Point & Counterpoint: Should Agencies Mediate Their Own disputes?

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.

“Agency
neutral” — it has the ring of a perfect
oxymoron. Right up there with jumbo shrimp, civil
war, and fresh-frozen. After all, if you were
embroiled in a dispute with, say, the United
States Environmental Protection Agency, where
could you possibly find a less
“neutral” neutral than on EPA’s
payroll? And given the abundance of skilled
outside mediators, why would you waste more than
half a second of your time even considering it?
These are fair questions, which probably enter
the minds of many parties who are offered the
services of oxymorons like myself to assist in
resolving their EPA-related conflicts.

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.

                        author

Elissa Tonkin

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… MORE >

                        author

Peter Swanson

Peter Swanson is a commissioner with the Federal Mediation and Conciliation Service. MORE >

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