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Party-Directed Mediation. Another Step Towards Non-Directive Mediation

by Gregorio Billikopf
April 2015

Originally printed in revistademediacion.com, the Journal from Spain, Revista de Mediación

Gregorio Billikopf

Almost twenty-five years ago I had the opportunity to mediate for the first time. Like many mediators of that era, I had no formal training. I was just a young University of California academic. Perhaps that same lack of knowledge led me to discover a controversial methodology particularly suited for dealing with deep-seated interpersonal conflict.

I developed two models, Party-Directed Mediation (PDM) and the Negotiated Performance Appraisal (NPA). The controversial techniques of the PDM are (1) pre-caucuses (or pre-mediation); and (2) having the mediator sit four meters from the parties during the joint session.

Out of the PDM, a second model was born, for dealing with hierarchical conflict. While these methods were used principally in Chilean and Californian agriculture at first, interest has grown outside of agribusiness and throughout the world.

It is worth mentioning that PDM and the NPA seek to incorporate some of the best approaches from other models. But our focus here will be mostly on the mechanics of these models.

Even where conflicts are supposedly not of an interpersonal nature, we see time and again how interpersonal components often get in the way of dispute resolution.

Pre-caucus. Warning against caucusing and pre-caucusing
In the historical literature on mediation (Billikopf, 2002b) we see a fear of both caucusing and pre-caucusing. Concerns include (partial list) (1) collusion between one of the parties and the mediator; (2) lack of honesty on the part of the parties in the absence of the counterpart; (3) mediator’s attempts to be more directive; and (4) mediators who violate confidentiality.

Once the joint session has begun, additional concerns that revolve around caucusing include: (5) an interruption of positive movement. Rather than discard all such worries as myths from a bygone era, we recognize that these fears are based on reality and can be especially worrisome under a more directive mediation.

There is no such thing as a completely impartial neutral; at least not in the deeply held personal views held by the third- party. As one person recently told me, «I am a mere human.» Issues of transference and countertransference play a role in mediator’s preference for one or another perspective. What is essential, then, is that despite mediator preferences and prejudices, the parties are able to make decisions without mediator interference.

For convenience, we will divide mediation styles into three simple categories, but cutting the orange in slices from a different angle: (1) traditional mediation; (2) less directive mediation; and (3) Party-Directed Mediation (PDM). Once we have looked at the differences in a very general way, we will look at a specific use of the MDI for dealing with hierarchical conflicts, in the way of a companion model.

Traditional mediation

In traditional mediation the neutral meets with all the affec- ted parties at once, without the use of pre-caucuses, but many times with the use of caucusing after the joint session has begun. Parties often lean on the mediator to find satisfactory solutions. The mediator may sometimes look a bit more like a quasi-arbiter.

Parties will often seat in a triangle. The mediator becomes the head of the triangle, with the other parties facing the neutral. One party is asked to speak while the other takes notes and then the roles are reversed. When there are deep-seated interpersonal issues, such an approach often results in outbursts of contention between the individuals. When this happens, the parties feel the mediator has failed to keep them safe. There are still numerous mediators who use the traditional approach, even when there are interpersonal issues involved.

Decades ago, pre-caucusing was considered taboo in many circles. Yet interestingly, 95% of individuals attracted to mediation today prefer the idea of starting with a pre-caucus.

Less directive mediation

Less directive mediators, such as transformative mediators, pay more attention to the interaction between the parties than the resolution of the conflict (Bush and Folger, 1996). Often, such mediators use active listening throughout the process (in contrast to empathic listening). They may also use pre-caucuses to provide negotiation coaching. Others use caucusing, after the joint session has begun, for the same purpose. Among the first proponents of the pre-caucus are Weeks (1992), Umbreit (1995), Volkema (1988), Winslade and Monk (2000), and Billikopf (2002b).

Once in a joint session, the parties either use the triangle seating approach described above, or have the parties sit facing each other. Others progress from having the parties look at, and address, the mediator to looking and addressing each other. Either way, the seating arrangement, including the proximity of the mediator, still gives the message that the process revolves around the mediator’s approval.

I find it particularly interesting that among some of the early proponents of pre-caucus (Winsladeand Monk, 2000), as well as those who use caucusing in a similar way (Bush and Folger, 1994), the parties address the mediator rather than their counterpart. In other words, they fail to take full advan- tage of their non-directive philosophy.

Party-Directed Mediation (PDM)

PDM always uses pre-caucus, wherein the mediator meets separately with each party before the joint session. Much like the less directive mediation approach, pre-caucusing works both as an opportunity for parties to vent issues and as a time to provide negotiation coaching. And just as in the less directive approach, the mediator plays an active role in the pre-caucus coaching but not by providing solutions. Rather than employing active listening, mediators tend to use empathic listening.

Once in the joint session the parties face each other and address each other while the mediator sits four meters away.

