Point & Counterpoint: Should Agencies Mediate Their Own disputes?
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This article originally appeared in the January 1998 issue of Consensus, a newspaper published jointly by the Consensus Building Institute and the MIT-Harvard Public Disputes Program. |
Yet no one could be more amazed than I at the increasing frequency with which our modest fleet of in-house mediators has been invited by outside parties to function in a neutral capacity. .
Based on this limited but growing body of experience, I have become convinced that the availability of in-house neutrals is a valuable option when it is put forward in a responsible way.
Setting aside, for the moment, the question of whether it is a good idea, why do parties elect to use in-house neutrals? Usually for a combination of reasons, which fall loosely into two categories that I think of as: (1) Muted Minuses; and (2) Pluses.
In the first category, I lump together all those considerations that tend to mitigate the obvious concerns about neutrality. Apprehensions about the in-house neutral's potential for bias appear to be significantly allayed by the pervasively voluntary nature of the decision to mediate. Parties generally have the option to bring in a mutually-acceptable outside neutral and always have the option -- which they often exercise -- to reject the use of ADR altogether. In our program, we feel a heightened responsibility to follow certain practices aimed at enabling parties to make an informed choice in this regard. For example, care is taken to make full disclosure about the background and role of the in-house neutral, and to explain the legal and practical mechanisms that will be relied on to protect the confidentiality of the process.
Assurances are also provided about the neutral's lack of decision-making authority or substantive accountability within the Agency for the outcomes. We see this duty to preserve the consensual aspect of the parties' participation as more than a threshold matter. At the slightest stirring of dissatisfaction, we remind parties that they are free to withdraw at any time.
'Dispute resolution geniuses'
Still, all things being equal, why introduce any additional risk into the already uncertain business of neutral-assisted negotiating? This brings us to the category of pluses.
There are actual advantages to be gained by outside parties who use in-house neutrals that go beyond managing the possible drawbacks. Though I am drawn to the fantasy that this list is headed by the unparalleled dispute resolution genius of most in-house mediators, the crass truth is that cost and administrative ease are likely the most influential selling points. Not only are our program's neutral services usually covered by EPA, but accessing these services is as simple as saying, "Yes, please." Anyone who has ever dealt with federal procurement procedures can appreciate this benefit.
There are other advantages. For example, as the work of particular in-house neutrals comes to be known in the community, outside parties are more inclined to take advantage of their services because they, or people they know and trust, were satisfied with the treatment they received in an earlier matter. Put another way, credible personal recommendations outweigh theoretical objections.
Another factor that might be more relevant in some cases than others is the perceived expertise of the neutral -- not simply subject matter expertise but organizational-culture expertise. A party who has been mystified by EPA's reactions to previous settlement proposals may welcome the assistance of a neutral who speaks the Agency's language and can serve as a translator.
Another consideration that is more "phase-specific" than case-specific relates to the neutral's financial and professional interest in being selected to assist in a major negotiation. This typically arises during the convening stage of high-stakes, multi-party cases in which the parties have agreed that they would like a neutral facilitator to help them select a mediator, Superfund allocator, or team of neutrals for the long haul. In one instance, a large group of outside parties expressly requested an in-house facilitator, rather than an independent dispute resolution professional, to provide neutral assistance with the mediator selection process. Their aim was to avoid the possibility that the facilitator would have a stake in the outcome of that phase of the process. In still other cases, outside parties have requested our services during the early stages of establishing an ADR process based in part on a perceived expertise we have developed in helping large groups of parties collaboratively select a mediator and begin to define the process.
Among many considerations, neutrality matters greatly in this line of work. But the experience of our program has been that parties ultimately judge neutrality more on the basis of behavior than affiliation.
One final note. In-house programs like ours are by no means a substitute for independent neutral services. We do not take on long-term, resource-intensive mediations. We would not even offer our services in a situation where a pre-existing perception of bias seemed likely to be an issue. Or where the parties were ready and able to hire an outside neutral. As a practical matter, most of the parties we work with are not choosing between outside mediators and us; they are choosing between in-house mediation and no mediation.
Our program's reason for being is not to provide neutral services. It is to maximize the use of mediation and the principles of collaborative decision-making as effective tools in resolving and avoiding environmental disputes. We have stumbled along, learning as we go. One of the many things we have learned is that, in some situations, the most effective way to access the benefits of mediation is to say to a hesitant party, "If you'd like to give it a try, we can provide a trained mediator tomorrow afternoon. It's a free service we offer for short-term negotiations. Some parties have found it useful. It's totally up to you . . ."
Counterpoint by Peter Swanson
Washington, D.C. -- The profession of conflict resolution has been interesting to watch as it grows from childhood into adolescence. We are beginning to see the field transform itself from the well-behaved child into the free-spirited adolescent. Its potentially rebellious teenage years are yet to arrive, and adulthood for our profession remains a distant dream. Not surprisingly, then, as many organizations experiment with innovative approaches towards implementing ADR, they are experiencing growing pains.
One such approach is to have mediators from within an organization mediate cases to which the organization is a party.
Sometimes the actual implementation of such an approach does not live up to the ideal. In principle, having an agency mediate its own disputes is a laudable and worthy goal. I have had the pleasure of participating in the design and implementation of some successful programs. Unfortunately, however, my experience has been that success in these endeavors is limited. Programs that may have had the potential for great success have ultimately failed.
