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INTRODUCTION—CONFLICT MEDIATION AS A FANCIFUL IDEA OR REALISTIC OPTION
The real test of the acceptance of professional mediation in our society will be the sustained and regular use of those services by a substantial number of people to manage conflicts that arise in their personal and business lives in the private market.
The use of mediation in the public sector, exampled by the rapid proliferation of court programs and legislation that encourage and legitimate mediation, is helpful but cannot be taken as competent evidence that people in general have accepted negotiation as a viable means of conflict management. Even so, many mediators are waiting for or actively lobbying legislatures or courts to enact or implement mediation programs in the belief that they will deliver mediation work to their doorstep; however, a steady stream of mediation business has not materialized for many mediators. In fact, ironically, some court sponsored mediation programs have engendered an unintended consequence—am increased resistance to mediation, especially from those people who have felt coerced to participate. Anecdotal reports hint that an increasing number of people are voicing resentment at being forced to mediate.3 In any event, the private demand for mediation services remains underwhelming in most of the country with only a few areas and contexts being of modest exception. For the most part, people in our culture remain leery of negotiation as a means of settling disputes.
Some suggest mediation is underutilized because the marketing of those services has been minimal. While that may hold some truth, it could also be that the marketing message of many mediators is ineffectual. Mediation is often portrayed as the "kinder-gentler" alternative. The common operating assumption is that if people knew about the mediation process and how it could save time and expense and give them greater control over their lives, that consumers as thoughtful and rational people would prefer mediation over the more traditional process—reliance on lawyers, judges, and other experts—for the settlement of disputes. The presumption is that consumers, faced with conflicts, will apply a cost/benefit analysis and act out of their self interest to choose the most efficient means of dispute resolution. Some do. Many do not.
It should come as no surprise that logic alone does not necessarily sell even the best product. If people were to act based purely on objective data, none would smoke, all would wear seatbelts in their cars, none would be entrepreneurs, many would not marry, and not many would have children. Few purchases, whether it is a car, a house, or a doctor’s, lawyer’s or mediator’s services are made solely on a rational basis. A strictly rational marketing approach often fails to effectively reach many prospective consumers.
Marketing experts have long appreciated the importance of taking into account human nature and emotion in sales and advertisement. A significant part of any promotional strategy is deciphering how the service/product enhances consumer self image or alleviates fears and insecurities. Choosing to mediate a dispute remains for many, a non-traditional, untested and risky business. When faced with conflict, the emotion many experience is fear, specifically, their fear of being taken advantage of or being played for a fool if they negotiate for themselves. The rational reasons to mediate do not easily overcome that overriding fear and an effective marketing message must address that underlying emotion directly.
Beyond just selling a product however, marketing strategy reflects how mediation is professionally understood and practiced. Currently, many mediators view their work as a thoughtful, humanistic enterprise intended to help others resolve conflict; their process relies on trust and good will. Some well-intentioned practitioners even find marketing distasteful or unseemly. However, while human beings have the capacity to act rationally and collaboratively, they don’t necessarily start there when faced with a conflict. The resistance to negotiation and mediation are long standing and deeply seated in our culture.
There are two significant sources of resistance to mediation. First, the idea of mediation or negotiation of a conflict is a difficult one for many people to accept, especially in our culture where there is a strongly ingrained sense of being right and a belief that the truth will prevail. Case in point: John Wayne, a cultural icon, who never negotiated in any of his many and varied movie roles. He remains a hero for many people and professionals alike, who have taken from his modeling the belief that to negotiate is to compromise, "give-in," or even sell-out your principles. As a general rule, Americans dislike negotiation; bargaining is thought to be an unseemly activity. Many prefer to pay a set price for a Saturn than dicker over the purchase of a car.6 Note that the resistance to mediation follows directly from the resistance to negotiation; mediation is merely a negotiation between three (or more) people. The mediator essentially negotiates his or her authority with each of the participants. For all intents and purposes, the terms "negotiation" and "mediation" are interchangeable, mediation being only a more formalized, third party facilitated negotiation process.
