Mediation, Research Paper Example

Abstract: Mediation is a means of resolving disputes which has much to recommend it. What follows is firstly, a literature review of mediation, highlighting the importance of procedural justice in resolving workplace disputes and child custody cases. In part II, a model of mediation is presented, including an emphasis on procedural justice, and a constructive engagement with emotions that avoids their more negative manifestations and ramifications for the negotiation process.

Introduction: Mediation is an outstanding alternative dispute resolution strategy, one that allows for both parties to have a great deal of input and control over the discussion and the outcome. The cardinal advantage is that the parties are able to work out the outcome for themselves, with support from an external mediator. Thus, instead of the outcome being handed down by a judge, it is one that both parties exert significant efforts towards achieving, and this gives them a higher sense of ownership in the outcome. The literature reveals the importance of procedural justice, perceptions of fairness in the proceedings, for a successful mediation outcome.

Part I: The Nature and Functions of Mediation

I-A). Models and Characteristics of Mediation:

Mediation offers a promising alternative to legal action and arbitration, a means of dispute resolution that engages both parties in a format that gives them ultimate control over the outcome of the proceedings, but which also provides them with the facilitative and advisory capacities of a mediator. A skilled mediator has finely-developed skills of active listening and attentiveness, which help them to listen effectively to both parties, gaining understanding that they can use to guide the process towards a successful conclusion. A good mediator is also skilled at summarizing, helping each of the disputants to word their positions more concisely and clearly. Good mediators must also excel at building rapport, maintaining impartiality, and problem-solving.[1]

There are a number of models of mediation; the approach is by no means homogeneous. Procedural models, for example, work by using a framework of established, quite strict rules in order to obtain a desirable outcome. The premise of procedural models, then, is that they are a roadmap to success: so long as the mediator and the disputants adhere to the steps of the model, the outcome will be good. These procedures are of the type that can generally be assumed to be fair: that is, they are based on principles like justice, equity, etc. By comparison, stage models emphasize discrete stages through which the negotiations must pass, and problem-solving models prescribe a particular approach for solving the problem. Finally, structured mediation models work by securing some very important concessions from both disputants prior to the beginning of the proceedings: that they will both adhere to “a set of rules for fairness and for conducting the mediation session.”[2]

Mediation is often a very constructive, lower-hassle, and lower-cost option than court proceedings for separating couples who are attempting to resolve disputes over property and/or arrangements for their children. With mediation, the role of the mediator is to facilitate, rather than give legal advice: thus, their entire role is set up to foster a constructive interchange between the two parties, rather than focusing on legal advantages and pitfalls. Mediation is generally more cost-effective than alternatives that involve going through the courtroom, not least because clients typically have a fair degree of control over the choice of mediator. And because mediation favors collaboration and compromise, the chances of achieving a mutually-satisfactory outcome are generally much greater.[3]

I-B). Uses of Mediation: Cases from the Literature:

In one study, researchers persuaded a judge to randomly assign 100 child dependency cases to mediation, handled by master’s-level social workers, and another 100 to pretrial conferences guided by judges. In Arizona, where the study was conducted, child dependency cases begin when an interested party files a petition with a court “to review the safety and the welfare of a child’s situation.”[4] Somewhat surprisingly, the only difference the authors found between the two groups of parents concerned parents’ perceptions of the degree of settlement: those whose cases were mediated had more favorable responses in this regard, but in all other respects the two groups evinced no statistically significant differences.[5]

The mediation literature is replete with many admonitions against using agreements themselves as the measure of successful mediation: one must also consider whether or not the agreement holds, and how well it functions; both of these considerations can in turn be unpacked to yield a number of salient dimensions pertaining to the motives, needs, and behaviors of both parties. A key factor here is the usefulness of the mediator: if the disputants feel that the mediator is advancing the discussions in a useful manner, the negotiations are more likely to progress. In other words, there is an element of self-fulfilling prophecy here, or perhaps a positive feedback cycle: if both parties find the mediator useful, they will be more likely to continue to cooperate, and perhaps even make key concessions. Procedural justice and satisfaction with an agreement are also both very important: both parties must feel that the outcome is just, and they must be satisfied with it. Moreover, both must be confident that it will be implemented: each must have confidence that the other will not defect from the agreement. From this follows the need for reconciliation: if both parties are satisfied with the terms, believe that procedural justice was met, and are confident that the agreement will be implemented, then they can reconcile.[6]

