Conflict skill #3: Mediation

Some people envisage a career in Conflict Resolution as either volunteer or minimum wage, a labor of love based on value affinity with transforming destructive conflict into constructive conflict and making for a better, happier, more just and less bloody world. That is indeed very often the case. We are a field of true believers in living lives toward the common good, even if it redounds poorly upon our career or earning capacities. I remember transitioning from construction work to community organizing and it was a financial downshift that I would not have been able to handle while I was a single parent, but finally made my full time move and learned to live with much less.

However, professional public policy mediators who handle cases with multiple parties with overlapping jurisdictions and a welter of interests, positions, parties, laws, environmental considerations and a litigious society, these professionals can make quite a good living, certainly far more than my little fixed-term faculty position at a state university in a state with a nearly nonexistent taxpayer support for public universities. My friend who does such public policy mediations will earn far more than most tenured full professors because--why?--because she saves the parties so much in legal billable hours. She assesses the conflict in detail, determines what the interests are for each party, learns about their fallback positions (best alternative to a negotiated solution, or BATNA), and she brings them through a process that results in a legal agreement created by the parties together and that is constructed to maximize gain for each party while minimizing loss and reducing or eliminating resentment and desire for revenge.

This is not easy work. Mediation is practiced in various ways by various professionals and there is no cookie cutter approach, but mediation can simply be the process of facilitating principled negotiation.

So, one path to mediation is to follow this procedural sequence:

• assessment
• gathering the parties
• establishing groundrules for participation
• eliciting everyone's story
• brainstorming options
• agreement on fair standards
• synthesizing potential agreements
• evaluation
• final negotiation of voluntary agreement
• signed agreement

Mediation can happen between family members, neighbors, friends, co-workers, intra-institutionally, in the community, and in larger collectives all the way to transnationally and internationally. The stronger the mediation skills and the stronger the commitment and motivation toward a mediated agreement of the parties, the more successful and sustainable the final agreement.

Mediation requires recognition of the conflict industry elements that exist in almost all conflicts, that is, the parties that tend to benefit from ongoing conflict, and that open conversation and acknowledgment helps the parties to craft a much more realistic agreement that can withstand the pressures brought to bear by those who profit, whether they are lawyers who can earn more by appealing cases to higher and higher courts or whether they are ambitious fighters who wish to portray themselves as the champions of those who need their protection. War profiteers of all sorts must be identified or they will contaminate and eventually unravel the process, even if they are apparently working for the good of all. In other words, the coalition of those who would most benefit from an end or radical reduction of a conflict need to be the parties pushing the process forward and need to devise safeguards to protect everyone from "the protectors."

Thus, mediation is a unique combination of careful, respectful diplomacy and crucial transparency. Individuals who thrive on problem solving rather than dramatic battles for victory over someone are more likely to be drawn to mediation. Still, there is no mutual exclusivity. Sometimes mediation will reveal the necessity for ongoing struggle, but the mediator's work is to gradually convince everyone to shift from battling each other to battling the problem together.

This is all easily said and is very tough work. Reaching a good mediated agreement saves much more destruction, usually, than it gains for each party. Understanding this is why smart people choose mediation and why really smart people become mediators. Mediators who work hard for a positive peace outcome are some of the most competent creators of what we might call enlightened self-interest for all.

Nonviolent communication as intervention

We were co-mediators, a former student of mine and I. We were asked to help mediate a conflict between a family and a non-profit organization. Of course the circumstances are confidential, but the lessons that emerged for me are provocative and weave the ethos of nonviolent communication into the competencies we strive toward in conflict transformation. Working with the parties, we helped enable them to transform the conflict from destructive to constructive.
Yes, the conflict is still there and it will flare up, but they all worked so hard, and pushed through so much pain, that I am impressed by the willingness to suffer the slings and arrows in the pursuit of something so elusive. They hurt each other over the period of weeks and multiple mediation sessions. They despaired. I despaired. My mediation partner despaired--somewhat.
But she and one of the family members seemed to have the most hope. I was dubious; how could people hurt one another so roughly, with such pointed words, and fix it? I had gone from overly optimistic to decidedly pessimistic, mirroring the wild swings of behavior from the most pained family members and nonprofit staff. And those of us who were the most doubtful about the chances for salvaging the relationship were the ones who spoke the most.
Charges. Counter-charges. The family v the organization. It was a conflict that involved children, so emotions erupted explosively, when hot buttons were pushed. I made too many observations, thinking they were somehow from a place of cooler professionalism, but the hottest members of both groups only used my statements as evidence of the others' bad faith.
Meanwhile, a family member, the Grandmother, who said little, and my co-mediator were doing the actually helpful communication. At one point, deep into the third of our four sessions, she told the lead of the nonprofit, "We asked for a mediation because you talked over us, you wouldn't listen."

