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A Comparison Of Mediation And Arbitration

Mediation

Arbitration

Expedited negotiation

Adjudication

Parties control the outcome.

Arbitrators control the outcome.

Mediator has no power to decide.
Settlement only with party approval.

Arbitrator is given power to decide.
Final and binding decision.

Exchange of information is voluntary and is often limited. Parties exchange information that will assist in reaching a resolution.

Often extensive discovery is required.

Mediator helps the parties define and understand the issues and each side's interests.

Arbitrator listens to facts and evidence and renders an award.

Parties vent feelings, tell story, engage in creative problem-solving.

Parties present case, testify under oath.

Process is informal.
Parties are active participants.

Process is formal. Attorneys control party participation.

Joint and private meetings between individual parties and their counsel.

Evidentiary hearings.
No private communication with the arbitrator.

Outcome based on needs of parties.

Decision based on facts, evidence, and law.

Result is mutually satisfactory—A relationship may be maintained or created.

Result is win/lose award—Relationships are often lost.

Low cost.

More expensive than mediation, but less expensive than traditional litigation.

Private and confidential.

Private (but decisions are publicly available).

 

A Complex Conflict Analysis of ‘Resolution’

 

There are three topics that I approach with caution in conflict resolution training, because they push the students’ hot buttons and my responses are counter intuitive to what the students think ought to be. The big one is credentials (I adamantly refuse to get ‘credentialed’). Next comes the issue of neutrality (no one is neutral). Third is the contentious discussion of whether the mediator should be invested in whether or not the conflict being mediated resolves. After all, is resolution not what we are paid to achieve? Does resolution not bear witness to our ‘success rate’ as mediators? Won’t our evaluations depend to some extent on outcomes? How can we prove we know what we’re doing if we don’t resolve conflicts? The students have all the arguments in favour of the question being answered in the affirmative.


Theory informs mediator interest in resolution

There is such a growing body of literature dealing with models and theories of mediation that it is coming to resemble a canon: that is, “a set of religious writings regarded as authentic and definitive and forming a religion’s body of scripture”. Whatever theory of mediation is ascribed to will influence the mediator style and mediation objective. Evaluative mediators, for example, may focus on settlement. Facilitative mediators give extra attention to relationships. Transformative mediators emphasize empowerment and recognition. And so on through narrative mediation, insight mediation and others.


Since I ascribe to the theories of complexity science, it was only a matter of time before I was challenged to write what complexity scientists might say about mediation outcomes and mediators’ investment in same. That time came when Michael, a mediate.com reader, responded to my previous article and asked, “even if there is no particular outcome in mind, does the very act of mediating, i.e. being in the position, influence observations?” His point is valid and set me thinking about complexity science principles that might inform the email exchange he and I were having. This is my first attempt to write a complexity science approach to mediation outcomes. It may be that someone points out the flaws and oversights in my reasoning, which I would welcome.


Michael began his message by directing my thinking to the space that mediation opens, which brings the parties to sit in the same room to talk or at computers if it is online conflict resolution. What is that space for? Some mediators, inspired by settlement theories, would say the space is available for the resolution; others, adhering to more transformative theories, might say it is there for the relationship. What if it is for neither? What would it look like if we analyze a mediation session as just one of a series of events in an ongoing complex adaptive conflict system?


A complexity science conflict analysis of ‘resolution’

Conflict analysis, with all its many approaches, is a technique for looking at the aggregate of individual interactions and actions within their existing context and divergent histories. History is a powerful analytical tool that reflects the minds, perceptions, potential solutions, meanings and motives of the parties to a conflict (Lederach 1999). Ignoring the history of a conflict is like ignoring a fault line under a city (Tidwell 1998). The complexity science perspective of history is that past events contribute to present occurrences because complex adaptive system are sensitively dependent on their initial conditions.


Sensitive dependence on initial conditions means that where a nonlinear system ends up depends on where it started and what happened to it along the way. Non linearity means that cause is not necessarily in proportion or directly connected to effect. Small perturbations inputted into a nonlinear system can unbalance it from where it looked like it was going and what its potential future might have been when it was first observed. Over time, a perturbation can amplify until the system becomes something other than was anticipated. An input into a nonlinear system may have surprising, often unforeseeable, consequences with larger, smaller or simply different effects than one might have predicted.


