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John Buckley
I’d like you, for a minute, to consider writing with your opposite hand. That is, if you are right-handed, imagine writing with your left hand. This will, of course, seem unnatural since it is a radically different way of performing a task that you have only done one way throughout your life. Solving disputes through mediation is similar to this process. Since it is not uncommon for many people to conceptualize dispute resolution through a particular lens, they find it difficult, if not impossible, to imagine that there may be alternative ways of resolving controversy.
Because of the increased incidence of interpersonal conflict in society in general, and educational settings in particular, I’d like to talk about a highly successful and well-documented model for resolving disputes which has been used for the past two decades as part of a mediation program employed in my local court system.
The origin of the model of mediation that we use goes back to the Harvard Negotiation Project of the 1970s. The original intent was to create a more effective way of reaching agreement in international diplomatic disputes. The model proved so successful that it was not only taught to U.S. State Department officials but, over time, was modified for use in a quasi-legal environment. The same techniques that helped parties redefine their disagreement from conflict to agreement on an international stage also were applicable for more mundane disputes.
Most of the cases with which we deal involve at least two parties – two parents, a divorcing couple, two school-age children, etc. By the time they come to us, there have been months, frequently years, of accumulated hostility. Most parties come from highly dysfunctional families and an environment that fosters very poor interpersonal skills. Drugs, infidelity, and incarceration are not uncommon backdrops for cases.
Given these circumstances, it is natural to want to persuade or cajole the parties into what you consider to be a “right” course of action. It is important to understand, however, that mediation is not a strategy that you employ to impose a particular outcome on the process. This is one of the hardest things that new mediators have to learn. Above all, you are to be neutral, temporarily suspending judgment.
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The empowering thing about mediation is that it allows the party to determine for themselves what they want in a final agreement. As long as they don’t violate state law, they are free to be as creative in crafting an agreement as they are able. This is especially powerful because, for the large majority of the people with whom we deal, this is one of the very few times in their lives they have the opportunity to do this.
As we will see, it is critical to go through the steps of the mediation model in a particular sequence and to do them in a particular way. The mediators are responsible for guiding the parties through the process; the parties are responsible for what goes into an agreement.
Being an effective mediator hinges on trusting the process. Countless times, I have begun a mediation by hearing one of the parties announce that “This is a waste of time,” only to end the evening with an agreement. Mediation, however, is not a magic bullet. There are some cases and some parties that simply can’t come to an amicable conclusion. Some people can only define disagreement as an adversarial process to be won or lost. All that mediation can do is to offer parties the opportunity to amicably resolve conflict; it can’t guarantee the result.
While there are a variety of mediation models that are used around the country, the one that we use has six steps and is essentially similar to most of the others:
1. Orientation. This step is simply to explain the process as is done above and cover some general guidelines such as the advantages of mediation, permission to discontinue the process at any time without the need to give a reason, the option to continue the mediation to a later date if progress is being made but the parties have time constraints, the need to be polite, not interrupt, etc.
2. “Storytelling.” The second step is the place where the student, parent, or whomever is given their opportunity to present their views. Typically, I transition into this phase of the process by saying, “Tell me what got us here and what you hope to get out of mediation.” It is not uncommon for parties to require some help in structuring their story. That is, the issues are so emotionally involving or their communication skills are such that they need some questions to help structure their narrative. Expect to do a lot of listening at this point with some appropriate questions to insure that you are clear as to what the disputant believes has happened and what they want. Determining truth is almost always an unrealistic goal. You are, instead, interested in learning what individuals perceive to be truth.
3. Task statement. By now, the general purpose of the mediation should be clear. You do, however, need to provide some clarity as to what the goal of the mediation is to insure that everyone is on the same page. If at all possible, this should take the form of a simple, generally worded question with which everyone can agree. For example, “How can Bubba and Bruiser get along” for two boys who have a history of fighting. If possible, the question should be worded positively. Instead of “How can Johnny avoid flunking,” you would prefer “How can Johnny do his best in English?”
4. Brainstorming. At this point, it is necessary for the party or parties to simply list potential solutions to the task statement. It should be emphasized that all they are doing is listing; they are to reserve judgment about the other’s ideas. Hint: It is frequently helpful to rotate between the parties if there is more than one person involved or suggest possible options yourself if they seem stuck. Remember that there is a line between providing suggestions and trying to tilt the process to an outcome that you think appropriate.
Because of its overwhelmingly verbal nature, mediation is especially well-suited for someone who is blind. In fact, it might be argued that, because of hopefully better general listening skills, the visually impaired mediator might have an advantage over the average sighted practitioner. If possible, however, it helps to write the information contained in the third and fourth steps somewhere so that it is readily visible for everyone. Doing this makes it easier for the parties to focus on the central issues.
5. Evaluation of the suggested solutions. This is the most challenging phase of the model. It’s not uncommon to hear “That idea is out of the question” or “I’m not going to do that.” Whenever possible, you should try to start the discussion with issues on which the parties agree to establish a positive momentum and work to keep the focus on those things on which there is agreement.