In one study of mediation tactics and results in the Hong Kong construction industry, the researchers found that in order to achieve a successful outcome, some tactics indeed worked much better than others. Ice-breaking tactics, trust-building tactics, and process control tactics were all identified as predictors of progress towards win-win outcomes. Process control, encouragement towards self-improvement, and analysis of the situation were all associated with overall progress and improvement in relations. These tactics were indeed associated with greater perceptions of mediator usefulness: mediators who used such tactics engendered much warmer and more productive responses from the parties involved.[7]

Not only is mediation a commonplace in marriage and family law and some workplace disputes, it is also used to manage international and inter-communal disputes. Drawing an analogy from Winnicott’s (1958, 1965) work, Ross propounds a “good-enough” approach for managing inter-communal ethnic disputes. “Good-enough” conflict management describes both the process of mediation used to arrive at the outcome, and the outcome itself. The process is developmental and transformative, aiming to produce a state wherein both parties are empowered to affect changes in how they relate to each other, even if some tensions linger (at sub-lethal levels, of course). Using examples such as South Africa, the Middle East, and Northern Ireland, Ross suggests that there is no single ‘right way’ to resolve ethnic (and ethno-sectarian) conflicts, and that rather than ‘fairness’, mediation should focus on deep-seated needs and fears, and recognize that perfection “is not necessary or even healthy”, since it might actually detract from productive dialog and growth between the disputants in future. Although both disputants must take responsibility for achieving and maintaining a successful outcome, outside third parties can still play an important role in facilitating the end of conflict.[8]

 Part II: A Proposed Model of Mediation

II-A). The Importance of Procedural Justice

The model here proposed is a model of mediation for the resolution of even very high-conflict situations. It is chiefly designed to address the needs of separating couples engaged in custody disputes, and workplace disputes between labor and management. From the above, it is clear that procedural justice is a desirable approach for a successful model of mediation: procedural justice means that the processes or procedures used to arrive at the outcome are regarded as just by both disputants. Procedural justice has been shown to be a very constructive force in workplace disputes, increasing commitment to efficacious outcomes.[9] And together with interactional justice, which describes how frequently one party feels that they are justly treated by another, procedural justice has been found to positively predict reductions in psychological distress and better engagement in the workplace, which suggests that both approaches have much to lend to family contexts as well.[10]

The literature indicates that a key value of procedural justice is the fact that it gives all participants a voice. In other words, the point is not so much the particulars of the outcome (distributive justice) as it is that the means of arriving at that outcome successfully engaged all participants by giving them a voice, thus making the outcome one in which they have an ownership stake. This is the basis for the model of group engagement suggested by Tyler and Blader: when individuals believe that they have an ownership stake in the outcome, that their opinions and perspectives really do count for something, then they will be more likely to cooperate and participate in a constructive manner.[11] Interestingly, in a political context, this procedural justice approach with the group engagement model has also been found to shape rule-following, law-abiding behaviors: when individuals feel that lawful authorities follow procedural justice, they are more likely to follow the law. This association becomes stronger still when individuals identify with the authority structure.[12]

The ramifications are obvious: if procedural justice is followed in mediation, this increases the chances of both parties following the agreement; in particular, for workplace and child custody conflicts, it increases the chances of workers and parents, respectively, identifying with and respecting authority. In fact, procedural justice has also been linked to efficacious outcomes in child custody disputes. Kitzmann and Emery found that procedural justice factors were overall just as important as distributive justice factors, although there were some differences by gender, by relative favorability of outcomes for each of the disputants in any one situation, and how much conflict characterized the relationship overall.[13]

