Section XVII: Getting It Done (with “Helpers”)
The last section of the book acknowledges that sometimes, agents and principals by themselves are not enough, and some kind of “helper” is going to be needed. This section begins with three chapters on mediation: a general overview of mediation’s uses is followed by a chapter analyzing why one mediator is frequently so different from another, and what you might need to watch out for. The set concludes with a famous mediator’s reflections on how mediators, who routinely demand that the parties be more transparent, are often opaque about their own thought processes.
Yet mediators are not the only outside people who might become useful in a difficult conflict. The next chapter analyzes a whole series of non-neutral (and yet not classically “agent”) roles, under the general heading of “allies” who might be invoked by a party. This is followed by a close review of one particular type of intervener whose subtle role (and influence) is frequently underestimated: the interpreter. And finally, sometimes what a situation needs is somebody who will really shake things up. The last chapter in the book assesses the possibility that an activist may not (always) create conflict, and instead may sometimes be essential to resolving it.
96. The Uses of Mediation
Lela Love and Joseph Stulberg
How’s your negotiation going? Would using a mediator perhaps be helpful? This chapter shows why and when mediation can help negotiators reach an agreement. It also explains the different types of mediation goals, and how each of those goals can affect the process. This should be read in conjunction with Honeyman on Working with Mediators.
97. Working with Mediators
Chris Honeyman
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 The Uses of Mediation.
98. The Mediator as Medium: Reflections on Boxes—Black, Translucent, Refractive, and Gray
Wayne Brazil
One of the U.S.’s most experienced mediators here discusses a striking difference between his own view of one critical feature of practice, and that of most of his peers. Most high-end litigators and their clients, he argues, have found most mediators to be anything but transparent as to their own thinking processes, even while pressing the parties to be more transparent about theirs. Brazil discusses the pluses and minuses of this way of working, offering his own take on transparency as an alternative. Delving further into the motivations, however, he concludes ultimately that his own practice is a bit less transparent than he thought—more “gray box” than either black or translucent box. The resulting reflection, however, stands as one of the most transparent discussions of a mediator’s motivations and methods offered by a prominent practitioner.
99. Allies in Negotiation
Bernard Mayer
In a thought-provoking book, Mayer analyzed new roles that experienced mediators and other conflict specialists might play, and suggested that they think more broadly about how they can best assist disputants. Here, he focuses specifically on how negotiators can enlist these specialists as allies instead of as third party neutrals. Just for openers, this could help you to get a complex negotiation framed properly, or to approach the other side in ways that will put them in the right frame of mind. But a decade after first analyzing the possible roles, Mayer has extended the reach of the underlying idea to a long list of “ally” roles which today often go unfilled—to the negotiator’s and principals’ disadvantage.
100. The Interpreter as Intervener
Sanda Kaufman
You’re about to start negotiating in a language where you can’t even read the alphabet. What to do? This chapter is essential for anyone about to engage in a negotiation involving multiple languages—which could include many “domestic” negotiations in Singapore or Chicago or London or Paris. Kaufman explores how translators are neither perfectly neutral third parties, nor part of a team (contrary to common assumptions). She then shows how they are often powerful and autonomous actors in the negotiation, and demonstrates how important it is to think about the use of interpreters before the day they are hired.
101. The A is for Activism
Jennifer Reynolds
Negotiation, mediation, and arbitration—the three major practice areas of ADR—have become so mainstream that many argue that the “A” of ADR, which historically has stood for “alternative,” no longer applies. But modern ADR originally developed as a set of practices outside the mainstream, intended in large part to promote social transformation and empower individuals. Reynolds argues that these activist roots of ADR should not be forgotten, and in fact should spur new research and pedagogy around activism, community organizing, social movements, and other “extralegal” approaches to changing law and society.
Yet mediators are not the only outside people who might become useful in a difficult conflict. The next chapter analyzes a whole series of non-neutral (and yet not classically “agent”) roles, under the general heading of “allies” who might be invoked by a party. This is followed by a close review of one particular type of intervener whose subtle role (and influence) is frequently underestimated: the interpreter. And finally, sometimes what a situation needs is somebody who will really shake things up. The last chapter in the book assesses the possibility that an activist may not (always) create conflict, and instead may sometimes be essential to resolving it.
96. The Uses of Mediation
Lela Love and Joseph Stulberg
How’s your negotiation going? Would using a mediator perhaps be helpful? This chapter shows why and when mediation can help negotiators reach an agreement. It also explains the different types of mediation goals, and how each of those goals can affect the process. This should be read in conjunction with Honeyman on Working with Mediators.
97. Working with Mediators
Chris Honeyman
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 The Uses of Mediation.