To consider mediation requires a break with traditional thinking patterns as a means of managing conflict. Mediation, like negotiation, requires that people take responsibility for their own decisions. Many people are afraid, or simply do not want that responsibility. They prefer to believe, or are conditioned to think that professionals—lawyers, judges, doctors, therapists, etc.— know more and are better able to make decisions for them.6
There has, however, been some breakdown of this resistance, albeit slowly. People are becoming more aware that conflicts are complex and that there are not simple, formulaic right answers. As well, people are increasingly cautious, skeptical and critical of professional services, advice and directives.7 This is reflected in the increased use and availability of alternative sources of information, products and services in both health care and law. The Internet is, no doubt, a significant contributor to this dynamic.
The second source of resistance is more troublesome because mediators themselves often bear responsibility. Mediation is often presented in an overly simplistic manner that makes it all the more difficult for prospective consumers to take seriously. Mediation is described in misleading and Pollyannaish terms, such as: "a win/win process," or as "a collaborative problem solving process." The implicit suggestion is that all parties will be satisfied with the outcome, respect each other or even be friends. Many mediators see themselves as peacemakers and mediation as a healing or "transformative" process.10 While that might occur on occasion, it is by no means the rule and in any case not the purpose of mediation.
There is a still greater risk: the expectations of the mediation process are, by those simplistic descriptions, set unrealistically high and in many cases unobtainable. The terms belie a quasi-utopian vision that conflicts can be, not just managed, but finally and completely resolved. The result may be the increased likelihood of failure, which in turn can generate even greater resistance to mediation. Many parties already do not consider mediation because they believe the process requires a level of trust, reasonableness and goodwill that they have predetermined the opposing party lacks. Common refrains heard from consumers in ruling out mediation are: "(s)he is not trustworthy" or "I’m reasonable, but (s)he is not." The risk is exacerbated by the presentation of the mediation process in fanciful and idyllic terms.
Countering this resistance will require a shift in the thinking of mediators from a soft, idealized approach to conflict management to a more rigorous, strategic approach. To encourage the acceptance of mediation in the real world, it must pass the test of being cost effective, efficient and, most important of all, be safe. Mediation cannot be limited to those rarefied situations that rely and depend on all parties being reasonable, rational, acting in good faith, trusting or even trustworthy. If mediation services come to be viewed as applicable only to those matters where all parties concerned exhibit a collaborative, cooperative and humanistic demeanor at the same time, then mediation might as well await the simultaneous alignment of the stars and planets. The number of available cases susceptible to mediation will be reduced to a fraction of 1 percent. To flourish, the mediation process must be recast as good business that need not rely on trust or good will. Mediators must work in the real world, not in an idealized world of their own concoction.
THE SOURCES AND RATIONALE FOR GUERILLA MEDIATION
For mediation to work in the real conflicts of everyday life and be accepted as a viable mode of conflict management, then the approach taken must be active, strategic and calculated to constructively redirect the energy of the conflict. Human nature must be confronted directly. Instead of hoping for, or expecting people to be reasonable and thoughtful in the face of conflict, mediators must non-judgmentally accept their more base motivations for power and control as well. While messengers (Machiavelli, Kissinger, et al.) and methods might be criticized, the primary postulate of "realpolitik" is as applicable today as it has been throughout human history: "Those who desire peace should prepare for war." For mediators, the corollary axiom is "Those who pursue settlement should be prepared for conflict."16
Perhaps ironic, but not surprisingly, warfare strategies and tactics offer parallels in thinking and approach that are useful to a mediator. If conflict is understood as a lesser form of warfare that left unchecked can quickly escalate into open warfare, then the strategies and techniques effective in war may also be applicable in the negotiation of conflict. Only the purposes remain fundamentally different. Parties in conflict are not an enemy to be subdued or defeated; for the mediator, the purpose will be to carefully hone their thinking and skills to effectively manage the jungle of fears that seize many parties in conflict. The purpose of scrutinizing warfare practices is to strip out from that higher intensity conflict circumstance the thinking and strategies that are useful in order to apply them preemptively to avoid the escalation of conflict. What is common to both war and negotiation, and essential for success in either field of engagement is the recognition of the basic nature and behavior of the opponent or parties. In short, not to underestimate your opponent and to accept him on his own terms.
