisation is currently applied and taught in theater, business, and psychotherapy. We then developed some ideas about ways in which teachers of negotiation might begin to incorporate improvisation as part of the negotiation lesson plan.     

Mediation Practice in the South African Construction Industry: The Influence of Culture, the Legislative Environment, and the Professional Institutions

We studied mediation practice in the South African construction industry by surveying sixty-three mediators. We found that mediators are more intent on resolving disputes for the parties than on assisting the parties to find their own settlements. In addition, we found that greater emphasis by parties to the dispute is placed on technical expertise, authority, and a clear understanding of the matter in dispute than on moving the parties toward an in-depth understanding of each other's perspectives. We conclude that mediation practice in the South African construction industry is not consistent with generally accepted principles of mediation. We also argue that the fragmented and potentially adversarial traditional procurement system predominantly used in South Africa, together with the inadequate institutional response in promoting mediation as a preferred dispute resolution method, is encouraging mediation to develop in this way. This is cause for concern, not only because this practice represents a departure from the underlying philosophy of mediation — dialogue aimed at amicable and long-lasting solutions that are in everyone's best interests — but because it is incompatible with the Southern African worldview concept of ubuntu .     

Confectionery and Conflict Resolution? What Chocolat Reveals about Mediation

A close analysis of the film Chocolat discloses a new metaphor for the mediator — the mediator as cook. The use of this metaphor throughout the film suggests new insights about mediator style and practice. Specifically, the mediator–protagonist in Chocolat demonstrates that: (1) mediations need not be voluntary to be sound, (2) non-neutral, directive, evaluative mediators can be effective if they individualize their approaches to each disputant and dispute, and (3) effective approaches to mediation celebrate emotion and pleasure, contrary to many conflict resolution theorists who write about the importance of emotions, but do not privilege them in practice.     

A Conceptual Typology of Kin‐State Mediation

In this article, I argue that kin states can play major roles in international mediation processes involving their kin communities. Although kin states may be naturally biased toward their kin, kin states are sometimes actively involved in mediation processes and such involvement is even encouraged by third‐party mediators. In this study, I divide the various roles assumed by kin states in mediation into four main conceptual categories: promoter, quasi‐mediator, powerbroker, and enforcer. My analysis presumes that a kin state can use its close ties with its kin community to make third‐party mediation more successful. I support and illustrate this model using cases of kin‐state involvement in peace processes and examine both the benefits and complications that kin‐state mediation can entail. This study contributes to scholarship examining the effectiveness of biased mediators. I conclude that the role a kin state assumes in a mediation is often context‐dependent, but that third‐party mediators and the international community can use their leverage over kin states to improve the peace process.     

Improvisation and Negotiation: Expecting the Unexpected

Negotiators must improvise. As the negotiations process unfolds, they work with new information, continually making decisions along the way to achieve favorable results. Skilled improvisational jazz musicians and actors perform in similar ways: they repeatedly practice song chord progressions and notes or scene guidelines before a performance; then, during the performance, they work with the information or the music they hear in order to react and respond, making decisions along the way to produce dazzling music or a compelling scene. In this article, two experts in negotiation, a jazz-improvisation scholar, a former member of an improvisational theater troupe, and a psychotherapist versed in therapeutic improvisational techniques explore the improvisational nature of negotiation.
Several aspects of negotiation are similar to improvisation. Both negotiators and improvisational performers need to have a similar mind-set to be successful, both need to recognize and/or change that mind-set at times, and both must craft creative solutions. But there are some significant differences between improvisational performance and negotiation practice, which this article also notes. For example, personal charisma ("star quality") is a common attribute of successful performers, but not something negotiators may always rely on. Similarly, improvisational artists usually work as a team, while a negotiator is often on his or her own. Nonetheless, the incorporation of improvisation techniques into the negotiation skills repertoire holds great promise for practicing negotiators and is a worthy topic of future negotiation research and teaching.     

Transformative Women,Problem‐Solving Men? Not Quite: Gender and Mediators' Perceptions of Mediation

A large field study examined female and male mediators' perceptions of their jobs, looking in particular at their attitudes toward mediation styles lying on the continuum between instrumental and transformative. Based on scholarship on gender and negotiation literature that has portrayed women as more interpersonal and somewhat less task oriented than men, we expected female mediators to be more transformative and less instrumental in their practice than their male peers. Our study was both qualitative and quantitative: we formulated the content of twenty in‐depth interviews into an extensive questionnaire, answered by a representative sample of 189 Israeli mediators. Compared with their male counterparts, we found female mediators to be more transformative, but no less instrumental, in their view of mediation's goals and orientation. They were also somewhat more facilitative in preferred style, while male mediators were somewhat more directive. We also found additional intriguing gender differences, including that women mediators reported higher job satisfaction than did male mediators, but they also displayed a greater readiness to perceive failure in mediation.     

