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Mediation and Dispute Resolution
There are a number of ways to approach conflict management and resolution, which range from least to most coercive. Conflicts may be avoided, talked out, negotiated, arbitrated, adjudicated, resolved by legislation, by political action, or by violent force.
Moore is concerned primarily with the mediated approach to conflict management. Parties who cannot negotiate together effectively may bring a mediator to facilitate the negotiation process. Mediation is defined as "the intervention in a standard negotiation or conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute."[p. 15] Within this definition mediators may play a number of different roles, and may enter conflicts at a variety of different levels of development or intensity. Moore reviews the history of mediation and its contemporary practice. He describes very briefly how mediation has been practiced in various non-Western cultures.
Moore describes three general mediator roles: social network mediators, authoritative mediators, and independent mediators. Social network mediators are usually respected members of the community who have existing relationships with the parties. While not neutral, they are perceived as being fair. Social network mediators are generally concerned with maintaining stable long-term social relations. Generally they remain involved with the parties after the negotiations, and will participate in implementing agreements. They are able to draw on social or peer pressure to enforce agreements. Authoritative mediators are individuals who are in some position of authority over the parties, such as a manager or director. There are a number of differences among authoritative mediators. They may be neutral as to the outcome, or may have vested interests in achieving a particular settlement. Such mediators are generally able to use their authority to enforce agreements. Independent mediators are best defined by their neutrality and impartiality. Generally they have no prior relationship to the parties, and are hired by the joint decision of the parties. Independent mediators seek to help the parties develop voluntary, mutually acceptable solutions. The independent mediator model is most commonly used in western countries, however it is increasingly being used by other cultures as well.
Mediators of all types draw upon two broad classes of tactics: general tactics and contingent tactics. General tactics are kinds of interventions that mediators use in almost all conflicts. They include tactics for entering the dispute, analyzing the conflict, planning the mediation, identifying parties' interests, facilitating parties' negotiations and helping them generate proposals, drafting agreements and developing implementation plans. A key mediator activity is to identify the causes of the conflict, and to build a hypothesis as to how the conflict might be resolved. Contingent tactics are those used to handle the special problems which can arise during negotiations. Contingent tactics may be used to address such problems as value clashes, power imbalances, destructive patterns of interaction, communication problems, strong emotions, misinformation and differing analyses.
There are a number of factors which influence choice of mediation strategies. They include the stage of the conflict and the parties' abilities to resolve their dispute, the balance of power between the parties, which negotiation procedures are being used, how complex the issues are, and what the parties expect from the mediator. In crafting a mediation strategy the mediator must decide on the level, target and focus of intervention. The mediator decides whether to concentrate on the level of general problem-solving, or on a specific issue. She decides who she should be directing her activities toward. She also decides whether to focus on psychological, procedural, or substantive aspects of the conflict.
Before Negotiations Begin
Mediators may enter disputes at the request of the parties, or by being appointed by an authoritative third-party. The mediator has four main tasks at this stage. First, she must build credibility with the disputants. The parties must have confidence in the mediator personally, the mediator's parent organization, and in the mediation process itself. Second, the mediator must create a relatively close, comfortable relationship with the parties. Third, the parties must be educated about the mediation process, since it is ultimately the parties themselves who must resolve their dispute. This education also helps build confidence in the mediation process. Finally, after these steps have been taken, the mediator must secure the parties' commitment to mediation. This commitment may range from an informal oral agreement to a formal written contract, depending upon the situation.
Mediators may initiate contact with the parties in person or by phone or letter. Where there is some barrier to contacting parties it may be helpful to have a secondary party introduce the mediator. The timing of a mediator's entry depends upon what type of intervention they plan to make. Interventions to collect data on the conflict can be undertaken at almost any time. The proper timing of problem solving interventions is disputed. Late intervention may allow the issues to develop more fully, and the disputants to have exhausted their desire and ability to continue the conflict. Early intervention may produce more cooperative, less coercive settlements and better relationships.