The term and concept of guerilla mediation are derived in some measure from the writing of Sun Tzu in The Art of War. He was a Chinese general who, by varying accounts, recorded his approach to warfare sometime between 500 and 300 B.C., and has been studied throughout the centuries up to and including the present. The principles he enunciated for the preparation for war apply to the management of conflict by other means, including negotiation and mediation. In fact, early on and often, Sun Tzu emphasizes that to fight and conquer is not "supreme excellence," that excellence is reserved for breaking the enemy’s resistance without fighting.
While there could be some quibbling over the exact meaning intended in the phrase "breaking the enemy’s resistance," the writing provides good instruction for the practicing mediator. It is neither cynical nor utopian, but instead is soberly realistic. He reflects an appreciation for the human rhythms of conflict: "in peace prepare for war, and in war prepare for peace." Not unlike the warrior, the mediator necessarily relies on strategic planning, tactics and maneuvering, observing the terrain of the conflict and the use of deception. Specifically, the analogy of mediation to guerilla warfare, as distinguished from more formalistic approaches to warfare, highlights the parallels between mediation and the non-traditional, more fluid and mobile form of combat that guerilla tactics conjure.17 The mediator, as does the guerilla fighter, must creatively use the resources immediately at hand and cannot depend on outside reinforcements or the traditional sources of authority (e.g., a court) to impose an outcome on conflicting parties.
The risk of using guerilla warfare as a metaphor for mediation is for some perilously close to encouraging the combative and argumentative nature of many disputes that most mediators want to disavow and distance themselves from. In fact, Deborah Tannen gives a searing critique of the language of our culture that encourages argument instead of dialogue in The Argument Culture.23 Yet, while her observations are valid and useful, they fail to sufficiently take into account the reality of our human circumstance. While human cooperation occurs and is evident to greater or lesser extent in many circumstances, war, violence and conflict are not likely to be extinguished any time soon by social engineering. The proof is in our history, biology and psychology.9, 17, 18, 21 The extent to which conflict and warfare can be mitigated or averted, may be a function of looking directly at what war and conflict are about, not merely pretending it could be otherwise.
George Lakoff and Mark Johnson, in Metaphors We Live By,20 observe that our ordinary conceptual system is metaphorical in nature; linguistics—our words and metaphors—are how we experience one thing in terms of another. In short, in disputes where argument is the preferred tactic, argument is a subspecies of war and while argument is not war, it is partially structured, understood, and performed in terms of war. A dispute is metaphorically structured as a battle; our language reflects this reality: one party "attacks" another’s position, a claim is considered "indefensible," or the comments are "on target." With the war metaphor so deeply ingrained, to pretend mediation is about peace and good will, when people are thinking in terms of war and distrust, disregards reality and is blatantly naive. The way to shift a dispute away from open warfare toward settlement is not to deny this reality and pray for peace but to strategically re-deploy and re-align our argument metaphors in ways that encourage constructive dialogue. The first step however, is for the mediator to relinquish the notion that parties in conflict can be expected to be reasonable and trusting. Managing conflict in a hostile terrain requires all of the wit and wile a mediator can muster.4
For most people faced with conflict, mediation is not their first thought or a term on the tip of their tongue; in fact, even settlement is a remote idea, especially at first. More likely than not, they are thinking "lawyer" and "fight." At the outset of a conflict, whether it is a personal or business dispute, the idea of settlement is an anathema, the mere suggestion of which is taken by them to be indicative of a lack of resolve in their position or a moral sellout of their principles.6 Most people faced with a dispute of almost any kind or level of seriousness, take it personally; while negotiation may make perfect sense and be in their self interest, they have an abiding fear of being played for a fool which trumps rational thinking. Parties in conflict can move to a place where they are able to consider more thoughtfully what decisions make sense and how they want to handle difficult situations, but not until they feel safe. That safety is not gained by merely being told to trust the mediation process, or the mediator, and certainly not the opposing party; the process is, at least at the outset, an abstraction, and trusting the other party is simply too far a reach. The first task of the mediator, then, is to manipulate the situation in such a way that the parties need not be required to trust, but to believe they will not be left at a disadvantage.