The Conditional Effectiveness of Directive Mediation

ABSTRACT

This research re-examines the effectiveness of directive mediation in interstate rivalries. To do so, highlighting the importance of disputants’ willingness for successful directive mediation, this study identifies four conditions that affect the levels of disputants’ willingness to engage in mediation talks and proposes that the presence of such conditions improves or worsens the efficacy of directive strategies. We expect heavy-handed mediators will be less effective in a dispute involving highly interdependent or power-imbalanced rivalries while directive mediation performs poorly when it is led by unbiased mediators or when it is employed for long-running rivals. Our empirical findings, based on two existing rivalry datasets, suggest that directive mediation fares well when mediators are biased, when rivals are power-balanced, and when rivalries are protracted, and that the efficacy of directive mediation improves in disputes involving highly interdependent strategic rivals but decreases in the cases between highly interdependent general rivals.     

Overcoming Barriers to Mediation in Intake Calls to Services: Research‐Based Strategies for Mediators

In this article, I investigate intake calls to community mediation services in which disputing neighbors ask mediators to help them resolve their conflicts. These calls are the first point of contact between potential clients and mediators. To maintain their organization's funding, mediators must convert a sufficient number of these callers into clients of the service. Intake calls, however, are not treated as part of the mediation process proper, and mediators are not trained to handle them. I audio‐recorded and transcribed approximately two hundred calls to mediation services based in the United Kingdom and then analyzed them using conversation analysis. I identified several factors routinely present in these intake calls that seemed to prevent disputants from ultimately engaging in the mediation process; I characterize these factors as “barriers to mediation.” These barriers include callers' lack of knowledge about mediation as a service and mediators' often ineffective methods of explaining the process. In particular, callers rejected mediation services when the mediators explained that mediation is an impartial service. Some of the mediators, however, managed intake calls differently, describing it more effectively, expressing empathy or affiliation with callers, and thus were able to overcome many of the callers' most common concerns about the process. In this article, I also discuss this study's implications for understanding the institution of mediation and for training mediators.     

We do negotiate with terrorists: navigating liberal and illiberal norms in peace mediation

The normative framework in mediation processes is growing. Mediators are increasingly expected by their mandate-givers to incorporate liberal norms such as inclusivity into their overall strategy. However, in the wake of the terrorist attacks that took place on 11 September 2001, and the policy shifts that accompanied the “Global War on Terror”, mediators find themselves simultaneously pressured to design mediation processes actively excluding armed groups proscribed as terrorists and consequently incorporating this illiberal norm of “exclusivity”, barring proscribed groups’ access to negotiations. This article asks what consequences this development has on the normative agency of mediators, based on if and how they incorporate proscribed armed groups into their mediation strategies. It argues that the dichotomy between liberal and illiberal norms has important consequences on a mediator’s normative agency. First, the dichotomy constrains mediators to a single normative standard, rendering only liberal and illiberal views possible. Second, the assumption that liberal norms are “good” and illiberal norms are “bad” engenders a double dichotomy that greatly constrains a mediator’s normative agency. Third, these constraints on a mediator engender new mediation practices such as outsourcing and risk-sharing in an attempt to salvage normative agency. The article contributes to scholarship on norms, terrorism and mediation through providing a more nuanced view of normative parameters in mediation practice.     

Stage Development Theory: A Natural Framework for Understanding the Mediation Process

Scholars and practitioners of mediation have generally paid little attention to the development of theoretical frameworks for understanding what is taking place in the mediation process. By borrowing from stages of adult psychological development theory (in this scheme, physical; hedonistic/impulsive; conformist/authority-seeking; rational/individualistic; and integrative), we can better understand some of the behaviors that people exhibit in mediation and perhaps find ways to help parties expand their behavioral repertoires so that new avenues for resolution appear to them. Using frequent examples from mediation practice, the author describes each stage, then assesses the limits and possibilities of relating this theoretical framework to mediation. She sees this juxtaposition of theory to practice not so much as a how to for mediation practice, but rather as a new window through which mediators can view mediation clients, the mediation process, and their own behavior in the mediation room.     

Mediation and the Art of Shuttle Diplomacy

Mediation caucusing — that is, separate meetings conducted by the mediator with some, but not all, of the parties — is widely used, but it has become increasingly controversial, as some mediators advocate for a no‐caucus form of mediation using only joint sessions with all parties present. The rationale for the no‐caucus model is that caucuses give the mediator too much power at the expense of the parties, and joint sessions improve the parties' understanding of each other's views. But caucusing adds value to mediation in several ways. First, from the standpoint of economic theory, caucusing provides mediators with an important tool for overcoming two impediments to settlement — the “prisoner's dilemma” (caused by the parties' fear of mutual exploitation) and “adverse selection” (caused by the failure to disclose information). Second, caucusing can help the mediator overcome a variety of negotiation problems, such as communication barriers, unrealistic expectations, emotional barriers, intraparty conflict, and fear of losing face. Third, caucusing provides a more private setting in which the mediator can develop a deeper and more personal understanding of the parties' needs and interests. Although the no‐caucus model may be appropriate for certain types of mediation (particularly those cases in which the parties will have an ongoing relationship), some parties may prefer the efficiency that can be achieved with caucusing, even if that means sacrificing certain other values — such as greater understanding — or giving the mediator more information than the parties have, thus creating the risk of manipulation by the mediator. Moreover, the choice is not binary — numerous variations and hybrid formats can be useful, such as sessions in which the mediator meets with only the parties' lawyers or with only the parties. Choosing the best format for a mediation is more of an art than a science, and mediators should consider, with the parties, whether the parties' objectives would be best served using only joint sessions, extensive caucusing, or a combination of these approaches.     

