Copyright 1999 – Not for publication, reproduction, or distribution without prior consent of author.
MEDIATION AS A FANCIFUL IDEA OR REALISTIC OPTION
The real test
of the acceptance of professional mediation in our society will be the sustained
and regular use of those services by a substantial number of people to manage
conflicts that arise in their personal and business lives in the private market.
The use of mediation
in the public sector, exampled by the rapid proliferation of court programs
and legislation that encourage and legitimate mediation, is helpful but cannot
be taken as competent evidence that people in general have accepted negotiation
as a viable means of conflict management. Even so, many mediators are waiting
for or actively lobbying legislatures or courts to enact or implement mediation
programs in the belief that they will deliver mediation work to their doorstep;
however, a steady stream of mediation business has not materialized for many
mediators. In fact, ironically, some court sponsored mediation programs have
engendered an unintended consequence—am increased resistance to mediation,
especially from those people who have felt coerced to participate. Anecdotal
reports hint that an increasing number of people are voicing resentment at
being forced to mediate.3 In any event, the private demand for
mediation services remains underwhelming in most of the country with only
a few areas and contexts being of modest exception. For the most part, people
in our culture remain leery of negotiation as a means of settling disputes.
mediation is underutilized because the marketing of those services has been
minimal. While that may hold some truth, it could also be that the marketing
message of many mediators is ineffectual. Mediation is often portrayed as
the “kinder-gentler” alternative. The common operating assumption
is that if people knew about the mediation process and how it could save time
and expense and give them greater control over their lives, that consumers
as thoughtful and rational people would prefer mediation over the more traditional
process—reliance on lawyers, judges, and other experts—for the settlement
of disputes. The presumption is that consumers, faced with conflicts, will
apply a cost/benefit analysis and act out of their self interest to choose
the most efficient means of dispute resolution. Some do. Many do not.
It should come
as no surprise that logic alone does not necessarily sell even the best product.
If people were to act based purely on objective data, none would smoke, all
would wear seatbelts in their cars, none would be entrepreneurs, many would
not marry, and not many would have children. Few purchases, whether it is
a car, a house, or a doctor’s, lawyer’s or mediator’s services are made solely
on a rational basis. A strictly rational marketing approach often fails to
effectively reach many prospective consumers.
have long appreciated the importance of taking into account human nature and
emotion in sales and advertisement. A significant part of any promotional
strategy is deciphering how the service/product enhances consumer self image
or alleviates fears and insecurities. Choosing to mediate a dispute remains
for many, a non-traditional, untested and risky business. When faced with
conflict, the emotion many experience is fear, specifically, their fear of
being taken advantage of or being played for a fool if they negotiate for
themselves. The rational reasons to mediate do not easily overcome that overriding
fear and an effective marketing message must address that underlying emotion
selling a product however, marketing strategy reflects how mediation is professionally
understood and practiced. Currently, many mediators view their work as a thoughtful,
humanistic enterprise intended to help others resolve conflict; their process
relies on trust and good will. Some well-intentioned practitioners even find
marketing distasteful or unseemly. However, while human beings have the capacity
to act rationally and collaboratively, they don’t necessarily start there
when faced with a conflict. The resistance to negotiation and mediation are
long standing and deeply seated in our culture.
There are two
significant sources of resistance to mediation. First, the idea of mediation
or negotiation of a conflict is a difficult one for many people to accept,
especially in our culture where there is a strongly ingrained sense of being
right and a belief that the truth will prevail. Case in point: John Wayne,
a cultural icon, who never negotiated in any of his many and varied movie
roles. He remains a hero for many people and professionals alike, who have
taken from his modeling the belief that to negotiate is to compromise, “give-in,”
or even sell-out your principles. As a general rule, Americans dislike negotiation;
bargaining is thought to be an unseemly activity. Many prefer to pay a set
price for a Saturn than dicker over the purchase of a car.6 Note
that the resistance to mediation follows directly from the resistance to negotiation;
mediation is merely a negotiation between three (or more) people. The mediator
essentially negotiates his or her authority with each of the participants.