Notwithstanding this reality, many mediators insist on presenting and approaching disputes out of preset principles and belief in reasoned discussion and collaborative values. They proceed to carefully and methodically analyze the interests and needs of the parties and try to explain to the warring participants why their positions are not sensible or in their self interest.14 To read the literature in the field and listen to mediators discuss their craft, it is quickly apparent that many encourage and some even insist that the participants in mediation be reasonable, calm and collaborative if they are to negotiate successfully. Mediators often disregard that many people in conflict, when they are facing the loss of their dreams and life as they know it is disintegrating before their eyes, are not able to be calm and trusting on command. For a mediator to presume parties can or should be so is patronizing at best, and may be down right insulting. Few of us, mediators included, could maintain the equanimity seemingly required, when directly faced with a personal conflict.
The irony is that guerilla mediation, though the term may sound antagonistic and harsh, may well be more respectful of parties in conflict than the more conventional approaches to mediation. If there is an assertive sensibility to this approach, it is because the force and energy that most conflicting parties bring to a dispute must be met by a sufficient counter force if the energy is to be redirected constructively.
THE BASIC TENETS OF GUERILLA MEDIATION
There are three basic tenets of guerilla mediation: (1) respect for human nature as it is, not as we would like to believe it could be; (2) a realistic understanding and acceptance of conflict; and, (3) the effective use of strategic planning. Assuming the acceptance of these basic tenets, the techniques for implementation and the requisite skills necessary to accomplish the purpose of mediation, can be more readily clarified and applied. Notwithstanding the use of a warfare metaphor, the purpose of mediation and the role of the mediator remains to facilitate the substantially informed and consensual management of issues or conflicts by disputing parties.
Respect for human nature as it is, not as we would like to believe it could be.
Borrowing from the principles of evolutionary biology and psychology, the human animal has ingrained multiple kinds of behavior patterns that are sometimes contradictory. Generally, humans can be (1) altruistic, good natured, and trusting 13; (2) rational, analytical, and objective, acting more or less predictably out of self-interest 1; and, (3) fearful, spiteful, deceptive, manipulative, and seemingly irrational, acting in ways that appear to be anchored in pure emotion. 22
The most prevalent approaches to the mediation of conflict, the rationalistic and humanistic, are premised on the belief that parties in conflict are capable of being collaborative in the reasoned pursuit of an outcome that meets the needs of all parties. Humanists believe people are basically good at heart, rationalists believe they essentially operate out of predictable patterns of self interest. Short shrift is given to that part of human nature that is deceptive or manipulative and there is often attached an implicit negative moral judgment of that behavior. There is nothing wrong with the conventional approaches, they just do not systematically and holistically account for the whole repertoire of human behaviors that are commonly displayed in human interactions and especially in conflict.
To round out the field, there is the competitive/opportunistic approach to negotiation and mediation, that most people popularly tend to associate with negotiation. This style is typified by the used car dealer; it is essentially Machiavellian, and operates from the belief that humans are basically evil, self-interested, deceitful and manipulative, and bent on the accumulation of power and control. Once again, it is not so much that this approach is inaccurate as it is incomplete; it fails to account for the prospect that humans are able to cooperate and might be able to negotiate collaboratively. In short, none of the prevailing negotiation approaches take into account the whole range of the human behaviors, and to the extent they do not, the approach will be found lacking.
The naturalistic/pragmatic approach to negotiation is premised on the belief that humans operate out of the full range of ingrained human behavior patterns. This approach is not intended to dismiss or denigrate the prevailing approaches, but rather to provide an integrative framework that includes them all to offer a more comprehensive view of humans’ behavior in the negotiation of conflict. It is premised on the belief that to effectively negotiate issues or disputes, parties must be accorded the respect that they will be simultaneously desirous of reasoned communication and, at the same time, are likely to be fearful, deceptive and manipulative. Deception is a natural behavior common to all animal species, including humans, which has evolved over time to foster procreation and survival. It cannot be dismissed and should not be morally judged.21 The naturalistic approach does not presume to dictate how people should behave for negotiation to proceed and takes full account of all human behaviors.
