The Mediation Handbook

Research, theory, and practice

Alexia Georgakopoulos, Alexia Georgakopoulos

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317300694
• Edition: 1
• Topic: Personal Development
• Subtopic: Conflict Resolution

The Handbook of Mediation gathers leading experts across fields related to peace, justice, human rights, and conflict resolution to explore ways that mediation can be applied to a range of spectrums, including new age settings, relationships, organizations, institutions, communities, environmental conflicts, and intercultural and international conflicts. The text is informed by cogent theory, state-of-the-art research, and best practices to provide the reader with a well-rounded understanding of mediation practice in contemporary times.

Based on four signature themes—contexts; skills and competencies; applications; and recommendations—the handbook provides theoretical, applicable, and practical insight into a variety of key approaches to mediation. Authors consider modern conflict on a local and global scale, emphasizing the importance of identifying effective strategies, foundations, and methods to shape the nature of a mediation mindfully and effectively. With a variety of interdisciplinary perspectives, the text complements the development of the reader's competencies and understanding of mediation in order to contribute to the advancement of the mediation field.

With a conversational tone that will welcome readers, this comprehensive book is essential reading for students and professionals wanting to learn a wide range of potential interventions for conflict.

PART I

Promoting dynamic mediation in the new age

1

Mediation career trends through time

Exploring opportunities and challenges

Craig Zelizer and Colleen Chiochetti

This chapter explores the opportunities and challenges regarding applied careers in mediation. The first section explores the concept of mediation and the associated skills needed to advance a career. This is followed by a discussion of the various paths to building skills, ranging from gaining practical experience, to undertaking short-term training programs, to pursuing undergraduate or graduate degrees. The diverse range of mediation career opportunities is highlighted with strong emphasis on the need to integrate the process across diverse sectors. Throughout the chapter, particular attention focuses on the ethical and practical challenges for those seeking to advance their career in mediation. A critical focus of the chapter is the need to approach the process and skills of mediation in a holistic manner and the importance of not limiting a career in mediation to positions that fit the traditional definition of the process.

Over the past few decades, mediation has rapidly grown from a small nucleus of individuals and organizations to a burgeoning sector with dedicated job opportunities, emerging career tracks, and many individuals seeking to advance a career in the field. This tremendous growth in the USA, and around the world, has been largely motivated by the desire for more participatory and effective means of addressing diverse inter-person, intergroup, community, and international conflicts. However, the number of individuals seeking to engage in mediation both on a voluntary and professional basis far exceeds the number of paid opportunities available.

What is mediation?

Mediation generally refers to a third-party process conducted by a mediator, with no formal stake in a particular dispute or conflict issue, who helps to facilitate a participatory process in which the stakeholders or parties that are in dispute with one another find a mutually satisfactory and beneficial outcome. As Dr Christopher Moore, one of the pioneers in the field, explains:

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, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues.

(Moore, 2014, p. 8)

It is essential to note that mediation, as a process, has existed for centuries (Barrett & Barrett, 2004; Moore, 2014). For as long as there have been one or more individuals or groups in conflict that they are unable to solve directly, third parties have been present to try to help facilitate a resolution. The notion of pursuing paid employment as a full-time mediator is a relatively recent development which came about in the mid-20th century, as the field of Alternative Dispute Resolution began to emerge. Prior to this, individuals in many professional and personal capacities, such as diplomats, religious leaders, business leaders, political figures, or simply trusted individuals, would help facilitate a process through which parties could reach an agreement. As Moore (2014) explains, “[f]or the most part mediators in other ages and cultures learned their crafts informally and fulfilled their role as mediators in the context of other functions and duties” (p. 69).

Much of the modern mediation practice emerged from four main trends. The first was the incredibly turbulent history of US labor/management relations in the 19th and 20th centuries. During this period, there were hundreds of strikes by workers seeking better working conditions, better pay, and a voice in their workplaces, while many employers sought to prevent the ability of workers to organize. It was only in the post-Depression era that a social contract was formed and an emerging field of labor relations or industrial relations developed, in which mediators began to play an increasingly important role in helping to mediate strikes and worker–management issues. The US federal government played a key role in helping to facilitate more positive and peaceful relations through the creation of agencies such as the National Mediation Board (designed to help prevent railway strikes in 1926) and the Federal Mediation and Conciliation Services (FMCS) in 1947, with the mission of “preventing or minimizing the impact of labor-management disputes on the free flow of commerce by providing mediation, conciliation and voluntary arbitration” (FMCS, 2015). The US government had a strong interest in helping to ensure more peaceful relations between workers and management, particularly in critical industries, as disruptions greatly affected the economy (Kovick, 2005).

