Incentives for Talking: Accepting Mediation in International and Civil Wars

This paper examines the conditions under which warring parties will accept an outside party's offer to mediate. Specifically, we explore variation in the incentives for accepting third-party offers in interstate conflicts as compared to civil wars. We argue that since mediation in civil wars transfers legitimacy to the non-state actor and can generate a precedent of exceptions to the norm of sovereignty, the political cost associated with accepting international mediation will be substantially higher in civil wars compared to international conflicts. States should therefore only accept mediation in the most serious disputes, or when the costs of legitimizing an opponent are outweighed by the benefits of conflict resolution. Building on this theoretical reasoning, the paper analyzes the implications of differences in incentive structures between inter- and intrastate conflicts for offer and acceptance of mediation. We find an empirical discrepancy between interstate and civil wars in regard to demand-side (acceptance) of mediation, and to a somewhat lesser extent the supply-side (offer) of international mediation. In line with our argument, we find that the historical ties between the potential intermediary and at least one of the disputants play different roles in regard to acceptance of mediation in interstate compared to civil wars. This is important to take into consideration in the emerging debate on mediation bias.     

Managerial Mediation Competency: A Mixed‐Method Study

Managerial conflict resolution skills such as mediation have often been poorly defined and measured. We used a mixed‐method design to develop a managerial mediation competency scale. In our first study, we used semistructured interviews to identify managerial mediation skills and attitudes, from which we derived a framework for measuring managerial mediation competency. In our second study, we developed scale items and used a quantitative survey to test the scale's psychometric qualities and to gain insight into the theoretical structure of managerial mediation competency. Our managerial mediation competency scale can be used in research questionnaires or organizational surveys as a training, research, and theory development tool.     

Mediation Research: A Current Review

In this article, we review the mediation literature from the past decade, utilizing a cybernetic mediation paradigm to organize the material. In this paradigm, we note that the type of conflict, country, culture, and mediation institutions affect the mediation process. Within this process, the mediator and disputants interact with each other, attempting to reach their own goals. This interaction produces outcomes for the disputants, the mediators, and other parties. The literature — organized using this paradigm — indicates that mediation is frequently practiced in many venues; the literature also provides an exhaustive list of mediation goals, describes many mediation strategies, and reports manifold mediation outcomes. Unfortunately, the number of studies examining the relative effectiveness of specific strategies (e.g., pressing, relational, and analytic) seems insufficient. Few studies have used control groups or reported observations of mediator and disputants' behavior in actual mediations.     

Credibility and Strategy in International Mediation

We study mediation in international conflict as a process of strategic interaction among the two disputants and the (would-be) mediator. We develop a rational model that examines the choice, process, and outcome of mediation. We start with a conflict game of incomplete information played by rational players that examines the conditions under which disputants and would-be mediators would consider mediation a preferred strategy. The mediation game that follows models the mediator's choice of mediation strategy and the possible responses of the disputants offers. Finally, we explore the conditions under which a mediated solution emerges and the conditions under which mediation fails.

The credibility of the mediator—defined as the extent to which disputants believe the mediator's statements, threats, or promises and her ability to deliver the promised agreement—emerges as a key factor that drives the model. Each disputant has an assessment of the mediator's credibility. Broadly speaking, the more credible the mediator is perceived by the disputant, the more accepting the disputant will be of her offers. Yet, the mediator does not know how credible she is in the view of the disputants. This uncertainty affects the mediator's decision to intervene and her choice of strategies. We derive testable propositions from this model and test them on a dataset consisting of mediation efforts in international conflicts over the years 1945–1995. The findings generally support the propositions derived from the model, and we explore the theoretical and empirical implications of these findings.     