The naturalistic approach to negotiation is well suited to guerilla mediation, reflecting the same views of human nature and conflict. Thus, while communication and empathy between parties are necessary and important, and the reasoned analytical discussion of issues and options are helpful, both approaches are incomplete in themselves. The guerilla mediator, in sizing up the conflict terrain, does not rely solely upon reason, trust and good will to manage a dispute; he or she may well have to employ constructive forms of deception to accommodate and counter the anticipated fears and resulting manipulations of the parties. The mediator is obligated to accept the parties as they are, not how he or she would like for them to be.
A realistic understanding and acceptance of conflict.
Conflict is part of the natural terrain and, unless one subscribes to the millennial belief that with the coming of the messiah where "the lion will lay down with the lamb," it is likely to continue to be so. Too often, however, conflict mediation is confused with peacemaking. Many mediators accept conflict only grudgingly in theory and are even less tolerant of its open expression in practice.
Conflict is a basic ingredient in our evolutionary biology and psychology; it is part of our human makeup and chemistry. Analogically, conflict is to the body politic what cholesterol is to body physiology; some cholesterol, the LDL, constricts the arteries, immobilizes the body and can ultimately kill. The other form of cholesterol, HDL, helps the body metabolize and function properly. Likewise, some forms of personal and social conflict are peripheral, unnecessary and destroy the body politic, while other conflict is substantive, that is, necessary and useful, encouraging the growth and development of society.
In our Western, techno-rational culture, there is a strong tendency to suppress and dismiss emotion in general and conflict in particular. The mind-reason/body-emotion dichotomy, postulated originally by Plato and articulated by Descartes, reflects the traditional pejorative notion of conflict. The conventional wisdom posits that conflict results from the absence of reason and from being overrun by emotion. Many mediators of the rationalist persuasion use techniques derived from that view. For instance, establishing communication ground rules in mediation are ostensibly calculated to preclude or limit unhelpful emotional outbursts by a party which are thought to impede the calm discussion of substantive issues. The reigning conventional wisdom is that emotion unchecked will likely or even predictably lead to physical aggression. The technique may have the reverse effect: suppressing the expression of emotion may lead to an escalation of the conflict.
By contrast, the guerilla mediator accepts the expression of emotion as a natural and necessary part of the conflict, not to be suppressed but constructively managed. Ironically, current studies in neuro-biology suggest that reason and emotion stem from the same area of the brain and it is difficult, if not impossible, to separate the two; reason cannot be accessed without emotion.12 In the same way physical pain or discomfort is symptomatic of an underlying body dysfunction or illness, emotion is the expression of underlying personal or interpersonal stressors. As health care providers are coming to understand, treating the pain without assessing the underlying circumstance makes no sense, nor does managing the illness without addressing the pain. Likewise, quashing the emotion in a dispute may serve to cosmetically cover up the underlying stressors without effectively managing the conflict.
The guerilla mediator redirects and uses the energy the conflict generates constructively. Conflict contains within it considerable natural force and energy. To liken some conflicts to a "class 5" river (serious white water), the force of the water flow can easily sweep away the unprepared. In rafting that river, and negotiating the rapids, the pilot understands the necessity of bringing his or her own energy to bear on the river; if he puts the paddle down , he will be swept away. There is no quiet, calm way to face a wild river; the pilot will never control the river and there is no suppressing or containing the river’s energy. The only hope will be to deal with the river on its terms, which means to paddle hard and fast enough to approximate the river’s speed, thereby allowing the pilot to position him or herself to use the river’s energy. The trick is to stay centered, off the rocks and out of the sinkholes. Like a good pilot reads the river and sometimes must calculate bouncing off of one rock to avoid a more perilous one or a worse situation, a good mediator reads the conflict between the parties and devises a strategy that effectively uses the parties’ force and energy to negotiate the conflict.
The effective use of strategic planning.
