This document will analyze a conflict scenario with respect to the conflict’s candidacy (suitability) for mediation. Various types of mediation will be discussed; particular attention will be given to mediation process implementation considerations from a cultural and religious perspective. Finally, a mediation approach will be suggested and explained based on the information provided in the conflict scenario. The following conflict scenario will be the subject of the discussion and analysis to be undertaken as described above:
Several employees are suing a company for wrongful termination based on their race. The parties are claiming that the company treated them differently than white workers when it came to disciplinary actions. The parties filed an EEOC complaint and were issued a right to sue letter. Each of the parties hired an attorney to represent them. The case does not meet the qualification for a class action lawsuit, therefore, the parties are suing the company individually. The company is claiming that the employees were terminated for producing bad quality product and sabotaging equipment. The company is in the process of downsizing and several employees have been terminated for various reasons. The employees that are suing the company are claiming that they did not sabotage equipment and did not produce bad product. The suing employees assert that they were immediately terminated for these accusations while their white counter parts accused of sabotaging equipment and producing bad product were not terminated. The terminated employees have worked for the company for over twenty-five years. The employees had never been written up or had any type of disciplinary action taken in over twenty-five years for bad work, attendance, or company violations prior to the termination.
Mediation is commonly classified as either problem solving or transformational (Boulle, Colatrella, & Picchioni, 2008; Clayton, 2018; Spangler, 2013). This classification defines and prescribes a mediation process based on the perspective of the mediator about the nature of the conflict and how it is most effectively managed. These two classifications of mediation will now be discussed in more detail.
Problem Solving Mediation
Problem solving mediation is premised on conflict being defined as a problem to be resolved or managed (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). Mediation, therefore, is about assisting the parties to the mediation in characterizing and developing a common definition of the problem that exists between the parties and then developing a mutually acceptable solution to the problem that satisfies the interests of the parties. Problem definition typically involves the identification of issues of concern to the parties, positions of the parties regarding those issues, and the underlying interests of the parties that predicate those positions. The mediator assists the parties in identifying and developing potential options and alternatives within the options that might be potential solutions to the problem. Agreement is usually reached following some form of negotiation between the parties that is either distributive, integrative or a combination of both (mixed-motive) (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013).
There are two primary types of problem solving mediation: evaluative and facilitative (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). In evaluative mediation the mediator provides expert advice and opinion with respect to the substantive aspects of the problem under consideration. For example, in a divorce mediation the mediator might opine as to how a judge or a jury might decide given a particular fact pattern or the mediator’s personal experience with a particular judge. The mediator might urge a party to accept an offer based on the mediator personal opinion. Consequently, evaluative mediation is most effective when there is sufficient substantive information about the case to allow the analysis and formation of an opinion. Within the context of action subsequent to the filing of a lawsuit, evaluative mediation is most effective following discovery. Problem solving mediators, particularly evaluative mediators, tend to avoid dealing with the emotional aspects of a conflict in favor of the conflict’s substantive component; therefore, evaluative mediators consider relationship issues as secondary to the primary goal (objective) of reaching a settlement (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013).
In facilitative mediation the mediator does not act as a substantive expert and offers little advice about the conflict (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). However, the facilitative mediator does (or should) have expertise in the process of mediating; therefore, the effectiveness of the mediation is correlated with the effectiveness and quality of the process. Phillips (2001) suggests that facilitative mediators are “experts in recognizing what they do not need to know” (p. 172). Consequently, facilitative mediators tend to focus on the issues that are necessary to resolve the conflict and facilitate resolution by allowing the parties to propose options and construct an agreement. The facilitative mediator does this by keeping the parties focused on their issues and their interests. Additionally, facilitative mediators tend to be more adept than evaluative mediators in dealing with interpersonal issues primarily due to the fact that one of the primary roles of the mediator is to facilitate communication between the parties while avoiding pitfalls (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). Facilitative mediation requires significantly less substantive information about the conflict to be effective and as a result can be initiated much earlier in the evolution of a conflict and even prior to formal discovery following the filing of a lawsuit (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013).
Transformative mediation seeks solely to improve or transform the interpersonal relationships of the parties involved in the conflict (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). Resolution of the presenting problems associated with the conflict is not central to the objective of transformative mediation, and resolution of these problems is considered a collateral consequence of the parties’ relationship improvement. There are two concepts central to transformative mediation: empowerment and recognition (Bush & Folger, 1994; Spangler, 2013).
