Why Mediate?

Conflict

Conflict is inevitable and not necessarily harmful. Some kinds of conflict can contribute immeasurable to the health and well-being of the organization – for example, by stimulating productive competition. No matter what the conflict, it can be managed in such a way that losses are minimized and gains maximized. (Jandt, 1985)

Renowned sociologist Lewis Coser postulated that conflict is a struggle over values and those in combat want to win at practically any cost.

1. A struggle over values to scarce status, power, and resources.

When the competition involves status, power, or resources, the competitors may not be seeking something unique or “one of a kind.” In other words, when vying for office space, there might be more than one space that two people want. One employee may want a window; a better computer; better access to the water cooler. etc. However, the operative word in Coser’s formulation is “scarce.” There cannot be an unlimited number of offices. (If all of us stand on tiptoe, none of us sees any better.) The solution is to allocate according to one’s different values, to the extent feasible.

2. The aims of the opponents are “to neutralize, injure, or eliminate their rivals.”

In other words, if only one of us can have a certain thing, you and I must do what we can to prevent each other from getting it. Likewise, if 25 of us are competing for three prizes, the victorious trio will comprise those of us who found some way to surpass the 22 losers.

This does not, of course, mean that we must kill or maim each other. One can neutralize, injure, or eliminate a competitor simply by building the proverbial better mousetrap. The point, however, is that we are in a struggle over desiderata of which there are not enough to go around. If you get what you want, I and/or some of your other opponents will not get what we want. (Coser, 1956)

However, the fact that we are competitors does not mean that we must be enemies. Rivalries need not be unfriendly. As Coser notes,

Conflicts and hostile sentiments, though often associated, are, in fact, different phenomena…. Hostile attitudes do not necessarily result in conflict, nor need we expect that objective discrepancies in power, status, income, and the like will necessarily lead to the outbreak of conflict, although they can be conceived as potential sources of conflict. In sum, it is entirely possible for us to be in conflict with each other and yet like each other, just as it is possible for us to dislike each other and not be in conflict. By extension, conflict need not be detrimental to the parties involved – to or to anyone else. In a sense, conflict is simply another face of competition.

Notes Joe Paterno, legendary football coach of Penn State University: “I tell my players, ‘Love your opponent, because he’s the person who gives you a reason to excel. If he were a pushover, there wouldn’t be any point to playing the game.”‘

Viewed in this light, conflict is not an impediment to the efficient functioning and successful operation of an organization; it is-or can be-a spur toward excellence and achievement. No matter the type of organization-church, school, hospital, small business, large corporation-conflict can be valuable. (International Encyclopedia of the Social Sciences, Vol. 3, p. 233)

There never is only one source of conflict. There may be one source to which both parties attach more importance than any other, and that source may or may not be the precipitating factor when the conflict flares up. However, inevitably, inescapably, and invariably there will always be at least one secondary source. It may be an underlying attitude (or several of them). It may be a limited resource (whether identified or unidentified). It may be a change (anticipated or unanticipated, for better or for worse). It may be a clash of values, a quest for power or success or recognition or some other desideratum or a failure by one or more of the parties to define responsibilities.

There will always be at least two sources of conflict. No one who is perceived in any way to be party to a conflict can act as a third-party neutral. The problem is not to get the parties to communicate. Th problem is to get them communicating effectively about issues where there are opportunities for agreement.

Escalation

Four conditions normally must exists before a small conflict escalates in to a large one:

1. Mirror image – two parties have the same wants, needs and interests

2. Differing interpretations of some facts or behaviors

3. Double standard – “If you can do it for him, why not for me?”

4. Polarized single-issue position – “This item is non-negotiable”

Issue need not be germane. Indeed, some of the most effective negotiators are those who can persuade parties to accept concessions on non-germane issues in exchange for concessions on germane issues

Destructive Uses of Conflict

1. Stress and its concomitant physical and psychological toll on human beings

2. Misallocation of personal and/or organizational resources as parties devote time, thought, and material to doing battle instead of doing business.

