Mediation

Mediators as Peace Makers

Mediators are peacemakers. Their goal is to get both sides to agree with each other. “Blessed are the peacemakers,” the Bible tells us, “for they shall be called the children of God.” Shakespeare did not go quite that far. He simply said: “Blessed are the peacemakers on earth.”

John (Tex) McCrary, the noted publicist, was more specific. He described mediators as catalysts on a hot tin roof. He was right on target. The dictionary defines a catalyst as an agent that causes activity between two or more agents without being affected by the reaction. A mediator is never a party to the ultimate agreement; he can be disappointed or overjoyed by the outcome, but he is not personally affected by agreement or disagreement.

The Mechanics of Mediation

Whether he knows it or not, a mediator is a negotiator with a special purpose. His goal is to get the negotiators to agree with each other. Their goal is to get the other side to agree to give them what they want. The mechanics of conflict prevention and resolution in mediation, nonetheless, are much the same as in negotiation. The difference is found in the mediator’s design and execution of strategies and tactics to achieve his goal of getting the disputants to agree with each other.

If he focuses on the goal of joint agreement, a negotiator is well-equipped to serve as a mediator in other disputes. The appropriate strategies and tactics follow from a clear understanding of the goal of the mediator.

A good arbitrator, surprisingly, is not necessarily a good mediator. He frequently is overly focused on the merits of the opposing claims. This is a virtue in arbitration. In mediation, it can detract from the goal of getting both sides to agree with each other.

Why Mediation is Expanding

Mediation is growing rapidly in popularity. Some see it as the wave of the future in conflict prevention and resolution. With popular understanding of the values of mediation and how it works, the number of disputes that can be resolved with the help of mediation can be substantially increased. The reason for mediation’s growing popularity is not hard to understand. With rare exceptions, a mediator can do no harm. The exceptions are few in number but it is important to know what they are.

The confidentiality of the discussions, which are in the nature of settlement talks, must be fully protected. The mediator’s lips must be sealed and the parties themselves must agree that no reference to any proposals they make can be used in any other forum.

There should also be a time limit on mediation unless both sides agree on an extension. The purpose is to prevent stalling by either side to delay pursuit of litigation or some other alternative.

Obstacles to Mediation

The most serious obstacle to the introduction of mediation occurs at the moment when it can be most helpful, namely, in the event of an impasse in negotiations.

An impasse is a declaration by both sides that they have gone as far as they are prepared to go. A disputant who proposes mediation is impliedly saying that he is willing to give more or to accept less. If he is not prepared to make any change, there is no purpose to mediation. A readiness on the part of either side to accept mediation is maybe seen by the other side as a sign of weakness, an indication of a lack of bargaining strength to get what they want through negotiation.

This obstacle can be overcome by a third party proposing mediation. In disputes affecting the public, a government official may propose mediation. This can also be done by someone whose word is respected. Cardinal O’Connor proposed mediation in a dispute of television engineers and technicians and their network. It worked.

The parties themselves can anticipate at the beginning of their negotiations that disputes might arise in the future and provide for their mediation or arbitration.

There are other ways in which mediation can be introduced without compromising the bargaining position of either side. While it is extremely difficult for the parties themselves to invoke mediation, they may further the cause by saying that they do not believe mediation can serve any useful purpose but that they would not object if it was proposed.

A disputant can more easily propose arbitration without appearing to weaken his bargaining position. He need only say that he is sufficiently confident of his position to be willing to have a third party pass judgment on its merits, whether he means that or not.