98. The Mediator as Medium: Reflections on Boxes—Black, Translucent, Refractive, and Gray
Wayne Brazil
One of the U.S.’s most experienced mediators here discusses a striking difference between his own view of one critical feature of practice, and that of most of his peers. Most high-end litigators and their clients, he argues, have found most mediators to be anything but transparent as to their own thinking processes, even while pressing the parties to be more transparent about theirs. Brazil discusses the pluses and minuses of this way of working, offering his own take on transparency as an alternative. Delving further into the motivations, however, he concludes ultimately that his own practice is a bit less transparent than he thought—more “gray box” than either black or translucent box. The resulting reflection, however, stands as one of the most transparent discussions of a mediator’s motivations and methods offered by a prominent practitioner.
99. Allies in Negotiation
Bernard Mayer
In a thought-provoking book, Mayer analyzed new roles that experienced mediators and other conflict specialists might play, and suggested that they think more broadly about how they can best assist disputants. Here, he focuses specifically on how negotiators can enlist these specialists as allies instead of as third party neutrals. Just for openers, this could help you to get a complex negotiation framed properly, or to approach the other side in ways that will put them in the right frame of mind. But a decade after first analyzing the possible roles, Mayer has extended the reach of the underlying idea to a long list of “ally” roles which today often go unfilled—to the negotiator’s and principals’ disadvantage.
100. The Interpreter as Intervener
Sanda Kaufman
You’re about to start negotiating in a language where you can’t even read the alphabet. What to do? This chapter is essential for anyone about to engage in a negotiation involving multiple languages—which could include many “domestic” negotiations in Singapore or Chicago or London or Paris. Kaufman explores how translators are neither perfectly neutral third parties, nor part of a team (contrary to common assumptions). She then shows how they are often powerful and autonomous actors in the negotiation, and demonstrates how important it is to think about the use of interpreters before the day they are hired.
101. The A is for Activism
Jennifer Reynolds
Negotiation, mediation, and arbitration—the three major practice areas of ADR—have become so mainstream that many argue that the “A” of ADR, which historically has stood for “alternative,” no longer applies. But modern ADR originally developed as a set of practices outside the mainstream, intended in large part to promote social transformation and empower individuals. Reynolds argues that these activist roots of ADR should not be forgotten, and in fact should spur new research and pedagogy around activism, community organizing, social movements, and other “extralegal” approaches to changing law and society.
Section XVII authors:
Wayne Brazil has been a judge (for 25 years), law professor, litigator, and, for the past five years, has been affiliated with JAMS, Inc., serving as a mediator, arbitrator, special master, and neutral evaluator. He is the author of four books, three of which focus on settlement dynamics and ADR processes. He received the D'Alemberte-Raven Award from the ABA's Section of Dispute Resolution in 2009.
Chris Honeyman is managing partner of Convenor Conflict Management, a consulting firm based in Washington, DC. He is co-editor of The Negotiator’s Desk Reference and five other books, and author of over 90 published articles, book chapters and monographs. He has directed a 25-year series of research-and-development programs in conflict management (see www.convenor.com/projects). Chris has also served as a consultant to numerous academic and practical conflict resolution programs, held a variety of advisory roles with the ABA, IMI and other organizations, and served as a mediator, arbitrator and in other neutral capacities in more than 2,000 disputes.
Sanda Kaufman is Professor of Planning, Public Policy and Administration at Cleveland State University’s Levin College of Urban Affairs. Her research spans negotiations and intervention in environmental and other public conflicts; social-environmental systems resilience; decision analysis; program evaluation; and negotiation pedagogy. Her articles have appeared in the Journal for Conflict Resolution, the Negotiation Journal, Conflict
Resolution Quarterly, International Journal for Conflict Management, Negotiation and Conflict Management Research, Revue Négociations, and others. B. Arch. and M.S. in Planning, Technion; Ph.D. in Public Policy Analysis, Carnegie Mellon University.
Lela Porter Love is a professor of law and director of Cardozo Law School’s (NYC) conflict resolution program. She is Past Chair of the ABA Section of Dispute Resolution, where she initiated the first International Mediation Leadership Summit in The Hague. In addition to numerous articles, her writing on mediation includes law school textbooks (co-authored with Carrie Menkel-Meadow and Andrea Schneider); The Middle Voice: Mediating Conflict Successfully (co-authored with Joseph Stulberg); Stories Mediators Tell (co-edited with Eric Galton) and Stories Mediators Tell—World Edition (co-edited with Glen Parker). She is an active mediator and trainer of mediators in the U.S. and abroad.
Bernard Mayer, Ph.D. is Professor of Dispute Resolution in the Negotiation and Conflict Resolution program at Creighton University’s Department of Interdisciplinary Studies, and a founding partner of CDR Associates. Bernie has provided conflict intervention for families, communities, NGOs, unions, corporations, and governmental agencies throughout North America and internationally for over 35 years. Bernie’s latest book (2015) is The
Conflict Paradox: Seven Dilemmas at the Core of Disputes. Earlier books include The Dynamics of Conflict; Beyond Neutrality; and Staying With Conflict. Bernie received the 2015 John Haynes Distinguished Mediator Award presented by the Association for Conflict Resolution, and the 2013 President’s Award presented by the Association of Family and Conciliation Courts.