II-B). The Helpful, Perceptive Outsider: The Mediator’s Approach

The mediator must also approach the conflict as an outsider who desires to help, but who is alert to hidden motivations and agendas, as well as the often very common desire of participants to triumph at the expense of their opposite numbers. This is a central problem in mediation, and to confront it the mediator must balance the expectations of the disputants and consistently remind them, when needed, about why they are really in mediation: to resolve the problem in a way that is satisfactory to both.[14] Of foundational importance are the mediator’s own skills: they need orientation abilities, values and beliefs that will help them to guide the proceedings with sympathy, with compassion, with justice, with trust, with tolerance, and with respect for self and others. They must also be perceptive, ever ready and vigilant for duplicitous behavior or emotional language, and able to both recognize clients’ emotions and help them manage them. Creative thinking is essential too, in order to help disputants overcome their problems by finding innovative solutions. Finally, critical thinking is essential, so that they can see through irrationality on the part of clients, or areas where there is a communication block that can be easily resolved.[15]

Drawing on insights from the literature on resolving ethnic conflicts and other inter-communal violence, in practically any such situation there will always be “spoilers”, quarrelsome and bellicose individuals who are determined to derail peace. In workplace disputes, the analogy would be with particular workers, and perhaps particular members of management as well, who are loathe to compromise and insist on staying the course in order to obtain as much advantage as they can for themselves and their party, even at the cost of prolonging the conflict. This may be as true in some workplace disputes as it was for UNITA and MPLA in Angola in the 1990s. A skilled mediator helps other individuals in both factions to reject the hard-liners’ appeals for continued strife, and see the sense of making an equitable compromise.[16]

 II-C). The Strategic Importance of Common Ground and Relationships

For the above reasons, the model must be geared towards finding common ground: things that both parties can agree on, values that they share, etc. For example, management and the workforce both want the company to be successful: without a successful company, they will all be out of jobs. And generally speaking, both parents in a child custody dispute really do want their child(ren) to be happy and well-cared for, and this is something that can unite them even in the midst of great conflict.[17] Of course, it isn’t always that simple for many couples in child custody cases: in many cases there is mistrust and deep wounds on the part of one or both parties. In such cases, it may be necessary for the mediator to take the time with both parties to unpack the negative emotional baggage, a process that is often painful and drawn-out, but necessary. In high-conflict situations especially, one must do this in order to distinguish between overt conflict and covert conflict, the conflict that ‘lies beneath’, so to speak. By helping the parties to understand the often very complex and multivariate underpinnings of these issues, the mediator can help them to overcome them and achieve a successful outcome.[18]

In other words, the relationship between the two parties matters a great deal, and based on what it was that drove them to mediation, as well as the ways in which they are used to interacting with each other, they may be easier or harder to deal with. For this reason it is important to consider cues and signs, both intrapersonal and interpersonal, chief among them cues pertaining to emotions—especially anger. Anger is often a barrier to settlement of disputes, and mediators should be especially on guard for emotional language, blame-laying, and insults and other kinds of venting. Clenched fists, furrowed brows, flushed faces, sometimes involuntary tics—all of these are signs of anger, of the kind that can indeed derail mediation in the worst possible way, and I myself exhibit many of these. However, there are some situations in which anger does not harm proceedings, and may even help them: in some cases, one party might use anger constructively, to show that they will not back down on a given issue. If they do not express this in a harmful way, and if the other party is reasonably receptive, it may actually help to advance the discussion.[19]

II-D). The Impact of Emotion

Overall, emotions have a number of impacts, and it is well worth the while to take a brief digression to examine them. Firstly, emotions exert physiological effects on us, notably an increased heart rate (thus the crimsoned faces some people exhibit in anger), and increased sweat. These symptoms are also exhibited in response to passion. Secondly, emotions influence cognition, which is why it is important to pay attention to language: an angry client may or may not lose their temper, but they almost certainly will use angry, negative language (or, depending on their anger style, cold, clipped language). From this comes the behaviors that emotions influence: responses to anger range from hurting others and destroying things to going outside for some fresh air, or going off and meditating. By understanding this, the negotiator will go far in ascertaining clients’ emotional states.[20]