3. Diminished across-the-board performance as parties let the conflict sap them of energy, determination and dedication.

Productive Uses of Conflict

Irving Janis, author of Victims of Goupthink offers nine precepts when conflict arises:

1. Establish an atmosphere in which people will fell free to raise appropriate objections

2. When soliciting opinion, do not define the results that you expect

3. Set up parallel, independent policy-making decision.

4. If personnel is limited, periodically divide the policy-making group on to tow or more sub-groups. Go as far as resources allow in your attempt to achieve the objectives of #3.

5. Have representatives of each group act in liaison with other groups.

6. Invite experts who are no t members of the group to challenge the values of the core members.

7. Encourage someone to play “Devil’s Advocate.”

8. Try to think like your competition.

9. Before ratifying any decisions, hold a second meeting to rethink the issue and explore any residual doubts.

Negotiating for Strength

1. Power grows out of someone’s else’s dependency

2. Understanding what people want is not always simple

3. The key to gaining power is to identify what you and other people really desire

4. When you’ve decided that you want something, look at the bigger picture.

5. Rank your wants in order of importance

6. Determine what you want and who or what stands on your way of getting it

7. Identify the resources that you control and the people show want these resources

Positional Bargaining vs. Interest Bargaining

It is critical to always ask “why” in order to clarify and in order to discover what the other party really wants. It is also important to consider letting the other party have his way or allow the other party to perceive that they have it their way.

Mini-Max strategy

The parties establish a negotiating range of the minimum they will accept for the maximum they will give in return. Once the negotiations come within this range, the negotiators close the deal.

Unpacking

When multiple issues have been identified, it becomes possible to link movement on one issue with movement on other issues, singly or in tandem. That is what negotiation is all about. In foreign affairs, they use the term “linkage.” Thus, the U.S. linked human rights to most favored nation (trade) status to the old USSR In labor relations cases, sometimes we can link two charges into one, if the offending party agrees to perform some other demand. Thus, a ten and a twenty days suspension could be consolidated into a 15 day suspension, if the employee agrees to attend an EAP program.

Hardball Negotiating

In this scenario, the negotiators threaten to sue, intimidate or otherwise force their opponents to consent to their demands. Occasionally, negotiators utilize this tactic, particularly when the parties have unbalanced resources. The water user against the monopolized water company; the bank user against the resources of an international bank. Mediation Benefits Both Parties People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation can not guarantee specific results, a listing of some benefits of mediation appear below:

Economical Decisions

Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting.

Rapid Settlements

In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.

Mutually Satisfactory Outcomes

Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.

High Rate of Compliance

Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.

Comprehensive and Customized Agreements

Mediated settlements are able to address both legal and extra?legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.

Greater Degree of Control

Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.

Personal Empowerment

People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.

Preserving Relationships

Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties’ interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.

Workable Solutions

Parties who mediate their differences are able to attend to the details of implementation. Mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.

Agreements Over Simple Compromises or Win/Lose Outcomes

Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.

Durable Decisions

Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem solving to resolve their differences than to pursue an adversarial approach. (Roberts, 1999.)

Suspensions and Conflict Resolution Theory

Although negotiation theories abound, the reduction of suspensions takes the most typical approach in order to whittle down the number of suspension days. Negotiating suspension reduction necessarily involves the understanding of conflict and its resolution.

Bibliography

Lewis Coser, The Functions of Social Conflict, NY: The Free Press, 1956.

Gary Dessler, Human Resource Management, 6th ed., Englewood Cliffs, NJ: Prentice-Hall, Inc., 1994)

International Encyclopedia of Social Sciences, David Sills, ed. NY: McMillan, 1968, rev. 1996.

Fred Edmund Jandt, Win-Win Negotiating: Turning Conflict on to Agreement, NY: John Wiley and sons, 1985)

Irving Lester Janis, Victims Of Groupthink; A Psychological Study Of Foreign-Policy Decisions And Fiascoes, Boston, Houghton, Mifflin,1972.

N.J.S.A. 2C:51 et seq

Michael J. Roberts, Why Mediation Works, The Mediation Information and Mediation Resource Center Webpage, 1999. Accessed June 14, 1999.

                        author

Authur L. Finkle

Art Finkle is a Phi Beta Kappa graduate and received a MGA degree from The Wharton School of the University of Pennsylvania. Listed in Marquis’ Who's Who in Government, American Education and American Law, he has been a practitioner for twenty-five years. A practicing mediator, Finkle teaches both graduate and… MORE >

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