MEDIATION AND ARBITRATION
by Joseph de Rivera
When the parties to a conflict are deadlocked in a dispute, they often may be helped by a third party. Third parties may be helpful in a number of different ways. They may encourage and facilitate negotiation, teach negotiation techniques, mediate the dispute by suggesting solutions or, as is the case with arbitration, be empowered to impose a solution to which the others must agree. Often cultural differences hinder negotiations. In fact, within a complex culture such as our own, there are so many different values, norms, and ways of doing things that some practiced mediators assume that the “cultural” differences learned in different families will be a factor with which they must contend.
Third parties can often be helpful by encouraging the parties to a dispute to negotiate with each other. In fact, when a negotiation between parties can be arranged it is even more likely to be successful than third party mediation. However, when neither party is practiced in the techniques of negotiation, or there is too much personal involvement for objectivity, or the parties have positions that seem so far apart that negotiation seems impossible, mediation is necessary. A mediator may make use of the ideas of principled negotiation. That is, he or she may get participants to articulate the interests that underlie their positions, may attempt to craft a solution that meets as many of these interest as possible, may avoid personal recriminations, and propose objective standards of fairness. If a “one text” procedure is used, the mediator may draft a proposal that attempts to meet as many interests as possible, go back to the parties to see what is acceptable, modify the proposal and, finally propose a solution that is the best possible outcome that can be achieved by mediation and that the parties to the dispute can either accept or reject. Since the alternative to acceptance is much more costly—often involving court procedures, forced arbitration, or armed struggle—parties are often willing to accept the proposed solution.
Mediation may or may not attempt to intervene in a conflict. Some styles of court mediation emphasize strict non-intervention by asking mediators to simply reflect the statements of the conflicting parties and to avoid proposing any solutions. On the other hand, some styles use interventions that are involve the mediator in procedures that are therapeutic in nature. The latter may be useful when a mediator encounters irrational demands, hatred, or deep fears. The latter stress the need for the mediator to engage in deep empathy before risking questions that may reveal the needs that underlie irrational positions.
[See Kenneth Cloke Mediating dangerously]
When hostility is high some innovative approaches to conflict management stress the use of third parties as go-betweens. Such intermediates can be quite helpful when emotions hinder the ability of conflicting parties to dialogue with one another. It is often possible to foster a dialogue with these neutral conflict workers who can then work separately with the conflicting parties to create a solution that transcends deep differences. [See Johnan Galtung’s Transcend and Transform] In Arabic cultures a mutually respected third party may be used to request solutions that conflicting parties can grant out of generosity and respect, without appearing to give in to the other party with whom they are in conflict. In Western culture a related device uses imposed arbitration to avoid the appearance of giving in.