The field of Alternative Dispute Resolution (ADR), which has grown dramatically in the last several decades, can be a rather crowded and confusing one. It is marked by a dizzying array of terms and theories, and styles and techniques, all hotly debated as to both their specific meaning and their relative value or "authenticity." Moreover, even when practitioners discuss and debate ADR issues amongst themselves they are not always clear on the definitions or theories they are relying on. Accordingly, clients and new mediators may be well served by the following "basic primer" of terminology and theory, laid out in alphabetic order.
For the most part this document only purports to address U.S. systems, processes and tools. European and other systems can be quite different in their definitions of mediation and arbitration, for example. The one exception is that I do rely on a number of examples from other countries or cultures concerning Reconciliation/Restorative Justice, where the theory appears to have longer roots and as a consequence is better understood and developed.
I owe special thanks to Marc Brenman in providing me some notes on different types, uses or aspects of ADR, as well as a copy of his working paper on culturally-appropriate dispute resolution for native and/or indigenous peoples, Culturally-Appropriate Dispute Resolution for Native American, First Nation, and Other Indigenous Peoples and Traditional Groups (Version of 5/28/2011). I am also thankful to any number of other practitioners who have made their own research and commentary available on the internet, and who I have cited to herein, and to Debra Healy, a frequent contributor to LinkedIn ADR discussions, for her source citations on the continuing salience of the various theories of mediation.
Finally, note that this document does not purport to be complete or exclusive. It is a work in progress, and is my own practice and the field of mediation/ADR itself.
Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR)--also called "Conflict Resolution" and/or "Conflict Management"--refers to a broad category of theories, processes, tools and techniques involved in resolving disputes outside of traditional adjudicatory or court processes, and/or enhancing communication between parties to prevent or diffuse conflict. At its most basic, it has generally been understood to encompass negotiation, mediation and arbitration.
Some people also add "facilitation" and "conciliation." Facilitation, discussed below, is often conflated into mediation by practitioners as well as lay persons, but it has some unique hallmarks. Conciliation is also similar to mediation but is not discussed further here except to note that the term is difficult to pin down. Some describe it as a type of goal- or settlement-oriented shuttle diplomacy, as near as I can tell from descriptions, while others describe it as more akin to mediation with a facilitative rather than evaluative mediator. Compare http://en.wikipedia.org/wiki/Conciliation and http://www.adrservices.org/conciliation.php.
In recent years, the ADR field has also grown considerably and many other off-shoots have developed. While most if not all can still be understood as variations on the basics--e.g., arbitration, mediation, or negotiation--it is still helpful to define and describe them separately.
Arbitration
In arbitration, the parties pick a third party neutral to hear and decide their case, much as a judge would but with less elaborate procedures and motion practice. It is sometimes called "Cadillac justice," and is perceived by some as only serving the needs of business. However, its efficiency is usually a welcome feature and it will meet the constitutional standards of minimum due process including notice and opportunity to be heard on facts relevant to the claims or defenses.
Arbitration is most often required by contract--for example, commercial, consumer, employment or labor contracts. However, it may also be required by statute or court rule. Some arbitration clauses can be successfully challenged as unfair contracts of adhesion, if a party wants to go to court instead. However, in general courts recognize public policies favoring the enforcement of arbitration clauses, under authority of the Uniform Arbitration Act.
Once an arbitration decision is rendered, it can usually only be overturned on very narrow grounds--lack of jurisdiction, fraud, evident bias, or misconduct by the arbitrator. See, e.g., Uniform Arbitration Act (UAA), Sec. 23.
BATNA-WATNA
BATNA and WATNA, or Best and Worst Alternatives to a Negotiated Agreement, are commonly used mediation tools to help the parties consider the range of possible outcomes and the desirability of a negotiated agreement. In theory, the parties should never settle in negotiation for anything that is worse than their BATNA. Similarly, if the "WATNA" is better than the current proposed resolution, a party should in theory walk away from the deal. See Fisher & Ury, Getting to Yes.
In reality, it is difficult to accurately value outcomes, including transactions costs, or forecast results of litigation. Thus, a party may well compare his or her BATNA and WATNA to the proposed agreement, and decide that although the deal is not perfect under one or either standard, the deal is nonetheless sufficiently adequate for the party to be "satisficed out." See below.
In reality, it is difficult to accurately value outcomes, including transactions costs, or forecast results of litigation. Thus, a party may well compare his or her BATNA and WATNA to the proposed agreement, and decide that although the deal is not perfect under one or either standard, the deal is nonetheless sufficiently adequate for the party to be "satisficed out." See below.
See Fisher & Ury, Getting to Yes. See also WATNA, or Worst Alternative to a Negotiated Agreement.
Collaborative Law
Also called Collaborative Practice, Collaborative Divorce and Collaborative Family Law, this family law process was developed in 1990 by a Minnesota family lawyer named Stuart Webb, who recognized that traditional adversarial or oppositional family proceedings were often not helpful, and indeed were often damaging, to families.
