Obstacles To Successful Mediation

When parties are willing to participate in good faith and in an earnest attempt to listen to understand, mediation is usually successful. No matter the outcome, success should be calculated in terms of appreciating options and the possibility of going forward with a deeper understanding of each other’s point of view, because few aspects of human experience are as powerful as the yearning to be understood. A mediator’s empathy, that understanding of what a person is trying to say and showing it, builds a bond through communication linking all participants and confirming that the parties’ feelings are recognizable and legitimate. When deeply felt but unexpressed feelings take shape in the words the parties share and come back clarified, the result is a reassuring sense of being understood and a grateful feeling of humanness with the one who understands.

The mediator’s role is to direct the focus from stated positions and explore what the parties are really interested in and locate common solutions. From the perspective of the parties, it is the difference between listening to respond and listening to understand. Mediation’s popularity results from its general effectiveness in resolving many types of conflict, especially interpersonal disputes, nevertheless, it has less power to alter long standing and deeply entrenched negative patterns of relating.

Parties in mediation must want to identify their needs and interests and have a willingness to share understanding of core principles and motivations, before they can realize the importance of creating a common resolution. Only the parties can give or take from each other what is required to serve their deepest need fulfillment and reach settlement, but some key obstacles to a successful mediation may doom the process:

• High Levels of Conflict. The measures of conflict intensity that correlate negatively with settlement success include the degree and severity of conflict between the parties; the political situation with regard to constituencies which may have a stake in the outcome; a perception that the other person is untrustworthy, unreasonable, angry, or difficult to communicate with; and the presence of strong ideological or cultural differences.
• Low Motivation to Reach Agreement. If one or both parties wish to hurt or embarrass the other, reaching agreement may be viewed as a sign of weakness or unwillingness to engage in battle, and the testosterone level is elevated in proportion to settlement failures
• Low Commitment to Mediation. When resolution or settlement is not attained rapidly, parties not understanding that mediation is a process and not a session lose interest in collaboration and may view the other as a saboteur.
• The Real World. When resources for settlement are scarce, this limits the range and possibility of mutually acceptable solutions, which could reduce the motivation of the parties to continue. The mediator’s interest and enthusiasm may also be damaged when creative resolution is thwarted.
• Fundamental Principles at Risk. When parties align in mediation as champions for their principles and see each other as an assassin, the challenge for the mediator is to move the conflict from a values orientation to relationships or interests, where resolution is more readily possible. A deranged warrior in a holy war would rather die fighting than settle for peace.
• Power Imbalance. The level playing surface phenomenon is, in theory, a wonderful application of the just solutions mediation can render, however, when people of unequal power are instructed to interact as equals, it is often unfair to both. When one party, who has been educated to accept the dictates of the other as fiat, is now instructed to bargain as an equal, the degree of productive participation may wane in direct correlation to the natural assertion of power. A commitment to the mediation process may overcome this, but few are willing to experiment and fewer still are willing to share their power.

Mediation is a process that gives parties in dispute a forum to explore resolution of serious issues in a productive and proactive manner, where control of the outcome remains in the hands of the parties. It brings people together, with the help of a neutral, to build understanding and preserve relationships, and provides an analysis and exploration of all parties’ interests. It does not, however, guarantee a resolution or even a satisfying participation unless the parties are at a place in their conflict and in a frame of mind to listen, trust, and relate in a dignified and respectful manner with each other and accept the role of the mediator as the catalyst to transform the chemistry between them.

                       

Tony Belak

Tony Belak is the Ombuds at the University of Louisville, Associate Director of the Center for Conflict Resolution at La Sierra University, Riverside, California, associate director of the International Center for Compassionate Organizations www.compassionorg.net and the former Executive Director of the International Center for Collaborative Solutions at Sullivan University, Louisville,… MORE >