There had been so many charges and countercharges by that time that the nonprofit leader simply treated that as yet another unfair accusation. But the seed was planted and it was done in a place of safety, which is sometimes all a mediation can provide. A place where those who don't listen can finally be told that.
The circumstances of the various episodes that had been described, all the events that led to and fed the elaborate character attacks were relegated to their proper, less relevant place, but that took some intervening time and another mediation session. The Grandmother had calmly stated the greater truth. There was no heat in that statement, only light.
My co-mediator did the heavy spade work. She pulled out the deeper information from the parties, probing, eliciting, turning to each of the aggrieved and asking them, in turn, to paraphrase each other, teaching us all better active listening. Finally, they seemed to feel, someone is actually helping us search for what is wrong.
Before the final session I had privately expressed strong doubts about chances for real progress. My mediation partner had said, well, we aren't going to show any of that--unhopeful is unhelpful. We don't want to discourage them from doing that eleventh hour miracle.
She was spot-on. We were mediating in a special room at a special time at another nonprofit organization gracious enough to host us. The staff person was sweet but clearly needed a commitment from us to vacate the room and the building by 6:30 p.m. We promised and I meant it. By this time, after this many sessions, all the parties knew I would end the session on time.
And so, at 6:26, four minutes before The End, my mediation partner asked for commitment from each party to honor the new boundaries that had emerged from her queries of the most angry and vocal parties. I started packing up the medation paraphernalis--the water pitcher, the glasses, the pens and pads of paper--and each of them flipped and made those commitments.
These people were making dates as we left. They were agreeing to regard some of the others' areas as essentially sacrosanct. The nonprofit people would not appear to be telling the family members how to parent their children or the children how to treat their parents. The family members would not second guess all the ways in which the nonprofit staffers conducted their activities.

Poor is the pupil who does not surpass his master.
— Leonardo da Vinci
'Aphorisms', in The Notebooks of Leonardo da Vinci, trans. E. MacCurdy (1938 ), Vol. 1, 98.

It was a diving catch, a beautiful thing to watch, to sweat through alongside everyone, and from which an elder like me could learn yet more lessons from his former student. The obverse of Leonardo's judgment about pupils is that it is a poor teacher whose student does not surpass him. It was my joy to be surpassed by my former student. Her emotional intelligence was far more dispositive in the end than all the cognitive case building. She and the Grandmother were the keys to breaking the logjam of destructive conflict, turning it into a knitting project for peace.

The fourth path: Nonviolence is mediation

Yesterday I co-mediated a conflict that had reached that fateful point of three-way choice: does it descend into violence, does one of the parties surrender to save the relationship, or does the relationship end? Fortunately, the parties (eight of them) all chose the fourth path, mediation, which is the nonviolent alternative.

The descent into violence is self-explanatory.

The abject surrender of one party is analogous to structural violence or negative peace, that is, peace for the sake of peace, with a sacrifice of justice and respect.

Ending the relationship is not violence but neither is it nonviolence.

Mediation is one of two of the strongest nonviolent alternatives.

The other is highly skilled assertion. This is for the rugged individuals who are talented and trained and can handle the abuse that often accompanies such initiatives. It works for those who possess the self-confidence and competencies to stand up to any party, no matter how asymmetric the power relationships, and assert rights and the expectation of respect in a manner that also cares so well for the other's rights and respect that the assertions are not so threatening that they elicit a defensive escalation of conflict. Some people seem capable of doing this at all times. Some of us can do this sometimes, and there are those of us who have falsely believed we could do this under all circumstances. Most of us cannot.

All mediation is, in a way, is the inclusion of another party into the conflict negotiation environment, another party whose role is simply to help keep assertions from becoming aggression, and to help reframe situations so that no one feels that they are required to surrender. The mediator is on hand to help carve a line of sight toward a workable arrangement so that the benefits of the relationship between the two parties can continue in some fashion and the highest costs can be lowered. Mediation can stop or avert violence, structural violence, and the sad end to a relationship that has benefitted both parties (or in the case of yesterday's mediation, the eight parties in the room).

We gained or saved a great deal for the parties as we worked together, and the costs were quite low to all parties. This is the same dynamic as nonviolence, that is, we learn to wage conflict without the high costs of violence but with many of the gains we hope for. One of the big differences, of course, is that social conflict nonviolent struggle is transparent whereas mediation must remain confidential.