The concepts of non linearity, sensitive dependence on initial conditions and amplification contribute to the ‘Butterfly Effect’ (Lorenz 1993). The analogy Lorenz used was a butterfly flapping its wings in Mexico that can cause a tidal wave in Japan, or a storm in Chicago. Hollywood has dined on the Butterfly Effect through many movies: the hero goes back in time, changes one miniscule thing in the past, then returns to find that his entire life or even the history of the world are vastly different than he had known in his own timeline.


One of my favorite movies that plays with the concepts is Sliding Doors, which demonstrates the difference one fraction of a second of action can have on our future life. It is a brilliant depiction of our heroine’s two possible future lives if, in one timeline she caught the train, and in the other timeline she missed the train by a nanosecond. Feel free to ignore the love story and watch it for the complexity science principles as I did. The movie Butterfly Effect also had an interesting premise. Its two main characters discovered through many iterations of their lives that their mere interaction with each other, even as observers, could radically change their futures. If you rent the DVD, watch the alternative ending that is included as a special feature. It was likely voted as too bleak by the focus group, so moviegoers wound up with a happier but less powerful ending.


That is the theme of the Butterfly Effect, both the complexity science concept and the movie of the same name: almost any system input could affect which future will be the one that unfolds. Each act in a time series of events is a wild card that could be the input to create the conditions for a conflict system cascade, where once one thing happens more things are likely to happen (Watts 2003). We cannot predict with certainty what input will be the one that might drive a conflict system over the edge into chaos, back into stability, or into or from mediation.


Since conflicts follow complexity science principles, what we see for the hours we are mediating is little more than a few points in a long time series of events that started before and will continue after we became involved in the conflict system. The parties’ histories exist within the boundaries, which complexity science calls attractors, of the conflict system. When we ask the parties to tell the story of the conflict they select the data to relate. They delineate the geographic and temporal attractors of the conflict because the entire conflict system from initial conditions to the possible futures could be too cumbersome to recount or remember. They give the conflict a frame bordered by attractors and the mediator accepts it as representative of the whole conflict system.


Does the history of the conflict begin when the parties met, when they entered into a contract of some sort, when they began to diverge in their interpretations of what the contract meant, or when the insults and lawyers’ letters began? Is it sensitive to or depend on the initial conditions of their particular personalities and risk tolerances? If multinational organizations are involved but the conflict is local, are the parent companies in the attractor basin? If many parties had influence over the decision-making are they all included in the attractor of history?


In deciding how to tell the story of the conflict at the opening of the mediation, the parties, in collusion with the mediator, set the attractors of the conflict to decide when it began, over how much and what landscape it wanders and who is involved. What we hear in the session is decided by those who tell the story or influence its telling, which are artificial temporal and geographic boundaries around the conflict system. Some First Nations and other peoples, who have a different concept of storytelling, take as long as is needed for everyone to say what has to be said to put everything in context. More commonly, attractors are deliberately constrained to make the conflict system history fit within the time set aside for the express purpose of a mediation session, often as little as two hours. Those imposed attractors constraining the conflict system determine how much of the data is brought into the room for discussion.


This is where a complexity science conflict analysis illuminates the issue. Consider the consequences if the mediation session is just one input in a time series of events. If the mediation ends with no 'resolution' that we can identify as something to reduce to writing, that mediation remains as an input into the complex adaptive conflict system that, because the system is nonlinear, can amplify into something else. If it does end in a resolution, that mediation remains as an input into the complex adaptive conflict system that, because the system is nonlinear, can amplify into something else. In other words, just like the movie Sliding Doors, the system can end up almost anywhere no matter what the mediation resolved, because the mediation is an input in a continually evolving system that depends on the conditions and inputs.

In a complexity science frame, the hours spent in the mediation are neither the beginning nor the end of the conflict relationship system. The mediation is merely one point in time that we as mediators construct as something special and apply influence to and possibly power over. We perturb the conflict system simply by observing and commenting on it to the parties. However it ends, what the parties learned during the mediation has the potential to amplify or dampen inputs in the conflict system as it goes forward. The mere fact that the mediation happened is an input that can change something outside the attractors of the session (they were artificial anyway), whether there was a resolution in the room or not.