Under the collaborative model, the parties work more closely with their attorneys, and the two sides and opposing counsel also work more closely together. A mental health professional may also be brought onto the team to help the parties sort out the very difficult emotional issues involved in family disputes. Some cases will also call for a mediator as well, but mediators are relied on less frequently than the mental health professional, at least in New Mexico according to practitioner Kathryn Terry with the Walther Family Law Group.
The collaborative process is voluntary and requires each party to sign a contract (the Participation Agreement) under which they agree that if the process fails their respective lawyers may not thereafter them in the adversarial proceedings.
Conflict Coaching
Conflict coaching, like "coaching" itself, is a field that has burgeoned since the 1990s, as people and organizations looked to a variety of third party experts to assist or advise them in their life and work endeavors.
In 1995, the International Coaching Federation (ICF) was formed "to advance the art, science, and practice of professional coaching ... by setting high standards, providing independent certification, and building a worldwide network of credentialed coaches." See http://www.coachfederation.org/about-icf/overview/. "Coaching" in general has been described by at least one practitioner as "a partnering with clients in a thought provoking and creative process that inspires them to maximize their personal and professional potential." See Pattie Porter, LCSW (speaking at an ACRH Teleseminar on July 7, 2011, "Exploring Conflict Management Coaching"); see also www.conflictconnections.com.
Similarly, "[i]n the ADR field, conflict coaching is fast emerging as a specialized technique ... for helping individuals improve their conflict understanding and skills, to manage conflict and disputes more effectively .... with the fundamental objective of coaching people to better engage in their interpersonal conflicts in both their personal and professional lives." See Cinnie Noble of Cinergy, http://www.cinergycoaching.com/articles/New_ADR_Technique.html.
Mediation and conflict coaching share some similar traits. Both the mediator and conflict coach act as a "normalizer," operating from the basic proposition that conflict is normal and the real issue is how to control and/or manage conflict, or its effects. Both the mediator and conflict coach are also "process experts" who focus on conflict management rather than the outcome. See Cheryl Cutrona, Exec. Dir. of Good Shepherd Mediation Program, 8/2/11 ACR Workplace Section Conflict Coaching Teleseminar. Finally, both the mediator and the conflict coach offer guidance on how to confront or set the stage for conflict, and help the party or parties think about what to say and how to say it, and how the other side may respond.
The biggest differences between conflict coaching and meditation are that (a) the coaching relationship is an ongoing one; (b) contact between the coach and client tends to be more involved or personal; and (c) the coach doesn't use re-framing so much as questioning "around the triggers." Notably, the coach "goes deeper into the background" of the conflict, such as an earlier trauma, and may be called upon to provide "a bit of healing work" or "social work." See P. Porter, supra. Also, while a mediator works with both parties, even if separately, the coach usually works only with one party. See Cutrona, supra. Thus, conflict coaches are generally in agreement that there can be serious conflict or ethical issues for an ADR practitioner who seeks to shift roles between coaching and mediation.
Other differences noted between include the following:
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See P. Porter, supra. Because conflict coaching is geared to helping individuals improve their conflict understanding skills, its subsets and sub-techniques tend to focus on conceptual tools for understanding and managing sources of conflict. This can be contrasted to more conventional mediation, where the subsets or techniques concern specific processes for solving discrete issues as they present themselves. That said, the typologies of conflict are also obviously still pertinent to mediation.
High conflict personalities.
William A. "Bill" Eddy, LCSW, JD has written extensively and teaches about four "high conflict personalities--borderline, narcissistic, antisocial and histrionic personalities--which he sees as being "increasingly common in today's legal disputes." See, e.g., http://www.continuingedcourses.net/active/courses/course009.php. Although these personality types involve clinical diagnoses and causes way beyond the scope of the average mediator, and many conflict coaches, Eddy's typology can provide a helpful lens through which to understand some conflict situations.
The DSM-IV generally describes the four types as follows:
- borderline personality disorder: "[a] pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by 5 (or more) of the" enumerated criteria;
- narcissistic personality disorder: "[a] pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy beginning by early adulthood and present in a variety of contexts, as indicated by 5 (or more) of the" enumerated criteria;
- antisocial personality disorder: "[a] pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the" enumerated criteria; and
- histrionic personality disorder: "[a] pervasive pattern of excessive emotionality and attention seeking, beginning by beginning by early adulthood and present in a variety of contexts, as indicated by 5 (or more) of the" enumerated criteria.
Notwithstanding the clinical nature of these disorders, Mr. Eddy posits that parties and neutrals (mediators or the courts) can deal effectively with the incendiary communications of high conflict personalities with a "BIFF response:" "Brief, Informative, Friendly and Firm." See Eddy, BIFF: Quick Responses to High Conflict People, Their Hostile Emails, Personal Attacks and Social Media Meltdowns (2011), and Managing High Conflict People in Court (2d Ed. 2008).
Identity-based conflict.
Theories of conflict being generally identity-based are gaining more traction in recent years. As I've written in a previous blog, identity theorists acknowledge the continuing salience of more traditionally understood sources of conflict (e.g., disputes over limited resources, power, injustice such as bias, discrimination, and cultural differences), but also argue that a more fundamental element of conflict may be that attributable to identity.
