110 Years of Mediation: Principles, Opportunities, and Challenges

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In this article I will offer a succinct overview of definitions, principles, approaches, opportunities and limits of mediation, a method of conflict resolution encompassing a wide range of practices (Burton, Dukes, 1990). 100+ years after Roscoe Pound’s speech, a series of conferences dedicated to ADR are taking place around the world. The increasing need of conflict resolution and the rising interest and practice of mediation requires deep analysis and reflection on its real potential to resolve conflicts. Facilitative and evaluative mediation styles can both make a difference, but without tailoring any intervention to the specific context, both styles can present dangerous pitfalls. Ultimately, while mediation can definitely improve dynamics among individuals in the same community, in structurally violent systems, it can contribute to maintaining privilege rather than altering the status quo.

Origins of ADR

The origins of ADR suggest that these practices emerged at a time of negative peace and civil discontent generated by contentious relations between the federal state and marginalized sections of US society. The USA was recovering from the Civil War and consolidating laws on the abolition of slavery, mainly through the XIVth Amendment on equality of citizens and the protection of their rights against abuses from the States. Courts though did not follow suit and deprived the amendment and the Congress of most power in relation to equality, until the right to uphold individual freedoms wasn’t claimed by corporations. Federal Courts trumped State courts in granting fast growing industries the freedom they demanded. Workers’ rights were not guaranteed and even harsher social conditions brought about by the great economic depression (1893- 1929), allowed unions and social movements to spark. When workers confronted courts, these often protected corporate interests not allowing for just compensation, let alone class equality. Jane Addams (1908, interviewed by Commons, 1908, p.770), leader of settlement house movement said, “the one symptom among the working-men which most definitely indicates a class feeling is a growing distrust of the integrity of the courts, the belief that the present judge has been a corporation attorney, that his sympathies and experience and his whole view of life is on the corporation side”.

In 1906, Roscoe Pound, judge and Dean of the University of Nebraska Law School, gave a speech at the 29th Annual Meeting of the American Bar Association entitled ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ saying that “If discretion is given him [the judge], his view will be that of the class from which he comes” (1906, cited by Friedman, 2007, p.1204). Among the causes of dissatisfaction in the justice system, Pound found two main ones: judicial procedure that allowed for a lot of cases to be lost or ignored and the distance between law and broader society. Pound’s speech sent a shock wave through the field of law and eventually triggered the rise of ADR practices such as mediation, arbitration med/arb, ombudsman practices, mini-trials, etc. (Fladjoe, 2013, Friedman, 2007). Pound continued to foster “a ‘sociological’ turn to the law, one that invited judges to decide cases based not on abstract concepts, but on grounded factual realities” (Friedman, 2007, p.1210).

The absence of a space for the human dimension in the traditional justice system and its reproduction of inequalities, has allowed for ADR to emerge. From a practical standpoint, ADR eases case congestion, costs and delays of courts, allows for more community involvement and access to justice, and provides more satisfactory outcomes (Goldberg, Green and Sander, 1985, cited by Burton, Dukes, 1990).

 

Mediation

According to the United Nations Guidance for Effective Mediation (2012, p.4), mediation is “a process whereby a third party assists two or more parties, with their consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements”. For the NY State Unified Court System (2008, no page), it is a “confidential dispute resolution process in which a neutral third party (the mediator) helps disputants identify issues, clarify perceptions and explore options for a mutually acceptable outcome“. More generally, mediation as “a process in which disputants attempt to resolve their differences with the assistance of an acceptable third party” (Kressel, 2006, p.726) is a practice that dates back to Ancient Greece and Rome (Ramsbotham et al., 2011), and although it has witnessed a number of cultural variations, essentially it can be applied, “[…] whether the conflict were between individuals or nations, and irrespective of culture, political ideology or religion. Although the circumstances of an international dispute [….] are very different from the emotional tangle of, for example, a marital one, both ultimately focus on human beings who have to make decisions and to act, and whose passions, fears, hopes, rage and guilt are much the same whoever they are” (Curle, 1986, no page).