After the mediator has entered the dispute, the mediator and the parties must work together to decide what mediation strategy is best suited to their situation. Moore identifies six ways in which the mediator may assist the parties in choosing a mediation strategy. First, the mediator can help the parties to identify the interests at stake in the conflict, and to clarify their respective goals. Second they can help the parties explore the range of possible, probable and acceptable outcomes. Outcomes may benefit both parties, cost both parties, or benefit one at the other's expense. Third, the mediator should describe the basic types of strategies for resolving disputes. The basic strategies are competition, avoidance, accommodation, negotiated compromise, and interest-based negotiation. Fourth, the mediator can help the parties to clarify the criteria that will guide their choice of strategies. Parties' choice of strategies will be shaped by time constraints, the nature of their current or desired relationship with the other party, their power, and by the parties' internal dynamics. Fifth, the mediator can assist the parties in weighing their options and reaching a decision. Finally, mediators can help the parties coordinate their strategies into a coherent, consistent approach to the dispute. Usually mediators and parties work together to analyze the conflict. Conflict analysis begins with data collection directed by the mediator. Moore identifies six mediator activities with contribute to effective data collection. First, the mediator supplies a basic framework for understanding conflicts. Second, the mediator decides which data collection methods to use. Data collection methods available include direct observations, consultations with secondary sources such as maps or financial records, and interviews with the involved parties. Third, the mediator may delegate the actual data collection work. Interviews, in particular, will be more informative if the party identifies with the interviewer. Fourth, these data collection activities should be coordinated within a larger data collection strategy. This strategy should include an approach to identifying all the relevant parties to the conflict, a plan for the order and timing of the interviews, and a plan for building rapport with the parties. Fifth, the mediator should choose an interview approach. Interviews may be focused or unfocused, structured or non- structured, individual or joint. And finally the mediator must decide what sort of questions to ask in the interviews, and must exercise good listening skills during the interviews.
After the conflict data has been collected, it must be used to develop an interpretation of the dispute. "The mediator's central task during this stage is to integrate and understand the elements of the dispute: people, dynamics, issues, and interests."[p. 132] Timelines and case studies are two ways of integrating the data. Discrepant data must be discreetly verified. Mediators can begin to develop an interpretation of the conflict be separating unrealistic causes of the conflict from realistic causes. Unrealistic causes include stereotypes, miscommunication, confusion over the facts, and inappropriate competitive behavior. Realistic causes include competing interests, differing values, structural constraints, and disagreement over the collection or importance of data. In complex disputes the mediator may choose to share her analysis with the parties.
Having secured the parties commitment and performed the conflict analysis, the mediator's next task is to develop a detailed mediation plan. "A mediation plan is a sequence of procedural steps initiated by the intervenor that will assist negotiators in exploring and reaching an agreement."[p. 141] In most cases the mediator and the parties cooperate in developing a plan. A mediation plan should specify who will participate in the negotiations, whether outside- parties may be present, where negotiations will be held, and the physical arrangements of the negotiation space. The plan will also anticipate whether positional or interest-based negotiation procedures will be used, what interests and issues are most important to the parties, what the parties' psychological conditions are, what deadlocks might arise and how they could be dealt with. The plan will establish ground rules for appropriate behavior in negotiations and should include a tentative agenda for the first meeting. Finally, the mediation plan includes a plan for educating the parties about mediation and negotiation processes.
Throughout the negotiation process, mediators work to build trust and foster cooperation. This activity is called conciliation. "Conciliation is essentially an applied psychological tactic aimed at correcting perceptions, reducing unreasonable fears, and improving communication to an extent that permits reasonable discussion to take place and, in fact, makes rational bargaining possible."[p. 161] Moore describes five basic problems and the conciliation tactics which address those problems. Strong emotions can block agreements and inhibit the development of positive relationships. Usually mediators will allow the parties to vent their emotions in a controlled, safe setting. Venting may be inappropriate in conflicts with a history of violence or emotional escalation. In such cases mediators structure the negotiations to suppress emotions, and may even resort to a kind of shuttle diplomacy. Stereotypes and misperceptions can be addressed by a four-step process. The mediator identifies the parties' perceptions, assesses their accuracy, assesses whether they help or hinder negotiations, and then helps the parties revise their inaccurate or negative perceptions.