Institute for the Study of Conflict Transformation by Dan Simon
Many mediators say they adjust their approach according to the situation. This makes sense on one level. If a mediator remains responsive to the parties, the interventions will necessarily vary according to the parties, and will even vary with the same parties as their interaction changes. But many mediators mean something different when they say they adjust their approach. They mean sometimes they get more directive or more evaluative. They do so because they believe those tactics will make a settlement more likely; and they do so in an attempt to contain the interaction. And they suggest that sometimes the interaction matters and other times the terms of the settlement matter. Sometimes they say that certain types of disputes lend themselves to a focus on interaction; and others lend themselves to a focus on the terms of settlement. But it turns out all conflict is at its core, a crisis in interaction.
Many divorcing couples, with or without children, and with big or small marital estates, manage to sort out the terms of their divorce efficiently. Others litigate for years. The difference between the two groups is not what’s at stake, but what the state of their interaction is.
When an injured party seeks compensation from someone they believe is responsible, the amount of compensation can be negotiated without a lawsuit. If the negotiation degenerates into a lawsuit, the costs of the lawsuit mean that one or both sides end up with less of the money that is supposed to be so important. There must be something else going on: an interactional crisis.
When big companies sue each other for tens of millions, there’s more happening than pure, rational concern for their bottom line. The issues being litigated could also be negotiated, but they’re not. All sides of these lawsuits are spending significant amounts of money on the fight – that money is hurting one or all sides’ bottom lines – something other than money must be driving those fights. If the negotiations have degenerated to a wasteful lawsuit, there must be interactional challenges at play. Problematic confusion, distrust, demonization, and defensiveness must be present.
The US invaded Iraq at a time when US citizens were still traumatized by 9/11. On top of that, many in the US felt hatred of Saddam Hussein (and many were confused and thought he was involved in 9/11). And a large majority of Americans had no close relationship with anyone in Iraq. And on the other side, as it turned out, Saddam had good reason to feel threatened by the US. So both sides felt threatened by the other, and a lack of trust of the other. The war that started between the two countries was only possible when mutual distrust was intense. While oil, power, and ideology were also at play, only the crisis in the interaction between the countries could have led to the war.
This is not to say that war and litigation are necessarily always a mistake, but they’re always a mistake for at least one side, in terms of the outcome. If disputing parties have high quality conversations, in which clarity about themselves and each other increase, the need for war and litigation decrease greatly.
So for conflict intervention to be helpful, improved interaction should be its focus.
From Settle It Now Negotiation Blog When last we left the damsel in distress, she'd been laid off by an AmLaw200 firm and employed by a three-man outfit in Westwood. ...
By Victoria PynchonIf I ask participants in a workshop session, “How many of you mediate online?” I see relatively few hands spring into the air. If I ask, however, “How many of...
By James Melamed, J.D.Don't Let the Mediator Bully the Parties from Six Ways to Insure Your Construction Mediation Will Fail over at the Construction Law Musings Blog. A mediator who is bullying you...
By Victoria Pynchon