Mediators can advance discussions by encouraging clients to vent one particular kind of anger, but not others: “pure anger that is unalloyed with other emotions.”[21] The distinction is important because most anger, at least in mediation contexts, is not pure anger: it is anger mixed with other feelings, which if expressed concomitantly may seriously harm discussions. It is absolutely vital that the mediator pays attention to cues that may indicate the expression of something other than pure anger, such as the types of language and bodily expressions discussed above. [22]

And, too, it is of the most foundational importance to realize that many counter-productive emotions and displays of anger are motivated by defensive concerns. One must understand that a major cause of anger is a desire to save face by presenting one’s self as someone who will not back down when they are at risk in some way. The significance of this is that it establishes that much of this behavior is defensive: individuals do not wish to be taken advantage of, and so they engage in a certain amount of face-saving behavior (refusing to compromise, displaying anger, even engaging in altercations and starting fights) as a form of deterrent against being taken advantage of. By helping both disputants to recognize such behavior and reject it in favor of more positive, productive means of resolving disputes, the mediator will have achieved much. The key thing to understand is the motivation: once one understands that, it is usually a simple enough matter to help the disputants understand how they are engaged in a counter-productive emotional script, and how they can achieve better working relations.[23]

Conclusion: Mediation can be a tricky thing, which is why the above model should only ever be used by a trained professional. The literature reveals the cardinal importance of procedural justice for resolving workplace and child custody disputes: this increases the disputants’ respective senses of ownership over the outcomes, giving them plenty of incentives to maintain it—usually. It is imperative that the process also address how the agreement is to be kept, in order to ensure a stable outcome that lasts. By picking up on intrapersonal and interpersonal cues, the mediator can keep the role of emotion in the negotiations a constructive and facilitative one, rather than a destructive one. Of foundational importance, the mediator can help both sides to understand key areas of common ground, areas where they can agree: these zones of convergence can indeed serve as the foundation for a truly efficacious agreement, one that will satisfy the demands of both parties and put an end to the dispute.

Bibliography 

Ashford, Jose B. and Roger L. Faith. “Testing models of justice and trust: A study of mediation in child dependency disputes.” Social Work Research 28, no. 1 (2004): 18-27, http://search.ebscohost.com/

Bercovitch, Jacob, and Leah Simpson. “International Mediation and the Question of Failed Peace Agreements: Improving Conflict Management and Implementation.” Peace & Change 35, no. 1 (2010), 73-75, doi: 10.1111/j.1468-0130.2009.00613.x

Boyhan, Patricia A. and Francesca J.T. Gerner. “Doing what it takes: A family dispute resolution case study using a multidisciplinary approach.” Journal of Family Studies 13, no. 2 (2007): 238-240, http://search.ebscohost.com/ ;

Caruana, Catherine. “Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law.” Family Matters, no. 85 (2010): 80-83. http://search.ebscohost.com/

Crawford, Donna. Conflict Resolution Education. Washington, D.C.: U.S. Department of Education, 1996.

Cropanzo, Russell, Jordan H. Stein, and Thierry Nadisic. Social Justice and the Experience of Emotion. New York: Routledge, 2011.

Doherty, Nora, and Marcelas Guyler. The Essential Guide to Workplace Mediation and Conflict Resolution. Philadelphia, PA: Kogan Page Ltd., 2008.

Friedman, Ray, et al. “The positive and negative effects of anger on dispute resolution: Evidence from electronically mediated disputes.” Journal of Applied Psychology 89, no. (2004): 369-376, doi: 10.1037/0021-9010.89.2.369\

Inoue, Akiomi et al. “Organizational justice, psychological distress, and work engagement in Japanese workers.” International Archives of Occupational and Environmental Health 83, no. 1 (2010): 29-38, doi: 10.1007/s00420-009-0485-7

Jacobs, Scott. “Finding Common Ground and Zones of Agreement: Two Models of Rationality for Conflict Resolution.” Conference Proceedings—National Communication Association/American Forensic Association (1989), 511-516, http://search.ebscohost.com/

Kitzmann, Katherine M. and Robert E. Emery. “Procedural justice and parents’ satisfaction in a field study of child custody dispute resolution.” Law and Human Behavior 17, no. 5 (1993): 550-563, doi: 10.1007/BF01045073

Ladd, Peter D. Relationships and Patterns of Conflict Resolution. Lanham, MD: University Press of America, 2007.