Strategic planning is the key to both winning wars and the effective negotiation or mediation of conflict. Curiously, the etymology of the word strategy is from the Greek, "strategama," translated as a trick or ruse, and still commonly defined as a military maneuver to deceive or surprise an enemy.24 The notion of being strategic has also long been associated with business and negotiation and carries with it a pejorative connotation. This is so especially in the Western cultural tradition where humanism and rationalism are highly valued. From the rationalist and humanist perspective, strategy is unnecessary if the argument is rational and the motives, genuine; the power of logical reasoning, communication and empathy should theoretically, at least, obviate the need for tactical presentation.6 Unsavory strategic devices are associated with "spinning the story" in politics, or being disingenuous, inauthentic, or outright deceitful in personal relationships.
Ironically, despite the disinclination to accept the human necessity of being strategic, there is little doubt that most people, successful in managing their public and private affairs, are careful to consider how and when to most effectively present themselves and their ideas in pursuit of their goals and to obtain a desired result. Most mediators, as well, even those of the rationalist and humanist persuasion, as a practical matter, are forced to be strategic at some point. Therein lays the gap or incongruence between what they say is their approach to mediation and how they are observed in their actual practice.19
The naturalist/pragmatic mediator understands from the outset that he or she will not be likely to overpower the parties by the strength of argument, overwhelm them with a brilliant solution previously unconsidered, nor believe that talk alone will resolve difficult conflicts. Drawing from that understanding, the guerilla mediator must rely on finesse and other stratagems to redirect the conflict energy constructively toward settlement. There are countless examples of techniques that effectuate strategy in the negotiation/mediation of conflict. Three, in particular, are among the most basic: the use of confusion, the structuring of the process and, the use of time.
Far from being calm, rational and patient, the mediator must use "hit and run" tactics to confuse entrenched parties and undermine their belief that their cause is just and they are right.5 If they are allowed to remain sanguine in their original entrenched positions, there will be little motivation to negotiate. People function less by rational calculation than by ritual and operative myths—stories they tell themselves to make sense of the world around them. Their myths of Justice, Truth, Rationality, Finality and Objectivity, disincline them to consider other alternatives to managing conflict. Most parties in conflict want to be vindicated in the belief that they are right and that any fair minded, impartial and neutral review of the matter at hand will so determine their cause to be just. The quest for the truth of the matter, however, is of little relevance in the mediation of conflict.8
A mediator must pierce that operative mythology. Sometimes reflective questions can do the trick, confusing and unsettling one or both parties’ certainty that justice will prevail. For example, the reflective question, "Are you sure that your position can be proven and that the court will agree with you?" insinuates a measure of doubt into the discussion. The purpose is to throw them off guard and dislocate their thinking, to make just enough space for the consideration of other options that can possibly open the door for agreement.2 By contrast, a frontal, straightforward logical statement, such as, "I don’t think the court will agree with you," is likely to be viewed as confrontation or attack which summons argument and rebuttal, "Yes, they will, it’s the law, and I’ll win." Logic, of course, is the least effective means of convincing anyone of anything. The mediator does not want to be caught in an argument, which is, by definition, unwinnable—even if you win, you lose. Thus, he or she merely plants the seeds of doubt and moves on—the hit and run.
In structuring the process, the mediator may strategically use deception to delay and avoid direct discussion of the key issues until the parties are ready. Many negotiations break down because people begin to discuss the ultimate issues too soon and negotiate out of fear, without sufficient or accurate information; they want to begin by discussing the hardest issues first, which may be self-defeating. Without a negotiation strategy, or game plan, it is common to "cut to the chase"—"what do you want/what will you give." Conventional wisdom and the logical approach often encourage direct discussion of the issues in the belief that the shortest distance between the problem and a solution in a dispute is a straight line. Few conflicts are that simple or linear.