Pre-caucus

Pre-caucus is divided into two principal phases: empathic listening and additional preparation for the joint session.

Empathic Listening

While most mediators have been exposed to active listening (Rogers and Farson, 1987), few have been trained in empathic listening (Rogers, 1951). In the latter, third-parties listen without interrupting or asking questions or making observations. The art of empathic listening lies in showing great interest without guiding the conversation. When listened to in such a way, parties tend to slow down their speech and pause frequently (Rogers, 1951; Billikopf, 2014a; Billikopf, 2014b). The parties who are thus listened to begin to listen to themselves and even see how they may have contributed to the conflict.

Additional preparation

After a party feels listened to, a list of topics to be discussed in the joint session is developed. The mediator shares nego- tiation techniques with the parties and also gives them the opportunity to role play. Emotional leakage in the role plays helps both the mediator and the parties realize that additional coaching or venting may be needed. Through the pre- caucus, the parties are prepared to dialogue in the joint session without getting defensive.

Joint session

Mechanical aspects of the joint session

On the first day of a recent seminar I placed two chairs in the room, as if two parties would be sitting facing each other. Then I placed the third chair, belonging to the mediator, four meters away. «What is the message given to the parties?» I asked. One participant immediately answered, «The parties will have to look for a resolution without leaning on the me- diator.» Precisely! As long as the parties believe they are pre- senting a case for the mediator to favor, it will be difficult for them to find a mediated resolution.

While pre-caucuses may lend themselves to abuse, when the parties negotiate directly with each other, with minimal neutral interference, these concerns are greatly minimized.

The role of the mediator during a joint session

During a joint session the mediator, if the parties have been sufficiently prepared, will simply: (1) make sure all the points that needed to be discussed are addressed; (2) question so- lutions that may not be sustainable, if needed; (3) underscore successes; and (4) only interfere with caution in order to help the parties with communication problems. It is possible that the mediator, as has happened to me, ends up being present only for moral support.

Negotiated Performance Appraisal (NPA)

NPA is a model based on PDM, which is particularly useful for dealing with hierarchical conflicts, such as those between a supervisor and a subordinate. Just as in PDM, there are pre- caucuses and a joint session. The facilitator (when there is no conflict and the process is used for improving communication) or the mediator prepares the parties for engaging in an effective dialogue in a future joint session.

Supervisors and subordinates are both weary of media- tion. The latter fear retaliation; the former a loss of authority. NPA reduces both of these challenges because it uses a per- formance-based format. Both parties make some lists based on three key questions (all focused on the subordinate’s per- formance): (1) where do you excel? (2) Where have you im- proved recently? And, (3) where can you still improve? There is a fourth question to be asked later. The supervisor will ask the subordinate something like, «What can I do differently so you can thrive in your job?»

The supervisor directs the questions and the process, and thus does not feel a loss of authority. Taking the time to truly celebrate the subordinate’s successes is vital. Armed with this positive experience, the subordinate is ready to move to the more difficult questions.

The subordinate arrives at the joint session not only having noted areas of needed improvement and, just as important, will also have developed a detailed plan on how to make those improvements. This approach reduces defensiveness. By the time the fourth question is asked, the subordinate is willing and ready to truly answer it, rather than give it lip service. Just as in the PDM process, the mediator interferes minimally in the joint session because most of the hard work has already taken place during the pre-caucus.

Conclusions

My experience has shown that empathic listening softens the parties and prepares them for a positive dialogue during the joint session. Individuals begin to see the humanity in each other once again. When we add the negotiation tools to the empathic listening, the parties are capable of handling extremely difficult situations of an interpersonal nature.

Today, I feel the need to be less tentative about recom- mending pre-caucus, as long as the mediation is not directive in nature. I believe that pre-caucus has the most to offer when it is the mediator who conducts it. Nevertheless, in situations when mediators continue to be philosophically opposed to pre-caucus, may I suggest that an outside skilled empathic listener and coach be utilized to play this role. I suspect it will not have as great an impact, but it is still likely to reduce the need for caucusing after the joint session has begun, and it is also likely to reduce contention in the joint session. With some specific exceptions, I believe that pre-caucusing should be the rule rather than the exception. If it turns out not to be needed, little harm will be done and the pre-caucuses may end up being quite short.

Book download

I invite the reader to download, at no cost, the third edition of Party-Directed Mediation: Facilitating Dialogue Between Individuals (2014) (http://bit.ly/1xoHeTb). The book expands on the proper use of these models, as well as on acquiring empathic listening and interpersonal negotiation skills.

Endnotes

– Billikopf, G. (2002a). Administración laboral agrícola: Cultivando la productividad del personal. Santiago, Chile: Fundación Chile, Universidad de California yUniversidad de Chile. 6

– Billikopf, G. (2002b). Contributions of Caucusing and Pre-Cau- cusing to Mediation. Group Facilitation: A Research and Facili- tations Journal, 4, 3-11. 27

– Billikopf, G. (2014a). Mediación interpersonal: Facilitando el díalogo entre las partes (4a ed.). Modesto, CA: Universidad de California –ANR.