The second major trend in expanding mediation as a career option was the growth of community mediation programs in the 1970s. During this period, as part of the larger movement for social justice in the late 1960s and 1970s, combined with frustration regarding the increasing number of disputes going to the courts, a movement emerged promoting mediation as a quicker, fairer and more just solution. In court-based approaches, the process and the outcome are far removed from the parties who are in dispute. For example, legal counsel often represents the parties, a jury or judge imposes a decision, and usually one side emerges as the winner and the other as the loser. Conversely, mediation allows the parties to represent their interests directly, and formulate an agreement where both sides can emerge as winners.

In addition to the push by community justice organizations for fairer and more inclusive processes, there was recognition by some in the legal and governmental communities that the legal system was not always the best avenue to resolve disputes. Clogging up courts with cases was overwhelming the capacity of local and state systems. Thus, what began as a largely community social justice-orientated push, also started to become institutionalized (Kovick, 2005). Apart from the potential for more collaborative solutions than court-based options, mediation can also save time and money for the parties involved in the process.

The third major trend in the growth of mediation was the dramatic expansion of the conflict resolution and peacebuilding fields on a global scale after the end of the Cold War. Although, as highlighted earlier, mediation practices and institutions were present in all societies, it was during this period that the practice, scholarship, and funding of domestic, regional, and international conflict resolution institutions increased dramatically. For example, as Zelizer (2013) explains, “[w]hat was initially carried out by a select group of scholars, citizen diplomats, and nongovernmental organizations is now being integrated into official discourse, policies and practices” (p. 4). For many years, the term conflict resolution was used to refer to the larger field of scholarship and practice. However, over recent decades, peacebuilding has become a more dominant term encompassing international conflict resolution practices, while conflict resolution is a more frequently used term in the domestic and sometimes academic arenas (Zelizer, 2013). Many use peacebuilding as a term to refer to larger structural and relational changes, while conflict resolution is often thought of as a “narrower set of specific tools (negotiation, mediation, facilitation, conflict analysis, communication skills and their theoretical underpinnings)” (Zelizer, 2013, p. 7).

The fourth area that has led to a dramatic use of mediation and alternative dispute resolution (ADR) practices is the institutionalization of conflict resolution practices in private and public organizational settings. For many years, mediation practices in institutions were often relegated to the sidelines or seen as an extension of human resources. However, as the conflict resolution field began to expand, there was also a significant push to create more effective, participatory, and transparent conflict-sensitive systems. Although a number of federal agencies had mediation and/or ADR programs, Congress passed the Administrative Dispute Resolution Act of 1996, which made it easier for federal institutions to adopt ADR processes (Pou, 1997). This act builds on earlier legislation that started to encourage the more widespread use of ADR. As Pou (1997) explains, the act shows that “Congress, along with many federal agencies, have moved beyond an initial skepticism and concern over potential abuses to a point where they have begun to view ADR methods as safe and effective” (para. 10). President Clinton issued an executive order requiring federal agencies to use “dispute resolution in all civil cases” involving the government (Reporters’ Committee for Freedom of the Press, 1996, para. 1).

Since then, conflict resolution as a process to help organizations run more effectively internally and externally and increase employee morale has grown substantially. This is across an array of institutions as many private companies, schools, universities, and public agencies have set up ADR, Conflict Management, and Ombuds offices to help prevent, manage, and mitigate conflicts.

It is important to understand the four general trends that have helped fuel a growth in the mediation field, as each of these also corresponds to a potential career path in which one may use mediation skills and knowledge to develop a career. The next section of the chapter outlines the skills needed for a mediation career, followed by an overview of career opportunities, and finally challenges and opportunities for practicing mediators.

Skills, knowledge and training needed to be a mediator

Skills

Mediators need many skills in order to be effective in their work. These skills can be broken down into three main areas, including communication, managing the process, and personal awareness. One of the main differences between negotiation (when two or more parties directly communicate) and mediation is that mediation is a form of “third party facilitated communication” (Moore, 2014, p. 8).