As one commentator describes it, identity is "an internal story to ourselves," "based on how we think about ourselves, who we are, [and] how we present ourselves to others." See Dr. Maria Simpson, PhD, discussing the works of Littlejohn and Domenici, Rothman and Stone, Patton and Heen. It's posited that conflict usually arises in response to, and because of the need to defend against, a challenge or harm to our identity at core elements, such as dignity, competence, worthiness, etc. Then, because identity conversations to ourselves tend to involve "all or nothing thinking," the "lack of middle ground creates hypersensitivity to negative feedback." Id. Further, the person whose identity is challenged tends to shut down, and cannot hear or respond to the challenge to identity except to deny it, and such naked, simple denial of the challenge, in turn results in "lack of growth." Thus, theorist conclude that if mediation does not repair that damage to identity there will be no true, lasting "resolution."
Some critics argue that identity-based conflict theory is too individualistic and Western-centric, lending itself to "abuse in identity politics;" that identity is more complex and dynamic, and more impacted by social and cultural practices, than credited; and that identity theory does not accommodate for important cross-cultural differences in identity formation. Johanna Seibt, Beyond the "Identity"-Paradigm: Conflict Resolution and the Dynamics of Self-Understanding, Conflict Resolution Quarterly, vol. 28, no. 3, Spring 2011.
Ultimately, the various studies in the same Quarterly issue concerning non-Western "conflict cultures and cultural technologies of peace," which tend to focus more on conflict transformation and reconciliation (see Mediation--Reconciliation/Restorative Justice, infra), suggest limitations inherent in the "idiom of identity." Id.
Polarity management.
The concept and process of "polarity management" was developed by Dr. Barry Johnson in or about 1975, and focuses on the management of "polarities" or opposites, as opposed to the "solution" of "problems."
For example, imagine an organization having troubles with an individual-oriented work structure, which it attempts to "solve" by switching to a team-oriented model. However, it is then confronted with a whole new host of problems related to the team-oriented model. Thus, the problem to solve is neither the individual- nor team-oriented model. Rather, the issue facing the organization is how to "manage" the polarities of individualism versus team work. See http://www.team-building-leadership.com/polarity_management.html. Moreover, under Dr. Johnson's theory, all issues or problems in an organization are really manifestations of the tension between two polarities. In each case one or more "Crusaders" want to try something different, while "Tradition Bearers" wish to maintain the status quo--and both sides are "right" to some extent. Id.
The basic technique for managing polarities is getting each party to see the other side's perspective. This is likened to visual perception games, where one can only see either the "figure" or the "[back or fore] ground" at any given moment, and often cannot make the transition from one to the other the first time without some guidance, or hint.
Conflict Management Systems Design
Design of conflict management systems concerns the design and implementation of one or more conflict management systems within an organization. Ideally, however, multiples conflict management systems should be integrated.
Integration first requires "diligence in acquiring a thorough understanding" of the organization and its stakeholders, and of the "needs and interests of each of [all] the constituent parts." Next, in the designing process, the designer "must be consistent in their inclusiveness, in listening, and in welcoming dissent. In other words, ... design practitioners and the design process itself must model the behavior [they] are encouraging the system to adapt," by being interest-based and participatory. Finally, the designer must maintain balance, by remaining objective and unbiased and appearing objective and unbalanced, so stakeholders will not be alienated or made suspicious.
See Leah Borsa and Ellen Kabcenell Wayne, Diligence, Consistency and Balance: Lessons for Conflict Management Systems Design Practitioners in Fostering Sustainable Change, http://www.mediate.com/articles/Borway.cfm.
Culturally-appropriate Dispute Resolution
Mark Brenman, in Culturally-Appropriate Dispute Resolution, urges that there is a need for culturally-appropriate dispute resolution training because the Anglo-American style mediation model—based as it is on beliefs in neutrality and objectivity, and its focus on law, individual rights and logic verses mores, relationships, emotion, etc.--often does not address the cultural needs of Indigenous people. Additionally, due to changing demographics, there is a growing social demand for culturally-appropriate dispute resolution techniques playing a larger role in the formal judicial system. Id.
A critical component of culturally appropriate dispute resolution will be the development of cultural competence, which Brenman defines as "a set of congruent behaviors, attitudes, and policies that come together in a system, agency, or among professionals that enables effective work in cross-cultural situations. It reflects the ability to acquire and use knowledge of the…beliefs, attitudes, practices and communication patterns of residents, clients and their families to improve services, strengthen programs, increase community participation, and close the gaps in…status among diverse population groups."
Brenman identifies the following hallmarks of culturally appropriate ADR, as embodied by the culturally competent practitioner:
- no person or group with a stake in the dispute is left out;
- no specific group is targeted as being more in need cultural competence than others
- the focus is on competencies, skill and knowledge rather than an attitude or stance;
- the focus is pragmatic, and methods/tools used should be applicable to resolving daily life and work-related diversity issues;
- it represents a move beyond mere tolerance and sensitivity;
- it requires addressing unspoken taboos, which suppress discussion of many details about life, and create social isolation;
- it includes languages and concepts for addressing differences skillfully with an awareness of cultural preferences, prejudices and stereotypes;
- it involves challenging old ways of exclusion and patterns of thinking in 'either-or' categories in favor of an inclusive approach ('as-well-as');
- it allows a global diversity approach transcending the American diversity paradigm and transcending across countries; and
- it combines organizational issues and corporate culture with individual aspects of diversity.