So, I cannot prove to you that the mediation was a success, but the track record of mediation is a good one, and it replaces the high-cost, zero-sum adversarial methods without creating more victims along the way. It is not a method for those who wish to wage conflict in a triumphal, winner-take-all manner and it cannot produce the revenge that some seem to need, but, like nonviolence, it saves everyone from destruction and is based on respect for all. And it gives you a glow for the rest of the day...

Negotiation is nonviolence

More strategic nonviolence practitioners are finally beginning to make the clear connections between nonviolent action and negotiation--both are pieces in what some simply call constructive conflict. Even some of the skills overlap, but they are not identical, certainly. For instance, as Gandhi showed, the best strategic nonviolent planners and executors of a strategic campaign designed to elicit, at last, an invitation to the negotiating table, those planners and actionists do not necessarily make the best negotiators. Gandhi came back from the 1931 Roundtable negotiations in London with results that vastly disappointed his fellow leaders and it was another 17 years until freedom.

Each skill bank is complex and variable. What about the related third set of competencies for mediation, another nonviolent role, at least potentially? A mediator's approach can often increase the effectiveness of a nonviolent campaign by greatly equalizing the power at the negotiating table. Indeed, that is one central role of the mediator, to preserve the dignity of all parties at all times so that honest and productive negotiations can happen. If one party feels disrespected and devalued, the negotiations are in danger.

Dr. Andrea Bartoli, a native Italian directing, teaching and researching at the Institute for Conflict Analysis and Resolution at George Mason University, has looked closely at the ways that nongovernmental organizations have conducted mediations toward transforming destructive conflict to constructive conflict. He describes three basic styles that these mediators have taken.

“Communication facilitation: a strategy in which the mediator simply facilitates the process of conflict resolution, which is fundamentally driven by the involved parties themselves; refrains from intrusive techniques; offers physical space for meetings; and opens channels of communication.
Procedural: a strategy characterized by a mediator’s substantive contributions to the peace process by not only convening and setting the agenda, but also influencing the outcome by making suggestions and conceiving of an effective process.
Directive: usually identified by the tendency of mediators to use their own power to broker an agreement that, while possibly being the best of all possible outcomes, is achieved by a certainly degree of pressure leveled by the mediator” (Bartoli, 2009, p. 393).

When a nonviolent struggle reaches that maturation point, then, of engaging in negotiation with the more powerful party--or the party with official power, as opposed to the irregular but demonstrably real civil society power--the choice of a mediator is crucial. Most nonviolent campaigners would benefit most often from the procedural style of mediation, if such a powerful but non-intrusive mediator could be found.

The facilitator is fine, if that is all that can be obtained, but often that style of mediation tends to allow the usually more sophisticated power to control the agenda more effectively. Further, those mediators seem loathe to offer their wisdom, when they could counsel the negotiators from the nonviolent campaign to avoid pitfalls that almost certainly doom the talks--pitfalls that are often invisible to inexperienced negotiators, such as excluding certain parties from talks, as was done in Oslo, virtually guaranteeing the eventual erosion and collapse of any agreement.

Again, the directive style is acceptable quite often, if that is the only choice of mediator, but those mediators sometimes have their own agendas, even if they try to disavow that. Directive mediation can produce more agreements that have fairly short shelf lives, once the parties are out of the room and back to reality. Further, directive styles, while occasionally achieving a lasting agreement, can simply substitute one power player for another and engender resentment in the grassroots who struggled hard to get to the table and don't feel as if they are now being heard by the one who is supposed to be mediating. Who wants a Henry Kissinger mediating when he has his finger on the trigger and his bosses sent him with instructions to achieve an outcome favorable to them?

But the middle path, the procedural approach, can bring resources that help further the likely transformation of a conflict by equalizing the field yet not making substantive demands on any party. The best procedural outcomes involve mediators who help construct an informed process that tends toward fair results and a valid, long-lasting agreement. It's best if any agreement is essentially a robust umbrella under which authority further sets of minor agreements can be reached, sometimes involving the mediator, sometimes just the parties negotiating in good faith with each other. The procedural mediators help formulate the process but are not wedded to an outcome, which means they have no agenda other than the creation of an environment in which excellent agreements might be fashioned. So, for instance, you have a Johan Galtung, who isn't there to mediate in a hands-off fashion, just allowing parties to stumble, nor is he looking to bring home some position favorable to the Norwegian government. He can be quite powerful procedurally and even possibly bring promises of aid and cooperation to the parties who can proceed in good fashion. This is the style, usually, that will most effectively aid a negotiator from civil society challenging the state or a corporate interest.

References
Bartoli, Andrea (2009). NGOS and conflict resolution. In Bercovitch, Jacob; Kremenyuk, Victor; & Zartman, I. William (Eds.). The Sage handbook of conflict resolution. Thousand Oaks, CA: Sage. p.p. 392-412.