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Файл:Dialogical self theory and mediation. Toward a self-narrative model of conflict resolution
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concerned with one's own position, the more intractable he/she gets; the more time and
effort it takes to find out whether an agreement is possible; the worse relationships
between disputing parties become (cf. Fisher/Ury/Patton, 1999: 7-12). Instead of arguing
over positions, authors of the Harvard negotiation method recommend some principles
to follow in order to negotiate disputes effectively:
1. Separate the people from the problem. Successful negotiators should try to
understand the point of view of the other party, make own perceptions and emotions
explicit and discuss them openly with the other side. There is no negotiation without
communication. So negotiators are advised to listen actively and also speak. Listening
helps understand perceptions, feel emotions of the other. The negotiator should learn to
communicate own perceptions and emotions, as well (cf. Fisher/Ury/Patton, 1999:13-
23).
2. Focus on interests, not positions. The difference between interest and position
lies in that the latter is caused by the previous. Position is a result of unmet interests.
Needs, desires, concerns and fears constitute interests. The most powerful interests are
basic human needs for security, economic well being, a sense of belonging, recognition,
control over one's life. The one should identify the driving interests of the both sides and
speak them out (cf. Fisher/Ury/Patton, 1999: 23-31).
3. Invent options for mutual gain. In order to do this, the negotiators need to
separate creative process from deciding upon options (“judgement hinders
imagination”); broaden options to be able to select from great variety of them (“there is
no single answer”); search for mutual gains (“identify shared interests and differing
interests to dovetail”); ease decision for the other party (cf. Fisher/Ury/Patton, 1999: 31-
42).
4. Insist on using objective criteria. The idea is to reach an agreement based on
principle, not pressure. Principled in this case means “independent of will”. The
negotiators should bring on the standards of fairness, efficiency, or scientific merit
when solving problems to make sure they reach a wise agreement. Equal opportunity
should be given to all parties. Negotiators are thus expected to approach the negotiation
with an open mind and be reasonable (cf. Fisher/Ury/Patton, 1999: 43-49).
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From negotiation to mediation
Over the years there have been many phases or stages of mediation developed.
The original seven-stage model by Folberg and Taylor (1984) is regarded as first stepby- step instruction for mediators to oversee and facilitate negotiation between the
disputing parties based on the Harvard negotiation model (cf. Van Gramberg, 2006:
69). In short, the stages of the Folberg-Taylor model include:
1. Introduction – creating trust and structure;
2. Fact-finding and isolation of issues;
3. Creation of options and alternatives;
4. Negotiation and decision-making;
5. Clarification and writing a plan;
6. Legal review and processing;
7. Implementation, review, and revision (Van Gramberg, 2006: 69).
Although the amount and description of phases and their functions vary from
model to model, there are on average five universally adopted stages that constitute
mediation process (cf. Haumersen/Liebe, 2005: 68...):
1. First, parties and mediator meet each other. Mediator presents the basic
principles of mediation. Then the mediator defines rules for the current mediation
process and checks, whether parties agree upon that.
2. In the so-called “What” phase mediator tries to get clear what the conflict is all
about. Parties explain their positions. Positions are usually explicit and easy to explain.
Mediator asks about the goals the parties would like to achieve.
3. The “Why“ phase is aimed at clearing with parties the reasons that led to the
conflict, learning more about the pre-history of the conflict matter. Parties explain their
interests. Interests are more implicit than positions, they might be intangible and perhaps
inconsistent (cf. Fisher/Ury/Patton, 1999).
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4. In the “Option” phase participants are looking for the possible way-outs. It
is also important to check the options for feasibility, and to understand what are the
real moving interests and feelings behind the issue.
5. In the “Commitment” phase parties agree upon one solution and think of steps
that should be taken in order to reach this solution.
The central to settlement-oriented mediation or problem-solving mediation is
thoroughly structured process, where a mediator guides parties' gradual movement
through the subsequent stages towards a creation of an agreement. Of course, this
requires some degree of control on the part of the mediator. By isolating issues in the
dispute mediators hope to keep track of the relevant topics for the consensus and focus
parties' mental anchor on consensual agreement.
The fascination with mediation lasted for almost a few decades, before scholars
eventually shed a critical light on mediation process and its features. The closer
inspection revealed that successful mediation reports in fact lacked critical analysis,
since mediators as well as their home agencies had direct interest in presenting the
process in a favorable way and since no third-party evaluations were chiefly allowed due
to the institutional settings within which mediation took place (cf. Nothdurft,
1995a: 268). Roughly from 80's on, scholars undertook empirical studies of mediation
sessions. Numerous mediation programs were studied in terms of discourse analysis in
the USA (e.g. Silbey/Merry, 1986).