Empowerment is about enabling the parties to define and seek resolution of their own issues; this is accommodated through clarity of goals, resources, options, and preferences (Bush & Folger, 1994; Spangler, 2013). This clarity occurs when the parties learn how to more effectively listen and communicate, analyze issues and evaluate alternatives, and make informed decisions (Bush & Folger, 1994; Spangler, 2013). Recognition is about enabling the parties to see and understand each other’s point of view, a form of empathy; this is accommodated through empowerment (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013).
In transformative mediation the process, ground rules and subject matter are defined and controlled by the parties (Bush & Folger, 1994; Spangler, 2013). The mediator’s job in essence is to stay out of the way of the parties and let the parties take the process wherever they (the parties) desire to go. The role of the mediator is to facilitate communication flow between the parties in a noninvasive manner; the mediator watches for opportunities to improve clarity of communication, and recognition of the parties. Because transformative mediation is premised on improving relationships it is particularly well suited for conflicts that have a strong emotional component and where rehabilitation or improvement of the relationship of the parties is important. The measure of success of a transformative mediation is not settlement but rather improvement of the relationship between the parties as evidenced by a party’s ability to better recognize the issues and interest of the other party(s) and/or a party’s improved clarity of his or her own issues and interests (Bush & Folger, 1994; Spangler, 2013).
The Impact of Culture and Religion on Mediation
Culture determines what people consider normal, appropriate and expected from other people in a social context (LeBaron, 2003). Culture determines how parties will interpret behavior (make meaning) and how they will respond; culture is an inextricable component of identity (LeBaron, 2003). In this regard religion and religious affiliation represent cultural influence that shape identity. Conflict occurs when identity is threatened and both conflict and its resolution always occur in a social context (Herrman, 2006; LeBaron, 2003).
Through the utilization of a third party, the goal of mediation is to reach a resolution and establish peace between the parties (disputants) (Bercovitch & Kadayifci-Orellana, 2009; Boulle, Colatrella, & Picchioni, 2008; Bush & Folger, 1994). As discussed above mediation is essentially composed of a mediator, a process and disputants; mediation effectiveness should, therefore, be correlated to attributes associated with these components. The following list of attributes has generally been considered important to the success for any mediation: mediator identity; mediator leverage; mediator motivation; mediation process strategy; and disputant motivation (Bercovitch & Kadayifci-Orellana, 2009). Each of these attributes will now be discussed within the context of culture and religion.
Mediators that are trusted and considered credible and legitimate by the parties tend to be more successful (Bercovitch & Kadayifci-Orellana, 2009). While all cultures consider character of the mediator to be important (Tyler, Lind, & Huo, 2000), mediators in high power distance cultures tend to be more successful when they share the culture with, are familiar with and maybe even have a history with the disputants (parties) (Barnes, 1994; Chia, Lee-Partridge, & Chong, 2004; Morris & Ho-Ying, 2001). In low power distance cultures the mediator typically does not know the parties and has no interest in the outcome of the mediation other than resolution (Boulle, Colatrella, & Picchioni, 2008; Chia, Lee-Partridge, & Chong, 2004; Phillips, 2001).
In cultures that have a strong religious influence, faith-based mediators tend to be more successful (Bercovitch & Kadayifci-Orellana, 2009). These cultures tend to perceive their religious leaders as legitimate and credible; religion offers a common basis for the beginning of trust. Often religious symbolism or rituals are incorporated into the mediation process (Barnes, 1994; Bercovitch & Kadayifci-Orellana, 2009; Chia, Lee-Partridge, & Chong, 2004).
Bercovitch and Kadayifci-Orellana (2009) suggest that mediator leverage is critical to mediation success. Leverage (mediator power) is defined as the willingness and skill to influence outcome. For example, the quotation of religious scripture to influence a party’s actions would be the use of leverage. Evaluative mediators exemplify the use of leverage when they opine regarding the strength of a party’s case in court. In cultures that value and respect its elder members (collectivist cultures), mediators are typically community elders that the parties know and trust (Chia, Lee-Partridge, & Chong, 2004; Tyler, Lind, & Huo, 2000). These mediators tend to have an interest in the well-being of the entire community and therefore have leverage in influencing the parties simply due to their age, common community interest and inherit trust of the parties (Barnes, 1994; Chia, Lee-Partridge, & Chong, 2004).