In terms of the actual mediation process, some authors like Moore (1987) identified 12 stages, half of which focus on preparation and the other half on actual mediation. Others (Wall, 1981) have identified specific phases (organizing the process, establishing connections with the parties, agenda setting, understanding the relationship between the parties and their constituencies, argumentation and mediation, logistics and consequences of possible settlement, settlement agreement), but also strategies and methods to achieve resolution. Organizations at a community level, like the NYPI (2010), focus on the mediation process alone and identify the following stages: mediator’s opening statement, parties uninterrupted time, mediator summary of positions, mediator clarification questions, issue identification, agenda setting, generating options for resolution, evaluating options, building the agreement, closing of mediation. Rather than a specific process, what most Western institutions (NY State ADR Office, 2008; European Commission, 2004; United Nations, 2012) setting the standards of mediation practices at a national and international level agree on are the following general principles:

• Consent – Mediation is a voluntary process in which parties approve to participate, as opposed to court trials that oblige parties to attend.
• Impartiality/Inclusivity – A mediator should avoid any sort of favouritism or judgment towards one party and avoid any conduct that reveals partiality. Mediation should be a balanced process in which parties are treated fairly and whose perspectives are respectfully integrated.
• Confidentiality – The mediator is bound not to disclose any information s/he has become aware of during the mediation. Any exceptions to this rule should be made explicit to the parties.
• Self-determination – This is the key principle of Mediation and the one element that clearly distinguishes it from litigation. Parties have ownership of the process and the responsibility to find a mutually agreed solution. The role of the mediator is to foster dialogue and facilitate a voluntary resolution of a dispute, not to solve, suggest, or find solutions, and coerce parties into accepting anything they haven’t elaborated themselves. The mediator’s role is to facilitate the free exchange of ideas and never impose an agreement.
• Conflict of interest– The mediator should not have an interest in the outcome, not even in a peaceful solution. If the mediator believes there is a conflict of interest (knowing, favouring one party, etc), the mediator should recuse him/herself.
• Competence/Preparation –Training and experience are key in mediation. Typically, it takes a substantial training, practice and experience to gain accreditation and credibility.
• Safety – Mediation should take place in a physically safe place. The mediator should create an environment where parties can freely talk and can trust the integrity of the mediator and the process.
• Quality – This aspect refers to all of the above and in particular to the mediator’s ability to be aware of his/her own judgments and assumptions so not to negatively affect the process. The mediator shouldn’t offer opinions on issues of merit or specific subject matter, rather encourage the parties to equip themselves with all the expert support they believe they will need to solve the conflict. A mediator should conduct the mediation fairly, diligently, with sensitivity, civility and respect.

 

Facilitative Mediation

The principles above are associated to what is commonly referred to as ‘facilitative’ mediation and they are considered to be a golden standard by the cited institutions (UN, NYCB, European Commission, NYPI). A ‘facilitative’ approach (Riskin, 1996) assumes that the parties are the best retainers of knowledge in respect to their situations and interests, thus the mediator’s focus is on incrementally re-establishing trust and communication and keeping the parties together during the process. The mediator places the responsibility of problem solving with the parties and supports them in this effort by asking questions, identifying core issues and proposals, and ‘empowering’ them to find solutions on the basis of the interests expressed. Even if the solution is not found, the parties’ relationship has been improved enough to allow more productive communication and eventually a solution.

In international relations, the facilitative approach is based on the idea that contemporary conflicts are the result of more clear-cut definitions of ‘self’ and ‘other’ on a cultural, linguistic, religious basis which can represent a very difficult barrier to conflict resolution. The opportunity with mediation is to address these perceptions “on the social-psychological dimension” (Hoffman, 1995, cited by Jones, 1999). Individuals can be reconciled by fostering better communication which triggers empathy and understanding and can achieve new meaning and a “fusion of horizons” (Gadamer, 1997, p.302). According to Burton and Vayrynen (1994), through formalized dialogue a new system based on overarching human needs can be created, beyond cultural differences.

 

Evaluative Mediation

On the other side of the spectrum and distant from the principles listed above, we find an approach to mediation commonly referred to as ‘evaluative’, but also ‘power-political’ (Jones, 1999), ‘content-based’ (Bartunek et al, 1975) or ‘manipulative’ (Beardsley et al, 2006).

According to Riskin (1996), the ‘evaluative’ approach assumes that the parties need expert help on the subject matter of the conflict that the mediator can provide. In order to illustrate what can be the best outcome, the mediator engages in thorough research, collects documents and evidence, and keeps parties mostly separate (shuttle-diplomacy). The mediator assesses the strengths and weaknesses of each side, makes suggestions for solutions, and actively encourages the parties to accept one of the outcomes he/she has designed.

