The Mediation Process

Practical Strategies for Resolving Conflict

Christopher W. Moore

• Publisher: Jossey-Bass
• Year: 2014
• ISBN:
  9781118421529
• Edition: 4
• Topic: Law
• Subtopic: Alternative Dispute Resolution
• Index: Law

The Fourth Edition of a seminal work in the field of mediation and conflict resolution

For almost thirty years, conflict resolution practitioners, faculty, and students have depended on The Mediation Process as the all-inclusive guide to the discipline. The most comprehensive book written on mediation, this text is perfect for new and experienced conflict managers working in any area of dispute resolution—family, community, employment, business, environmental, public policy multicultural, or international. This is the expert's guide, and the Fourth Edition has been expanded and revised to keep pace with developments in the field. It includes new resources that will promote excellence in mediation and help disputants reach durable agreements and enhance their working relationships.

• Includes expanded information on the latest approaches for providing mediation assistance
• Features comprehensive guidelines for selecting the right strategy for both common and unique problems
• Utilizes updated, contemporary case studies of all types of disputes
• Offers expanded coverage of the growing field and practice of intercultural and international mediation

Part One
Understanding Disputes, Conflict Resolution, and Mediation

1
Approaches for Managing and Resolving Disputes and Conflicts

disputes or conflicts occur in all human relationships, societies, and cultures. From the beginning of recorded history, there is evidence of disputes between children, spouses, neighbors, coworkers, superiors and subordinates, organizations, communities, people and their governments, ethnic and racial groups, and nations. Because of the pervasive presence of conflict and the emotional, physical, and other costs that are often associated with it, people have always sought ways to peacefully handle their differences. In seeking to manage and resolve conflicts, they have tried to develop procedures that are effective and efficient, satisfy their interests, build or change relationships for the better, minimize suffering, and control unnecessary expenditures of emotional and physical energy or tangible resources.

In most situations, the involved parties have a range of approaches and procedures at their disposal to respond to or resolve their disputes; however, procedures available to them vary considerably in the way conflicts are addressed and settled. This chapter begins with an analysis of a specific interpersonal and organizational conflict and explores some of the procedural options available to the involved parties for managing and resolving their differences. Mediation, one of the options, is examined in depth.

The Whittamore-Singson Dispute

Singson and Whittamore are in conflict. It all started three years ago when Dr. Richard Singson, director of the Fairview Medical Clinic, one of the few medical service providers in a small rural town, was seeking two physicians to fill open positions on his staff. After several months of extensive and difficult recruiting, he hired two doctors, Andrew and Janelle Whittamore, to fill the positions of pediatrician and gynecologist, respectively. The fact that the doctors were married was not a problem at the time they were hired.

Fairview likes to keep its doctors and generally pays them well for their services. The clinic is also concerned about maintaining its patient load and income. It requires every doctor who joins the medical practice to sign a five-year contract detailing what he or she is to be paid and conditions that will apply should the contract be broken by either party. One of these conditions is a covenant not to compete, or a no-competition clause, stating that should a doctor choose to leave the clinic prior to the expiration of the agreement, he or she will not be allowed to open a competing practice in that town or county during the time remaining on the contract. Violation of the clause will result in an undefined financial penalty. The clause is designed to prevent a staff doctor from building up his or her reputation and clients at the clinic, leaving before the term of the contract has expired, starting a new and competitive practice in the community, and taking patients with him or her.

When Janelle and Andrew joined the Fairview staff, they each signed the contract and initialed all the clauses, including the one related to noncompetition with the clinic during the term of the contract. Both doctors performed well in their jobs and were respected by their colleagues and patients. Unfortunately, their personal life did not fare so well.

The Whittamores' marriage went into a steady decline almost as soon as they began working at Fairview. Their arguments increased, and the tension between them mounted to the point that they decided to divorce. Because they both wanted to continue to co-parent and be near their two young children, they agreed that they would like to continue living in the same town.

Every physician at the clinic has a specialty, and all rely on consultations with colleagues, so some interaction at work between the estranged couple was inevitable. Over time, however, their mutual hostility grew to such an extent that they had difficulty being in the same room while performing their duties. Ultimately, the Whittamores decided that one of them should leave the clinic—for their own good, that of the clinic, and for other staff who became increasingly uncomfortable with the tensions between the couple. Because they believed that Andrew, as a pediatrician, would have an easier time finding patients outside the clinic, they agreed that he was the one who should leave.

Andrew explained his situation to Singson and noted that because he would be departing for the benefit of the clinic, he expected that no penalty would be assessed for breaking the contract two years early, and that the no-competition clause would not be invoked.