Lundberg, Danielle and Lawrie Moloney. “Being in the room: Family Dispute Resolution practitioners’ experience of high conflict family dispute resolution.” Journal of Family Studies 16, no. 3 (2010): 215-216, http://search.ebscohost.com/

Moffitt, Michael L., and Robert C. Bordone, eds. The Handbook of Dispute Resolution. San Francisco, CA: Jossey-Bass, 2005.

Morasso, Sara G. Argumentation in Dispute Mediation: A Reasonable Way to Handle Conflict. Philadelphia, PA: John Benjamins Publishing Co., 2011.

Poitras, Jean, and Aurelia Le Tareau. “Quantifying the quality of mediation agreements.” Negotiation & Conflict Management Research 2, no. 4 (2009): 363-380, doi: 10.1111/j.1750-4716.2009.00045.x

Poon, June M. “Distributive justice, procedural justice, affective commitment, and turnover intention: A mediation-moderation framework.” Journal of Applied Social Psychology 42, no. 6 (2012): 1505-1532. doi: 10.1111/j.1559-1816.2012.00910.x

Retzinger, Suzanne and Thomas Scheff. “Emotion, alienation, and narratives: Resolving intractable conflict.” Mediation Quarterly 18, no. 1 (2000): 68-93 http://search.ebscohost.com/

Ross, Marc H. “’Good-Enough’ isn’t so bad: Thinking about success and failure in ethnic conflict management.” Peace & Conflict 6, no. 1 (2000): 27-47, http://search.ebscohost.com/

Strasser, Freddie and Paul Randolph. Mediation: A Psychological Insight into Conflict Resolution. New York: Continuum, 2004.

Tedeschi, James T., Barry R. Schlenker, and Thomas V. Bonona. Conflict, Power & Games: The Experimental Study of Interpersonal Relations, 2^nd ed. Piscataway, NJ: Transaction Publishers, 2009.

Tyler, Tom. “Procedural justice, identity and deference to the law: What shapes rule-following in a period of transition?” Australian Journal of Psychology 61, no. 1 (2009): 32-39, doi: 10.1080/00049530802607639

Tyler, Tom, and Steven Blader. “The Group Engagement Model: Procedural Justice, Social Identity, and Cooperative Behavior.” Personality and Social Psychology Review 7, no. 4 (2003): 349-361, http://search.ebscohost.com/

 Yiu, Tak W., Sai O. Cheung, and Fung M. Mok. “Logistic likelihood of mediation outcomes.” Journal of Construction Engineering & Management 132, no. 10, 1026-1036, doi: 10.1061/(ASCE)0733-9364(2006)132:10(1026)

[1] Nora Doherty and Marcelas Guyler, The Essential Guide to Workplace Mediation and Conflict Resolution (Philadelphia, PA: Kogan Page Ltd., 2008), p. 8.

[2] Alison Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (San Francisco, CA: Jossey-Bass, 2002), pp. 117-118.

[3] Catherine Caruana, “Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law,” Family Matters, no. 85 (2010): 80-82, http://search.ebscohost.com/

[4] Jose B. Ashford and Roger L. Faith, “Testing models of justice and trust: A study of mediation in child dependency disputes,” Social Work Research 28, no. 1 (2004): 20, http://search.ebscohost.com/

[5] Ashford and Faith, “Testing models of justice and trust,” 23-25.

[6] Jean Poitras and Aurelia Le Tareau, “Quantifying the quality of mediation agreements,” Negotiation & Conflict Management Research 2, no. 4 (2009): 365-3, doi: 10.1111/j.1750-4716.2009.00045.x

[7] Tak W. Yiu, Sai O. Cheung, and Fung M. Mok, “Logistic likelihood of mediation outcomes,” Journal of Construction Engineering & Management 132, no. 10, 1031-1034, doi: 10.1061/(ASCE)0733-9364(2006)132:10(1026)