In contrast to the conventional wisdom, a surreptitious, surprise approach may be more effective. Strategically, using paradoxical logic, the shortest distance in a dispute between the stated problem and possible outcomes is not a straight line. A more circuitous route allows time for the parties to reflect on their perspectives, to communicate with each other, and to assure all parties are working with sufficient and accurate information in preparation for the ultimate negotiation.24,2 The more complex and difficult the issues, the more important the structuring of the process will be in the management of the conflict. The mediator must build a solid foundation, first slowly gaining commitment to the process, next gleaning the story, then clarifying the issues, and finally assuring all options are available and considered. The mediator uses techniques that are calculated to delay and avoid the actual discussion of key issues until the parties are ready—"no conflict before its time." By initially sidestepping the hardest issues in a dispute, the mediator surreptitiously finesses what conflicted parties might think they want to do. This feint allows him to effectively sneak up on the hardest issues.
Finally, in mediation, as in warfare, time is of critical strategic value. For most disputing parties the conflict did not arise overnight and is not likely to be resolved quickly. Notwithstanding that reality, most expect the matter to be resolved immediately, and if not, to presume it cannot be resolved at all, let alone in mediation. With that thinking, it is easy to see how so many people slip-slide into the more traditional, formalized and extreme modes of conflict management such as litigation. Time allows for the parties to shift in their perspective and consider alternatives. Therefore, the mediator often stalls for time: parties cannot shift in their perspective faster than it takes for them to assimilate that change.15 Thus, sometimes it is what the mediator does not do that is more important than what he or she does do. Setting the pace of the negotiation process, knowing when to stop a session after there has been some progress, but before the parties become too tired, are critical timing skills. The mediator must sense the point of diminishing returns; moving too quickly to "close the deal" can unduly risk any progress that has occurred, bring on "buyer’s remorse," or even place the whole negotiation process in jeopardy. Contrary to conventional wisdom, "holding people’s feet to the fire" to obtain an agreement is likely to be counterproductive. There is a Zen aspect to negotiation: the less parties feel pushed to agree, the faster they may decide to settle in their own time.
A guerilla fighter does not seek to win the war in one skirmish. Likewise a mediator does not expect to reach agreement in one fell swoop. In fact, for the mediator, the purpose may not be for the parties to come to agreement at all—that is for them to decide. The purpose is to give parties every opportunity possible to reach an understanding, to remove obstacles—real or imagined—to a potential settlement. Often parties will themselves trap themselves in a myopic belief system that is self defeating. The process, especially in difficult matters, must be drawn out to allow the parties sufficient time to re-appraise their negotiation perspectives. Time allows for them to save face and accept some measure of the reality that one does not necessarily win because they are right or lose because they are wrong. Settlements in hard cases are not so much forged as they are allowed to emerge in due course. Just as in guerilla warfare there are no clear victories, in mediation parties don’t win or lose, they merely find a means to survive.
CONCLUSION—THE PROMISE AND FUTURE OF MEDIATION
In the last quarter of this century, conflict mediation has gained a small foothold in the cultural and legal landscape of the United States and numerous other countries around the world as a means of managing conflict. At the core, the promise of the mediation process is the opportunity it gives people to settle their own disputes without the undue interference of government authorities or others. In an age where people often feel they are losing control over their lives, faced with an ever increasing onslaught of rules and regulations, and assailed by countless professionals who presume to know better about how they should live their lives, mediation is one way they can re-assert themselves and seize back some measure of control in the decisions that most effect their personal relationships and business dealings.
But the footing of mediation is precarious at best. If the success and acceptance of the mediation process are left to the courts and other public authorities, and mediators wait for it to be legislated into existence, then it risks becoming just one more cog in the institutional machine and the heart of the process may be fundamentally compromised.3 Nor is it enough that mediation is a good and noble idea that holds promise. For it to flourish, the process must be functional, practical and safe.
To that end, guerilla mediation is not a regression to a primitive, "win at all costs" approach to negotiation; nor is it in any way intended to suggest that the mediator should design the outcome of a dispute. It does, however, pointedly intend to suggest that for mediation to survive as a viable form of conflict management, then mediators must look directly into the heart of conflicts in the real world and manage them. Force fitting hard issues and stressed parties into mediation approaches that are based on wishful thinking about what human beings could become, does not sufficiently take account of the power and energy of human emotion. This limits and impairs the effectiveness and validity the mediation process could have in our culture.