Mediation Process Strategy
Currently there is no generally accepted mediation process model that spans and is effective across multiple cultures (Barnes, 1994; Bercovitch & Kadayifci-Orellana, 2009). Research suggest that the use of multicultural or bicultural mediators and/or mediation teams tend to be most successful given a mediation represented by parties from multiple cultures (Barnes, 1994; Morris & Ho-Ying, 2001). Mediation process choice and implementation can vary from culture to culture (Barnes, 1994; Chia, Lee-Partridge, & Chong, 2004). For example, evaluative mediation is an acceptable process in both the United States (an individualistic culture) and Malay (a collectivistic culture) cultures. In the U.S., mediation is typically conducted in a neutral location by a mediator that does not know the parties and has no interest in the outcome of the dispute other than resolution. However, in Malay, mediation is typically conducted at the home of a prominent elder. The mediator is known by the parties and has an interest in the outcome of the dispute because the outcome impacts the community. Additionally, Malay meditations are usually held on Friday (Islamic Sabbath) and the process includes the use of parables, prayer and other ritual (Chia, Lee-Partridge, & Chong, 2004). Unlike mediators in U.S. culture, Chinese mediators do not use joint session to allow the parties to vent anger; this allows all the parties to save face (Chia, Lee-Partridge, & Chong, 2004).
Logically, mediation success is greatly enhanced given the disputants desire to settle (Herrman, 2006). In this regard mediators can have an impact on disputant motivation to settle through the use of leverage and process selection (Bercovitch & Kadayifci-Orellana, 2009; Phillips, 2001). Disputants that are members of collectivist cultures (e.g. Malay, Chinese, and Japanese) are often motivated to settle in the best interest of their group (community); best interest might include saving face for one or all of the parties (Bercovitch & Kadayifci-Orellana, 2009; Phillips, 2001). Disputants from cultures with strong religious influence can be motived by utilizing religious doctrine and/or faith based mediators as leverage (Bercovitch & Kadayifci-Orellana, 2009).
Conflict Scenario Analysis and Mediation Approach
In the conflict scenario outlined above, the possibility exists for evaluative, facilitative or transformative mediation. Since lawsuits have already been filed, mediation will occur in the “shadow of the lawsuit” and could, therefore, be subject to timings imposed as part of the litigation process. Not knowing about the company culture and the culture of the parties, it is difficult to determine what type of mediator and process might work best. For example, if the company manufactured bibles and the plaintiffs were African American then, based on the impact of culture and religion on mediation discussed above, a choice of mediator might be a facilitative African American protestant minister. If the plaintiffs were Chinese working in an American factory that produces automotive parts then a good choice of mediator might be a bicultural Chinese elder from the community that was a former judge that favored a facilitative/evaluative style of mediation or, in the alternative, a co-mediation team consisting of a Chinese community elder and an evaluative or transformative mediator.
Because of the history and nature of the plaintiffs’ complaints there is the potential for a great deal of emotion. The possibility of strong emotion (particularly anger) precludes the use of evaluative mediation as a primary mediation approach and tends to favor the use of a transformative or facilitative process. People typically don’t disagree about the facts but the interpretation of the facts (Boulle, Colatrella, & Picchioni, 2008), in this particular case it appears that the facts will need to be placed and viewed in a common perspective; this may require some evaluative skills. The fact that the EEOC has issued a right to sue letter speaks to the EEOC’s perception of the strength of the parties’ case; depending on the content of the letter it could favor either party. If the letter does not favor the plaintiff, then facilitative or transformative mediation is further indicated because the plaintiff action may be motivated by emotion or self-esteem.
As discussed above, there are two primary types of mediation used to address a dispute: problem solving (evaluative and facilitative) and transformative. Problem solving mediation addresses the presenting problems (symptoms) of a conflict; transformational mediation addresses the underlying cause of the conflict presentation (communication and relationship). The selection of a particular type of mediation process and mediator is dependent on the culture of the parties involved. Effectiveness of the mediator is dependent on the identity of the mediator, leverage available to the mediator, and the motivation of the parties to settle the conflict. Religion can represent common ground, the basis for trust, and provide leverage for the mediator to influence the parties. It is concluded that effective and successful mediation should consider the cultural and religious composition of the disputants in the selection of a mediator, mediation process and process enactment.
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