Id. at 16-7, citing Cross et al., 1989; and Bettina Schmidt, Trends and Strategies for Diversity Breakthroughs.
Facilitation
As noted above, many practitioners view facilitation as essentially the same as mediation. Facilitation (sometimes called "group facilitation," to distinguish it from either settlement facilitation or facilitative mediation) is typically understood as a process in which a neutral person helps a group work together more effectively to build a consensus, or at least identify issues and be heard, on a specific issue.
Surprisingly, the Center for Disease Control of all places, has as good and accurate a description of facilitation as I've come across:
"[f]acilitation is a group process which is goal-oriented. The facilitator directs traffic, elicits views, clarifies, records significant data but is usually not involved in substantive issues. The facilitator is frequently seen as a 'shadow leader.' The task is to stay in the background with little direct involvement in activities, but to see that the right things happen. The facilitator’s task is not to try to keep mistakes from being made, but, if possible, the facilitator should help the team avoid outright disaster. In this role, the facilitator may at times be a teacher, counselor, mediator, a support-seeker for the team, a resource finder, and at times simply a housekeeper – making sure that the immediate environment does not distract from the successful operation of the team." See http://www.cdc.gov/od/adr/about.htm#Training.
In my own practice, facilitation involves a coordinated discussion between multiple parties, for example in zoning and environmental petitions impacting one or more neighborhoods. During a facilitation, I use the same active, deep listing skills as in mediation, but I use them a bit differently. In these cases, I help the parties stay on task, while they explore various points of need, contention and/or agreement. This role also involves focusing, redirecting and engaging the parties, but more to develop a consensus--or, even more likely, to develop a record of consensus or lack thereof--than to break any impasse. Finally, because of the difference in focus, reality testing is replaced by preplanning, and post-reporting.
See also materials compiled by Sandor P. Schuman, relating to the question “Mediation vs. Facilitation: Are they really the same, or different,” at http://www.albany.edu/cpr/gf/resources/mediation-facilitation.htm (accessed 8/15/11).
High conflict personalities See Conflict Coaching.
Identity-based conflict. See Conflict Coaching.
Interest-based Bargaining
Interest-based bargaining was largely pioneered by Ury & Fisher in Getting to Yes, and Ury in Getting Beyond No. It is best understood in contrast to traditional "positional" bargaining, in which parties tend to hold on tightly to fixed ideas of what they want and what they are negotiating for. See Brad Spangler, Positional Bargaining, http://www.beyondintractability.org/essay/positional_bargaining/. Interest-based bargaining can also be contrasted to "rights based" negotiation, in which the parties focus on their respective legal rights, or the legal merits of their positions.
In interest based bargaining, the parties do not focus on their positions (I want the orange or I have greater legal right to the orange), but rather on the underling interest (I need the juice for my kid's breakfast; I need the fruit for lunch; and/or I need the peel for zest in a cake). In this way, the parties can "add value" or "expand the pie" before cutting it, and identify win-win proposals in which all interests are met (for example, the orange is split three ways with each party getting all that it needs because the specific interests are addressed).
Of course, as ex-National Mediation Board mediator Patrick J. Cleary puts it, you always eventually have to cut the pie, and at that point--usually when it comes down to actual dollars--interest based bargaining may become largely irrelevant. Id., The Negotiation Handbook.
Mediation
At its most basic, mediation can be understood as "facilitated negotiations." In its Preamble, the Uniform Model Standards of Conduct for Mediators define mediation broadly as “…a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.”
It's most important principles are party self-determination, impartiality and confidentiality. Beyond those basics, however, mediation may utilize any number of different tools, for getting the parties to speak to and listen to one another, such as:
- facilitating free, open and nonjudgmental brainstorming;
- getting the parties to speak together directly, but also breaking into separate confidential caucuses as necessary and appropriate;
- engaging in active listening to hear underlying interest and concerns beyond the stated position, and helping the parties to do the same;
- helping the parties to focus on the future rather than the past;
- helping parties distinguish between their positions and the underling interest (see "Interest -Based Bargaining, above), and identify win-win proposals in which all interests are met;
- re-framing problems, especially as being shared or mutual;
- using bridging phrases to re-direct negative statements;
- providing venting opportunities, while still steering parties gently back to the issues at hand;
- while in private caucus, engaging in reality checking and, if appropriate, offering the other sides' suggestions or sometimes your own thoughts;
- while in private caucus, encouraging each side to put themselves in the other sides' shoes, to see their perspective on the injury, the solutions, and the risks and benefits of proceeding to litigation;
- helping build trust between the parties, such as by acting as a "cheerleader" of sorts as they come to agreement on small issues, or acknowledging when the parties are making good faith efforts at reconciliation or accommodation; and
- once an agreement is reached, ironing out the who/what/when/how details, and memorializing the parties' agreement in writing.
In addition to these basic principles and tools, mediation can come in a variety of different forms, although practitioners often disagree quite strongly as to whether some of the following are "true" mediation or even whether some of the following types are so different after all.
