The power of mediation. (Conflict management).

MEDIATION HAS PROVED itself very useful in many contexts for solving problems and resolving conflicts. Unfortunately, mediation is still greatly underutilized--most people either don't know what it is; have never used it (and, at some level, may be afraid to try it out); or don't believe that they need its help.

Mediation is part of a family of procedures called "alternative dispute resolution," or ADR. The term ADR is somewhat unfortunate, because the procedures are "alternative" only insofar as they are not part of the judicial process. One of the preeminent ADR procedures--arbitration--arguably has more in common with judicial process than it does with other ADR alternatives, such as mediation. In order to break this conceptual linkage and develop independent recognition for what each of the procedures has to offer, practitioners increasingly refer to "dispute resolution" or "conflict resolution" procedures rather than ADR.

Dispute resolution can be considered on a continuum of approaches, ranging from negotiation, over which the parties have complete control, to arbitration, the process over which they have the least control. Arbitration is the same as judicial process in that someone, the arbitrator, renders a decision for the parties. However, it is informal, not bound by the rules of evidence, typically quicker and cheaper, and more definitive because there are much more limited rights to appeal. Typically It is a binding decision, though this is a matter to be agreed upon by the parties ahead of time.

Though arbitration is certainly an "alternative"--indeed, it is the alternative to judicial process that gave ADR its name--it has little to do with the other procedures, all of which are intended to get the parties to come to an agreement of their own making and choosing, through negotiation. Between the extremes of arbitration and unassisted negotiation (which, by virtue of being unassisted, cannot be thought of as an ADR process) is a range of intervention strategies and procedures designed to assist parties in reaching agreement.

Some of the procedures are on the arbitration side of the spectrum in that they use an expert to render an opinion of some kind. The expert can act as a fact-finder, for example, or may hear a presentation of the parties' legal cases and render an advisory opinion to the principals in the dispute, first as to the strengths and weaknesses of their respective cases and second as to what a judge would likely decide if the case went to court. This procedure facilitates settlements because it often leaves both parties less certain about the outcome and therefore more willing to settle. (The risk is that it may really scare one party into being more willing to settle, while simultaneously emboldening the other party not to.)

Facilitation is one of the procedures on the negotiation side of the continuum. Facilitators are process guides and managers, who, by helping people keep their discussions organized, focused, fair, and productive, assist them reach their desired conclusion, whether it is having an exchange of opinions, developing a set of possibilities, or reaching a definitive consensus decision.

In the middle of the continuum Is mediation, arguably the quintessential dispute resolution process. Most simply put, mediation is assisted negotiation. A mediator Is an impartial person (or team) that works with the parties, mostly together and sometimes separately, to help them reach an agreement to resolve a dispute.

Why is mediation valuable?

The cornerstones of mediation are impartiality and confidentiality. The mediator is, first and foremost, like a referee, helping the parties establish, and then enforcing, the ground rules pursuant to which the discussion will proceed. This role is critical, because without ground rules, there are almost inevitably breakdowns that prevent civil and constructive dialogue from taking place.

The mediator's second role is as a facilitator, helping the parties organize the issues, determine the facts, understand each other's needs, take some risks In sharing information, and think more flexibly and creatively about possible solutions. Mediators perform other critical roles as well, best understood in terms of how they solve problems that are inherent in the negotiation process and often result in breakdown and failure if the disputants are left to their own devices.

Theoretically, if we were all skilled negotiators and enlightened human beings, we would never need the assistance of a mediator. The reality, however, is that very few of us are, and, therefore, we do. The academic literature about negotiation is replete with observations--some speculative, some anecdotal, and some based on highly scientific studies, describing the pitfalls most of us are generally unable to avoid. These common pitfalls--what we might call the barriers to the negotiated resolution of conflict--are the reasons why mediation is not only useful, but often imperative, and why organizations should consider ways to institutionalize it.

