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Working with Mediators
Editors’ Note: Perhaps you’ve reached the point in the negotiation where it’s time to bring in a third party. This chapter helps you make wise choices about whom to hire as a mediator. It’s designed to help the negotiator understand how mediators actually operate, and to be aware of the skill set and biases within which any given mediator must operate. This should be read in conjunction with Love and Stulberg on Using Mediation.
Mediators regularly make claims of neutrality, as well as claims of producing qualitatively better results for parties than they can expect to get in other dispute resolution processes; indeed, neutrality is a foundational claim of the field.1 Both kinds of claim have been opposed before, but generally in terms that are either polemical, or specialized as to subject matter. The notion has been under-explored that there might be limitations on neutrality and on quality of service that on the one hand are generally applicable, and on the other are not, or at least should not be, particularly alarming. This chapter will pull together and update several previous writings of my own to try to provide an integrated look at some limitations on mediators’ quality of performance and neutrality.
Even an experienced negotiator can be rather surprised by the orientations and actions of mediators, particularly when encountering a mediator she has not worked with before. Leonard Riskin’s thoughtful series of “grid” explanations (the most recent of which is Riskin 2005) has been helpful in explaining the differences, but they have concentrated on trying to make clear the nature of the differences themselves, rather than the “why.” The simplest way to describe the relationship of this chapter to Riskin’s (newest) grids is that the two approaches represent different layers of an overall image of mediation—though the notion of such overlays, admittedly, draws more from graphic arts or Photoshop than from legal or ADR imagery.
Sometimes, the circumstances are such that the canny negotiator would be surprised if there were no surprises in working with a new mediator—e.g., when working in a different culture. But unless a negotiator is a “repeat player” with the same pool of mediators, so that individuals become known to each other, sooner or later a surprise is almost inevitable. Many writers have referred to variations among mediators as a matter of “style.” That term, however, connotes some kind of choice by the mediator to adopt one style rather than another, and its use is often promptly contradicted by the same writer noting that a mediator usually seems to be unconscious that she has a “style.” I believe that term would be better replaced by a matrix of three types of criteria—one conscious, and two, largely unconscious. The variations fall into three main categories:
■ skill differences, which tend to be large in a largely unregulated profession;
■ policies and philosophies, which are generally overt and therefore predictable; and
■ biases, which are often unrecognized by the mediator but correspond to a variety of different kinds of pressures to which the mediator is subject.
Using that matrix, this chapter will describe the main variations among mediators, and briefly explain why they occur.
In part, the level of surprise among negotiators is an artifact of mediation’s relative novelty in most parts of the negotiation market. In the two negotiation domains that have been using mediators for many decades—labor relations, and traditional diplomacy—such surprise is less common; a definable set of expectations has become part of the culture of each of those fields.2 Yet even in labor mediation, the supposed autonomy of the practice was one of its most prized attributes. In the mid-1970s, when I first sought employment as a labor mediator, the highly experienced federal mediator who interviewed me remarked (or bragged) that the great thing about working in mediation was that it was the only profession that had no tools, and no rules. The concept was certainly attractive. But was it true?
Skills: She Does What She Can
Much has been written about the capabilities of mediators, without great consistency; even within Western culture, the set of skills thought important varies from program to program and setting to setting. (Honeyman 1988, 1990a and 1990b; Honeyman et al 1995). But a reasonably “vanilla” set of skill definitions, for a “mainstream” program operating in....
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