Mediation: An Age-old Practice
Cycles of conflict and reconciliation, as all recognise, have long been part of the fabric of life. Jared Diamond (2013) explains how small-scale traditional societies viewed other peoples (clans and tribes) in a threefold manner. These other groups were known as friends, as enemies or as strangers, and strangers were initially perceived as being potential enemies. When conflict arose between individuals from neighbouring friendly clans, reconciliation was highly valued, since relationships with neighbours were long-term; these individuals lived their lives mostly within the same small geographic area. Furthermore, if feelings of hurt could not be ameliorated and mutually resolved, disputes would likely persist and fester. Given the closely knitted relationships inside each clan, feelings of hurt would have been likely to spread within the clan. Hence, a serious argument between two individuals from neighbouring clans could easily escalate into a dangerous destabilisation of relationships between whole clans. Thus, the mediated resolution of conflict was important in traditional societies for these two reasons, because inter-clan relationships were often life-long and individuals within any clan were embedded in strong networks of intra-group relationships. In the modern workplace, people are also bound into extended-term relationships, both intra-group and inter-group, and so the resolution of conflict, in which good relationships are recovered, may be expected to be as valuable today as it ever was amongst traditional societies. In the past three decades there has been a spread of formal mediation practice from the community and court sectors to many other fields (Beer and Stief 1997, p. 3; Kressel 2006, p. 726), including the workplace. In the UK, contemporary workplace mediation practice seems to have transferred from community and family sectors.1 Workplace mediation also seems to have roots in related forms of conciliation that arose, in the UK and the USA in the early to mid-twentieth century, out of governmental industrial relations policies.2
Definitions of Mediation
To give a sense of how present day workplace mediation (and much mediation more generally) is defined and to highlight significant words and themes that characterise these definitions, it will be helpful to lay out three typical definitions. The UK governmentās Advisory, Conciliation and Arbitration Service (Acas) and the Chartered Institute of Personnel and Development (CIPD) jointly published a report entitled, āMediation: An approach to resolving workplace issuesā. It states that mediation āinvolves a neutral third party bringing two sides together with the aim of reaching a mutual agreementā (Acas and CIPD 2013, p. 3, italics added). The UK Centre for Effective Dispute Resolution (CEDR), an organisation that has trained thousands of commercial and workplace mediators around the world, describes mediation as
Lastly, the American mediator and author Christopher Moore describes mediation as ana flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution. (CEDR 2014, emboldening as on the CEDR website)
Most significantly, in two of the above definitions, the mediator is said to be āneutralā. As per these definitions, this neutral person actively assists, intervenes and conducts a process to help those in conflict negotiate to find their own form of settlement to their dispute. Diamond (2013) also describes how, in traditional societies, if one person was wronged by another, a go-between would arrange compensation negotiations between their respective family or clan groups to settle the conflict. In this ātraditionalā context a settlement was necessary to avoid an eruption of physical, often life-threatening violence involving clan members. Although in the UK and the USA, present-day neighbour or workplace conflict that is not resolved rarely results in physical violence, we can see that this idea of mediation found in traditional societies, as a neutrally facilitated, negotiation process aimed at settlement, still persists in the field of contemporary mediation and in workplace mediation in particular.intervention in a negotiation or conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute. (2003, p. 15)
The Myth of Mediator Neutrality
However, on an intuitive level it is quite hard to imagine how neutrality can be maintained when one actively assists in a negotiation that has a goal of settlement. Cloke comments that ā[w]hen mediators āmerelyā listen, they may still have a profound, even directive impact upon the partiesā (2001, p. 13). The idea of a neutral facilitator would appear to be an oxymoron. Riskin acknowledges that
With a slight refinement to Mooreās view (2003, p. 53) but in accord with Kressel (2006, p. 743), it is suggested that the concept of neutrality in mediation embraces two facets of the interaction between the mediator and the people seeking to resolve their conflict. Firstly, mediators endeavour not to favour the position of one party over the other. Thus, they remain impartial with respect to each party. Secondly, they try not to influence the outcome of the mediation meeting and avoid the potential trap of prompting or leading a resolution of their own devising (which may or may not favour one of the parties). Any complete or partial solutions to the dispute that are created are said to be the sole preserve of the parties. In summary, the mediators neither judge the parties nor influence the outcome of their discussion. Mediation can thus be differentiated from adjudication or arbitration.[t]he idea that the mediator should be neutral or impartialāboth in fact and in appearanceāis deeply embedded in the ethos of mediation, even though observers disagree about the meaning and achievability of the notion. (1996, p. 47)
