Cross Collaborate» Mediation

Mediating on Two Tracks: the Rational and the Rest of Human Nature

John Folk-Williams — Fri, 18 Dec 2009 09:20:29 +0000

Robert Benjamin’s essay on the place of irrationality in mediation, discussed in the previous post, urges mediators to focus as much on the emotional and even illogical motives contributing to conflict as on the rational analysis of issues. Many practitioners do this, in so far as they can, because they not only recognize the importance of these elements but know that meaningful agreement is not likely to be reached unless all aspects of the situation are dealt with.

Participants in a public policy dispute may come into a meeting room doubting one another’s motives, convinced of hidden agendas, angry about litigation claims, or holding grudges from past clashes on unrelated issues. Some may have been attacked and victimized by unfounded allegations in the media, their professional integrity or even personal honesty called into question. Misinformation may be taken as fact to support stereotypes of elitist environmentalists, greedy farmers, predatory developers or weak-kneed bureaucrats. Communication among them is broken, and the prospect of positive working relationships seems remote.

With all this simmering below the surface, it’s hardly possible to launch right into a step-by-step rational analysis of how to satisfy interests and develop options for conflict resolution. Yet there are pressures to keep a lid on the explosive mix of frustration, grievance, and poisoned relationships. The meetings are expected to follow logical agendas, review technical data, limit discussion to substantive disagreement only and avoid emotional displays. Rational analysis is not merely the preferred structure for managing the issues, it also reflects ingrained cultural norms and habits of thinking.

It’s the mediator who is expected to enforce these norms and maintain rational order while guiding discussion to useful conclusions. Yet it’s also the mediator who has to help the group shape all its tensions and contradictory impulses as well as conflicting interests into an agreement that not only meets technical standards but also will elicit commitments for implementation. A perfectly sound and rational solution, even wrapped up with a page of signatures, may still fail to be implemented because the underlying tensions have never been resolved.

Practitioners have generally learned to manage this paradox of surface rationality and submerged tension by working with stakeholders on two levels simultaneously. In the public meeting room, the rational model unfolds step by step. Away from the table all the other dimensions that stand in the way of agreement are dealt with. There are many reasons why all the dimensions of a conflict can rarely be dealt in a more publicly integrated manner.

To begin with, mediators in the public policy field likely have limited ability or even motivation to add further complexity to the rational model of interest-based negotiation. The use of this model often represents a big step forward in changing attitudes about the use of collaborative methods. Many, if not most of the participants may be getting their first sample of collaboration by trying to satisfy interests rather than relying on positional strategies in a more adversarial negotiation process. That in itself is a great achievement for the convener and mediator alike, and the group needs time to get comfortable with a method they’re not used to. That’s more than enough innovation to handle at one time.

Another barrier is the prevailing technically-oriented mindset of many conveners and participants, one developed through years of training and professional practice. Departures from rational analysis into the realm of the irrational and emotional dimensions of behavior sounds more like therapy than dispute resolution. The deeply rooted mindset focused on data and logic can’t be changed overnight in the context of an ongoing negotiation.

There is also a basic expectation that is often decisive in setting the tone and limits of discussion, and that is the perceived need for order and control. Though some conveners and participants may tolerate the messiness of dealing with emotions and relationships, the great majority of public agency conveners are not. Whether because of personal style, professional mindset or the pressure of time to show results, raising these issues and concerns seems, at the least, a waste of time and at worst a sign that the process is falling apart.

Emotional outbursts in public meetings can reflect on the ability of a project manager – not to mention the mediator – to keep the process under control and tightly focused on the outcome. Reputations, even careers, can be at stake if the effort fails to achieve its purpose in the allotted time frame. Who’s going to take a chance on the irrational?

The stakes and urgency of the process also reflect the strong, decisive influence of the constituencies and institutions that the negotiators at the table are representing. Even if they have the authority to make commitments on the spot, the negotiators are accountable to the groups that sent them there. These invisible players only look at results and won’t be directly involved in any efforts to get at motives behind the substantive issues. This is a factor that always complicates efforts to resolve public policy disputes, no matter how high the level of collaboration during meetings may be.

The position of a mediator working in this setting is also limited by the fact that he or she is often one of several consultants on contract to the convening agency. A technical team will also come on board. While its members may have a collaborative approach, many teams do not. Whatever their attitude about collaboration, though, their methods depend on rational analysis, and they have enormous influence over how the public process is handled – usually a lot more influence than the mediator does.

All these factors and more help keep the business of rational analysis as usual humming along in most collaborative processes. But the insistence on the apparently technical and rational nature of the deliberation process is part reality and part fiction. The hard work of reducing tension, rebuilding relationships and removing the shadow of past hostility still has to be done, and mediators have to do it. Two tracks or one, in public or private, is less important than getting the job done.

Robert Benjamin on the Irrational Rationality of Mediation Models

John Folk-Williams — Mon, 14 Dec 2009 23:41:54 +0000

Robert Benjamin recently published another of his typically thoughtful and provocative essays at Mediate.com. On Becoming a Rationally Irrational Mediator/Negotiator is the first part of an ambitious five-part series on the role of the irrational in conflict resolution. In this first installment, Benjamin sets the stage for a detailed challenge to the reliance on rational analysis at the heart of major theories of negotiation and mediation.