In international relations, this approach to mediation is supported by neo-realists who see the state as the central actor of the anarchical international system, a structure that can’t be changed, in which each country, to survive, has to defend its own interests through the use of power and force (Jones, 1999). In this context, “mediation is management of the ‘periphery’ [weaker states] in the interests of the ‘core’ [stronger states] (Wallerstein, 1974, cited by Jones, 1999, p.34). This approach takes for granted the predictability of a system in which states are always the key actors in a conflict, but does not consider cases in which sovereignty itself is at the center of the conflict as in the case of the Arab Uprisings (Jones, 1999).

 

Efficacy of Mediation

The International Crisis Behaviour project (University of Maryland, 2010), analysing international conflicts from 1918 to 2006 reveals that mediation as a method to resolve conflicts has been used increasingly more, reaching 64% of international crises in the years between 1990 and 1996. Compared to no intervention, facilitative mediation seems to be more effective at reaching formal agreements (Quinn et al, 2013). However, 90% of mediation interventions in post-Cold War Africa employed a more evaluative style of mediation which turned out to be the most effective (Quinn et al, 2013). Furthermore, in intrastate conflicts, regional mediators compared to international ones seem to be the most effective at reaching an agreement because of their knowledge of the actors and landscape, and their political stance and credibility (Quinn et al, 2013). Another study (Beardsley et al, 2006) specifies that although manipulative mediation can achieve crisis reduction (See Dayton Accords) and formal agreements by analysing costs and benefits, facilitative mediation can produce the most durable agreements by focusing on overall capacity and distribution. While parties may agree at the presence of a strong mediator, this agreement may not endure the test of time and may rely too much on third party enforcement. Facilitative mediation by allowing a free flow of information and putting back to the parties the responsibility of an agreement, can allow for longer-lasting settlements. Some authors thus recommend the use of both at different stages of the mediation (Beardsley et al, 2006). This position is reinforced by another study (Bercovitch, Houston, 2000, p.198) that analyses how mediators choose a specific, more facilitative or evaluative mediation style. The study concludes that, “A mediator’s choice of intervention strategy or role is dictated by the degree of motivational and communication assistance the parties require, the degree of control they can assert over the procedures and structure of the actual process, and the level of influence and substantive intervention required by them for their dispute to be managed”. It seems that specific mediation approaches should be attuned to the circumstances the mediator is confronting.

In the case of the 1995 Dayton Accords that settled the Balcans’ War, Holbrooke, the official US mediator, didn’t envision a specific result, but exerted a relevant amount of pressure over the parties to the point of pretending that the American mediating delegation would leave, thus forcing the parties into resolution (Greenberg, McGuinness, 2006). Although this more directive if not manipulative style of mediation resulted in an agreement, experts like Curle (2000), would argue that Dayton was a result of power politics and, because of its coercive measures, cannot be considered mediation.

The 1993 Oslo Accords between Israel and the Palestinian Liberation Organization (PLO) are often mentioned as a failing example of facilitative mediation (Jones,1999; Lerner, 2012; Adwan, 2012; Said, 2000; etc), however a few considerations have to be made in regards to the role of the ‘mediators’. The Norwegians provided the infrastructure, financial aid, secrecy and facilitation of the meeting, but had no role in the actual negotiations (Egeland, 1999). The Palestinians were disadvantaged by their limited knowledge of English, in which talks were conducted, lack of legal support and no maps of their own. When Singer, a successful US lawyer, joined the Israeli delegation, many requests of the Palestinians were tabled without the Palestinians being able to offer valid counterproposals (Jones, 1999). This author would not consider the Oslo Accords an example of facilitative mediation, let alone of mediation given that parties were left alone to negotiate.

The conveners did not attempt to re-establish equality among parties by making sure they were all equally equipped with legal aid, maps and translators. This obviously directly affected the outcome. More than an example of facilitative mediation, the Oslo process is actually a good example of why mediators should follow guidelines of process quality rather than not interfere with the process at any level.