For all intents and purposes, the terms “negotiation” and “mediation”
are interchangeable, mediation being only a more formalized, third party facilitated
mediation requires a break with traditional thinking patterns as a means of
managing conflict. Mediation, like negotiation, requires that people take
responsibility for their own decisions. Many people are afraid, or simply
do not want that responsibility. They prefer to believe, or are conditioned
to think that professionals—lawyers, judges, doctors, therapists, etc.— know
more and are better able to make decisions for them.6
There has, however,
been some breakdown of this resistance, albeit slowly. People are becoming
more aware that conflicts are complex and that there are not simple, formulaic
right answers. As well, people are increasingly cautious, skeptical and critical
of professional services, advice and directives.7 This is reflected
in the increased use and availability of alternative sources of information,
products and services in both health care and law. The Internet is, no doubt,
a significant contributor to this dynamic.
The second source
of resistance is more troublesome because mediators themselves often bear
responsibility. Mediation is often presented in an overly simplistic manner
that makes it all the more difficult for prospective consumers to take seriously.
Mediation is described in misleading and Pollyannaish terms, such as: “a
win/win process,” or as “a collaborative problem solving process.”
The implicit suggestion is that all parties will be satisfied with the outcome,
respect each other or even be friends. Many mediators see themselves as peacemakers
and mediation as a healing or “transformative” process.10
While that might occur on occasion, it is by no means the rule and in any
case not the purpose of mediation.
There is a still
greater risk: the expectations of the mediation process are, by those simplistic
descriptions, set unrealistically high and in many cases unobtainable. The
terms belie a quasi-utopian vision that conflicts can be, not just managed,
but finally and completely resolved. The result may be the increased likelihood
of failure, which in turn can generate even greater resistance to mediation.
Many parties already do not consider mediation because they believe the process
requires a level of trust, reasonableness and goodwill that they have predetermined
the opposing party lacks. Common refrains heard from consumers in ruling out
mediation are: “(s)he is not trustworthy” or “I’m reasonable,
but (s)he is not.” The risk is exacerbated by the presentation of the
mediation process in fanciful and idyllic terms.
resistance will require a shift in the thinking of mediators from a soft,
idealized approach to conflict management to a more rigorous, strategic approach.
To encourage the acceptance of mediation in the real world, it must pass the
test of being cost effective, efficient and, most important of all, be safe.
Mediation cannot be limited to those rarefied situations that rely and depend
on all parties being reasonable, rational, acting in good faith, trusting
or even trustworthy. If mediation services come to be viewed as applicable
only to those matters where all parties concerned exhibit a collaborative,
cooperative and humanistic demeanor at the same time, then mediation might
as well await the simultaneous alignment of the stars and planets. The number
of available cases susceptible to mediation will be reduced to a fraction
of 1 percent. To flourish, the mediation process must be recast as good business
that need not rely on trust or good will. Mediators must work in the real
world, not in an idealized world of their own concoction.
AND RATIONALE FOR GUERILLA MEDIATION
to work in the real conflicts of everyday life and be accepted as a viable
mode of conflict management, then the approach taken must be active, strategic
and calculated to constructively redirect the energy of the conflict. Human
nature must be confronted directly. Instead of hoping for, or expecting people
to be reasonable and thoughtful in the face of conflict, mediators must non-judgmentally
accept their more base motivations for power and control as well. While messengers
(Machiavelli, Kissinger, et al.) and methods might be criticized, the primary
postulate of “realpolitik” is as applicable today as it has been
throughout human history: “Those who desire peace should prepare for
war.” For mediators, the corollary axiom is “Those who pursue settlement
should be prepared for conflict.”16
but not surprisingly, warfare strategies and tactics offer parallels in thinking
and approach that are useful to a mediator. If conflict is understood as a
lesser form of warfare that left unchecked can quickly escalate into open
warfare, then the strategies and techniques effective in war may also be applicable
in the negotiation of conflict. Only the purposes remain fundamentally different.
Parties in conflict are not an enemy to be subdued or defeated; for the mediator,
the purpose will be to carefully hone their thinking and skills to effectively
manage the jungle of fears that seize many parties in conflict. The purpose
of scrutinizing warfare practices is to strip out from that higher intensity
conflict circumstance the thinking and strategies that are useful in order
to apply them preemptively to avoid the escalation of conflict. What is common
to both war and negotiation, and essential for success in either field of
engagement is the recognition of the basic nature and behavior of the opponent
or parties. In short, not to underestimate your opponent and to accept him
on his own terms.
