In this chapter, I review my definition of mediation and explain the five basic phases of the mediation process, as shown in the illustration above. I also discuss the caucus and how it can be used before the mediation as part of convening, during the mediation as part of the education phase, and after the joint mediation sessions as part of the follow-up process. The chapter ends with a consideration of the involvement of management champions.
A conciliatory process
Most simply, the word conciliate means ‘to bring together in order to placate’. In the Dictionary of Conflict Resolution, Yarn describes conciliation as an act of bringing people together, by a third party who may or may not be neutral, in order to encourage them to settle their dispute.1
Mediation is conciliatory, not adversarial. As mediators, we do not impose solutions in the manner associated with an adjudicatory process. Rather, we encourage conciliation through our resonant relationships with the participants.
An acceptable third party
Many definitions of mediation currently in use require that the mediator be neutral. In California, for example, mediation is defined in the evidence code as “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement”.2
Neutrality in the context of mediation signifies impartiality and a lack of bias and favoritism.3 This is possible because the neutral third party does not have an interest in the matter. In the workplace, however, HR managers are paid employees of the company. They support the management of all human resources. Although HR managers are there for all employees, line managers often think they are their representatives, and try to get them involved in the day-to- day management of the company. And, of course, these lines blur and differ from company to company. What is clear is that HR managers are not neutral in the strict sense of the word.
However, as Yarn’s definition of conciliation reveals, mediators do not have to be neutral. Yet we do need to be acceptable to the parti- cipants, and the participants need to decide this. What is important is that we strive to be neutral (although I prefer the term ‘balanced’). We should be willing to disclose potential conflicts of interest, and if we are no longer acceptable to the participants after this disclosure, we should withdraw. Remember, we are there in the service of the participants.
If an HR mediator has been coaching a manager regarding the handling of a performance issue, other employees may perceive that HR mediator to be biased. However, another HR manager who has been uninvolved in the issue may well be perceived as acceptable. In some large organizations, HR managers mediate for one another’s business groups.
In mediation, a third party (the mediator) intervenes. We are not passive; rather, we get involved in the process based on the potential to help. Our interventions include:
- modifying the physical setting
- facilitating communication behavior
- guiding, engaging and supporting the negotiation process
- intervening to address the emotional and mental elements of the conflict
And immediately after we intervene, we get feedback from the participants. This feedback may simply be silence, or it may be a look. Sometimes, it comes in the form of irritation directed at us. The feedback will indicate whether the intervention is helping or not. If an intervention is not working, we need to do something different. If it is having the desired effect and is soothing and collaborative, we can relax and continue to be present to what is unfolding in the moment.
Mediators discover that, probabilities notwithstanding, interventions have no guaranteed results. We get what we get, and we must meet that reality as it presents itself and move from there. We cannot expect that the intervention we used last week, which worked a certain way with two other participants, will work the same way with the present participants.
We need to be careful not to triangulate. This means we must not take sides, whether through an imbalance of attention or by accepting one participant’s view of the problem. We need to intervene in a manner that is perceived to be balanced. This is one of the core aspects of the mediator’s stance – the intention to be balanced, and the perception of balance (see Chapter 2, pages 9-10 and 19).
Our interventions ensure that we avoid conflict resolution obsta- cles. Challenges are inevitable, and when they arise, our interventions need to be measured according to what is needed. We should be able to use interventions to slow things down, and turn attention from one issue to another. In this way, we are more or less directive, yet we should always fall short of imposing a substantive decision regarding the issues.
Even in our non-doing, silent, observing state, we are intervening. In this sense we are very active. Our role is to support the discussion or negotiation in a manner that supports collaboration. The reality is that the participants are usually at different stages of readiness for the mediation process, and buy into a collaborative approach to differing degrees.
Some have a core that says: “I want to fight.” Others want to run. Some are emotionally mature, while others want to collaborate but do not know how. Still others know how but are unwilling to do so. Media- tors meet it all. We need to be comfortable facilitating collaborative and competitive negotiations, as well as a mixture of both.
Over time, we begin to trust our ability to maintain the perception of balance in our mediations. Our interventions become sensitive to what is needed, and our behavior makes it apparent that our deepest intention is to be fair to both participants while supporting their reso- lution process. As long as we have assumed the mediator’s stance and are following the steps in the mediation process, things generally work out. I estimate that more than eighty percent of mediations worldwide produce agreements.
Conflict and/or dispute
Conflict theorists distinguish a conflict from a dispute: “A dispute begins when someone makes a claim or demand on another, who rejects it.”4 According to this distinction, then, a dispute is a conflict that has escalated to the point that positions have hardened and there is a disagreement. Someone has made a demand, and someone has refused to meet it.
We will discover that it is much easier to intervene early, before a conflict has risen to the level of a dispute.
Personality conflicts are good examples of conflicts that mediators can nip in the bud. Participants in these conflicts need to talk, clear the air, and recommit to working productively together, taking into account the various insights that have been generated by the media- tion to support more ease in the relationship. There may or may not be a dispute involved. If there is, the good news is that the mediation process is especially adept at working with disputes. The dramatic increase in the use of mediation by the courts around the world is testament to this dispute-resolving ability.
Consent of the participants
Mediation requires participation. Generally, voluntary participation works best. It is better to gain the consent of both people to participate in the mediation rather than to require it.
In the workplace, subtle pressure is often placed on employees to agree to mediate, especially when it is seen to represent a lifeline for one or both of them. The same applies to managers. There is a belief that if an employee wants to talk with the support of a mediator, the manager should go along with this, despite the denial of any responsibility for the problem.