Looking at statistics of mediation in a community context, it seems that parties and their lawyers look for evaluative mediators who can lead them to a solution. However, this trend seems to be generated by the fact that arbitration became over-regulated, making consumers look for its closest deregulated alternative – evaluative mediation (Baruch Bush, 2002). There is ample research (Kressel, 2006; Rosenberg, Folberg, 1994; Charkoudian, 2011; Quartermain, 2014; NYPI, 2014) speaking to the efficacy of facilitative mediation at a community level. According to Kressel (2006), 70-90% of parties who have tried mediation were satisfied by the process, with highs of 75% even for those who didn’t reach an agreement. Comparatively, lawyer services scored 66% satisfaction rate against a 40-50% rate of courts. Settlements occurred in a median 60% of cases, while parties’ compliance to an agreement scored 81% compared to the 48% rate of adjudication. The New York Peace Institute (2015), provider of mediation services for cases mandated by the courts of Manhattan and Brooklyn, states in its 2014 report that it worked with “more than 10,000 people. We mediated more than 1,800 cases – with about 70% reaching mutual agreement, and approximately 90% of clients feeling satisfied by our services” (NYPI, 2015, no page).

Mediation has gained popularity and has been increasingly used both locally and internationally. Facilitative mediation is the approach that better reflects the internationally acknowledged principles of impartiality, confidentiality and self-determination (NY State ADR Office, 2008; European Commission, 2004; United Nations, 2012) and is supported by experts like Curle (2000) who would argue that manipulative (evaluative) styled mediation cannot be considered mediation. According to Galton (1994, cited by Riskin, 1996, p.15) if compared to evaluative mediation, “empowerment mediation” and “community model mediation” are basically “pure form mediation”.

 

Limits of Mediation

There are a number of critiques to specific mediation approaches and more generally to mediation as a method for conflict resolution. Critiques to facilitative mediation hold that it is too ‘soft’ and doesn’t address issues of structural inequality and power asymmetry (Jones, 1999). In facilitative mediation, concepts of justice and procedure are substituted by focus on interpretation and communication. By abstracting from the subject matter, a balance between two or more parties that don’t have equal standing may be created, but if the structural issues underlying the conflict remain the same, these effects are only temporary and rather create only an ‘illusion of equality’ (Jones, 1999). As for evaluative approaches, critiques are about the mediator’s role in the process. (Kovach, Love, 1996). A mediator that evaluates is not impartial, and can trigger adversarial behaviour and lack of trust in the mediator and in the process (Kovach, Love, 1996). By evaluating the matter and manipulating the parties, mediators engage with processes that aren’t mediation (Curle, 2000).

According to Burton (1990), although ADR and mediation can support better understanding of ‘the other’ by changing misperceptions and opening the opportunity for dialogue, they are likely not to resolve issues that require change at a structural level. Burton and Dukes (1990) in fact distinguish between disputes, underlying which is an issue of competing interests, and conflicts, underlying which is an issue about needs, the same material, acceptance, and access needs defined by Azar (1990). “In the case of conflicts [….] where there are non-negotiable needs at stake, finding some means of satisfying these is the only means of control. This could require changes in policies, institutions and even in the systems concerned. […] The remedy for conflicts is the removal of the provocations, not just the manipulations of behaviours” (Burton, Dukes, 1990, p.6). In this sense, ADR and mediation can actually be used to serve those who want to escape justice to advance their own interests through a process that does not rely on legal norms, but allows on bargaining that can easily favour the stronger parties (Burton, Dukes, 1990). This attitude is particularly evident in the case of legal transplants. Given the adoption of Western codes in developing countries is often a long and ineffective process, ADR has been considered as an alternative that suits Western investors and keeps disputes out of the courts’ public eye. It is no surprise that in international disputes, disadvantaged parties typically have a preference for court proceedings while parties who are politically and economically stronger will prefer ADR (Greco, 2010). Even an ombudsman, an ADR figure specifically appointed to address public grievances against a government or a specific institution (Burton, Dukes, 1990), can be used to deflect attention from a structurally violent system to place the blame on low-level bureaucrats, especially in non-democratic states (Caiden 1983, Zagoria, 1988). As Burton, also Azar (1990) states that mediations can foster short-term changes, but for substantial change to take place, fundamental structural issues must be addressed.

 

ENDNOTES

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Bartunek, J., Benton A.A., Keys, B. C.(1975) Third Party Intervention and the Bargaining Behavior of Group Representatives.  The Journal of Conflict Resolution, Vol. 19, Iss. 3, pp. 532-557.

 

Baruch Bush, R.A. (2001) Substituting Mediation for Arbitration: The Growing Market for Evaluative Mediation, and What it Means for the ADR Field. Pepperdine Dispute Resolution Law Journal, Vol. 3, Iss.1, pp. 111-131.

 

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