In January 1986 in Law & Policy appeared an article by Susan S. Silbey and Sally
E. Merry about strategies mediators use to cope with the tension of being a mediator.
Having studied two mediation programs and gathered comparative data on the third
one, authors typified “behavioral patterns” of mediators in mediation sessions, and
classified strategies and techniques they have recourse to in order to get parties to an
agreement. They defined the role of the mediator as a tensional one. On one hand,
mediator is not allowed to impose solutions by him-/herself, on the other hand, however,
the settlement is a mandate:
"Mediation is commonly defined as a process of settling conflict in which a third party oversees
the negotiation between two parties, but does not impose an agreement" (Silbey/Merry, 1986: 7).
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Usually hidden beneath the mask of neutrality, mediators covertly manipulate
the parties by means of subtle techniques that fall under these main categories:
Control through presentation of self and program
According to Silbey and Merry, while presenting self and program at the
commencement stage mediators lay stress on their expertise and claim authority. They
usually present themselves as experts for legal issues, for communication, for conflict
management etc. and refer to professional trainings and experience they had as mediators
and what they are about to bring in the actual case. Mediators usually stress their relation
to courts or community agencies. Court proceeding would be mentioned as possible
alternative for mediation, however, since mediators pretend to „know how things work“
in court, argued would be in favor of the mediation. For Silbey and Merry, discussion of
the alternatives is neither regarded as threat, nor as persuasion, but is rather a form of
manipulation because thereby participants are to some extent forced to take part in
mediation. At last, mediators establish authority by proclaiming that written agreements
pass a probation, although such agreements are not really legally binding. Participants
could be warned the case will be returned to the court, in case they refuse to stick to the
written agreement (cf. Silbey/Merry, 1986: 12-14).
Control of mediation process and substantive issues
Research conducted by Silbey and Merry showed that mediators tend to control
flow of communication and interaction in mediation sessions by regulating the topic, the
length of discussions, the turn-taking in interaction including interruptions etc.
According to Silbey and Merry, mediators practice manipulation even by constantly
moving parties towards a focus on a settlement. „Rephrasing“ or “reframing” of a
dispute is one of the powerful techniques mediators use in steering mediation: negative
statements are paraphrased, offenses are neutralized; commonalities are emphasized;
and the whole conflict is mitigated (cf. Silbey/Merry, 1986: 14-15). It is to mention that
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the „rephrasing“ strategy is highly acknowledged in mediation trainings as means of
reaching an interpersonal understanding (cf. Busch, 2007: 130).
Silbey and Merry speak of four phases of how mediators deal with the substantive
issues in disputes that have been developed from their studies:
1. Broadening the dispute: extension of the topic of conversation would guarantee
that at some point in discussion the mediator is able to finally define the possibilities
for reconciliation. In order to find out commonalities, mediators usually ask parties such
questions as: „Do you belong to the same church?“; Do your children play together?“
2. Selecting issues: mediators most often will speak about things they are able to
settle. Other topics would be ignored or pronounced irrelevant, unless participants insist
upon discussion of the issues.
3. Concretizing issues: after the dispute has been broadened and the most
appropriate issues have been selected, the mediators will then explicitly ask the parties
about their concerns: „What is it you are looking for in an agreement?“ (bottom-line).
Possible way-outs will be concretized. The parties will be asked to formulate and
confine the issues under consideration.
4. Postponing issues: if settlement is not reached within one mediation session,
mediators fix another appointment (cf. Silbey/Merry, 1986: 15-18).
Activation of commitments
The strategy of activation of commitments, a concept borrowed from Talcott
Parsons (1937), suggests that mediators will particularly refer to the commonly shared
norms and values of the disputing parties that had been presented at the initial stage of
mediation in order to encourage settlement. Mediators hope to activate shared
commitments between the participants by asking such questions as “Where do you
live?” or “How many children do you have?” (cf. Silbey/Merry, 1986: 18-19).
Whereas according to Silbey and Merry mediators see the result of mediation in
reaching a consensual agreement whatever, Nothdurft (1995a) is convinced that the
agreement is not always there, especially, if parties pursue own agendas as more
important, or if they participate in mediation to gain symbolic and strategic values.
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While working for the Institut für deutsche Sprache in Mannheim Nothdurft and his
fellow scholars gained access to authentic mediation-talks that were later analyzed in
terms of conversational analysis (Nothdurft 1995a; Nothdurft 1995b; Nothdurft 1997).
Although the current chapter focuses primarily though not explicitly on the discursive
development of the mediation field in the USA (e.g. Fisher/Ury, [1981] 1999;
Silbey/Merry, 1986; Bush/Folger, [1994] 2005), the results of these empirical
observations provide valuable insights into and contribute to the new and compelling
view of the mediation and its features.