The Long‐Term Effectiveness of Mediating Workplace Conflicts

In this study, we explore the long‐term effectiveness of the mediation of hierarchical workplace conflicts by comparing and analyzing participants’ perceptions of short‐term and long‐term mediation effectiveness. Specifically, we surveyed supervisors and subordinates to determine the extent to which they perceive mediation to be effective one year after the conclusion of the process. In this study, we distinguish between mediations that result in a continuing employment relationship versus exit mediations, which occur when employees end their employment. We collected data from real workplace mediation cases in the Netherlands. Our results show a general positive relationship between short‐term and long‐term mediation outcomes. Supervisors and subordinates, however, perceive the long‐term outcomes somewhat differently, with supervisors perceiving greater compliance with the agreement than did subordinates after one year. We found no significant difference in perceptions of long‐term effectiveness between exit and nonexit mediations. In the article, we discuss the implications of our findings for mediation theory and practice.     

Mediation and Culture: The Example of the ICC International Commercial Mediation Competition

The International Commercial Mediation Competition is organized by the International Chamber of Commerce (ICC) in Paris, which held the event for the eighth time in February 2013. As the competition has grown, participation has become more and more diverse and thus mediation and negotiation have become more and more cross‐cultural. This led the ICC to invite external research on culture at the competition in February 2011. In this article, I discuss this student competition, the external research project question, and the culture of the competition. I also identify some of the further cultural issues raised by referring to relevant research on conflict and mediation across cultures, and conclude with some thoughts on how better to conceptualize the field of cross‐cultural mediation in terms of a systems approach.     

Context and Content toward Consensus in Public Mediation

The mediation of public conflicts is a complex interactive, social‐psychological, and often politicized process. Because of their complexity, the literature on how to effectively mediate these conflicts remains imprecise. In this study, I have focused on the sequencing of the overall mediation process and the interplay between initial conditions, mediation styles, and process dynamics to explore predictable patterns from early stage to deadline negotiations. By undertaking a two‐step qualitative comparison of twenty‐three public mediation cases, I have attempted to identify “equifinal” pathways — that is, a variety of different ways in which the same outcome can be achieved — that can lead to mediation success (or failure). My analysis reveals that both inclusivity (i.e., including all relevant participants in the process) and mediation institutionalization (i.e., the mediation process is sufficiently embedded in the political and administrative system) correlate to greater mediation effectiveness. Furthermore, this study also suggests that such key elements of deliberative negotiations as recognition and argumentation are essential for reaching a consensual agreement.     

The Italian Mediation Explosion: Lessons in Realpolitik

Between the time that the first modern Italian mediation statutes were issued in 1993 and March 2011, when mandatory mediation procedures under Italian Legislative Decree 28/2010 went into effect, an interesting paradox emerged in Italian mediation: mediation usage was virtually nonexistent despite the high success rates of mediated cases. Clearly, the mere availability of mediation was not sufficient to attract disputants away from the courts, even though the Italian court backlog skyrocketed to 5.4 million cases during this period. Decree 28/2010 was issued by the Italian government to address this paradox through a mandatory mediation requirement, but the law has faced significant opposition from some members of the Italian bar in the form of public strikes and legal challenges. Legislators have responded to this dissent with reactionary amendments to “cure” problems in the regulatory structure, even though there has also been significant positive attention paid to the Italian mediation model at the European level. As the opposition to Decree 28/2010 now appears to be diminishing and recent data indicate that mandatory mediation is achieving its objectives (to the tune of tens of thousands of mediated cases since March 2011), two lessons in realpolitik emerge for mediation proponents. First, nothing less than compulsion can rapidly increase mediation use. Second, the legislator who compels mediation without openly engaging the opposition is not mediation savvy, for even in compelling a policy choice, one should be respectful and mindful of the opponent's position, if for no other reason than to minimize his or her opposition to the final result.     

