Mediation Theory and Practice

Suzanne McCorkle, Melanie J. Reese

• Publisher: SAGE Publications, Inc
• Year: 2018
• ISBN:
  9781506363523
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Edition: 3

Mediation Theory and Practice, Third Edition introduces students to the process of mediation by using practical examples that show students how to better manage conflicts and resolve disputes. Authors Suzanne McCorkle and Melanie J. Reese help students to understand the research and theory that underlie mediation, as well as provide students with the foundational skills a mediator must possess in any context, including issue identification, setting the agenda for negotiation, problem solving, settlement, and closure.

New to the Third Edition:

• Expanded content on the role of evaluative mediation reflects the latest changes to the alternative dispute resolution field, helping students to distinguish between various approaches to mediation.
• Additional discussions around careers in conflict management familiarize students with employment opportunities for mediators, standards of professional conduct, and professional mediator competencies.
• New activities and case studies throughout each chapter assist students in developing their mediation competency.

Instructors, sign in at study.sagepub.com/mccorkle3e for a Microsoft Word test bank, sample course syllabi with term projects, chapter exercises and activities, and more!

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1 Introduction to Mediation

• ■ Why Mediation? 1
• ■ How Do People Find Their Way to Mediation? 4
• ■ Power, Rights, and Interests 7
• ■ The Dispute Resolution Continuum 11
• ■ A Disclaimer about Mediation Training 14
• ■ Summary 15
• ■ Chapter Resources 15
• ■ Portfolio Assignment 1.1: Starting Your Mediator Portfolio 16
• ■ Portfolio Assignment 1.2: Personal Reflections 16

Why Mediation?

Welcome to the world of mediation! You are about to study an activity that spans many cultures and thousands of years. Mediation, one form of alternative dispute resolution (ADR), is a process in which a third party helps others manage their conflict—a worthwhile activity in itself. However, mediation is more than just another alternative to the court system or an offshoot of community problem solving. For many practitioners, mediation is a philosophy for life, or, as Mahatma Gandhi stated, “Peace of mind is not the absence of conflict, but the ability to cope with it.” Mediators help frame conflict into something workable, making peace possible.

Individuals trained as mediators find that the skills they learn are applicable to daily communication in their personal and professional lives. People from all walks of life have become mediators—attorneys, counselors, teachers, police officers, human resource professionals, volunteers, college students, and even young children. Some who are trained have found a calling in mediation—an outlet for their lifelong goal of service. Others use mediation in their career path or integrate the skills into their existing careers. Some even consider mediation to be an art form.

What is it about mediation that appeals to so many different kinds of people and is useful in so many different contexts? Mediation is about empowering people to make their own informed choices rather than having a third party (such as a judge) make a decision for them. Mediation is grounded in the belief that conflict offers an opportunity to build stronger individuals, more satisfying relationships, and better communities. As a student of mediation, you will learn the philosophies and theories that underlie mediation as well as foundational skills any mediator must possess (discussed in depth in Chapter 11).

We live in a society replete with conflict and one that is very litigious. Every day we hear stories about someone being sued for serving coffee that was too hot, saying nasty things on social media, or failing to fulfill an agreement. Recently in Texas a woman texted during a movie and annoyed her date, prompting him to sue her for the price of the movie ticket. Although litigation has a respectable and important place in society, there is no doubt the courts are overburdened and should not be the place where all disagreements are settled. Mediation offers less adversarial, cheaper, and quicker ways to resolve conflict. As we hear strange tales about neighbors who sue each other over where they put their trash on garbage collection day, we wonder, “Why didn’t these neighbors just talk it out?” In a nutshell, that is what mediation offers—a chance to “talk it out” in a safe and controlled environment.

Case 1.1 A Neighborhood Misunderstanding

Dana moved from urban Chicago to a small town to be nearer to her grandmother. Prior to moving, Dana had lived for 27 years in an apartment with her mom in a rather rough urban neighborhood. Dana was raised to “mind your own business” and to not engage the neighbors in conflict. As she put it, “You never know who is living next to you—they could be dangerous!”