According to Nothdurft (1995a), difficulties in studying mediation arise because
external observers are usually excluded due to confidentiality policy within the
institutional settings of mediation. Most reports done about mediation are either too
specific to leave space for generalizations, or are happened to contain a little critical
analysis. The state of knowledge in this field is therefore described as unsatisfactory.
Nothdurft claims it is a tendency to neglect the essential distinction between two
discourse analytical levels on which mediation is described – level of legal-political
reasoning and interactional-structural level – that invites confusion. Both levels of
analysis are important in order to better understand functioning of mediation. However,
until the researchers fail the attempt to take this differentiation into account, they will
lose sight of the main subject of their investigation (cf. Nothdurft, 1995a: 268-269).
While many authors focus on mediation-as-procedure, Nothdurft's contribution to
mediation analysis lies in understanding mediation-as-communicative event. He firmly
believes that "the working and the success" of mediation resides in its verbalinteractional features:
Mediation is of verbal nature. Symbolic presence of dispute in mediation talk is
an important condition for mediation to work. That is, the dispute is only activated
when talking about the dispute: "It is only through symbolic representation that the
dispute becomes activated or present in mediation-talk" (Nothdurft, 1995a: 272). This
quality of mediation provides mediator with various interpretations that serve as ground
for the development of a third perspective and later an agreement. Since most in
mediation is of verbal nature, participants thus largely depend on their verbal
competences (cf. Nothdurft, 1995a: 272-273).
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• Mediation is of persuasive nature. While wanting to pursue individual
goals disputing parties might try to influence each other by attempting to cooperate with
mediator or building coalitions to make each other adopt their objectives and interests.
This quality of mediation suggests that the issue of fairness is constantly under threat (cf.
Nothdurft, 1995a: 273).
• Mediation is of contradictory nature. In order for mediator to foster parties
to reach a consensus, it is necessary to set strict boundaries. There should be a clear
line between what is really the issue under consideration and what is intuitively
associated with it. As well as, any resolution requires expertise and neutrality. Experts
however rarely stay neutral. Mediators are thus constantly to cope with contradictions
(cf. Nothdurft, 1995a: 274).
• Mediation is of performative nature. The rhetorical activities of
participants shape the ongoing interactional events. The assumptions or definitions that
participants bear in mind about mediation make them perform sequences of interactive
events that shape mediation-talk. That is, mediation is being “performed”. Through this
interplay of effective interactive events and performative activities of the participants
the goal of mediation, a consensus, can be reached. In this sense, this feature of
mediation-talk is essential (cf. Nothdurft, 1995a: 274-275).
• Mediation is of fragile nature for it is “an extremely sensible enterprise”.
It contains the dispute itself that can escalate. There is a need to protect one's own social
identity, status, face, emotions and other values. As well, the consensus is unlikely if
disputing parties are driven by the subjective motives (cf. Nothdurft, 1995a: 275).
• Mediation only works well when bound to a specific cultural context (cf.
Nothdurft/Spranz-Fogasy, 1986).
To sum up, it is advisable to look at the mediation process not only from the
position of the legal-practical level, where the mediation is considered merely as
technique, in terms of phases, function and structure. In order to gain a better
understanding of mediation, the interactional-structural level has to be taken into
account, as well, where the mediation is perceived in terms of communicative event with
face-to-face interaction (cf. Nothdurft, 1995a: 271). That is to say, mediation, as
interactional event, has its unique communicative features, elements, conditions,
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regularities and constraints, too. These features need to be taken into account in order
to evaluate the process of mediation and learn more about problems systematically
arising during the mediation process.
Moving on with the discursive development of mediation, in 90's Bush and Folger
(1994) with their introduction of the transformative approach to mediation plead for
the necessity to revive the basics of mediation, the initial ideals of the ADR movement,
such as informality of the process, voluntary participation in mediation sessions,
impartiality of a third-party. In the opening chapter of their book “The Promise of
Mediation” (2005, rev.ed.) Robert A. Baruch Bush and Joseph P. Folger provide an
extensive literature review of the mediation field in the USA to be existing at the dawn
of 90's. Their review showed that there are different accounts or “stories” told by
different authors about the mediation field and what it represents. These “stories” stress
different dimensions of mediation process and its private and public benefit. Bush and
Folger distinguish between four “stories”: some portray mediation “as a tool to reduce
court congestion”, others – „as a vehicle of organizing people and communities to obtain
fairer treatment”, as “a means of social control and oppression”, and authors of the
current approach – “as a way to foster a qualitative transformation of human
interaction”. Authors happen to call them, respectively, the Satisfaction Story, the
Social Justice Story, the Oppression Story, and the Transformative Story (cf.