The term and
concept of guerilla mediation are derived in some measure from the writing
of Sun Tzu in The Art of War. He was a Chinese general who, by varying
accounts, recorded his approach to warfare sometime between 500 and 300 B.C.,
and has been studied throughout the centuries up to and including the present.
The principles he enunciated for the preparation for war apply to the management
of conflict by other means, including negotiation and mediation. In fact,
early on and often, Sun Tzu emphasizes that to fight and conquer is not “supreme
excellence,” that excellence is reserved for breaking the enemy’s resistance
could be some quibbling over the exact meaning intended in the phrase “breaking
the enemy’s resistance,” the writing provides good instruction for the
practicing mediator. It is neither cynical nor utopian, but instead is soberly
realistic. He reflects an appreciation for the human rhythms of conflict:
“in peace prepare for war, and in war prepare for peace.” Not unlike
the warrior, the mediator necessarily relies on strategic planning, tactics
and maneuvering, observing the terrain of the conflict and the use of deception.
Specifically, the analogy of mediation to guerilla warfare, as distinguished
from more formalistic approaches to warfare, highlights the parallels between
mediation and the non-traditional, more fluid and mobile form of combat that
guerilla tactics conjure.17 The mediator, as does the guerilla
fighter, must creatively use the resources immediately at hand and cannot
depend on outside reinforcements or the traditional sources of authority (e.g.,
a court) to impose an outcome on conflicting parties.
The risk of
using guerilla warfare as a metaphor for mediation is for some perilously
close to encouraging the combative and argumentative nature of many disputes
that most mediators want to disavow and distance themselves from. In fact,
Deborah Tannen gives a searing critique of the language of our culture that
encourages argument instead of dialogue in The Argument Culture.23
Yet, while her observations are valid and useful, they fail to sufficiently
take into account the reality of our human circumstance. While human cooperation
occurs and is evident to greater or lesser extent in many circumstances, war,
violence and conflict are not likely to be extinguished any time soon by social
engineering. The proof is in our history, biology and psychology.9, 17,
18, 21 The extent to which conflict and warfare can be mitigated or
averted, may be a function of looking directly at what war and conflict are
about, not merely pretending it could be otherwise.
and Mark Johnson, in Metaphors We Live By,20 observe that
our ordinary conceptual system is metaphorical in nature; linguistics—our
words and metaphors—are how we experience one thing in terms of another. In
short, in disputes where argument is the preferred tactic, argument is a subspecies
of war and while argument is not war, it is partially structured, understood,
and performed in terms of war. A dispute is metaphorically structured as a
battle; our language reflects this reality: one party “attacks”
another’s position, a claim is considered “indefensible,” or the
comments are “on target.” With the war metaphor so deeply ingrained,
to pretend mediation is about peace and good will, when people are thinking
in terms of war and distrust, disregards reality and is blatantly naive. The
way to shift a dispute away from open warfare toward settlement is not to
deny this reality and pray for peace but to strategically re-deploy and re-align
our argument metaphors in ways that encourage constructive dialogue. The first
step however, is for the mediator to relinquish the notion that parties in
conflict can be expected to be reasonable and trusting. Managing conflict
in a hostile terrain requires all of the wit and wile a mediator can muster.4
For most people
faced with conflict, mediation is not their first thought or a term on the
tip of their tongue; in fact, even settlement is a remote idea, especially
at first. More likely than not, they are thinking “lawyer” and “fight.”
At the outset of a conflict, whether it is a personal or business dispute,
the idea of settlement is an anathema, the mere suggestion of which is taken
by them to be indicative of a lack of resolve in their position or a moral
sellout of their principles.6 Most people faced with a dispute
of almost any kind or level of seriousness, take it personally; while negotiation
may make perfect sense and be in their self interest, they have an abiding
fear of being played for a fool which trumps rational thinking. Parties in
conflict can move to a place where they are able to consider more thoughtfully
what decisions make sense and how they want to handle difficult situations,
but not until they feel safe. That safety is not gained by merely being told
to trust the mediation process, or the mediator, and certainly not the opposing
party; the process is, at least at the outset, an abstraction, and trusting
the other party is simply too far a reach. The first task of the mediator,
then, is to manipulate the situation in such a way that the parties need not
be required to trust, but to believe they will not be left at a disadvantage.