Conclusion

If the mediation is approached as just an input into a complex adaptive conflict system, the temporal and geographic attractors of the conflict become more natural. The attractors that contain the conflict system can start when and where the conflict began and end when it is over, not when the mediator says. Therefore, resolution of a conflict within the walls of the mediation room - or not - becomes a mere data point in the overall time series of the conflict system. The parties entering and exiting the mediation room write their history and the mediation narrative. Whatever the outcome, the mediation itself is one input in their larger contexts and histories. Their work on the outcome of the mediation session and lives apart from the conflict continue in the complex adaptive conflict system after the mediator closes the file. It is in our frame as mediators that the session is the main event. In summary, Michael, the answer to your question is ‘yes’. Thank you for asking it.

A Recipe for Peace

 

Here is a recipe for peace I learned from a book by Marc Ian Barasch:


1. Cut pride into bite-sized pieces; 2. Chew; 3. Swallow.


Pride is one of the great causes of conflict. It is not just the usual over-exaggerated sense of self, but also involves strong identification with a group. Recently, I was working on a particularly hostile conflict involving a split within an evangelical organization. In the pre-mediation meetings, I would hear things like “They are liars.” “That person is evil.” “They are not Christians!” Then I would go into the other meeting and hear exactly the same thing. They can’t both be right. What’s going on here?


“An enemy,” wrote psychologist Karen Horney, “is an economical way to form an identity.” Back the 1950s, social psychologists in the now-famous Robber Cave experiments, demonstrated the power of group identity. Twelve year old campers who were best friends were separated into different groups. The groups were led through a series of encounters and situations contrived by the experimenters. Within a day, the former best friends were now bitter enemies. Later research established that hating someone else is a down and dirty psychological way to create meaning and identity within one’s self. Once caught up in this emotion, with its strong feedback mechanisms, a person becomes enmeshed in conflict. Escaping to peace is very difficult.


A second related influence also involves groups. One’s self-esteem is based largely upon the esteem given to the group of which one is a member. If you are a member of a privileged group, your self-esteem rises. Remember the clothing line with the label Members Only? Even clothes are sold on the basis of affiliation with an elite group or image. Our personal identities are strongly tied to our groups.


In conflict between groups, members will seek esteem for their group. This will frequently take the form of stereotyping, disrespecting, or putting down other groups. If one group has more power than the other, the conflict will intensify into oppression of rights and perhaps violence. This is one of the root causes of racial, ethnic, and gender discrimination. Genocide is an extreme example of the same principle.


All of this goes back to pride. If I think I or my group is morally, physically, mentally, or spiritually superior to you and we are in conflict with you, my pride will prevent me from seeking peace. I will unconsciously resist any effort or argument, logical or not, that attacks my sense of self. In fact, I will probably become stubborn and resistant as more pressure is put on me to find peace.


If you look around, you will see this phenomenon everywhere. Take football as a common example. Fans take great pride in their teams and emotionally go through the roller coaster of wins and losses. They will dress in team colors, get on game faces, and build their week on the upcoming game. This is a benign and usually happy experience, but points out the danger of strong group identification. Over-identification may result in a loss of discernment between self and the group. Normally law-abiding and respectful people will throw rocks and turn to violence against fans of or members of the other team as a result of group over-identification.


The phenomenon is found in workplaces when cliques form to include some and exclude others. Street gangs demonstrate the power of group identification to a fault. When schisms occur within faith communities, group identification is underneath the ideology, supporting and escalating the conflict.


I have only found one way to transform conflicts based on pride and group identification: Get the parties into one room, slow them down, control the conversation, and start them talking. If you have prideful people in conflict in your office or workplace, get them together in a room. Separating them is the worst thing you can do. Take away their cell phones, Blackberries, PDA’s and pagers. Have one person speak at a time without interruption. Have each speak about the injustices, offenses, injuries and betrayals experienced in the conflict. Allow space for everyone else to listen as respectfully as possible. Recognize and prepare for hostile, reactive outbursts by those who are listening. Allow emotions to be expressed, but not used to blame or project anger outward. Let everyone speak, one at a time. Amazingly, when the talking is over, the conflict will be greatly de-escalated.

Finally, to find peace in your personal conflicts, use the pride recipe. Bon apetit.