Barriers to the negotiated resolution of conflict

1. Overestimating the likelihood of winning

One set of barriers prevents people from getting to the negotiating table in the first place. Conflict can be resolved on three bases: power, rights, and interests. People tend to overestimate the likelihood that they can prevail in a fight, whether it is based on power (fought out politically in public or organizational arenas) or on rights (fought out in a court or equivalent formal hearing process). As a consequence. they see no need to negotiate. For example, if people believe that they are right about the issue, and they usually do, they assume that most impartial people will see things the same way and will agree with them. Or they believe that if they make threats the other side will capitulate, forgetting that the way people typically react to threats is to respond in kind and/or to become more entrenched, because their egos and self-esteem are now involved. A mutually damaging cycle of escalating conflict is usually the result.

2. Gambling on long-range all-or-nothing strategies

People have a tendency to make irrational gambles on long-range all-or-nothing strategies rather than "bite the bullet" and accept a small loss' as part of a negotiated compromise. Again, they will likely fight over rights or use power rather than talk. Even if they enter into negotiations, they will resist accepting losses.

3. Not bringing in a mediator early

In private disputes, the mediator typically enters the picture once the protagonists have decided to enter into negotiations. The mediator can provide a much-needed reality check to prevent miscalculations by causing the parties to focus on what is likely to happen if negotiations break down. The problem, usually, is that these barriers prevent the parties from even entering into serious negotiations in the first place or from bringing in a mediator to insure their success. Without institutionalizing a dispute resolution system that encourages, or perhaps even requires disputants to see a mediator early, negotiations often don't begin until the parties have expended enormous amounts of time, effort, and resources and, still finding themselves deadlocked, finally come to their senses.

4. Having a win/lose perspective

Another common hurdle occurs when people consider their dispute to be a win/lose matter, defining what they want in terms that make it appear to be available only at the other side's expense. This is almost invariably a misperception. In most situations, people prematurely jump to conclusions about how their goals must be achieved or how they can avoid whatever it is that they are afraid of or concerned about, and then they consider these preconceived solutions to be the same as the needs that gave rise to them, In other words, they confuse the means with the ends.

When parties are clear about their concerns or needs--what we call their "interests"--as opposed to preconceived means to satisfy them--expressed as "positions"--they are often able to find good solutions to their dispute. The problem is that people get stuck in their preconceptions and end up arguing back and forth for and against their respective positions, never uncovering the underlying interests. Mediators are helpful in overcoming this predictable and almost endemic cognitive barrier to negotiation.

5. Addressing issues separately

Sometimes, of course, the parties' interests and concerns really are in conflict. But even in these situations, there are ways to generate solutions that the parties can live with. This can be accomplished, for example, by "trading across issues" to take advantage of each party's priorities--each party gets what he or she wants on priority issues and gives up entirely on issues of lesser importance. This can also be accomplished by basing an agreement on the parties' differing willingness to accept risk (making risk-reward linkages) or on their expectations and projections about the future (making contingency arrangements). A mediator can help the parties get beyond the tendency to address issues separately, sequentially, and by compromise, which only increases the level of acrimony with the discussion of each succeeding issue as the parties find themselves diametrically opposed on everything. By thinking more globally about the issues, more mutually beneficial outcomes can be attained.

6. Not making or appreciating concessions

The very nature of the negotiation process also produces barriers. Since people are naturally reluctant to make concessions that reveal what they are willing to accept without knowing first that there will be reciprocity from the other side, progress in negotiation can be either painfully slow or nonexistent, as each waits for the other to make the first move. Mediators can usually get the parties to speak about what they could accept on a contingent basis, or, worst case, to tell them in confidence what is acceptable. Mediators can then, without breaching any confidences, float proposals privately that they already know the other party would accept. This protects each party from the risk of being exploited.

Even when one party does make a concession, the other party, being suspicious and mistrusting, frequently doesn't see it for what It is and dismisses or even belittles It. The party that made the concession is then likely to be Incensed and the process can easily deteriorate or break off. At the very least, an opportunity is lost. The presence of the mediator insures that such misinterpretations are avoided or rectified.

7. Personalizing disputes

Another stumbling block arises because of peoples' tendency to personalize disputes. Disputants easily come to denigrate and disrespect their antagonists, perhaps even coming to view them as dehumanized enemies, rather than seeing them as people who simply have different opinions or interests. When this happens, communication breaks down, words and deeds become more provocative (though the speakers/actors may not see themselves as the ones being provocative), prompting reactions that are then viewed as the true provocations, and so the conflict becomes an escalating cycle. This is especially likely where the parties disliked, resented, or mistrusted each other before the dispute in question arose.