this reality, many mediators insist on presenting and approaching disputes
out of preset principles and belief in reasoned discussion and collaborative
values. They proceed to carefully and methodically analyze the interests and
needs of the parties and try to explain to the warring participants why their
positions are not sensible or in their self interest.14 To read
the literature in the field and listen to mediators discuss their craft, it
is quickly apparent that many encourage and some even insist that the participants
in mediation be reasonable, calm and collaborative if they are to negotiate
successfully. Mediators often disregard that many people in conflict, when
they are facing the loss of their dreams and life as they know it is disintegrating
before their eyes, are not able to be calm and trusting on command. For a
mediator to presume parties can or should be so is patronizing at best, and
may be down right insulting. Few of us, mediators included, could maintain
the equanimity seemingly required, when directly faced with a personal conflict.
The irony is
that guerilla mediation, though the term may sound antagonistic and harsh,
may well be more respectful of parties in conflict than the more conventional
approaches to mediation. If there is an assertive sensibility to this approach,
it is because the force and energy that most conflicting parties bring to
a dispute must be met by a sufficient counter force if the energy is to be
TENETS OF GUERILLA MEDIATION
There are three
basic tenets of guerilla mediation: (1) respect for human nature as it is,
not as we would like to believe it could be; (2) a realistic understanding
and acceptance of conflict; and, (3) the effective use of strategic planning.
Assuming the acceptance of these basic tenets, the techniques for implementation
and the requisite skills necessary to accomplish the purpose of mediation,
can be more readily clarified and applied. Notwithstanding the use of a warfare
metaphor, the purpose of mediation and the role of the mediator remains to
facilitate the substantially informed and consensual management of issues
or conflicts by disputing parties.
human nature as it is, not as we would like to believe it could be.
the principles of evolutionary biology and psychology, the human animal has
ingrained multiple kinds of behavior patterns that are sometimes contradictory.
Generally, humans can be (1) altruistic, good natured, and trusting 13;
(2) rational, analytical, and objective, acting more or less predictably out
of self-interest 1; and, (3) fearful, spiteful, deceptive, manipulative,
and seemingly irrational, acting in ways that appear to be anchored in pure
The most prevalent
approaches to the mediation of conflict, the rationalistic and humanistic,
are premised on the belief that parties in conflict are capable of being collaborative
in the reasoned pursuit of an outcome that meets the needs of all parties.
Humanists believe people are basically good at heart, rationalists believe
they essentially operate out of predictable patterns of self interest. Short
shrift is given to that part of human nature that is deceptive or manipulative
and there is often attached an implicit negative moral judgment of that behavior.
There is nothing wrong with the conventional approaches, they just do not
systematically and holistically account for the whole repertoire of human
behaviors that are commonly displayed in human interactions and especially
To round out
the field, there is the competitive/opportunistic approach to negotiation
and mediation, that most people popularly tend to associate with negotiation.
This style is typified by the used car dealer; it is essentially Machiavellian,
and operates from the belief that humans are basically evil, self-interested,
deceitful and manipulative, and bent on the accumulation of power and control.
Once again, it is not so much that this approach is inaccurate as it is incomplete;
it fails to account for the prospect that humans are able to cooperate and
might be able to negotiate collaboratively. In short, none of the prevailing
negotiation approaches take into account the whole range of the human behaviors,
and to the extent they do not, the approach will be found lacking.
approach to negotiation is premised on the belief that humans operate out
of the full range of ingrained human behavior patterns. This approach is not
intended to dismiss or denigrate the prevailing approaches, but rather to
provide an integrative framework that includes them all to offer a more comprehensive
view of humans’ behavior in the negotiation of conflict. It is premised on
the belief that to effectively negotiate issues or disputes, parties must
be accorded the respect that they will be simultaneously desirous of reasoned
communication and, at the same time, are likely to be fearful, deceptive and
manipulative. Deception is a natural behavior common to all animal species,
including humans, which has evolved over time to foster procreation and survival.
It cannot be dismissed and should not be morally judged.21 The
naturalistic approach does not presume to dictate how people should behave
for negotiation to proceed and takes full account of all human behaviors.
approach to negotiation is well suited to guerilla mediation, reflecting the
same views of human nature and conflict. Thus, while communication and empathy
between parties are necessary and important, and the reasoned analytical discussion
of issues and options are helpful, both approaches are incomplete in themselves.
