Numerous academics and practitioners have speculated as to reasons for parties not being able to reach an agreement in mediation. While noting that it is unclear why some mediations reach an agreement while others do not, a North Dakota Law Review article identified fifteen reasons based on practical experience. Among those reasons are some directly attributable to the disputing parties themselves including not being committed to resolving the dispute, not being prepared for the mediation, and failing to anticipate issues that may result in impasse.
It may be productive to begin by simply acknowledging the obvious that in many cases the parties are in mediation because they failed in resolving their conflict. While some mediators may inquire as to the parties’ past attempt at dispute resolution, most mediators do not confront the parties with the very real fact that they have been failures.
Some parties may not be successful in mediation because they have not accepted their past failure. Mediators are familiar with the tool of reframing or helping parties visualize their issues from another’s perspective. While that may have value, a more significant tool is cognitive restructuring or helping the parties to confront their failure and be open to new methods to resolve their conflict.
Cognitive restructuring is the core of cognitive therapy introduced by A. T. Beck and colleagues first in the 1980s to refer to intervention strategies that focus on the exploration, evaluation, and substitution of maladaptive thoughts and beliefs. To some this might seem related to military basic training of breaking down existing behaviors and rebuilding them with military discipline, skills, and values. Or to Jon Taffer’s popular television show “Bar Rescue” which forces bar owners to first confront the reasons for their failing businesses before they are able to embrace changes. Leading disputing parties to confront their maladaptive dispute resolution can be tough love with a heart but can lead to an openness to trying something new.
The simple thesis of cognitive restructuring in mediation is that parties may not fully engage in the process until they have accepted that what they have done before the mediation has been a failure.
The verbal strategies to facilitate cognitive restructuring need not be confrontational but need to be strong enough to encourage change. Meditators can do the following
If the parties have accepted their failure at dispute resolution, the mediator then posits that the mediation process will work for them.
Mediators may find resistance, particularly parties who attribute failure to the other party, parties who are reluctant to try new behaviors, and parties who simply refuse to participate. Mediators can meet this resistance by asking more questions to bring to better focus the ongoing costs of failure.
While anecdotal evidence supports the use of cognitive restructuring in mediation, the nature of mediation makes it difficult to conduct rigorous experimental studies. However, a study of military personnel and their spouses during the COVID pandemic showed that after cognitive behavior therapy, the couples had a significant reduction of non-constructive conflict resolution and a significant increase in constructive conflict resolution.
REFERENCES
Clark, David A. (2013) “Cognitive Restructuring,” The Wiley Handbook of Cognitive Behavioral Therapy. Available at: https://onlinelibrary.wiley.com/doi/full/10.1002/9781118528563.wbcbt02
Marcil, Jack G. and Thornton, Nicholas D. (2008) “Avoiding Pitfalls: Common Reasons for Mediation Failure and Solutions for Success,” North Dakota Law Review: Vol. 84: No. 3, Article 5. Available at: https://commons.und.edu/ndlr/vol84/iss3/5
Moradi, Mohsen et al. (2022) “Effect of Cognitive-Behavioral Therapy (CBT) on Changing Conflict Resolution Styles of Military Personnel and Their Spouses During the COVID-19 Pandemic: A Randomized Quasi-Experimental,” Journal of Military Medicine, Vol 24, Issue 4, p1270.
From Stephanie West Allen's blog on Neuroscience and conflict resolution. Is it good to suppress or hide your feelings? Perhaps sometimes, but certainly not always, because voicing them seems to...
By Stephanie West AllenIf your child has been diagnosed with ADHD you will no doubt understand how frustrating and discouraging it can be to cope with impulsive and defiant behaviour on a daily...
By Sylvia SmithThis report is prepared on behalf of the members of the Mentoring and Consultation subcommittee, all of whom are actively providing or participating in mentoring activities. The term “Mentor” been...
By Michael Lang