The three main mediation theories, all of which are described in more detail below, are facilitative mediation, "where the mediator focuses just on process and lets the parties find their own resolution;" evaluative mediation, "where the mediator gives the parties opinions about the merits of their cases and its ultimate value;" and transformative mediation, "where the mediator helps the parties change their thinking and perceptions about themselves and each other." See Harold Paddock, a Columbus, Ohio attorney/mediator, commenting on the "FEEL concept," or "facilitate early, evaluate later," at http://www.cbalaw.org/articles/news/recent-news/2006/75.
Personally, I tend to view all mediation as mutable and flexible. For me the manner, method, theory and tools used in a given matter are entirely dependent on the type of case and needs of the party, although my mediations will always adhere to the three basic tenets (self determination, impartiality and confidentiality). Notably, notwithstanding the sometimes heated and rancorous debate between practitioners as to the relative merits and "authenticity" of various styles, this view is still endorsed by a number of other respected practitioners as well.
As Paddock puts it, "[t]his dichotomy (or trichotomy) overstates the styles' differences and makes the boundaries seem rigid when they are not." He adds that in his experience, "[a] top-flight mediator will blend and change styles as the process progresses, always thinking on his feet and adjusting to the needs of the situation. If the parties change their attitudes along the way, so much the better." Ultimately, FEEL sounds much like the Analytical Mediation also discussed below.
Conflict resolution expert Marc Brenman similarly cautions in his working notes that "[t]he point to underline here is that mediation does not come as an unchangeable recipe or rigid system. Indeed, one of its most attractive features is its flexibility (and thus its consequential adaptability), and overly prescriptive or doctrinaire views about the essentials of mediation risk undermining one of its greatest overriding values."
Finally, as the eminently readable Victoria Pynchon puts it, "[e]valuation of the likely benefits of litigation is an essential consideration for parties to litigation. If continued litigation with its attendant costs and uncertainties is a Better Alternative to a Negotiated Agreement then the parties have no reason to negotiate. We err only when we stop at evaluation and fail to ascertain what the parties' true interests are. We err when we believe that money is all people want or even WHAT people want. And we fail in our essential purpose if we don't remember that the parties come to lawyers because they believe they've suffered an injustice. Few mediators I've seen in action (and I've seen a lot) are capable of eliciting and facilitating a discussion of the parties' justice issues." See LinkedIn ADR Professionals Group, "Is evaluative mediation just another version of an inherent injustice process whereby the decision is imposed by a third party?," http://linkd.in/pLE2Rs.
That said, it is still very useful to review the various styles as well as sub-sets of mediation, since these are the terms/theories in coinage, and we mediators will all tend to fall somewhere on the continuum. Additionally, it may be that clients are looking for a particular type or style of mediation, in which case the principle of party determination requires mediators to disclose or describe their own practice and process to prospective clients. Finally, it should be recognized that a number of practitioners argue that the differences in theory are quite critical, and should not be dismissed as mere "stylistic choices." See, e.g., Dorothy J. Della Noce, Mediation Policy: Theory Matters, at http://www.mediate.com/articles/dellanoce.cfm#; and Douglas E. Noll, A Theory of Mediation, at http://www.americaninstituteofmediation.com/pg81.cfm.
Analytical mediation.
Analytical mediation was discussed by mediators John Bickerman, Lela Love and Wayne Thorp and a session of the July 2009 ABA meeting, and is said to have arose from the recent Final Report of the ABA Task Force on Mediator Quality.
It attempts to transcends (or bridge?) the familiar polar extremes of facilitation and evaluation. Specifically, the mediator is said to analyzes the problem and participants, and has at his or her disposal a wealth of perceptions and tools to assist the disputant and their counsel, as may be dictated by the circumstances," with the ultimate focus being the needs of the parties. Because it is flexible, and the parties needs in any given case vary, the mediator is encouraged to customize the process to the particular dispute and parties. These mediators are willing, if appropriate to offer analysis and opinion, and will also focus on legal issue to the extent those issues block resolution.
To me, this sounds very much like the flexible continuum I have described above and I wonder if only a "new name" was required by the near-intractable debate between practitioners.
Christian and/or spiritually focused mediation.
"The goal" of Christian and other spiritually focused mediation, as one practitioner describes it, "is not only to resolve material issues, but also to work through the spiritual issues involved in the conflict." See Dale Kleimola, responding to a LinkedIn discussion, "How would you handle a meditation between Christians when one party is not interested in either asking for or offering to forgive the other?" Kleimola has posited such a focus under the theory or view that "Christians should not compartmentalize their faith to certain aspects of life, such as only going to church or whatever expression of faith they offer. One's whole life is to be lived in as God-pleasing [a] manner as possible." Id.
Perhaps the most well-known organization devoted to Christian mediation is the Peacemaker Ministries," who have developed a program and curriculum to become a "Certified Christian Conciliator." The Peacemaker Ministries and CCCs can provide both conflict coaching and mediation services from the Christian perspective, which Peacemaker Ministries describes as follows:
- "Conflict Coaching—involves one-on-one, biblical encouragement to help individuals as they work through and respond to the conflict. It involves giving direction, advice, and God’s plan for responding to the conflict."