A Bridge over Troubled Water: Managing Parties’ Mental Illness in Mediation

One in five individuals in society has or will have a mental illness at some point in his or her lifetime. Conflict resolution theory, however, largely assumes that all individuals operate within the range of behaviors considered mentally healthy. Evidence suggests that professionals who deal with conflict, however, may have to deal with individuals who have mental health problems more frequently than would be the statistical norm. Clearly then, new theories of practice and norms of mediator behavior are needed to respond to the distinctive challenges presented by engaging with those who face mental health difficulty. This paper surveys the research on how people with mental health challenges approach and respond to conflict and provides practical advice to conflict resolution professionals on how to recognize and tailor their approach to meet the needs of these individuals.     

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.     

The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality?

Mediators often do not welcome the presence of attorneys at the mediation table. Because of the apparent contradictions between both professions, many mediators believe that the presence of attorneys is prejudicial to the mediation process. Using empirical data collected from workplace mediation cases, we have explored the actual impact of the presence of attorneys. Our results indicate that the presence of an attorney does not significantly affect the outcome of a mediation, with two exceptions. First, the presence of attorneys in a mediation process reduces the parties' level of satisfaction with the mediator. Second, the presence of an attorney would appear to hinder the level of reconciliation possible between the parties.     

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.     

Outbursts: An Evolutionary Approach to Emotions in the Mediation Context

Evolutionary psychology offers a powerful framework for understanding the ultimate function of emotions, and that understanding can be applied usefully in the mediation context. In this article, we first introduce the relevant theoretical foundational assumptions of the evolutionary approach to emotions and then use anger and gratitude to illustrate the evolved functions and effects of emotions on cognition and behavior before exploring specific implications for mediation. We also discuss mediator strategies for leveraging anger and gratitude, as well as the potential for future research applying an evolutionary approach to understanding emotions in mediation.     

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.”     

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.     

Escape from the Laboratory: Ethnographic Methods in the Study of Elder and Family Court Mediation

The randomized control trial and pre/post research designs are commonly used in applied research and provide common standards for mediation evaluation research. These approaches have many benefits, particularly for evaluating whether mediation as an experimental intervention works or not. Scholars and practitioners, however, want to know not only whether mediation can work as expected but also how it works in a range of real‐world contexts over time. In these contexts, ideal experimental conditions are less likely to occur. Challenges include such circumstances as the following: the number of cases suitable for statistical comparison is insufficient; researchers lack control over how mediation is implemented; researchers lack clear, objective variables to measure; and the variability of mediation outcomes when studied over time makes it difficult to draw conclusions about them. My research has involved each of these challenges, and I have used ethnographic research as a way to evaluate mediation in these contexts. In this article, I explain ethnographic methods and present two studies as examples of mediation evaluation research that began with a standard program evaluation design, and then incorporated ethnography to allow more complete data collection and analysis. My purpose here is not to argue that experimental methods in mediation evaluation research should be displaced but rather to demonstrate how ethnographic methods can be used when the conditions necessary for standard evaluation cannot be met. The two studies used as examples are from an elder mediation study in Ghana and a family court mediation study in the United States.     

Deconstructing Mediation: A Case Study of the Cod Wars

In this study, I explore the mediation techniques used by an international organization (IO) to settle an international crisis. Specifically, I have focused on the use of formal and informal techniques with a case study of the North Atlantic Treaty Organization's (NATO) mediation during the Cod Wars between Iceland and the United Kingdom. My analysis indicates that a combination of both formal and informal mediation techniques was instrumental in resolving the Cod Wars conflict. Further research would clarify whether this finding can be generalized to other cases of NATO mediation and interventions of third parties in addition to NATO.     

Assessing Empowerment in Divorce Mediation

The empowerment of disputants is a fundamental concern of mediation research, but empowerment is difficult to measure. This study operationally defines empowerment in a divorce case as an agreed-upon modification of the Texas Standard Possession Order in the direction of granting more time with the child to the noncustodial parent. Using a cross-case analysis of mediated and nonmediated divorce cases, this study found that couples that participated in mediation were empowered, not disempowered, in the construction of their visitation arrangements. Implications for measuring empowerment, litigation, and legislative policy are discussed.