Social and Political Cultural Effects on the Outcomes of Mediation in Militarized Interstate Disputes

The article investigates the relationship between cultural similarities and differences on the part of the representatives of contending states and mediators, and outcomes of mediation efforts in militarized disputes. A distinction is made between social culture, defined primarily in terms of religious identity, and political culture, defined according to the state's political system. Analysis of 752 mediation attempts in militarized disputes occurring between 1945 and 1995 yields support for the hypothesis that mediation is more likely to succeed when the parties are from similar social cultures. The results, however, suggest that the relationship is more complex than that suggested by a simple categorization of states based on Huntington's "clash of civilizations" thesis. We also find that mediation is more likely to succeed when the parties share democratic political cultures, a finding that is consistent with the cultural/normative explanation for the democratic peace.     

Sport Mediation: Mediating High‐Performance Sports Disputes

Conflicts in high‐performance sports (HPS) are typically tense and emotionally charged experiences for the athletes, coaches, and sports organizations involved. Such disputes raise intriguing challenges for the mediators handling them. These disputes typically involve multiple parties who often have intensely competitive personalities negotiating a volatile mix of high‐stakes win/lose issues. Mediators typically confront numerous process challenges and must operate within the rigid policy parameters of the various governing organizations involved. Mediation can successfully manage and resolve these challenging disputes, often in creative ways that repair and preserve the parties’ relationships. To be successful in this environment, however, mediators must adapt to and confront the unique dynamics of sports disputes described here. In this article, I examine multiple case studies of mediations conducted through the Sport Dispute Resolution Centre of Canada (SDRCC) with the goal of identifying successful mediation strategies for HPS disputes. The centre, which has made mediation mandatory for almost all cases, had an overall settlement rate over a twelve‐year period of 46 percent, with rates as high as 94 percent for mediations voluntarily requested by the parties. Mediation has been used only sparingly elsewhere in the world for resolving HPS disputes to date, although, I argue, it is a successful tool that should be increasingly used both nationally and internationally. In recognition of mediation's potential role, the Court of Arbitration for Sport introduced updated mediation rules in 2016 and is moving to increase the use of mediation in international sports disputes.     

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 .     

Triangulation of Salient Studies to Date on Trust-Building in Mediation

Many studies have empirically demonstrated the importance of trust-building between mediators and parties to a dispute. We wrote this article in response to a call by Stephen Goldberg and Margaret Shaw for studies conducted in North America to be triangulated in other countries where mediation is taking off as an alternative tool in the resolution of disputes. Our objective was to test theories on the factors that increase trust-building in mediation. With this in mind, the study conducted by Jean Poitras in Montreal (Canada) was triangulated in the Balearic Islands (Spain) and an analysis was made of the similarities and differences between both studies using different methods.     

The Past,Present, and Future of Mediation as Seen through the Eyes of Some of Its Founders

This article is drawn from interviews with thirty‐one of mediation's “founders,” those pioneers who began mediating in the 1970s and 1980s, when the field was young. They describe what first attracted them to mediation and why they have remained active in the field. Some told us that they have found it to be both intellectually challenging and interpersonally satisfying to assist disputing parties in their search for a mutually acceptable resolution they could not find on their own. Others see mediation's collaborative approach to decision making as a means of bringing about social and political change that might be otherwise unattainable. The mediators also described the changes they have observed since they entered the field: mediation's dramatic growth, institutionalization in the judicial system, and market domination by lawyers and retired judges. Among the concerns they expressed were the prevalence of a mediation model that focuses primarily on the legal strengths and weaknesses of each party's position, and the dollar amount that should resolve the dispute, with little interest in creative outcomes. Other concerns are a lack of quality control of mediators and trainers, and unproductive debate about whether the “correct” approach to mediation is evaluative, facilitative, or transformative. The mediators who work on public policy matters, including environmental disputes, were the most positive about the opportunity for creativity in their work, considerably more so than those mediators whose practice is primarily business/commercial. The mediators' views of the future of mediation are remarkably similar — their general sense is that the type of mediation that takes place in the shadow of the courts is likely to increase and to become even more routinized than it is at present. Several respondents told us that they also expect to see substantial growth in the use of mediation to resolve public policy issues. Many of these mediators predicted that this type of mediation is likely to be carried out by organizational insiders, rather than outside interveners. As one mediator said, “Maybe there's a new set of mediation roles for people within traditional institutions, not just for free‐standing neutrals.”     

In the Nick of Time: Conflict Management, Mediation Timing, and the Duration of Interstate Disputes

This paper develops a theoretical argument linking time and the timing of conflict management efforts to dispute duration. We test competing hypotheses on conflict data drawn from disputes in the post-1945 period. Our analysis demonstrates that the effects of mediation vary substantially over the course of a dispute. Specifically, we note that mediation has a curvilinear relationship with time and the ending of disputes. Mediation efforts that occur soon after disputes begin have the best chance of reducing expected future dispute duration. Following this initial period, subsequent mediation efforts lead to longer rather than shorter disputes. After a long period, mediation again leads to shorter rather than longer disputes. We also find that there should be consistency in the mediators used to manage a conflict rather than shifting personnel to interject new ideas.     