The guerilla mediator, in sizing up the conflict terrain, does not rely solely
upon reason, trust and good will to manage a dispute; he or she may well have
to employ constructive forms of deception to accommodate and counter the anticipated
fears and resulting manipulations of the parties. The mediator is obligated
to accept the parties as they are, not how he or she would like for them to
understanding and acceptance of conflict.
part of the natural terrain and, unless one subscribes to the millennial belief
that with the coming of the messiah where “the lion will lay down with
the lamb,” it is likely to continue to be so. Too often, however, conflict
mediation is confused with peacemaking. Many mediators accept conflict only
grudgingly in theory and are even less tolerant of its open expression in
a basic ingredient in our evolutionary biology and psychology; it is part
of our human makeup and chemistry. Analogically, conflict is to the body politic
what cholesterol is to body physiology; some cholesterol, the LDL, constricts
the arteries, immobilizes the body and can ultimately kill. The other form
of cholesterol, HDL, helps the body metabolize and function properly. Likewise,
some forms of personal and social conflict are peripheral, unnecessary and
destroy the body politic, while other conflict is substantive, that is, necessary
and useful, encouraging the growth and development of society.
In our Western,
techno-rational culture, there is a strong tendency to suppress and dismiss
emotion in general and conflict in particular. The mind-reason/body-emotion
dichotomy, postulated originally by Plato and articulated by Descartes, reflects
the traditional pejorative notion of conflict. The conventional wisdom posits
that conflict results from the absence of reason and from being overrun by
emotion. Many mediators of the rationalist persuasion use techniques derived
from that view. For instance, establishing communication ground rules in mediation
are ostensibly calculated to preclude or limit unhelpful emotional outbursts
by a party which are thought to impede the calm discussion of substantive
issues. The reigning conventional wisdom is that emotion unchecked will likely
or even predictably lead to physical aggression. The technique may have the
reverse effect: suppressing the expression of emotion may lead to an escalation
of the conflict.
the guerilla mediator accepts the expression of emotion as a natural and necessary
part of the conflict, not to be suppressed but constructively managed. Ironically,
current studies in neuro-biology suggest that reason and emotion stem from
the same area of the brain and it is difficult, if not impossible, to separate
the two; reason cannot be accessed without emotion.12 In the same
way physical pain or discomfort is symptomatic of an underlying body dysfunction
or illness, emotion is the expression of underlying personal or interpersonal
stressors. As health care providers are coming to understand, treating the
pain without assessing the underlying circumstance makes no sense, nor does
managing the illness without addressing the pain. Likewise, quashing the emotion
in a dispute may serve to cosmetically cover up the underlying stressors without
effectively managing the conflict.
mediator redirects and uses the energy the conflict generates constructively.
Conflict contains within it considerable natural force and energy. To liken
some conflicts to a “class 5” river (serious white water), the force
of the water flow can easily sweep away the unprepared. In rafting that river,
and negotiating the rapids, the pilot understands the necessity of bringing
his or her own energy to bear on the river; if he puts the paddle down , he
will be swept away. There is no quiet, calm way to face a wild river; the
pilot will never control the river and there is no suppressing or containing
the river’s energy. The only hope will be to deal with the river on its terms,
which means to paddle hard and fast enough to approximate the river’s speed,
thereby allowing the pilot to position him or herself to use the river’s energy.
The trick is to stay centered, off the rocks and out of the sinkholes. Like
a good pilot reads the river and sometimes must calculate bouncing off of
one rock to avoid a more perilous one or a worse situation, a good mediator
reads the conflict between the parties and devises a strategy that effectively
uses the parties’ force and energy to negotiate the conflict.
use of strategic planning.
is the key to both winning wars and the effective negotiation or mediation
of conflict. Curiously, the etymology of the word strategy is from the Greek,
“strategama,” translated as a trick or ruse, and still commonly
defined as a military maneuver to deceive or surprise an enemy.24
The notion of being strategic has also long been associated with business
and negotiation and carries with it a pejorative connotation. This is so especially
in the Western cultural tradition where humanism and rationalism are highly
valued. From the rationalist and humanist perspective, strategy is unnecessary
if the argument is rational and the motives, genuine; the power of logical
reasoning, communication and empathy should theoretically, at least, obviate
the need for tactical presentation.6 Unsavory strategic devices
are associated with “spinning the story” in politics, or being disingenuous,
inauthentic, or outright deceitful in personal relationships.