Across the street in her new neighborhood lived Tommy and Mary Klimes. The older couple was retired, with a grown son who lived elsewhere in town and an elderly Boston terrier named Button. The couple didn’t have a fence, but Button didn’t wander too much. Besides, all the neighbors knew Button belonged to the Klimes.

Button didn’t like Dana from the first moment they saw each other, and anytime both were outside, Button would bark and run at the new neighbor. Dana felt threatened by the dog. She also was apprehensive about talking to the neighbors directly, so she called the police instead. The police came, stopping first at Dana’s house to get her statement and then crossing the street to speak to the Klimes. The Klimes were not given the name of the person who had complained about the dog, but later another neighbor told them that the police had stopped at the “new neighbor lady’s” house. Tommy, noticing Dana’s car was in her driveway, promptly walked across the street to introduce himself and apologize for the dog. He rang the bell and knocked, but there was no answer.

Several days later, Button barked at Dana again and came into the street as she got into her car. Again, Dana summoned the police. This time, the Klimes were issued a citation. When Dana returned home from work, the Klimes’ son was outside of his parents’ home and yelled obscenities at her as she walked into her house. Tommy heard the comments, came outside, admonished his son, and then walked across the street to apologize to his neighbor.

However, Dana, feeling threatened, didn’t answer the door. Tommy knew she was in there and peeked in the front window to see whether she just hadn’t heard the bell. Finally giving up, he went home. A few minutes later, the police arrived for the second time that day. Dana had called reporting that her male neighbor was peeping in her windows.

Benefits for the Disputants

The situation in Case 1.1 with Dana and the Klimes seems like a simple misunderstanding. However, each party is seeing only a limited picture of reality. In each person’s view, the other is acting inappropriately. Dana has legal rights to protection from harassment from her neighbors and their dog. She has the right to involve the police and to press for justice. When this case appeared in court, the judge referred them to the community mediation program. The judge wanted to see whether these neighbors could resolve their issues together before assigning time in her already overloaded court calendar. In short, the parties in this case were ordered to mediation to work out their dispute, if possible. The judge also believed that the parties’ interests would be served best in a place where they could explore not only the legal aspects of the case but also the issues surrounding how they experienced the event. In court, only the legal issues would be resolved and a neighborhood could be left in turmoil.

Mediation often is better equipped than a formal court proceeding to explore the relational and emotional issues of a dispute. In addition, research indicates disputants in court-related mediation programs have favorable views of the mediation process, and they have settled their cases between 27 and 63 percent of the time without having to go before a judge. Moreover, people complied with their mediated agreements up to 90 percent of the time (Baksi, 2010; Wissler, 2004).

In situations where the individuals will have a continued relationship, such as in the case of the Klimes and Dana, mediation is particularly appropriate. In this case, the parties met one afternoon with a mediator. A very tense session began. The Klimes explained that they were offended by how Dana had treated them; Dana was adamant about the righteousness of her complaints. Through the process of mediation, Dana was able to express her feelings about neighbors and, subsequently, the conversation created a way for the Klimes to understand her actions. The Klimes, who had not had the opportunity in the past to apologize for the dog and for their son’s behavior, were allowed to assert their desire for a friendly relationship. The result of this real-world mediation was an offer for Dana to come to the Klimes’ house for coffee and to get to know Button, the dog. Dana agreed—but only if she could bring some of her famous chocolate chip cookies to share. With a mediated agreement in hand, the court case was dismissed.

Benefits for the Mediator

Mediation not only has value for society and the disputants, it also benefits the individuals who learn mediation skills. Those who become mediators express feelings of accomplishment when they help others solve thorny problems. Students of mediation claim they see a microcosm of life during fieldwork practice.