The reason for more failures than successes in these ventures is usually not related to the origin of the mediator. Those issues usually sort themselves out once the parties have had a chance to work with the neutral for a period of time. Usually, parties can easily forgive the fact that a neutral comes from an organization which is a party to the dispute. This is typically dependent upon the neutral demonstrating the skills of an advanced volunteer or professional mediator. Instead, the problems inherent in any organization mediating its own disputes are largely reflective of the growing pains experienced by the maturation of the field as a whole.
Perception of fairness.
One widespread concern is whether internal neutrals are fair. This most often occurs in equal employment opportunity (EEO) and employment situations where, based on prior experience, parties feel that both the agency and the neutrals it provides will be biased. Parties usually feel that by using internal mediators the agency is showing its unwillingness to create a level playing field.
A little bit of knowledge is a dangerous thing. Any parent understands that adolescents and teenagers know everything. Sometimes, the consequences can be very damaging. Likewise, a know-it-all agency mishandling ADR can create problems for itself. In one case, a large federal agency designed an internal ADR procedure that combined elements of fact-finding, neutral evaluation, and mediation, and made it part of the formal EEO process. However, the agency initially failed to provide the neutral panels with mediation training.
While the panels did achieve settlements, all parties were dissatisfied with the process and resented it being forced on them. This gave ADR and mediation a bad reputation within the agency. Moreover, this process generated suspicion about the neutrality and fairness of the panel members serving as neutrals.
Inadequate program design.
Probably the biggest mistake organizations make in implementing internal mediation is assuming that all it takes to achieve success is to designate mediators and provide them with basic training.
Success is directly related to changing the culture and attitudes of the organization. It requires a serious commitment in time and resources. Moreover, the organization must emphasize its dedication to change.
In dozens of situations, I have been called in to train an organization's internal mediators only to have initial enthusiasm turn to cynicism and disenchantment once they realized there would be no conflicts for them to mediate months after the training was complete. Designers of the program had assumed people would line up to have their disputes mediated once they knew mediators were available. Wrong.
Effective ADR programs require significant resources for on-going training, mentoring and infrastructure, as well as to educate potential users. They require senior-executive support. They require adequate manpower. They require autonomy, so that they have necessary authority and don't appear to be a mere after-thought.
Unfortunately, most agencies are not willing to make such a commitment. Organizations typically try to find cheap ways to get rid of disputes. Using in-house mediators appears to be one such quick fix. Without the budgetary and executive support it requires, in-house mediation will fall short of expectations.
Conflicting roles.
Another problem is the tension neutrals face if they are expected to be mediators in addition to their full-time jobs, or even act as full-time neutrals. Without adequate support, they cannot fulfill their mediation responsibilities.
A classic example of the perils in dual-duty situations can be found in EEO settings. Typically, an organization may have full-time or part-time EEO counselors. Counselors often function similarly to mediators; however, their roles are very different. All too often an organization provides counselors with mediation training, then asks them to mediate cases in which they are assigned as counselors. The differences between the function and responsibility of a counselor and a mediator are such that a real tension can be created when a counselor does not know what role they are expected to play in a particular situation. Consequently the counselor may, in mediation, revert to counseling practices that are inappropriate in a mediation environment, causing more damage to the process.
Another problem facing internal neutrals is the unspoken pressure that may be applied to them to act on behalf of a particular party's interest. This is especially prevalent in small agencies where employees tend to know, or know of, everyone else. Some employees expect a neutral to favor a personal friend. Others assume a neutral will favor management over any employee.
Inadequate training and mentoring.
Unfortunately, organizations often do not have the expertise to know what they are looking for in a neutral, and as a result many unqualified persons get trained who lack the skills to be an effective mediator.
Another common failure is to assume that mediation can be taught in a 20-to-40-hour course, and that trainees can then be sent out to fend for themselves. This is a recipe for disaster. The training of competent mediators only begins in the classroom. Creating a competent mediator requires real-world exposure to live disputes; the assistance of a seasoned mentor is absolutely crucial.
Inadequate management support.
Another serious problem arises when the mandate for using internal mediators comes from senior management but implementation is left up to middle management, who often worry that ADR will threaten their power. This fear, whether real or imagined, can usually be addressed through constant exposure, education, incentives, and so on to the process. However, many organizations do not put the time, effort and resources into cultivating this crucial audience. As a result, managers come to the table suspicious, wary, and uncooperative.
Conclusion
Can organizations mediate their own disputes? Ideally, yes. First, they must provide the necessary nurturing and on-going support internal neutrals need beyond initial mediation training. Secondly, they should take the time to understand and properly address the underlying structural, cultural, resource, and systemic issues required to create a conducive environment for the program to work. If they are not prepared to make these commitments, their programs will be better served by seeking outside assistance in the form of professional neutrals and dispute-systems design consultants to address the conflicts.
Biography
Peter Swanson is a commissioner with the Federal Mediation and Conciliation Service. |
Elissa Tonkin, a senior attorney and experienced mediator and facilitator with the United States Environmental Protection Agency's Boston office, currently serves as Director of EPA’s leading Regional ADR Program, charged with promoting the Agency's effective use of alternative dispute resolution to settle cases, promote constructive dialogue on environmental issues, and enhance environmental decision-making. |
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| moreilly , Denver CO | 04/18/01 | ||||||||||||||||||||
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