- "Mediation—is a directed process helping two or more individuals seek resolution of personal and material conflicts. God’s Word facilitates relational reconciliation and resolution of material issues. This process assists the individuals, through recognizing what they have contributed to the conflict, leading to reconciling through confession, repentance, and forgiveness. Specific decisions are recorded in a written agreement."
As is apparent from the foregoing, the Peacemaker Ministries focuses on disputes between Christians, frequently involving church matters. However, the trend towards spiritually focused mediation is much broader than any one religion.
The Association for Conflict Resolution, for example, has a separate Spirituality Section whose mission is to "convert the consciousness of humanity to a perspective of spiritual oneness," for the purpose of "healing of all our wounds." See http://www.mediate.com/acrspirituality/pg21.cfm (accessed 8/15/11). As this language suggests, spiritually focused mediation can be quite similar to reconciliation and restorative justice, discussed below, which frequently arises in more spiritual cultures. Similarly, it may also be called for by the culturally competent practitioner, discussed above, in cultural contexts where the Western, legal-rational model is simply not applicable.
However, commentators and researchers are discerning "a growing demand for religion and spirituality" in Western non-church-related conflict resolution processes, as well. See, e.g., Rachel Goldberg and Brian Blancke, "God in the Process: Is There a Place ofr Religion in Conflict Resolution?," ACR Quarterly, vol. 28. no. 4., Summer 2011. Goldberg and Blancke point out that, historically, the dispute resolution field has held that God and faith do not belong in the conflict resolution process because, as value-oriented and "not clearly negotiable," they are "often seen as a source of division and intolerance." However, this view disregards the fact that conflicts themselves are inherently value-laden, and religion, faith and spirituality can be powerful motivators in getting people to "work for peace and ... dedicate their lives in its pursuit."
Goldberg and Blancke also posit that any dangers to the self-determination principle, from integrating a spiritual dimension into conflict resolution, can be mitigated by the neutral's awareness and disclosure of the parties' and his or her own spiritual values, or lack thereof.
Evaluative or directive mediation.
For a detailed yet highly accessible comparison of the the three main styles of mediation, see Zena D. Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation, at http://www.mediate.com/articles/zumeta.cfm.
As Zumeta notes, evaluative or directive mediation, originally modeled upon judge-led settlement conferences, is a hotly contested mediation type in some circles. I have previously thought of it merely as slightly more aggressive form of reality checking, pointing out weaknesses of a position, and making suggestions to the parties when appropriate. That is probably the early part of the continuum from facilitation.
However, in its more exaggerated style, it also entails activities more directly related to evaluating the merits of the parties' positions, such as overtly expressing an opinion about a party's case, recommending a resolution, or predicting the ultimate outcome if the case were to be resolve in another forum.
Other distinct characteristics of evaluative mediation noted by Zumeta are:
- concern with the legal rights and notions of fairness, rather than needs and interests;
- increased use of “shuttle diplomacy,” including private caucuses with attorneys and not the parties;
- evaluation of legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation; and
- the mediator usually has either general legal expertise or expertise in the specific substantive area of the dispute.
Zumeta describes the evaluative process as one in which the "mediator structures the process, and directly influences the outcome of mediation." Zumeta also describes the evaluative process as arising after mediation became a respected legal discipline, and lawyers began entering the field in greater numbers and with their different emphasis on rights-based dispute resolution.
Facilitative mediation.
Facilitative mediation includes all the processes and tools I discussed earlier in the mediation section, and is often viewed by many as the "holy grail" or "sin qua non" of mediation.
The reason the mediation field is so closely identified with facilitative mediation is due to its historical roots. As Zumeta notes, when mediation first began to seriously develop as a distinct field in the 1960s and 1970s, the only mediation theory and process around were those that are now called "facilitative mediation." In its infancy, it was largely conducted by volunteers and few mediators had any legal or substantive expertise, and the focus was instead on the process.
Zumeta describes facilitative mediation as a one in which the mediator structures the process, and the parties structure the outcome, in contrast to the mediator structuring both (supposedly the evaluative style), or the parties structuring both (the transformative style).
Family co-mediation
Family co-mediation involves the intentional use of both male and female mediators to work together in a heterosexual family matter, to avoid "gender wars" or perceptions or fears of bias.
As discussed in a prior blog, empirical studies on the effects of mediator race and gender show that:
- a party "outnumbered" in race or gender is less likely to engage in free communication;
- a party that is either "unmatched" or "outnumbers" is “significantly less likely to see the mediator as listening,” and the effect was even stronger when they were outnumbered;
- although gender differences did not correlate to perceptions of loss of control, or a general apathy about the effective handling of conflict, being either unmatched or outnumbers is “significantly related to the participants’ perception that the mediator took sides," especially if the participant is outnumbered; and
- both unmatched and outnumbered participants had less overall satisfaction with the mediation process.
Moreover, in all cases, the effects noted were stronger relative to gender differences than race or ethnicity differences. Based on these studies, some urge that co-mediation should always be considered. At the very least, it is evident that it can be especially helpful in more volatile relationships.