Bush/Folger, 2005: 8-9). Bush and Folger briefly summarize each of the stories:
• Satisfaction story (key word: integrative problem-solving or "win-win"). This
approach has been used widely in mediation practices across the US and worldwide and
received high appraisal and acknowledgment for workable and satisfactory results, low
cost, avoidance of publicity. Here, the mediation is perceived as "creative problem
solving, which produces settlements that satisfy needs and reduce sufferings on all sides
of conflict". Among others, to the list of scholars and practitioners in the field authors
include Fisher/Ury (1981); Folberg/Taylor (1984) (cf. Bush/Folger, 2005: 11).
• Social justice story (key word: community of interests; equality). By organizing
a community of interests weaker groups or individuals can build coalitions in addressing
and fighting one common enemy, e.g. co-tenants and block-residents vs. landlords and
city agents. Here, mediation aims at "helping to organize and build coalitions among
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individuals, so as to generate greater bargaining power for the 'have-nots'". Although
this story has a very few supporters, it still finds its unique place in the history of the
mediation field (cf. Bush/Folger, 2005: 11-14).
• Transformation story (key word: conflict quality transformation; empowerment
and recognition). This approach to mediation suggests that the goal of the mediation
lies not merely in finding of the rational solution to conflict per se, but to promote
parties towards a mutual understanding, allowing them to define problems and goals on
their own, by increasing strengths of themselves (empowerment) and understanding
and concern for one another (recognition). To put it briefly, regaining confidence and
empathy enables parties to change the quality of their conflict interaction from negative
into positive, and exactly this change in the quality of interaction is meant as
transformation (cf. Bush/Folger, 2005: 14-15).
• Oppression story (key word: pressure, state-control, manipulation, oppression
of weak). This story differs from the previous three ones and contains mainly critique to
the mediation as the way of conflict resolution in legal settlements. Mediation here is
believed to aim at "enhancing state control and applying pressure and manipulation in
ways that cause greater unfairness to the already disadvantaged" (cf. Bush/Folger, 2005:
15-17)
Bush and Folger sum up that the basic argument of the Satisfaction Story is that
the most important private benefit of mediation is increasing the satisfaction of
individuals' needs and diminishing their suffering, where needs are met and harm is
avoided. Moreover, it contributes to an increase of systemic efficiency. Social Justice and
Oppression Stories are driven by another proposition: here, promoting equality between
individuals and reducing inequalities respectively is of crucial importance. Social Justice
Story stresses mediation's capacity to organize individuals around common interests and
suggests that coalitions produce benefit of increasing equality. The Oppression Story, on
the contrary, stresses mediation's capacity for manipulation and believes that such
manipulation may turn out to be worse to already disadvantaged. Transformation Story's
premise is that the most important benefit of mediation is the transformation of the
parties' conflict itself from negative destructive interaction to positive constructive one,
which represents both private and public benefit to them and to society. This story
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stresses mediation's capacity for conflict transformation by fostering empowerment and
recognition, because they are able to transform the quality of the interaction from a
destructive to a constructive one (cf. Bush/Folger, 2005: 18-21).
At first glance, these various accounts or “stories” prove the mediation field
appear to be diverse and pluralistic, though not all of them are equally reflective
enough about the actual state in the mediation. But still Bush and Folger agree that the
most quantitatively overwhelming approach to mediation is the one with the focus on
getting settlements, i.e. the Satisfaction Story (cf. Bush/Folger, 2005: 21). Despite the
prevalence of the problem-solving approach to mediation, authors of the transformative
story do firmly believe that the most valuable and important effects and benefits
mediation can produce go far beyond simply resolving conflict of interests:
“...not that satisfaction and suffering, justice and injustice, are unimportant – but that conflict
transformation, and the resulting achievement of the inherent human potential for social and moral
connection, are even more important. And mediation has a unique capacity for producing this benefit,
for engendering conflict transformation” (Bush/Folger, 2005: 38-39).
Summary
The current version of mediation's timeline disclaims any pretence to any degree
of completeness or objectiveness. The goal of the chapter is rather to demonstrate the
gradual development of mediation from a process „in the shadow of law“ to a process
that can contribute to a „social transformation“ by flagging major shifts on a time scale
beginning from the ADR movement till around our time. The chapter opens up with
the statement that our current understanding of mediation is owed to the ADR
movement. Alternative Dispute Resolution movement, by all means, is a starting point
in institutional development of mediation. There are at least two versions of why the
movement began: by one, US courts were overwhelmed with an increasing flow of petty
law-suits. So sought was for a time-efficient and effective process of handling with
minor conflicts to reduce court congestion. By another one, the quest for alternatives to
court was initiated by law activists that were deeply dissatisfied with the process and
outcomes of formal litigation proceedings.
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