Those who study mediation accrue benefits even if they never become professional mediators. The skills useful to mediators are transferable to everyday life. Listening, reframing issues, and problem solving are trademarks of a good mediator and are characteristic of effective leaders. Mediator skills enhance individual competence and can be applied informally at home, at work, or with friends. The final chapter in this book details numerous occupations requiring mediation and conflict management skills.

A View from the Field: Small Claims Court Mediation

Roger Cockerille, a 4th District Court magistrate judge in Idaho, tells the individuals sitting in his courtroom waiting for a trial that he orders most of the contested small claims cases to mediation for two reasons: It is their last chance to work things out together before a judge makes a decision that may not please either of them, and over 70 percent of the mediations result in a settlement. Of those who settle, over 90 percent follow through and comply with the agreement they negotiated. If the court makes the judgment, people can appeal, which delays getting the settlement that was awarded.

In Idaho, the “winner” in an adjudicated case is responsible to collect on the judgment, which means the plaintiff has to find the defendant and try to garnish wages or collect through some other legal means, which is not easy (in 2016 only 37 percent of adjudicated cases were effectively collected). Many people never see a dime when they “win” in small claims court, but 93 percent of the cases mediated in 2016 did see their agreement met.

When people arrive at court, they are prepared for a fight. Then they are sent to mediation. While everybody who goes to mediation doesn’t have the same experience, many leave transformed. We held a conversation with graduates of the Boise State University Dispute Resolution Program who served as small claims court mediators. Deanna’s comment about being surprised that sometimes money wasn’t the issue was representative of the group’s experiences:

I had a neighborhood case where the people bought a house in the winter and when summer rolled around the sprinkler system didn’t work. They tried to fix it, but couldn’t figure out how the previous owners had it rigged and couldn’t find the other couple. They ended up bringing the former owner to court because it was the only way to find them.

During the mediation session, the disputants in this case came to an agreement that the former owner would buy all the replacement parts and train the new owner on how to work the sprinkler system—and they would get together to make the repairs. They even made plans to have dinner the next weekend. Deanna concluded, “It feels good when you help.”

How Do People Find Their Way to Mediation?

There are many paths to mediation. Mediation can be sought by disputants, recommended by a friend or coworker, or mandated by a third party, such as the courts or a work supervisor. Counselors, agency workers, and concerned friends may suggest mediation to help solve problems. Mediation occurs throughout society in many contexts. Families, communities, businesses, courts, governments, and schools are common contexts for mediation, although it is being applied in almost every avenue of life.

Family Mediation

Divorcing parents in many states are required to mediate parenting plans for their children prior to bringing their case to a judge. Research indicates the disputants in divorce cases see the mediator’s skills as critical to a successfully negotiated settlement—for example, mediators may empathize with both parties, foster a civil conversation, ask questions to clarify facts, lessen destructive communicative patterns among the couple, and shift the focus to the future rather than the past (Baitar, Buysse, Brondeel, De Mol, & Rober, 2012; Cohen, 2009).

Family mediation takes on many forms and can be referred by a variety of sources. In one example, a family was having difficulty reintegrating their son back into the home after he had run away. A social worker recommended a mediator to help the family negotiate rules and expectations. In another example, an advocacy agency specializing in resources for the aging regularly refers families to mediation when they are negotiating elder care issues. In yet another case, a minister recommended mediation to members of her congregation who could not amicably work out the details on an estate settlement after the death of their parent.

Community Mediation

One of the early applications of mediation in the United States was in promoting community peace. Police who are called about noisy parties or wayward pets may refer the neighbors to mediation. Neighbors who do not get along well, but would like to, may attend mediation as a way to open lines of communication. On a bigger scale, mediation can address concerns citizens have with police departments, with transportation agencies, or across neighborhoods. In one example, vandalism of an Islamic mosque raised concerns throughout the wider religious community. While the perpetrators of the crime were not found, the mediation of public conversations by leaders of multiple faith traditions helped forge a sense of community and establish a message that violence against one religious group was an act of violence against all. Community mediation program...