Jennifer Reynolds is an Associate Professor at the University of Oregon School of Law. She teaches civil procedure, conflict of laws, negotiation, and mediation. Her research interests include dispute systems design, problem-solving in multiparty scenarios, and cultural influences and implications of alternative processes. She serves as the Faculty Director of the nationally ranked, award-winning Oregon ADR Center, and is the co-chair of the Legal Education Policy Committee for the ABA Section on Dispute Resolution. Before law school, Reynolds worked as a systems analyst and associate director for information technology at the University of Texas at Austin.
Joseph B. (“Josh”) Stulberg is the Michael E. Moritz Chair in Alternative Dispute Resolution at The Ohio State University Moritz College of Law. A former Vice President of the American Arbitration Association in charge of its Community Dispute Services, Josh has mediated disputes of national significance, including Native American land-claims, policecommunity group confrontations, and state budget negotiations; trained people to serve
in court, agency-based, or community-based dispute resolution mediation programs; and published 15 books and manuals and more than 65 articles on conflict resolution topics. He served as Reporter for the Model Standards of Conduct for Mediators (2005).
Wayne Brazil has been a judge (for 25 years), law professor, litigator, and, for the past five years, has been affiliated with JAMS, Inc., serving as a mediator, arbitrator, special master, and neutral evaluator. He is the author of four books, three of which focus on settlement dynamics and ADR processes. He received the D'Alemberte-Raven Award from the ABA's Section of Dispute Resolution in 2009.
Chris Honeyman is managing partner of Convenor Conflict Management, a consulting firm based in Washington, DC. He is co-editor of The Negotiator’s Desk Reference and five other books, and author of over 90 published articles, book chapters and monographs. He has directed a 25-year series of research-and-development programs in conflict management (see www.convenor.com/projects). Chris has also served as a consultant to numerous academic and practical conflict resolution programs, held a variety of advisory roles with the ABA, IMI and other organizations, and served as a mediator, arbitrator and in other neutral capacities in more than 2,000 disputes.
Sanda Kaufman is Professor of Planning, Public Policy and Administration at Cleveland State University’s Levin College of Urban Affairs. Her research spans negotiations and intervention in environmental and other public conflicts; social-environmental systems resilience; decision analysis; program evaluation; and negotiation pedagogy. Her articles have appeared in the Journal for Conflict Resolution, the Negotiation Journal, Conflict
Resolution Quarterly, International Journal for Conflict Management, Negotiation and Conflict Management Research, Revue Négociations, and others. B. Arch. and M.S. in Planning, Technion; Ph.D. in Public Policy Analysis, Carnegie Mellon University.
Lela Porter Love is a professor of law and director of Cardozo Law School’s (NYC) conflict resolution program. She is Past Chair of the ABA Section of Dispute Resolution, where she initiated the first International Mediation Leadership Summit in The Hague. In addition to numerous articles, her writing on mediation includes law school textbooks (co-authored with Carrie Menkel-Meadow and Andrea Schneider); The Middle Voice: Mediating Conflict Successfully (co-authored with Joseph Stulberg); Stories Mediators Tell (co-edited with Eric Galton) and Stories Mediators Tell—World Edition (co-edited with Glen Parker). She is an active mediator and trainer of mediators in the U.S. and abroad.
Bernard Mayer, Ph.D. is Professor of Dispute Resolution in the Negotiation and Conflict Resolution program at Creighton University’s Department of Interdisciplinary Studies, and a founding partner of CDR Associates. Bernie has provided conflict intervention for families, communities, NGOs, unions, corporations, and governmental agencies throughout North America and internationally for over 35 years. Bernie’s latest book (2015) is The
Conflict Paradox: Seven Dilemmas at the Core of Disputes. Earlier books include The Dynamics of Conflict; Beyond Neutrality; and Staying With Conflict. Bernie received the 2015 John Haynes Distinguished Mediator Award presented by the Association for Conflict Resolution, and the 2013 President’s Award presented by the Association of Family and Conciliation Courts.
Jennifer Reynolds is an Associate Professor at the University of Oregon School of Law. She teaches civil procedure, conflict of laws, negotiation, and mediation. Her research interests include dispute systems design, problem-solving in multiparty scenarios, and cultural influences and implications of alternative processes. She serves as the Faculty Director of the nationally ranked, award-winning Oregon ADR Center, and is the co-chair of the Legal Education Policy Committee for the ABA Section on Dispute Resolution. Before law school, Reynolds worked as a systems analyst and associate director for information technology at the University of Texas at Austin.
Joseph B. (“Josh”) Stulberg is the Michael E. Moritz Chair in Alternative Dispute Resolution at The Ohio State University Moritz College of Law. A former Vice President of the American Arbitration Association in charge of its Community Dispute Services, Josh has mediated disputes of national significance, including Native American land-claims, policecommunity group confrontations, and state budget negotiations; trained people to serve
in court, agency-based, or community-based dispute resolution mediation programs; and published 15 books and manuals and more than 65 articles on conflict resolution topics. He served as Reporter for the Model Standards of Conduct for Mediators (2005).