– Billikopf, G. (2014b). Party-Directed Mediation: Facilitating Dia- logue Between Individuals (3rd ed.). Modesto, CA: University of California –ANR.

– Blades, J. (1984). Mediation: an old art revitalized. Mediation Quarterly, 1984(3), 59-98. DOI: 10.1002/crq.39019840306

– Bush, R. A. B. y Folger, J. P. (1996). La promesa de la mediación. Cómo afrontar el conflicto a través del fortalecimiento y el re- conocimiento de los otros. Barcelona: Granica.

– Emery, R. E. y Jackson, J. A. (1989). The Charlottesville media- tion project: Mediated and litigated child custody disputes. Me- diation Quarterly, 1989(24), 3-18. DOI: 10.1002/crq.39019892403

– Engram, P. y Markowitz, J. R. (1985). Ethical issues in mediation: divorce and labor compared. Mediation Quarterly, 1985(8), 19- 32. DOI: 10.1002/crq.39019850805

– Freund, J. C. (2012). Anatomy of a mediation: A dealmaker’s distinctive approach to resolving dollar disputes. New York: Practising Law Institute. 6

– Folger, J. P., Poole, M. S. y Stutman, R. K. (1997). Working Through Conflict: Strategies for Relationships, Groups, and Or- ganizations (3rd ed.). New York, NY: Longman.

– Frenkel, D. N. y Stark, J. H. (2012). ThePractice of Mediation: A Video Integrated Text, (2nd Ed., Aspen Coursebook). Nueva York: Aspen Publishers.

– Hobbs, K. S. (1999). Attention attorneys! How to achieve the best results in mediation. Dispute Resolution Journal, 54(4), 43-47.

– Keltner, J. (1965). Communications and the labor-management mediation process: Some aspects and hypotheses. A Journal of Communication, 15, 64-80.

– Kressel, K. (1994). Frances Butler: Questions that lead to answers in child custody mediation. En D. M. Kolb, (Ed.). When Talk Works; Profiles of Mediators. San Francisco, CA: Jossey- Bass Publishers.

–  Lewicki, R. J., Litterer, J. A., Minton, J. W. y Saunders, D. M. (1994). Negotiation (2nd Ed.). Burr Ridge, Illinois: IrwinPress.

–  Moore, C. W. (1987). The caucus: private meetings that promote settlement. Mediation Quarterly, 1987(16), 87-101. DOI: 10.1002/crq.39019871611

–  Moore, C. W. (1996): The Mediation Process. Practical Strategies for Resolving Conflict (2nd ed.). San Francisco, CA: Jossey-Bass Inc., Publishers. [traducción castellana de (1997). El proceso de mediación, Barcelona: Granica].

–  Pruitt, D. G., Fry, W. R., Castrianno, L., Zubek, J., Welton, G. L., McGillicuddy, N. B. e Ippolito, C. (1989). En M. F. Azfalur (Ed.), Ch. 15. The process of mediation: caucusiing, control, and pro- blem solving. New York, NY: Praeger Publishers.

–  Rogers, C. R. y Farson, R. E. (1987). Active listening. En R. G. Newman, M. A. Danzinger, M. Cohen (Ed.), Communicating in business today. Recuperado de http://bit.ly/1wSj9FE

–  Rogers, C. R. (1951). Client-Centered Therapy: Its Current Prac- tice, Implications and Theory. Boston: Houghton Mifflin.

–  Umbreit, M. (1995). Mediation of Criminal Conflict: An As- sessment of Programs in Four Canadian Provinces. University of Minnesota, St. Paul: Center for Restorative Justice and Me- diation.

–  Volkema, R. J. (1988). The mediator as face manager. Mediation Quarterly (22), 5-14.

–  Weeks, D. (1992). The eight essential steps to conflict resolu- tion: Preserving relationships at work, at home, and in the com- munity. New York: Tarcher/Putnam.

–  Welton, G. L., Pruitt, D. G. y McGillicuddy, N. B. (1988). The Role of Caucusing in Community Mediation. Journal of Conflict Re- solution, 32(1), 181-201.

–  Winslade, J. y Monk, G. (2000). Narrative Mediation. A New Ap- proach to Conflict Resolution. San Francisco, CA: Jossey-Bass Inc., Publishers.

Biography


Gregorio Billikopf is an emeritus Labor Management Farm Advisor with the University of California and a visiting professor of the Universidad de Chile. His research and teaching efforts have focused on organizational productivity (selection, compensation, performance appraisal, discipline and termination, supervision) and interpersonal relations (interpersonal negotiation, conflict resolution, and mediation). 



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