despite the disinclination to accept the human necessity of being strategic,
there is little doubt that most people, successful in managing their public
and private affairs, are careful to consider how and when to most effectively
present themselves and their ideas in pursuit of their goals and to obtain
a desired result. Most mediators, as well, even those of the rationalist and
humanist persuasion, as a practical matter, are forced to be strategic at
some point. Therein lays the gap or incongruence between what they say is
their approach to mediation and how they are observed in their actual practice.19
mediator understands from the outset that he or she will not be likely to
overpower the parties by the strength of argument, overwhelm them with a brilliant
solution previously unconsidered, nor believe that talk alone will resolve
difficult conflicts. Drawing from that understanding, the guerilla mediator
must rely on finesse and other stratagems to redirect the conflict energy
constructively toward settlement. There are countless examples of techniques
that effectuate strategy in the negotiation/mediation of conflict. Three,
in particular, are among the most basic: the use of confusion, the structuring
of the process and, the use of time.
Far from being
calm, rational and patient, the mediator must use “hit and run”
tactics to confuse entrenched parties and undermine their belief that their
cause is just and they are right.5 If they are allowed to remain
sanguine in their original entrenched positions, there will be little motivation
to negotiate. People function less by rational calculation than by ritual
and operative myths—stories they tell themselves to make sense of the world
around them. Their myths of Justice, Truth, Rationality, Finality and Objectivity,
disincline them to consider other alternatives to managing conflict. Most
parties in conflict want to be vindicated in the belief that they are right
and that any fair minded, impartial and neutral review of the matter at hand
will so determine their cause to be just. The quest for the truth of the matter,
however, is of little relevance in the mediation of conflict.8
A mediator must
pierce that operative mythology. Sometimes reflective questions can do the
trick, confusing and unsettling one or both parties’ certainty that justice
will prevail. For example, the reflective question, “Are you sure that
your position can be proven and that the court will agree with you?”
insinuates a measure of doubt into the discussion. The purpose is to throw
them off guard and dislocate their thinking, to make just enough space for
the consideration of other options that can possibly open the door for agreement.2
By contrast, a frontal, straightforward logical statement, such as, “I
don’t think the court will agree with you,” is likely to be viewed as
confrontation or attack which summons argument and rebuttal, “Yes, they
will, it’s the law, and I’ll win.” Logic, of course, is the least effective
means of convincing anyone of anything. The mediator does not want to be caught
in an argument, which is, by definition, unwinnable—even if you win, you lose.
Thus, he or she merely plants the seeds of doubt and moves on—the hit and
the process, the mediator may strategically use deception to delay and avoid
direct discussion of the key issues until the parties are ready. Many negotiations
break down because people begin to discuss the ultimate issues too soon and
negotiate out of fear, without sufficient or accurate information; they want
to begin by discussing the hardest issues first, which may be self-defeating.
Without a negotiation strategy, or game plan, it is common to “cut to
the chase”—”what do you want/what will you give.” Conventional
wisdom and the logical approach often encourage direct discussion of the issues
in the belief that the shortest distance between the problem and a solution
in a dispute is a straight line. Few conflicts are that simple or linear.
to the conventional wisdom, a surreptitious, surprise approach may be more
effective. Strategically, using paradoxical logic, the shortest distance in
a dispute between the stated problem and possible outcomes is not a straight
line. A more circuitous route allows time for the parties to reflect on their
perspectives, to communicate with each other, and to assure all parties are
working with sufficient and accurate information in preparation for the ultimate
negotiation.24,2 The more complex and difficult the issues, the
more important the structuring of the process will be in the management of
the conflict. The mediator must build a solid foundation, first slowly gaining
commitment to the process, next gleaning the story, then clarifying the issues,
and finally assuring all options are available and considered. The mediator
uses techniques that are calculated to delay and avoid the actual discussion
of key issues until the parties are ready—”no conflict before its time.”