The mediator’s support
Our role as mediator is to support the participants, not to take responsibility or to decide for them. It is always good to remind ourselves that it is not our conflict or dispute. It exists between the participants. We need to support them through the application of a variety of well-timed interventions, all of which are intended to help. We should always be careful to gain and work with the consent of the participants through our openness to feedback, and, of course, trans- parent and direct communication.
We should also be clear that it is in regard to process that we are the least balanced. We have our expertise, and we know the value of the mediation process. It is precisely because we offer the hope of resolution, through our skills and our knowledge, that the participants can trust the mediation process.
This trust must be honored and treated with care. As mediators, we bring our process, and yet, paradoxically, it must remain the participants’ process. If we are to use our frames and interventions, then we should earn that right, as we slowly develop trust and confidence with each participant.
It is universally understood that the goal of mediation is to reach a voluntary agreement. Yet, despite mediation, some participants do not get there. In effect, they agree to resolve their conflict by another means. When this happens, mediators should be careful not to push too hard for agreement. We support participants to reach agreements that make sense to them. This may include presenting them with robust, reality-checking questions. However, at all times, we need to be clear that our role is not to decide.
Ultimately, if the participants do not agree, we as mediators need to know that at least we made them look clearly at the conflict, and that their choice is an informed one. It is irrelevant that we may have chosen differently had it been our conflict. It is not for the mediator to agree, but for the participants to reach the agreements they want to reach.
The basic mediation process
This can be described as a linear process that follows five discreet phases to support the participants to reach agreement. It helps if the mediator has confidence in these basic steps.
- The Opening Phase includes convening the mediation, the room set-up and the opening statement. We also consider confidentiality as an important trust-building step in the mediation set-up.
- At one level, the Education Phase constitutes the T-bar, as described in the Problem-Solving Two Step (see pages 36-37). During this phase, which most mediators agree should be approached slowly and with sensitivity, both participants take turns narrating their perspective of the situation, how they think, feel, and what their needs are in order to move forward.
- The Option-generation Phase is essentially Step Two of the Problem-Solving Two Step. Once a variety of potential solutions have been identified through a brainstorming session, or naturally through the exploration of solutions, the participants negotiate agreements.
- During the Negotiation Phase, participants consider the consequences of not agreeing, and gain comfort by using acceptable standards. If needs be, the mediator uses impasse-breaking intervention techniques to support the emergence of agreements.
- During the final Closing Phase, any agreements are drafted and signed. Ideally, there is an associated ritual, such as a handshake.
As you can see from the illustration below, the basic mediation process is represented graphically as a pyramid. This suggests the linear movement of the process towards agreement at the top. The opening phase is the foundation on which everything rests. In an actual mediation, there is a degree of fluidity. For instance, you may be in the negotiation phase when you realize that you need to establish a new ground rule, which properly speaking is part of the opening phase.
The Mediation Process
Options: Generate Solutions
Education: Perspectives, Feelings, Assumptions, Needs
Opening: Confidentiality, Agreement to Mediate, Ground Rules
One of the mediator’s most powerful tools is the caucus, a private and confidential meeting with each of the participants. When mediators caucus, they are not at liberty to reveal what the participants have said without their express consent. While the caucus may be a powerful intervention, it remains an intervention and is therefore not a necessity in every mediation.
In caucusing, it is essential that you be clear with each participant about what they are happy for you to share with the other. It is there- fore good practice to summarize your understanding of what you may share before leaving the room. It is helpful to write things down. Trust is vital, so be careful not to betray confidences by sharing things you have been asked not to share.
A real danger with caucusing is that we inadvertently create the impression that we are on a particular participant’s side. Be careful of this. As you validate, remind the participant that you will be con- ducting the same kind of meeting with the other participant. Monitor the time you spend with each participant. Ideally, you should spend similar periods of time with each, although in reality this is not always possible.
Although the caucus is commonly used during the negotiation phase, it may be used at any time during the mediation process. There are three junctures at which it makes sense to ask whether the caucus should be used. The first is prior to the first joint session. In this case, it is called the convening caucus (or, as Gregorio Billikopf calls it, the pre-caucus).5 When used here, it is really a continuation of the convening process. The second juncture is immediately after the opening statement. Instead of going into a joint session, the mediator meets with each of the participants in private as part of the education phase. The third juncture is at the end of the entire process, as a check-in to see how things are going, as part of the follow-up meeting process. All three of these situations are dealt with in Chapter 11.
Participation: involving a management champion
It is especially helpful in the context of relational conflicts where behavioral changes are contemplated to include a manager for the duration of the opening statement and until the Agreement to Mediate is signed. Often, the manager to whom both participants report is the person who has encouraged, or even authorized, the mediation.
The manager helps to frame what the mediation needs to address, and empowers the mediator to work with the participants to do so. In effect, the mediator is stepping into the shoes of the manager in respect of the issues at stake.
Beginning the process with the manager present allows the mediator to be crystal clear about who is responsible for what. The mediator needs to explain to the participants that this situation applies only for the duration of the mediation, and only as it pertains to the issues authorized to be addressed.
As mediator, express the hope that at the end of the mediation process the participants will invite the manager back to the signing ceremony, where s/he will discover what agreements the two of them have worked out. Meeting with the manager makes sense where you want to maximize factors supporting a high level of commitment.
After this opening, which includes the signing of the Agreement to Mediate, you move on to the education phase. If the mediation does indeed produce agreements which the participants are ready to sign, you set up a final meeting, to which you invite the manager. The role of the manager at this meeting is to express appreciation that the employees have resolved the conflict, and to commit to supporting them to honor their agreements. It is a time for celebration.
Be careful how you manage the involvement of the manager. There may still be residual tendencies for one-upmanship. Work to ensure that you are ready, that the participants are ready, and that inviting the manager back is low risk for them. The last thing you want is a flare up with the manager present.