Sometimes the personalization occurs because people simply having different ways of processing information and reaching decisions (for example, carefully thinking things through for oneself versus working things out in collaboration with others, versus going with intuition or "gut feeling"). Their respective styles cause each other great frustration. Similarly, cultural differences are a constant source of misunderstanding and conflict.

Conclusion

All of the foregoing argue for the advantage of engaging a mediator of some kind--whether informal (a skilled boss or a mutually trusted colleague) or formal (an outside professional). This is especially true if it is desirable that the parties emerge from the dispute with a decent working relationship, mutual understanding, and--dare we even imagine it--a measure of trust.

These are but some of the predictable barriers to the negotiated resolution of disputes. Mediators are able to overcome or prevent them by virtue of both the nature of their role and their skills. Developing a dispute resolution system that encourages or mandates mediation (even though one obviously cannot mandate coming to an agreement) and making it easily available can insure that it is more widely utilized.

RELATED ARTICLE: CASE STUDY: MEDIATION AS A TOOL TO ADDRESS A PUBLIC POLICY CONTROVERSY

Complex multi-party controversies are, understandably, even less likely than bilateral disputes to be resolved without help. In contexts ranging from environmental and land use disputes to public health issues to organizational budget and staffing decisions, complex controversies are increasingly, but still only in small numbers, being resolved through mediation.

An example is the recent New York City AIDS Housing Forum, which was convened to address growing problems in the system by which services are provided to homeless people living with AIDS (PLWA's). This process demonstrated the possibility of enabling multiple stakeholders, ranging from non-profit agency providers to medical professionals to the consumers of these services, to work together to solve, by consensus, a complex set of problems. I was privileged to serve as one of the Forum's mediators.

In the years since the city's system for providing housing to homeless PLWA's had originally been designed, the demographics of this group and their circumstances had dramatically changed from a homogeneous population (generally white, homosexual males) to a diverse and largely "multi-diagnosed" population, with myriad psychosocial and substance abuse problems. Because one disease is apt to aggravate the symptoms of the others, and because the characteristic behaviors stemming from mental illness and/or alcohol/substance abuse obstruct the success of treatments, this new population needed extensive support and was not likely to succeed in independent living situations. Thus, through no fault of the city government and the organizations providing services to this population, the situation had changed to the point where the system needed to be reinvented.

The Mayor's Office on AIDS Policy Coordination agreed to fund a collaborative, problem-solving effort to articulate stakeholders concerns, explore alternative solutions, and determine a course of action. The participants included consumers, consumer advocates, service providers, government officials, and experts and practitioners from the fields of mental health, substance abuse treatment, infectious disease, and criminal justice.

The Forum began with private service providers presenting examples of the difficulties they were encountering. These included the following: clients relapsing into alcohol or drug addiction; clients dealing drugs from their apartments in residential facilities predominantly occupied by people in various stages of recovery; clients threatening their neighbors and damaging their housing units and buildings; inadequate information concerning the substance abuse and criminal history of clients entering the system from mental institutions and prisons; and the difficulty of evicting clients who posed a hazard to a facility's occupants and could not be effectively served.

Consumers and city government objected to the idea that the answer lay in establishing better ways to separate or evict offending residents, and eventually the group came to a consensus that eviction was not a viable or desirable option.

As might be expected, the consumers and providers initially were critical of the city. The mediators refrained the discussion, helping participants to recognize the system's success in getting people housed, notwithstanding its many current problems, and suggested they look afresh at the needs of PLWA's and create a new vision for the system. The group decided to adopt this approach, though participants often strayed, and the mediators occasionally had to assuage the agency representatives' feelings and overcome their trepidation about participating in the process.

The participants requested four half-day sessions to hear presentations by experts in mental health, substance abuse treatment, and law enforcement, as well as by several consumers. Among the options that were considered was a model for providing a continuum of care within a seamless network of housing modalities. It cannot be overstated how much learning and rethinking took place during the initial educational phase and throughout the process.