Ultimately, if mediation cannot be demonstrated to work outside of hothouse conditions, where parties meet preset standards of reasonableness and cooperative demeanor, then the process will remain a marginal mode of conflict management or, worse, be relegated to history’s trash heap of good ideas and good intentions that did not work or were not accepted. If mediation is to effectively become part of our cultural pattern of managing conflict, then mediators must adopt a rigorous, reality-based approach that can manage conflicts as they present themselves, not as we might hope for them to be.
1. Axelrod, Robert. The Evolution of Cooperation, New York: Basic Books, 1984.
2. Benjamin, Robert D. "The Constructive Uses of Deception." Mediation Quarterly, vol. 13, no. 1, Fall 1995. Jossey-Bass Publishers, San Francisco, Calif.
3. ------. "Mediation as a Subversive Activity." DCBA Brief (DuPage County, Illinois Bar Journal), vol. 11, issue 2, September 1998; also published by Mediation Information & Resource Center (MIRC),< www.mediate.com>.
4. ------. "The Mediator as Trickster: The Folkloric Figure as Professional Role Model." Mediation Quarterly, vol. 13, no. 2, Winter, 1996. Jossey-Bass Publishers, San Francisco, Calif.
5. ------. "The Natural Mediator," Mediation News, Winter 1999, Vol 18., No. 1. Academy of Family Mediators.
6. ------. "Negotiation and Evil: The Sources of Religious and Moral Resistance to the Settlement of Conflicts." Mediation Quarterly, vol. 15, no. 3, Spring 1998. Jossey-Bass Publishers, San Francisco, Calif.
7. ------. "The Physics of Mediation: The Reflections of Scientific Theory in Professional Mediation Practice." Mediation Quarterly, vol. 8, no. 2, Winter, 1990. Jossey-Bass Publishers, San Francisco, Calif.
8. ------. "The Quest for Truth and the Truth of Lies," Mediation News, Fall 1999, Vol 18, No. 3. Academy of Family Mediators.
9. Bloom, Howard. The Lucifer Principle: A Scientific Exploration into the Forces of History, New York, Grove/Atlantic, 1995.
10. Bush, Robert. A. Baruch and Joseph P. Folger, The Promise of Mediation, San Francisco, Jossey-Bass Publishers, 1994.
11. Cleary, Thomas (Trans. with commentary). Sun Tzu II, The Art of War. HarperSanFrancisco, 1996.
12. Damasio, Antonio R. Descartes Error: Emotion, Reason and the Human Brain. New York: Grossett & Dunlap, 1994.
13. deWaal, Franz. Good Nature: The Origins of Right and Wrong in Humans and Other Animals. Cambridge, Mass.: Harvard University Press, 1996.
14. Fischer, Roger, William Ury. Getting to Yes, (2nd ed.) Boston: Houghton Mifflin, 1991.
15. Haynes, John M. and Gretchen L. Mediating Divorce: Casebook of Strategies for Successful Family Negotiations. San Francisco: Jossey-Bass Publishers, 1989.
16. Kagan, Donald. On the Origins of War and the Preservation of Peace, New York: Anchor Books, 1995.
17. Keegan, John, A History of Warfare. New York: Knopf, 1993.
18. Keeley, Lawrence H. War Before Civilization. New York: Oxford University Press, 1996.
19. Kolb, Deborah. When Talk Works: Profile of Mediators, San Francisco: Jossey-Bass Publishers, 1994.
20. Lakoff, George and Mark Johnson, Metaphors We Live By. Chicago: The University of Chicago Press, 1980.
21. Niehoff, Debra, Ph.D. The Biology of Violence: How Understanding the Brain, Behavior, and Environment Can Break the Vicious Circle of Aggression. New York: The Free Press, 1999.
22. Rue, Loyal. By the Grace of Guile: The Role of Deception in Natural History and Human Affairs. New York: Oxford University Press, 1994.
23. Tannen Deborah, Ph.D. The Argument Culture: Moving from Debate to Dialogue. New York: Random House, 1998.
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Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.
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|Bret Beresford-Wood, Spokane WA||06/27/02|