He points out that, contrary to theoretical assumptions, most people do not make up their minds on the basis of logical argument and well-honed evidence alone. Many non-rational elements are just as important, such as emotional reactions, bias of various kinds, stress and frustration, flawed logic, or fear of change. While practitioners have to deal with these human realities all the time, most theories of negotiation and mediation assume that people can suspend all that and switch on a mode of rational thinking at will.

It’s time, he argues, for the prevailing models of conflict management to recognize the full complexity of human behavior as it affects negotiated resolution. The non-rational dimensions of conflict need to surface and be dealt with rather than ignored at the theoretical level as well as in practice.

I would add a gloss on the word “irrational.” It doesn’t always mean the opposite of “rational.” It’s also about anything that operates beyond or separately from reason. For example, chance is an irrational factor in human affairs. I think of emotion, faith or tradition in a similar way. These are not the opposite of rational thinking; they are different influences and dimensions of experience in their own right.

Another example of irrationality, which Benjamin promises to discuss at length in an upcoming essay, is faith in the power of rational analysis and scientific method to solve almost any problem. He asks the question: Is it irrational to be a rational mediator?

The interest-based model of negotiation, with the related concept of the joint gains or “expanding the pie” strategy, exemplifies the rational approach to reaching agreement. It proceeds by establishing a set of objective principles or criteria for evaluating options and assumes that feelings, action and thought will all conform to these principles. A dispassionate testing of the options against the criteria should yield the optimal solution.

If problems remain, the tools of persuasion that most often come into play rely on enhancing rational analysis to address specific concerns. Technically accurate evidence, objective weighing of alternatives and logical argument will ultimately prevail. The assumption is that a group will follow this rational path to the point where participants are satisfied that their interests have been met, and so reach agreement.

Irrational elements are not necessarily ignored by the process. After all, the interests that participants are trying to satisfy go far beyond money and economic advantage. They can include all sorts of irrational motives like religious belief, cultural tradition, political necessity, public opinion, reputation, the value of a relationship, among many others. Some of theses values and motives will also be reflected in the principles and criteria that a group agrees will guide the evaluation of proposals for resolution.

I say “some” because, under the theory, there is a sorting out of “true” interests that can yield to negotiation from the values and claims to legal right that are not negotiable. In doing so, however, it’s often the case that precisely those irrational factors that influence human decision-making the most are pushed off the table.

Values and motives relating to religion, political ideology or culture may not be negotiable, but they certainly affect the ultimate willingness of an interest group to accept an agreement. Subordination of these elements can often lead to refusal to accept even the most rational of resolution proposals. The irrational doesn’t go away just because it’s not on the table.

Benjamin’s call for revisions to the prevailing models is especially timely in light of new scientific findings. He points to recent neuroscience research as evidence that the human mind simply doesn’t work in a linear fashion. Instead, there’s a “messy” and constant interplay among many parts of the brain as different dimensions of important decisions are considered.

It’s time for the models to match the full complexity of human behavior and incorporate new tools for addressing the irrational factors of decision-making. These factors shouldn’t be considered beyond the theoretical reach of conflict resolution. There are too many practitioners who know that rational analysis is not the whole story.

Mediating on Two Tracks: the Rational and the Rest of Human Nature

Mediator Power & Collaborative Public Policy

John Folk-Williams — Mon, 17 Aug 2009 06:14:02 +0000

What is mediator power and how does it operate in collaborative governance and public policy? I pose this question after reading the current issue of Conflict Resolution Quarterly (Vol. 26, No. 4). This collection of scholarly articles challenges basic concepts of mediation and calls for a searching reconsideration of its definition and practice.

The contributions differ greatly in methods and conclusions as to specifics, but I’d like to focus on one subject several of them explore: the power of the mediator to influence the outcome of a consensus building process.

The more radical criticisms in this collection claim that the practice of mediation sometimes turns the conventional concept of a mediator on its head. Instead of conforming to the ideal type of neutral servant of the parties, mediators may undermine stakeholder independence and facilitate outcomes primarily influenced by the most powerful interests in the room. Or they may follow more personal motives and use the tools at their disposal to direct and pressure parties into agreements that may not be in their best interests.

The essays raise key questions about the impact of mediators that do need attention, especially the clash between the theory and practice of mediation. With respect to the public policy field, however, the scenarios strike me as overstating the power of mediators and oversimplifying the considerable power of conveners and the parties themselves. (Rachel Goldberg’s essay is an exception, as it deals entirely with this field. I’ll explore her very helpful ideas in a separate post.)

In many cases, for example, it is the convener of a policy process who provides financial support, initially frames the issues, plays a major role in the selection of participants and organizes the process for selecting the mediator. The mediator’s influence comes more from a successful and adroit balancing of the power and interests of all the actors than from the possession of potentially coercive power. And that balancing would not be possible without the trust of the convener and stakeholders.