Singson was surprised and upset that his finely tuned staff was going to lose one of its most respected members. Furthermore, he was shocked by Whittamore's announcement that he planned to stay in town and open a new medical practice. Singson visualized the long-range impact of Whittamore's decision: the pediatrician would leave and set up a competing practice, taking many of his patients with him. The clinic would lose revenue from the doctor's fees, incur the cost of recruiting a new doctor, and (if the no-competition clause was not enforced) establish a bad precedent for managing its doctors. Singson responded that the no-competition clause would be enforced if Whittamore wanted to practice within the county, and that the clinic would impose a penalty for breach of contract. He intimated that the penalty could be as much as 100 percent of the revenues that Whittamore might earn in the two years remaining on his contract.

Whittamore was irate at Singson's response, and considered it to be unreasonable and irresponsible. If that was the way the game was to be played, he threatened, he would leave and set up a competing practice, and Singson could take him to court to try to get his money. Singson responded that if necessary, and if he was pushed into a corner, he would get an injunction against the new practice and would demand the full amount due to the clinic. Whittamore stormed out of Singson's office mumbling that he was going to “get that son of a gun.”

This conflict has multiple components: the Whittamores' relationship with each other, their relationship to other staff members at the clinic, potential conflicts between Andrew Whittamore's patients and the clinic, the relationship between Andrew Whittamore and Richard Singson and probably the clinic's board of directors, and the legal status and enforceability of the no-competition clause in the contract. For ease of analysis, we will examine only one of these components: the conflict between Richard Singson and Andrew Whittamore and the various means of resolution available to them.

Conflict Management and Resolution Approaches and Procedures

People involved in a conflict often have a range of possible approaches and procedures to choose from to resolve their differences. Figure 1.1 illustrates some of these possibilities.

Figure 1.1. Continuum of Conflict Management and Resolution Approaches and Procedures.

Approaches and procedures for the resolution of disputes vary regarding who participates, how collaborative or adversarial the process is, the degree of coercion that may be used by or on disputants, the level of formality of procedures, the degree of privacy afforded to parties, types and qualities of outcomes, and the roles and influence of third parties if they are present and used.

At the left end of the continuum in Figure 1.1 are informal, collab­orative, and private approaches and procedures that involve only the disputants or a third-party process assistant (a mediator) who does not have authority to make or impose a decision on those involved. At the other end of the continuum, one or more parties rely on coercion and often public action to force the opposing party, either nonviolently or violently, into submission. In between are a variety of third-party approaches that provide decision-making assistance, which we will examine in more detail later in the chapter.

Disagreements and problems can arise in almost any relationship. The majority of disagreements are usually handled informally. Initially, people may avoid each other because they dislike the discomfort that frequently accompanies conflict, do not consider the contested issues to be that important, lack the power to force a change, do not believe the situation can be improved, or are not yet ready to take an action to settle their differences.

When avoidance is no longer possible or tensions become so strong that the parties cannot let the disagreement continue, they usually resort to informal problem-solving discussions to resolve their differences. This is probably where the majority of disagreements in daily life are settled. Either they are resolved, more or less to the satisfaction of the people involved, or the issues are dropped for lack of interest or inability to push them through to a conclusion.

In the Whittamore-Singson case, the Whittamores avoided dealing with their potential conflict with the medical clinic until it was clear that their dispute was so serious that Andrew was going to have to leave. At that point, Andrew initiated informal discussions with Singson, but they failed to reach an acceptable conclusion. Clearly, their problem had escalated from a problem that each of them faced into a dispute. Gulliver (1979, p. 75) notes that a disagreement becomes a dispute “only when the two parties are unable and/or unwilling to resolve their disagreement; that is, when one or both are not prepared to accept the status quo (should that any longer be a possibility) or to accede to the demand or denial of demand by the other. A dispute is precipitated by a crisis in the relationship.”

People involved in differences that have reached this level have a variety of ways to resolve them. They can pursue more formal and structured means to voluntarily reach an agreement, resort to third-party decision makers, or try to leverage or coerce each other to reach a settlement.

Other than informal conversations, the most common way that disputing parties reach a mutually acceptable agreement on issues that divide them is through negotiation (Fisher and Ury, 1991; Fisher and Ury, with Patton, 2011; Shell, 1999; Thompson, 2001; Moore and Woodrow, 2010).

Negotiation is a structured communication and bargaining process that is commonly used to conduct transactions and reach agreements on issues where serious differences do not exist, or to resolve a dispute or conflict. In negotiations, parties who have perceived or actual competing or conflicting needs or interests voluntarily engage in a temporary relationship to discuss issues in question and develop and reach mutually acceptable agreements. During negotiations, participants educate each other about their needs and interests, make mutually acceptable exchanges that satisfy them and address less tangible issues such as concerns about trust, respect, or the form their relationship will take in the future. Negotiation is clearly an option for Whittamore and Singson, although the degree of emotional and substantive polarization will make the process difficult.

If negotiations are hard to initiate and start, or have begun and reached an impasse, parties may need to use another dispute resolution process that involves assistance from a third party who is not directly involved in the conflict. One common form of third-party assistance is mediation.

Mediation is a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist involved parties to improve their relationships, enhanc...