Thus, a mediator needs to be highly skilled in numerous communication skills including:

• Questioning—The ability to ask appropriate and reflective questions encouraging parties to engage in a conversation and move beyond zero-sum position discussions.

• Listening—This is one of the most essential skills that a mediator can possess. It is critical since often in situations of heightened conflict, parties stop listening to each other. They might only listen for weaknesses in the adversary’s position, not understanding. A mediator can help parties by modeling good listening practices, and it is through listening mindfully and reflectively (combined with questioning) that a mediator can help the parties uncover the roots of a conflict.

• Body language—The use of one’s body and positioning is a critical component of the communication process. Although there is strong emphasis on verbal communication, a great deal of research has shown that upwards of 55 percent of communication takes place through body language and nonverbal cues (Jensen, 2012). Mediators can model both open and encouraging behavior to inspire parties to do the same.

• Paraphrasing/summarizing—In a mediation session, a crucial step is making sure the parties feel their story or perspective has been heard and acknowledged. Thus, mediators can use their communication skills to summarize and ensure that how a party has framed their experience has been heard correctly.

• Reframing—In many escalated conflict settings parties will say hurtful or escalatory statements. Therefore a mediator often needs to be skilled in taking potentially damaging comments and removing the bite, but keeping the essence to help the mediation continue in a positive direction.

Process

Mediators need to possess familiarity and ease with the mediation process. Part of building a successful career in mediation is learning the basic steps of mediation, and then unlearning them to some degree, so as to be able to adapt them to the ebb and flow of each mediation. Knowing the process and the general steps is like having a compass as an aid to know the general direction in which mediation may proceed. For example, many mediations will reach a point where parties may seem stuck or reluctant to move on. Being comfortable with letting the parties proceed on their own while also knowing when to help encourage progress is important.

Managing the mediation process may also be akin to riding a bike, while juggling and talking on a cell phone. It is necessary to keep many contradictory items in balance. A mediator needs to listen deeply to the parties, but at the same time be thinking about what comes next, exploring potential roadblocks, checking in with a co-mediator, if there is one, being comfortable with the emotional highs and lows of mediation, managing the process, but not scripting too closely, etc. This may seem like a daunting series of tasks or challenges, and initially it is, but with time, experience, and practice the process becomes intuitive and mediators are then able to more comfortably adapt to their own preferred mediation style(s). Effectively managing the process is a critical step in increasing the chances of having a successful outcome.

Knowledge

Being an effective mediator requires an in-depth knowledge of the dynamics of conflict, and understanding what might motivate individuals to pursue behaviors that, on the outside at least, may not be rational or in their own self-interest. Knowledge of conflict dynamics includes psychological and emotional elements of what causes conflict escalation and de-escalation. In addition, understanding how to analyze conflicts is a central process in mapping and understanding the key parties’ underlying interests, issues, and more (Moore, 2014). One of the most challenging aspects of the mediation process is helping two or more parties with mutually incompatible truths to at least be able to acknowledge the perspective and legitimacy of the other side’s perspective. A mediator needs to be skilled in breaking down complex conflicts into common issues through which the parties can begin to find common ground.

Mediators should also have knowledge of the larger conflict resolution and peacebuilding industry. It is necessary to understand how one’s work fits within the larger field and what the key trends are in one’s particular area, whether it be working on organizational conflicts or helping to mediate land disputes in violent contexts overseas. This also includes an understanding of who is providing funding for mediation practice and why.

Personal awareness

The idea of mediation is that a third “neutral” party helps disputants find common ground and find a self-directed and participatory resolution to the issue. In reality, being a mediator is an inherently personal process and being reflective, critical, and self-aware are crucial components to success in the field. There is also the issue of “mediator burnout,” as oftentimes working with parties in highly charged situations can be emotionally draining. As Kolb (2001) explains, “[a] good deal of mediator burnout appears to derive from the parties, whose emotional pain, limited motivation for resolving their difficulties, combativeness and general resistance often conspire to frustrate and demoralize even the most tenacious and resourceful mediator” (p. 484).

Many mediators work in teams, and it is necessary to develop a positive working relationship with one’s co-mediator. This can help ensure a more productive session with parties, and also is essential to help them reflect on what worked well and what needs to be changed. Being aware that mediators may have their own emotional reactions, and being able to discuss and engage with a colleague can be helpful in keeping one’s sanity in difficult situations.

Training

To build a career in mediation there are several options to get the necessary training. This includes basic training, pursuing advan...