In my experience, then, trust of the parties, built up over time, is the most important source of mediator influence, but it is fragile and can be lost in a moment.

The participants in a collaborative policy project have usually experienced such a high level of conflict over the issues that they do not trust themselves to reach agreement without the help of independent guidance. They need someone without a hidden agenda or personal stake in the final decisions, someone who can be counted on to treat everyone fairly.

They expect and demand that the mediator will actively assist them in focusing on those areas where agreement may be possible, avoid detours into unresolvable past issues and check unproductive discussion. Being able to trust a mediator to do this is an important reason behind their participation. It’s a key sign that they can trust the process itself.

Without that trust, public policy mediators will not be effective. During a typical process, they have many opportunities to develop the relationships with stakeholders that are part of trust building. But the parties also need to see consistency in mediator performance and fairness throughout the meetings that are the heart of collaborative policy work.

Trust opens a door for mediator influence, but it does not create a power to coerce or control. What comes with trust is an openness on the part of stakeholders to mediator ideas for resolving especially difficult problems. They can accept these ideas as honest efforts to move the process forward that are free of hidden agendas. As soon as any participant senses that a mediator is, in fact, pushing an agenda or building pressure to force agreement more favorable to other parties, the trust is lost – not only in the mediator but very likely in the whole process.

The public policy mediator thus walks a fine line. One of my colleagues compares the situation to a high wire act without the net. The focus has to be on maintaining balance rather than on dominating the stakeholders.

I realize that the public policy field presents a very different situation for mediators than other types of practice. Two-party mediations in which individuals speak only for themselves and which take place in a very short timeframe give far more prominence to the mediator role than does the typical public policy process – with its large number of parties working over a long period of time in a highly dynamic political setting .

Hopefully, we’ll see more research and dialogue about the variations in the mediator role in each of the major fields of practice. The power and influence of the mediator should no longer be discussed as if research from one field of practice can be transferred to any of the other fields. The distinctive conditions in each one have to be considered carefully before reaching broad conclusions about the profession as a whole.

Peter Adler and The End of Mediation

John Folk-Williams — Thu, 30 Apr 2009 23:39:33 +0000

Peter Adler has written an article of compelling interest on the core values and direction of mediation. Provocatively entitled, The End of Mediation, this ambitious essay sets out a powerful vision for the future of the process and its practitioners. His basic point is that mediation is not a “field” or “profession” but a set of cultural habits ( a meme) dating far back in human social history. Its concepts and tools are widely used by many who have never had specialized mediation training but have mastered the art of helping people reach effective agreements. He makes forceful arguments against attempts to professionalize a practice so basic to human culture.

Formalizing mediation as a profession would only lead to restrictive licensing, narrow definitions of acceptable practice and a guild-like mentality. It would serve to protect the market of paying cases for those with prescribed qualifications, sanctioned by a formal certification procedure. But those restrictions would likely limit useful professional adaptation or simply push innovation beyond the control of a licensed caste.

Mediators, formally trained as such or not, lacking licenses but enjoying the trust of participants, should have a bright future because the role they play will continue to be just as important as it has been for ages. He argues that the future will doubtless see the evolution and application of the fundamental mediation process in ways that we can’t anticipate now. Such responsiveness to future trends has the potential for changing paradigms of social interaction and the satisfaction of interests. Big thinking, big claims.

He offers some great suggestions for getting us there sooner. Among them:

tracking the major trends of change that will require mediative skills
dropping our jargon and explaining mediation principles in real-life terms
forgetting arguments about trivial details and focusing on the frontiers of practice
learning from the catalytic leaders who function as mediators because of their personal connectedness and authority as trusted intermediaries
taking on the work of changing political culture and its typical emphasis on “towel-snapping” fights between advocates of opposing conditions

There’s much more than I can summarize here. Peter covers a lot of ground in history and culture as he develops his ideas. That makes the article especially exciting and challenging, and one that’s bound to be hotly debated.

A couple of thoughts as I read through it:

I think the broad idea of collaborative practice, rather than the term “mediation,” captures the extension of underlying mediation principles into new areas, in the way that Peter describes. “Mediation” and “dispute resolution” often seem too limiting to meet the diverse demands for consensus-building services. Public agencies ask mediators to manage projects for long-term plans, organizational change, and visioning that may incorporate but go well beyond dispute resolution.
Responding to such changes, many mediators have had to blend their traditional skills and techniques with methods drawn from other fields like organizational development, change management and long-term planning. The practice has largely been pulled in this direction by the demands of a market in need of new approaches rather than pushed there by mediators themselves. They have a lot to learn from other fields of practice in order to enhance their competence to deal with this variety of need.
As a result, though there are always exceptions, mediators in public policy, probably more so than in commercial, domestic, labor or other areas, now spend more time – and gain more income – working on plans and visions for the future rather than resolving disputes that started in the past.
Coaching and training leaders and managers in the use of collaborative processes are also important activities. These have a lot to do with creating a culture of collaboration that can lead to the deeper changes Peter foresees in the future.

I’ll come back to this rich and provocative article in future posts. Whether you provide or use collaborative services, you should read The End of Mediation – it can’t fail to get you thinking.