6. Agreement. If the parties have reached an agreement, it becomes necessary to put it into writing. It is essential that the written agreement be as specific as possible. Now that the parties have verbally agreed, they frequently become distracted, giddy, and anxious to rush through this step. Your role is to hold their feet to the fire and insure that what is written accurately reflects what the parties want before they sign. Whenever possible, the language used in the document should be that of the parties. After all, the agreement is theirs, not yours.
If this seems like abstract theorizing without any practical value, there are numerous studies that have repeatedly documented the usefulness of mediation. Between 70% and 90% of divorces, child visitation, and domestic disputes are successfully resolved this way. Of more relevance to educators are the data indicating that 90-95% of the students involved in school fights that are mediated reach a successful conclusion and, of these, 90% either never return to court or, if they do, return for a lesser charge. It is worth noting that, while most mediations involve two parties, the process would be easily applicable for a teacher and student, teacher and parent, etc.
We will now turn our attention to a few of the techniques that can be used to make the model more effective.
1. Once parties have had the opportunity to explain their concerns, the remainder of the discussion should be “future focused.” That is, there is a natural tendency to dwell on the past with all of its assorted grievances. While these complaints are important to the parties and should not be dismissed, if the mediation is to be productive, the parties need to be directed to focus on the future. In extreme cases, I have prohibited the use of any verb that is in the past tense. This shifts the conversation from “Bruiser dissed me” to “I don’t want to be ‘dissed’” or “I want to be treated with respect.” It may well be necessary for you to help paraphrase past grievances into future goals.
2. It is important to be sensitive to the fact that different groups have different mental templates of how problems are to be solved. Teachers, by the nature of our profession, tend to be biased to logic or creativity while our students and their parents may be inclined to employ intuition, opinions of peers, or other approaches that are common to their subgroup. After all, psychologists tell us that most families have their own unique notion of how problems are to be solved. Carefully following the mediation model is an excellent way of insuring that everyone is employing the same template.
3. When dealing with more than one party to a dispute, it is critical to avoid “power imbalances.” It may be that one individual is more articulate, more intelligent, or simply better at understanding the process and presenting their views. Without serving as an advocate yourself, you will need to insure that the process is fair. This may be done by insuring that the less articulate student, for example, feels that their views have been accurately presented or that the more intelligent student isn’t allowed to dominate the discussion.
There are numerous techniques for guiding the parties through the process as smoothly as possible while simultaneously increasing the likelihood of an agreement. Three of the following are some of the most effective. Incidentally, these techniques are useful in any kind of interpersonal communication, whether there is conflict or not.
1. Because people are upset or angry, they frequently have difficulty explaining the issues involved in the dispute. You are almost guaranteed to need to ask numerous questions to insure that you understand how the parties feel and what they hope to get out of the mediation. In doing this, it is essential that you phrase your questions tentatively: “I thought you said . . . , ““If I’ve got this right you feel/think/are concerned about . . ..” You never want to make the statement dogmatic: “You said . . .,” “That’s not what you said a minute ago.” Leave open the possibility that you were wrong. Asking questions both insures that you understand the other’s concerns correctly but also let’s them know that they have been heard.
2. It is important, as you move through the mediation model, that everyone is clear as to the issues, how each party feels about them, etc. Again, because people will be dealing with emotional questions, this will be very difficult. An excellent means of insuring that you accurately understand everyone is “mirroring.” This is nothing more than simply paraphrasing key issues and then asking the parties if you have summarized correctly. If not, you must keep paraphrasing until they are satisfied that you have captured what they are saying accurately. This prevents you from misunderstanding the parties as well as letting them know they have been heard.
3. There will, of course, be times that what people
want is unrealistic. It is appropriate under these circumstances to provide a “reality check.” That is, in as neutral manner as possible, step back and explain why their position is unrealistic. If the person is unconvinced, the mediation may break down at this point; however, it is equally common for the “reality check” to help refocus the conversation.
It is common, almost inevitable, for parties to find it hard to take a different perspective on their situation. They can only see one way of viewing the history of the conflict and can only imagine one solution, which, of course, is the one they propose. The following techniques are useful in encouraging people to take a fresh look at their situation:
1. Review the progress that has already been made. This refocuses the discussion from what has yet to be accomplished to what has already been achieved.
2. Value silence. While it is tempting to continue talking to avoid gaps in conversation, allowing silence to build, when appropriate, is tremendously powerful. It puts the conversational ball in the other’s court and underscores that the outcome lies with them.
3. Seek agreement on broad principles to identify common ground and then refocus on details.
4. Ask the parties to prioritize their own needs and wants, to help them focus on the things that are most important to them.
5. Restate the situation and re-emphasize common ground. It is easier for disputants to focus on what they disagree about than what they agree on.
6. Remind the parties that, while they may not get everything they want in a mediated agreement, the process permits them to shape the outcome, something that may not occur outside of mediation.
In sum, mediation permits you to redefine disagreement from an adversarial process to one where disputants may work collaboratively to shape an agreement. The parties, whether students, parents, administrators, or other teachers, are empowered by crafting a unique solution to the issue rather than having it imposed on them by a third party.
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