Improvisation and Mediation: Balancing Acts

Improvisation can be an important element of mediation practice, and there are several ways in which mediation practice correlates to improvisational performance. In this article, two mediation experts and two skilled jazz musicians explore the improvisational aspects of mediation. Two central themes emerge: (1) mediators often use improvisational techniques, and (2) by being improvisational, mediators can create environments that would encourage the parties themselves to be improvisational. We argue that practitioners can enhance their effectiveness as mediators by mastering improvisational skills.     

A Study of the Emergence of Cooperation in Mediation

All mediators confront the challenge of how to encourage cooperation among parties in a mediation. Based on a phenomenological study of workplace mediation, this article explores the variables that are linked to the emergence of cooperation between parties. In the first part of the study, factors influencing the desire to cooperate are identified and categorized, based upon whether they help or hinder cooperation. The second part of the study compares the characteristics of cooperative and antagonistic mediation climates in order to better understand how cooperation is established during the mediation process. Based on the findings, strategies are proposed to help mediators facilitate the transition of an antagonistic climate into a cooperative one and thereby encourage the emergence of cooperation.     

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.     

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.     

The Secrets of Successful Mediators

A survey of thirty experienced mediators showed that three-quarters of them regarded achieving rapport with the parties as central to their success in bringing about settlements. This article discusses how mediators achieve and make use of that rapport. The article also considers the implications for mediator training of the finding that achieving rapport with the parties is a key factor in successful mediation.     

The Secrets of Successful (and Unsuccessful) Mediators Continued: Studies Two and Three

In a survey of 216 advocates in mediation, the successful mediator's ability to gain the confidence of the parties was cited as important to his or her success more frequently than were any of the skills used by the mediator to bring about agreement. This article discusses the means by which mediators gain the confidence of disputing parties. The article also discusses the different skill and attribute profiles of different successful mediators and the advocates' views of the reasons for mediator failure. The article considers the implications of its findings for mediators, trainers, and advocates, and concludes with suggestions for future research.     

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.     

The Paradox of Accepting One's Share of Responsibility in Mediation

Mediators generally avoid the issue of whether parties accept their individual share of responsibility for a conflict. But the results of this study demonstrate the important role that taking responsibility for the conflict can play to encourage the emergence of cooperation within the mediation process. In this article, the author first explores the role of responsibility within the context of various mediation approaches and styles. Next, he reports the results of a quantitative study that examined the attitudes of disputants involved in workplace conflict mediations. His results indicate that acceptance of responsibility can play a parodixical role in the mediation process: it seems to be effective only when both parties jointly acknowledge responsibility. When responsibility is acknowledged unilaterally, it seems to have a negative effect on the emergence of cooperation. Finally, the author proposes an intervention strategy for mediators that is designed to encourage the joint acceptance of responsibility and thus facilitate the emergence of cooperation in mediation.     

Negotiation or Mediation?: An Exploration of Factors Affecting the Choiceof Conflict Management in International Conflict

The conditions under which negotiation or mediation are chosen in internationalconflict have been little studied. Previous research has tended tofocus on the motivations and rational calculations of the states involved.Scant attention has been given to examining the effect of the context onthis choice. In this article, we present a framework for studying the contextualconditions under which negotiation or mediation are likely to takeplace. Employing an original data set, we find that negotiation tends to beused when conflicts are relatively simple, of a low intensity, and when bothparties are relatively equal in power. Mediation, on the other hand, tends tobe used in disputes characterized by high complexity, high intensity, longduration, unequal and fractionated parties, and where the willingness ofthe parties to settle peacefully is in doubt.     

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.     

International Mediation and Social Networks: The Importance of Indirect Ties

This study extends the previous literature on actors' incentives in conflict management by examining how direct and indirect links between fighting parties influence the prospects for mediation onset from a social network perspective. The paper argues, contrary to existing research, that direct links, i.e., bilateral ties between warring parties, do not notably increase the likelihood of mediation. Rather, indirect links, i.e., ties that connect two states via one or more than one third party to each other, are more likely to determine whether a conflict sees mediation. Although direct links can indicate mutual interests, shared preferences, and decreased uncertainty between the warring parties, these ties either lose importance or become cut off when states enter a conflict. By contrast, indirect ties create a social network that involves outside parties in the dispute process, and indirect ties increase the exchange of information between belligerents and potential mediators and the chances that third parties will have a vital interest in intervention. My empirical analysis using conflict and social network data in 1946–1995 provides strong support for the theory.     

Justice,Understanding, and Mediation: When Talk Works,Should We Ask for More?

Stimulated by reading Susan Silbey's compelling (1994) profile of Patrick Davis, who mediates special education disputes in Massachusetts, the author discusses the dimensions of these disputes and what it is that parents hope to gain by participating in the process. Recent research suggests that procedural justice is important to them: having the opportunity to voice their concerns, having those concerns acknowledged, and being treated with dignity and respect. These aspects of the process often contribute to personal and emotional goals as well. But parents are also clearly seeking a substantively fair and just result. Substantive justice may sometimes be overlooked as programs develop evaluative tools and other measures to assure quality in mediation. The author also traces the legal history of special education law and points to her research and personal experience as Director of Pennsylvania's special education mediation system in reflecting on mediation's potential in this area. She concludes by observing that skilled mediation is people-centered and has the potential to improve the relationship between the parties; it also can routinely attend to rights-based concerns.