Mediation and Psychotherapy: Two Sides of the Same Coin?

Some mediators believe that mediation and psychotherapy are quite similar, and that when doing mediation, the mediator also is practicing an art form similar to psychotherapy. On face value, some forms of mediation (e.g., evaluative) and some forms of psychotherapy (e.g., psychoanalysis) are so far apart in theoretical conception and in actual practice that they cannot be compared meaningfully. However, the forms of mediation known as facilitative and transformative and the forms of brief or focused psychotherapy that often involve families or couples do have considerable similarity. Overall, numerous resonances exist between these two approaches to mediation and to couples or family-oriented psychotherapies, especially when differences in terminology, licensure, and training requirements are not allowed to obscure commonalities.     

Common Language,Different Meaning: What Mediators Mean When They Talk About Their Work

Mediators, for the most part, describe their work as facilitation but what they actually mean varies considerably. Based on an exploratory study with nearly 90 mediators in Canada (all of whom are also mediation trainers), the author describes the great diversity among mediators' understanding of commonly-used terms like facilitation, transformative, settlement, and humanistic. She also reports on how such factors as context, gender, and number of years mediating affect mediator perceptions of what they do. In addition, the author shows how perceptions affect the overall philosophy and goal of the mediation practitioner. One implication of this research is that we can no longer presume to know what people mean by mediation, nor can we assume mediators are like-minded in how they understand their work. Thus, practitioners, scholars and policymakers are encouraged to be purposefully clear when describing and writing about the practice of mediation.     

Dimensions of Chinese foreign conflict and cooperation: A research note

Key mediation attributes, such as mediating actors, the strategy they choose, and previous mediation experiences, are widely thought to influence the nature of a conflict management outcome. But how and when these features shape outcomes is not a straightforward matter, and a standard analysis of these factors does not lead to their widely anticipated results. Why? We develop a new analytical framework that argues that a dispute's intensity alters the conflict management processes. Furthermore, in order to observe this variation, we also need to expand the traditional, dichotomous notion of conflict management outcomes (success or failure) to include a fuller range of observed results. Using the most recent International Conflict Management data set and our new analytical framework, we analyze the effect on conflict management outcome of mediator (a) identity, (b) strategy and (c) history. We find that directive strategies and international mediators are effective in resolving high intensity conflicts, procedural strategies and regional mediators are effective in resolving low intensity conflicts, and that mediation history always affects resolution. Our results have implications for both the study and practice of international dispute mediation.     

When Clients Throw Punches and Chairs: How Mediators Respond to Violence

Much is known about screening family law mediation cases for potential violence, but little is known about violence that occurs within or immediately after mediation. In this article, we present the findings of a survey of U.S. mediators who reported their experiences of violence across a variety of mediation case types. These mediators described how and when violence arose and also reported the techniques and interventions that they used to de‐escalate tensions and to respond to violence. Our goal is to better equip mediators to prevent violence when possible, and to respond effectively if violence does arise in mediation.     

Insight Mediation: A Learning-Centered Mediation Model

Insight mediation is the name we have given to the model of mediation that is taught and practiced at Carleton University in Ottawa, Canada. The name has evolved from our efforts to situate the model in relation to the transformative and narrative styles of mediation. Drawing upon the work of Canadian philosopher Bernard Lonergan and his theory of insight, mediators practicing this model seek direct and inverse insights into what the conflict means to each party by discovering what each party cares about and how that threatens the other party. Insights shift attitudes and create space for collective action. The authors argue that coming to recognize the theoretical underpinnings of our practice helps us become better practitioners.     

Mediation mythology

Conclusion TheInterim Guidelines for Selecting Mediators promote a mythology that is broader and already more effective than the specific screening device created by the guidelines is likely to be. That mythology has been quite successful in generating support for the institutionalization of mediation and the establishment of both a market and an occupation in the practice of mediation.The guidelines may prove successful, however, in furthering that mythology — and thus the professionalization of mediation — by appearing to create techniques to insure that mediators fulfill the mythological requirements of the role: passivity, informality, neutrality, and efficiency. If the guidelines become widely adopted, they will also restrict access to the occupation by defining occupational prerogatives that will debar some persons from sharing in them. Furthermore, if licensing does eventually follow, the guidelines will have gone a long way toward providing authoritative, legal consequences to private, and I would suggest, mistaken determinations of what constitutes good and ethical mediation practice. Susan S. Silbey is Professor of Sociology at Wellesley College, Wellesley, Massachusetts 02181.