FEEL Mediation.
F.E.E.L. Mediation stands for “facilitate early, evaluate later," and the term appears to have been coined by Columbus, Ohio attorney/mediator, Harold Paddock. It sounds to me much like the "new" analytical mediation: "[a] top-flight mediator will blend and change styles as the process progresses, always thinking on his feet and adjusting to the needs of the situation. If the parties change their attitudes along the way, so much the better." It also sounds like the process I have described using in a prior blog, in which I initially permit the parties to "unleash" all their emotions, views etc., but then begin "evaluating and pressing the parties" in caucus as to their positions, once the "unleashing stage" is either exhausted or its benefit to one party is outweighing the frustration to the other.
Paddock also argues that mediators and attorneys make too much hay out of the three styles of mediation, in relation to the selection of a mediator, and I think his arguments are most salient in regards to the selection of mediators. He notes that parties seeking what they describe as an "evaluative approach," because they feel they are reasonable and the other side is not, could "risk[] getting a hard-nosed neutral who will only do a closet arbitration and strong-arm the parties." He also notes that "it is not automatic that a mediator will use only an evaluative or facilitative style while meeting privately with each side. Different people need different assistance in getting their disputes resolved. One party may need a strong 'dose of reality' while the other requires more diplomacy."
Similarly, Paddock notes that "[a]nother selection problem is assuming that an approach used in a prior mediation is the mediator's standard process. Like people, each dispute is unique. What works in one mediation may not work in the next. It is a significant error to think every mediation is an assembly line process with a rigid and repetitive format. You should select a mediator you trust to adjust to the unique characteristics of the parties, attorneys and facts."
For these reasons, in asking attorneys about a mediator's style he recommends caution, since the cases/parties will be different. Instead, he recommends that you ask the arbitrator about his or her style tendencies. "Ultimately, you should say 'We need a mediator to help the parties settle their dispute with patience, professionalism and flexibility, regardless of style.'"
Reconciliation/Restorative Justice mediation.
In many ways Reconciliation and/or Restorative (also called "reparative") Justice are based on the simple concepts of acknowledgment--an important communication skill but also perhaps one of "the most critical means to breaking the vicious cycle of human conflict" See Mark Brenman, working notes on "ADR Types."
As Brenman notes, "[t]o acknowledge the views of one party or another is not to express any judgment (either positive or negative) but to register that the view has been heard and understood. Acknowledgement of one party by another (without apology) often defuses a conflict by allowing combating parties to feel that their voice has been heard." Id. Similarly, dispute resolution that focuses on reconciliation and/or restorative justice requires the parties to acknowledge their wrongdoing or their suffering, but without resultant punishment or penalty. The point is to heal the social fabric that has been rent by the original offense.
Reconciliation and restorative justice are most often seen in wide-spread and devastating cultural conflicts, such as occurring between factions in civil war torn countries. For these reason it is sometimes referred to as "transitional justice." A few of the many examples where it has been used include:
- East Timor Commissions for Reception, Truth and Reconciliation (CAVR), non-criminal bodies assembled after revolution and the extended displacement of refugees (see Loch & Prueller, Dealing with Conflicts after the Conflict: European and Indigenous Approaches to Conflict Transformation in East Timor, Conflict Resolution Quarterly, vol. 28, no. 3, Spring 2011);
- Rwandan Cacaca Courts, which "provid[e] an opportunity for a large number of victims to bear witness to the past and for perpetrators to confess their crimes to the community" (Mukherjee, Achieving Reconciliation through Prosecution in the Courts: Lesson from Rwanda, Conflict Resolution Q. Spring 2011); and
- South African Truth and Reconciliation Tribunals, assembled after the abolition of apartheid, in which "witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences, and some were selected for public hearings," and "[p]erpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution" (see http://en.wikipedia.org/wiki/Truth_and_Reconciliation_Commission_%28South_Africa%29).
Reconciliation and restorative justice are also encountered in the area of small scale personal conflict resolution in some indigenous cultures, and may be referred to as a type of "traditional" justice:
- the Ho'oponopono practice in Hawaii, which includes "a structured ritual whereby a family gathers to exchange concerns, reveal wrongs and resentments, and set the family unit right;" and
- "talking circles" in many Native American, First People's and other Traditional communities, in which participants align themselves in a circle, pass a small object from hand to hand and speak only when they hold the object.
As Mark Brenman describes Navajo talking circles, "[t]he circle creates an open setting where each participant will speak and, in turn, will be heard ... [t]e circle arrangement emphasizes the connectedness of the participants, equal responsibility for leadership, and ownership of the solution by all participants in the circle ... [t]he center of the circle represents the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community," and "[t]he passing of the talking piece slows down the process to promote reflection and focused listening." Brenman, Culturally-Appropriate Dispute Resolution at 58.
The theories of reconciliation and restorative justice are occasionally discussed in developed and western cultures as well, particularly in the criminal justice field, when it is recognized that victims of crime often remain unsatisfied after conviction and sentencing. See, e.g., John Braithwaite, Restorative Justice and a New Criminal Law of Substance Abuse, Youth Society, Dec. 2001, vol. 33, no. 2, 227-248. However, the theories have not gained much traction in that quarter. See, e.g., Meier, Bernd-Dieter (1998), Restorative Justice -- A New Paradigm in Criminal Law?, European Journal of Crime, Criminal Law and Criminal Justice, 6(2):125-139.