One of the most contentious matters concerned the issue of drugs in housing facilities. Many participants favored "zero tolerance of drug use, but through the course of the discussions they came to recognize that eliminating relapsing users from their facilities meant relegating them to the streets. They began to advocate the designation of special floors, facilities, or zones in which relapsing clients could be placed. Ultimately, the consensus position reached was that 'harm reduction" models were the preferred method of treatment. In this model, clients would receive services based on their stated need and ability without judgment or stigmatization, with active outreach and follow up. This approach would keep them engaged and in supportive services, with exposure to individuals in recovery to provide powerful models.

Crafting the language of the agreement proved challenging. Typically, the mediators produced a "single text" between meetings for review by the participants--and in this regard it was invaluable that the team included someone who had extensive experience in the world of AIDS housing and treatment. Most people participated consistently throughout the process: others attended only intermittently. Some of the latter provided feedback and opinions in response to the meeting summaries. Various methods were employed to keep participants involved--phone calls, caucuses, faxes, and email.

After more than a year of monthly meetings, the process resulted in a document that represented a truly innovative approach. It was endorsed by 56 participants (some of them core participants and some of them intermittent) and by 18 non-participants. The fact that so many key players in the local AIDS housing world endorsed these recommendations gave the document enormous credibility and augured well for its implementation by city government.

The nature of the recommendations themselves also enhanced the prospects for implementation, First, the model was not intended to be exhaustive of all possibilities and did not need to be adopted unitarily. Second, participants squarely faced practical issues: being mindful that implementation would need to be paid for, they made recommendations that were covered by readily available funding sources, providing citations to the federal regulations and funding streams that could be tapped. Third. the recommendations did not require enlarging government, requiring only that the city coordinate available federal, state, and local resources, establish standards, and contract with the private sector for service provision, monitoring, and evaluation. (The viability of the system was evidenced by the fact that the city of New Haven, Connecticut, upon the release of the Forum's report, immediately incorporated the recommendations into a funding request to the U.S. Department of Housing and Urban Development.)

By the end of the process, the participants became converts about the utility of mediation Thus, among the recommendations was one requiring the use of mediation to resolve disputes to insure that both consumers' rights and choices and providers' ability to function were adequately protected. Specifically, the Forum recommended that when a provider wanted to transfer a consumer to another facility better able to meet his or her needs, the consumer and provider(s) should negotiate an alternative housing plan. If, after reasonable effort, the consumer and provider(s) couldn't agree on one, mediation would be required (except in the case of imminent danger to the consumer, the community or others), If mediation failed, the matter would be referred to binding arbitration, providing the consumer agreed to it. If the consumer refused arbitration, the transfer could be imposed. The Forum recommended that the city contract for the mediation and arbitration services. (The entire Forum document can be found at www.aids nyc.org/cnews.)

Conclusion

Not all policy controversies can be successfully mediated. A number of criteria can serve as a test. There has to be relatively equal bargaining power among the participants, a criterion that is usually satisfied if the outcome, should the process fail, is in doubt. The issues have to be negotiable matters of interest and concern, rather than inviolate principles. And the parties (or their representatives) have to be identifiable, willing to come together, and able to take the time to participate.

Most organizational conflicts are similarly susceptible to mediative interventions. Arguably, one of the most critical roles of today's organizational leaders is to serve as a convenor, providing the opportunity and the mediators to help stakeholders transcend business-as-usual organizational politics and reach, by consensus, creative and sound resolutions to complex problems. It takes some courage-as compared to avoiding conflict or retaining decision-making authority for oneself-but it is well worth it.

Allen J. Zerkin, JD, is Adjunct Associate Professor and Coordinator of the Program on Negotiation and Conflict Resolution at the Robert F. Wagner Graduate School of Public Service at New York University. Since 1990, he has been a member of the faculty of the American College of Physician Executives, conducting programs on negotiation and conflict management. He is a practicing mediator and facilitator, specializing in the resolution of organizational conflict and public policy controversies. He can be reached by calling 212/998-7494 or via email at [e-mail].