In local UK community mediation organisations, mediators work in pairs and this enables new mediators to train as apprentices working in support of a more experienced mediator. The mainstream style of mediation, taught and practiced in such community organisations, is referred to as facilitative, problem-solving mediation.3 Being mainstream, it is this broad style that has been imported into workplace practice, except in this case mediators operate as singletons. In the UK, Acas, as cited above, proffers a facilitative mediation style (and an optional, more directive and deliberately less than neutral style) (Acas 2005, p. 7). Under the facilitative style and more directive styles, the mediator manages a structured meeting process. Given this management of the process, it is improbable that mediators can lead an interaction with the people in dispute at the same time as maintaining a neutral disposition towards them. Concerning the first facet of neutrality, it would seem possible to recognise oneās own prejudicial thoughts and feelings, which may lead one to be less than impartial between two parties. Thus, on most occasions we may assume mediators are able to suspend otherwise innate and learned evaluative or judging tendencies and not intervene in an overtly biased manner.4 Practitioners such as Cloke (2001, p. 13), who reject simple notions of neutrality and mediator objectivity, suggest the mediator should seek fairness through an omnipartiality, not siding with one party but supporting both simultaneously. However, concerning the second facet of neutrality, we may imagine that it is probable that mediators may succumb to a desire to ask subtly leading questions that contain an evaluation of the conflict and give a veiled pointer towards forms of solution. This desire to āleadā parties towards solutions obviously runs counter to mediation training, which emphasises a neutral disposition. Those in conflict who come to mediation would possibly not do so if they thought the mediator was other than neutral. To offer to act other than neutrally would, at first glance, seem to compromise the very concept of facilitative mediation. Hence, the notion of mediator neutrality is understandable.
Nevertheless, the simple activity of posing questions to the parties or reflecting back statements made by them in the execution of the mediator role reveals the inherent power and agency of this role. That is, the mediator acts with intent, whether conscious or unconscious, and has influence, however minimal, due to both physical presence and any utterances made. Mediator neutrality must therefore be mythical. Kressel says of the facilitative style and its claim to neutrality that
There are certainly subtle hints that this may be the case if we read between the lines in the above cited definitions referring to assistance in finding a mutually acceptable settlement under partiesā ultimate control. Nevertheless, it would seem that both mediators and parties to mediation often do not overtly recognise the operation of mediator influence. This may be called the problem of mediator neutrality.[i]t is ā¦ the most popular philosophy of the mediatorās role, albeit one that is frequently contradicted by empirical studies of mediator behaviour. (2006, p. 743)
Acknowledging this problem raises the question of what the effects of mediator influence might be. Furthermore, any influence vested in the mediatorās interventions will be conditioned by the property of language to carry the hidden, hegemonic power of the dominant cultural norms of organisational life. As noted by Fairclough,
Torfing further asserts thatthe exercise of power, in modern society, is increasingly achieved through ideology and more particularly through the ideological workings of language. (2001, p. 2)
That is, speech acts (our commonplace utterances) are historically situated and subject to variation over time due to political and social events. These understandings of the power of language and the constraints placed upon meaningāthat is, what we āmeanā or are trying to āsayāāby the operation of language suggest a particular need for sensitivity by mediators to their own potential to influence mediation outcomes.our cognitions and speech acts only become meaningful within certain pre-established discourses which have different structurations that change over time. (1999, p. 84)
This book will argue that mediators should openly recognise the myth of neutrality and become sensitive to their position of effective authority vested in their quasi-professional status. By dispensing with the myth of neutrality, mediators may purposefully work to become self-aware of their inevitable influence upon outcomes in order to try to render their influence more transparent to the parties and also to contain and minimise it as appropriate. In summary, an aspiration of minimal mediator influence would seem sensible but its absolute achievement should be recognised as impossible. The major styles of mediation practice will be reviewed in order to construct an outline of a new explorative practice that attempts to make practical sense of this aspiration.
The ensuing critique of mediation practice is based upon an assumption that the workplace mediatorās principal concern is to serve the needs of the organisational employees who find themselves in conflict, although the benefits of a successful resolution of a conflict will inevitably also accrue to other colleagues and the organisation itself. In the workplace, where the mediator serves both parties and the organisationās commissioning manager, it becomes significant to understand the possible influential tendencies of a mediation intervention that is so often promoted as being neutral. The practice of mediation has unsurprisingly been adopted as an additional human resource department tool, in part for the instrumental reason of seeking a negotiated resolution of conflict that would reduce the associated costs (CIPD 2011; Gibbons 2007). The use of mediation services to avoid costs related to grievance and disciplinary procedures or claims to employment tribunals is a logical and reasonable business practice. But in doing so it is important to maintain the integrity of mediation practice, which itself holds a prima...