Finally, reconciliation and restorative justice are related to transformative mediation, discussed next, because if successful they will likely lead to a transformation of the parties and the conflict in a way that ordinary mediation (facilitative or evaluative) does not.
Spirituality in Mediation. See Christian and/or Spiritually Focused Mediation, supra.
Transformative mediation.
As Zumeta notes, transformative mediation is the newest concept of the three basic styles. It was first articulated in 1994 by Folger and Bush, in their book The Promise of Mediation.
"Transformative mediation is based on the values of 'empowerment' of each of the parties as much as possible, and 'recognition' by each of the parties of the other parties' needs, interests, values and points of view." See Zumeta. It is apparently called "transformative" because this level of intense openness is believed to entail great potential for the transformation of "any or all parties or their relationships." Id.
Other interesting characteristics of transformative mediation include
- lack of caucuses--the parties must meet with the mediator together only the parties because "can give each other 'recognition;'" and
- that "the parties structure both the process and the outcome of mediation."
“Med-Arb”
Med-arb is a hybrid between mediation and arbitration in which a single ADR professional will seek to mediate a dispute but if a resolution is not possible, he or she will then proceed to arbitrate the same dispute.
Under the Uniform Model Standards of Conduct for Mediators a mediator may not change his or her dispute resolution role without party consent, or if he or she feels it cannot be done fairly and impartially. Another complication is that statements made to the mediator are confidential, and not to be used in a subsequent hearing on the merits, or another matter. A question naturally arises, then, as to how the mediator-arbitrator can keep the original confidences. See Kristen M. Blankley, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case (draft), available at http://ssrn.com/abstract=1793515.
Thus, it is not surprising that this is another controversial issue in the mediation community. Barry Winograd, a Federal Mediation and Conciliation Service (FMCS) trainer, stated in FMCS Training (Oct. 2010) that he will do med-arb upon the parties request, but that he advises the parties up front that if ultimately called upon to arbitrate the matter he will not hold a separate hearing and will instead make his ruling based on everything heard and received during the mediation.
I do not know if this is how other med-arbitrators do it, but it sounds like it may be the only reasonable way to navigate the potential ethical and logistical issues.
Negotiation
Negotiation is "an interchange between two or more parties in an attempt to reach a compromise." See http://www.adrservices.org/conciliation.php. Typically, they take place directly between two parties and/or their legal representatives. However, if the parties or their representatives reach impasse, then they may to a third party neutral to facilitate their negotiations. Thus, negotiation is essentially "at the core of most Alternative Dispute Resolution (ADR) processes." Id.
Negotiation usually falls into one of two categories.
Distributive negotiation.
Distributive negotiation usually concerns the negotiation of a single transaction between people who have no existing relationship and do not intend to develop one--for example, a car sale deal. In this type of situation, the parties will tend to keep information to themselves while trying to finagle information from the other side.
Integrative negotiation.
Integrative negotiation, in contrast to distributive negotiation, "[u]sually involves a higher degree of trust and a forming of a relationship," such as employment or personal relations. Although there will likely be some imbalance between the parties, it is still in the parties' mutual advantage to "take a cooperative approach to mutual problem solving. " Accordingly, "[t]he process generally involves some form or combination of making value-for-value concessions, in conjunction with creative problem solving," and it is more akin to interest-based conflict resolution discussed above.
Polarity Management See Conflict Coaching.
Post-settlement Settlement
"Post-settlement settlement" refers to an agreement that replaces the original settlement, and to which both parties agree. As a practical matte, it would presumably be agreed to because it represents an improvement of the original agreement, for both parties.
See Howard Raiffa, Post-Settlement Settlements, 1 Negotiation J. 9, 9 (1985).
Reconciliation/Restorative Justice See Mediation.
"Satisficing out"
"Satisficing out" occurs when two sides accept a resolution that is only barely acceptable because it is nonetheless better than their reservation price, and neither party tries to do better such as by seeking/obtaining a Pareto-optimal outcome. See M. Brenman working notes. (A Pareto-optimal outcome is one in which no one could be made better without making another worse off.)
"Satisficing out" can also be understood as choosing the first reasonable option, instead of seeking to maximize your position, because it is quicker and easier to "satisfice out." In contrast, optimizing entails considerable more transaction costs in time, attention and prolonged conflict.
Settlement Facilitation
The term settlement facilitation may be used interchangeably with mediation, or it may refer to a more evaluative process, scheduled shortly before trial, where a third party will likely do some aggressive reality checking, and help the parties evaluate their positions in terms of cost, benefits and risks of going forward with trial.
Spirituality in Mediation See Mediation--Christian and/or Spiritually Focused Mediation.
WATNA See BATNA/WATNA
If you have read this far, I hope you have found this primer of terms and theories useful. If you are interested in exploring whether mediation, conflict coaching or another ADR system is right for your dispute(s), please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