[8] Marc H. Ross, “’Good-Enough’ isn’t so bad: Thinking about success and failure in ethnic conflict management,” Peace & Conflict 6, no. 1 (2000): 29-32, http://search.ebscohost.com/

[9] June M. Poon, “Distributive justice, procedural justice, affective commitment, and turnover intention: A mediation-moderation framework,” Journal of Applied Social Psychology 42, no. 6 (2012): 1506, 1518, doi: 10.1111/j.1559-1816.2012.00910.x

[10] Akiomi Inoue et al., “Organizational justice, psychological distress, and work engagement in Japanese workers,” International Archives of Occupational and Environmental Health 83, no. 1 (2010): 33-34, doi: 10.1007/s00420-009-0485-7

[11] Tom Tyler and Steven Blader, “The Group Engagement Model: Procedural Justice, Social Identity, and Cooperative Behavior,” Personality and Social Psychology Review 7, no. 4 (2003): 350-353, http://search.ebscohost.com/

[12] Tom Tyler, “Procedural justice, identity and deference to the law: What shapes rule-following in a period of transition?” Australian Journal of Psychology 61, no. 1 (2009): 35-37, doi: 10.1080/00049530802607639

[13] Katherine M. Kitzmann and Robert E. Emery, “Procedural justice and parents’ satisfaction in a field study of child custody dispute resolution,” Law and Human Behavior 17, no. 5 (1993): 560-563, doi: 10.1007/BF01045073

[14] Freddie Strasser and Paul Randolph, Mediation: A Psychological Insight into Conflict Resolution (New York: Continuum, 2004), 26-27.

[15] Donna Crawford, Conflict Resolution Education (Washington, D.C.: U.S. Department of Education, 1996), 11-12.

[16] Jacob Bercovitch and Leah Simpson, “International Mediation and the Question of Failed Peace Agreements: Improving Conflict Management and Implementation,” Peace & Change 35, no. 1 (2010), 73-75, doi: 10.1111/j.1468-0130.2009.00613.x

[17] Scott Jacobs, “Finding Common Ground and Zones of Agreement: Two Models of Rationality for Conflict Resolution,” Conference Proceedings—National Communication Association/American Forensic Association (1989), 511-516, http://search.ebscohost.com/

[18] Patricia A. Boyhan and Francesca J.T. Gerner, “Doing what it takes: A family dispute resolution case study using a multidisciplinary approach,” Journal of Family Studies 13, no. 2 (2007): 238-240, http://search.ebscohost.com/ ; Danielle Lundberg and Lawrie Moloney, “Being in the room: Family Dispute Resolution practitioners’ experience of high conflict family dispute resolution,” Journal of Family Studies 16, no. 3 (2010): 215-216, http://search.ebscohost.com/

[19] Ray Friedman et al., “The positive and negative effects of anger on dispute resolution: Evidence from electronically mediated disputes,” Journal of Applied Psychology 89, no. (2004): 370-373, doi: 10.1037/0021-9010.89.2.369

[20] Michael L. Moffitt and Robert C. Bordone, eds., The Handbook of Dispute Resolution (San Francisco, CA: Jossey-Bass, 2005), 69-70.

[21] Suzanne Retzinger and Thomas Scheff, “Emotion, alienation, and narratives: Resolving intractable conflict,” Mediation Quarterly 18, no. 1 (2000): 72, http://search.ebscohost.com/

[22] Retzinger and Scheff, “Emotion, alienation, and narratives,” 72-73.

[23] Russell Cropanzo, Jordan H. Stein, and Thierry Nadisic, Social Justice and the Experience of Emotion (New York: Routledge, 2011), 79-81; Peter D. Ladd, Relationships and Patterns of Conflict Resolution (Lanham, MD: University Press of America, 2007), 122; Sara G. Morasso, Argumentation in Dispute Mediation: A Reasonable Way to Handle Conflict (Philadelphia, PA: John Benjamins Publishing Co., 2011), 259; James T. Tedeschi, Barry R. Schlenker, and Thomas V. Bonona, Conflict, Power & Games: The Experimental Study of Interpersonal Relations, 2^nd ed. (Piscataway, NJ: Transaction Publishers, 2009), 139-140.