By initially sidestepping the hardest issues in a dispute, the mediator surreptitiously
finesses what conflicted parties might think they want to do. This feint allows
him to effectively sneak up on the hardest issues.
mediation, as in warfare, time is of critical strategic value. For most disputing
parties the conflict did not arise overnight and is not likely to be resolved
quickly. Notwithstanding that reality, most expect the matter to be resolved
immediately, and if not, to presume it cannot be resolved at all, let alone
in mediation. With that thinking, it is easy to see how so many people slip-slide
into the more traditional, formalized and extreme modes of conflict management
such as litigation. Time allows for the parties to shift in their perspective
and consider alternatives. Therefore, the mediator often stalls for time:
parties cannot shift in their perspective faster than it takes for them to
assimilate that change.15 Thus, sometimes it is what the mediator
does not do that is more important than what he or she does do. Setting the
pace of the negotiation process, knowing when to stop a session after there
has been some progress, but before the parties become too tired, are critical
timing skills. The mediator must sense the point of diminishing returns; moving
too quickly to “close the deal” can unduly risk any progress that
has occurred, bring on “buyer’s remorse,” or even place the whole
negotiation process in jeopardy. Contrary to conventional wisdom, “holding
people’s feet to the fire” to obtain an agreement is likely to be counterproductive.
There is a Zen aspect to negotiation: the less parties feel pushed to agree,
the faster they may decide to settle in their own time.
A guerilla fighter
does not seek to win the war in one skirmish. Likewise a mediator does not
expect to reach agreement in one fell swoop. In fact, for the mediator, the
purpose may not be for the parties to come to agreement at all—that is for
them to decide. The purpose is to give parties every opportunity possible
to reach an understanding, to remove obstacles—real or imagined—to a potential
settlement. Often parties will themselves trap themselves in a myopic belief
system that is self defeating. The process, especially in difficult matters,
must be drawn out to allow the parties sufficient time to re-appraise their
negotiation perspectives. Time allows for them to save face and accept some
measure of the reality that one does not necessarily win because they are
right or lose because they are wrong. Settlements in hard cases are not so
much forged as they are allowed to emerge in due course. Just as in
guerilla warfare there are no clear victories, in mediation parties don’t
win or lose, they merely find a means to survive.
PROMISE AND FUTURE OF MEDIATION
In the last
quarter of this century, conflict mediation has gained a small foothold in
the cultural and legal landscape of the United States and numerous other countries
around the world as a means of managing conflict. At the core, the promise
of the mediation process is the opportunity it gives people to settle their
own disputes without the undue interference of government authorities or others.
In an age where people often feel they are losing control over their lives,
faced with an ever increasing onslaught of rules and regulations, and assailed
by countless professionals who presume to know better about how they should
live their lives, mediation is one way they can re-assert themselves and seize
back some measure of control in the decisions that most effect their personal
relationships and business dealings.
But the footing
of mediation is precarious at best. If the success and acceptance of the mediation
process are left to the courts and other public authorities, and mediators
wait for it to be legislated into existence, then it risks becoming just one
more cog in the institutional machine and the heart of the process may be
fundamentally compromised.3 Nor is it enough that mediation is
a good and noble idea that holds promise. For it to flourish, the process
must be functional, practical and safe.
To that end,
guerilla mediation is not a regression to a primitive, “win at all costs”
approach to negotiation; nor is it in any way intended to suggest that the
mediator should design the outcome of a dispute. It does, however, pointedly
intend to suggest that for mediation to survive as a viable form of conflict
management, then mediators must look directly into the heart of conflicts
in the real world and manage them. Force fitting hard issues and stressed
parties into mediation approaches that are based on wishful thinking about
what human beings could become, does not sufficiently take account of the
power and energy of human emotion. This limits and impairs the effectiveness
and validity the mediation process could have in our culture.
if mediation cannot be demonstrated to work outside of hothouse conditions,
where parties meet preset standards of reasonableness and cooperative demeanor,
then the process will remain a marginal mode of conflict management or, worse,
be relegated to history’s trash heap of good ideas and good intentions that
did not work or were not accepted. If mediation is to effectively become part
of our cultural pattern of managing conflict, then mediators must adopt a
rigorous, reality-based approach that can manage conflicts as they present
themselves, not as we might hope for them to be.
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