UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Mediation as a form of social exchange Floyd, Richard Heath 1991

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-UBC_1991_A8 F52.pdf [ 4.95MB ]
Metadata
JSON: 831-1.0098738.json
JSON-LD: 831-1.0098738-ld.json
RDF/XML (Pretty): 831-1.0098738-rdf.xml
RDF/JSON: 831-1.0098738-rdf.json
Turtle: 831-1.0098738-turtle.txt
N-Triples: 831-1.0098738-rdf-ntriples.txt
Original Record: 831-1.0098738-source.json
Full Text
831-1.0098738-fulltext.txt
Citation
831-1.0098738.ris

Full Text

MEDIATION AS A FORM OF SOCIAL EXCHANGE by RICHARD HEATH FLOYD B.A. The University of B r i t i s h Columbia, 1988 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF ARTS in THE FACULTY OF GRADUATE STUDIES Department of Anthropology and Sociology We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l 1991 © Richard Heath Floyd In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. The University of British Columbia Vancouver, Canada Department DE-6 (2/88) A B S T R A C T T h i s t h e s i s a n a l y s e s t h e d y n a m i c s o f m e d i a t i o n , a s a d i s p u t e r e s o l u t i o n p r o c e s s , f r o m a n E x c h a n g e T h e o r y p e r s p e c t i v e . T h e a r g u m e n t i s p r e s e n t e d t h a t t h e e f f i c a c y o f t h e m e d i a t i o n p r o c e s s i s a f u n c t i o n o f a t r i a d o f e x c h a n g e r e l a t i o n s h i p s ; b e t w e e n t h e d i s p u t a n t s , a n d b e t w e e n t h e m e d i a t o r a n d e a c h o f t h e d i s p u t a n t s . T h e a b i l i t y o f t h e m e d i a t o r t o g u i d e t h e p r o g r e s s o f a n e g o t i a t i o n t o w a r d s s e t t l e m e n t i s d e t e r m i n e d b y h i s o r h e r s u c c e s s i n m a n i p u l a t i n g t h e b e h a v i o u r s o f t h e d i s p u t a n t s . T h i s i s a c c o m p l i s h e d t h r o u g h a s e r i e s o f e x c h a n g e s o f s e n t i m e n t , d i s p e n s e d b y t h e m e d i a t o r , f o r b e h a v i o u r s b y t h e d i s p u t a n t s . T h e m e d i a t o r s e e k s t o g a i n t h e c o o p e r a t i o n o f t h e d i s p u t a n t s b y p u n i s h i n g o r r e w a r d i n g t h e i r b e h a v i o u r . R e w a r d s i n t h e f o r m o f p r a i s e a r e p r o v i d e d i n r e t u r n f o r b e h a v i o u r s t h a t t h e m e d i a t o r p e r c e i v e s a s c o n c i l i a t o r y . P u n i s h m e n t s i n t h e f o r m o f c r i t c i s m a r e i m p o s e d o n b e h a v i o u r s t h a t t h e m e d i a t o r p e r c e i v e s a s c o n f r o n t a t i o n a l . T h r o u g h t h i s s y s t e m o f e x c h a n g e s , t h e m e d i a t o r i s a b l e t o c o n t r o l t h e c o u r s e o f a n e g o t i a t i o n , a n d u l t i m a t e l y , i n f l u e n c e t h e p r o b a b i l i t y o f r e s o l v i n g a d i s p u t e . i i TABLE OF CONTENTS ABSTRACT i i ACKNOWLEDGEMENTS v i i CHAPTER I INTRODUCTION A. Introductory Remarks 1 B. A Brief History of Mediation 2 C. The Current State of Mediation 7 D. The Outline 9 CHAPTER II EXCHANGE THEORY A. Introduction 11 B. The Evolution of Exchange Theory 11 C. The Work of Homans 12 D. The Work of Blau 17 E. The Work of Emerson 18 F. Summary 22 i i i CHAPTER III NEGOTIATION A. Introduction 24 B. What i s Negotiation? 24 C. The Components of Negotiation 25 D. Negotiation as Information Exchange . 2 9 E. The Effects of Information Control 30 F. The Phases of Negotiation 31 G. The Climate of Negotiation 33 H. The Face Factor 33 I. The P r o f i t Potential 35 J. The Opponent as Audience 36 K. When Negotiation F a i l s 38 L. Summary 39 CHAPTER IV MEDIATION A. Introduction 42 B. Defin i t i o n s 43 C. Mediation Redefined 44 D. The Issues 45 1. Negotiation 45 2. The effects of bias 45 3. The fairness requirement 48 i v E. Analyzing the Process 51 1. The stage models 52 2. Psychology and s i t u a t i o n 58 3. Techniques and coding 63 F. The Value of Analysis 65 1. Has i t a l l been done before? 65 2. Is mediation a d i s t i n c t form of s o c i a l exchange? . . 66 3. Is mediation a stable process? . . . . . 68 G. Summary 71 CHAPTER V ANALYSIS A. Introduction 74 B. Mediation and Exchange 74 C. The Role of Sentiment 76 D. The Analysis 77 ' 1. Stage One: Mediator entry 78 2. Stage Two: Approach and arena 80 3. Stage Three: Collect data 81 4. Stage Four: Plan design 82 5. Stage Five: C o n c i l i a t i o n 83 6. Stage Six: Begin negotiations 85 7. Stage Seven: Issues and agenda 85 8. Stage Eight: Explore issues . 87 9. Stage Nine: Alternatives 90 v 10. Stage Ten: Assessing the options 92 11. Stage Eleven: Final bargaining 96 12. Stage Twelve: Followup 98 E. Summary 99 CHAPTER VI COMMENTS AND RECOMMENDATIONS A. Comments 100 B. Recommendations for Future Research 102 BIBLIOGRAPHY 104 v i AC KNOWLEDGEMENTS To Reg Robson who helped me get of f on the right foot. To George Gray who helped me across the f i n i s h l i n e . And to N e i l Guppy, who was a fr i e n d throughout. v i i MEDIATION AS A FORM OF  SOCIAL EXCHANGE R i c h a r d F l o y d CHAPTER I I N T R O D U C T I O N A. Introductory Remarks O v e r t h e p a s t t w o d e c a d e s i t s e e m s t h a t t h e t e m p e r a n d r a n g e o f s o c i a l c o n f l i c t h a s i n c r e a s e d d r a m a t i c a l l y . T e n s i o n s b e t w e e n l a b o u r a n d m a n a g e m e n t , g o v e r n m e n t a n d t h e p u b l i c , a n d c o r p o r a t i o n s a n d e n v i r o n m e n t a l g r o u p s a p p e a r t o h a v e e s c a l a t e d . T h i s p a t t e r n i s m i r r o r e d i n t h e p r i v a t e s e c t o r s o f s o c i e t y , d i s r u p t i n g f a m i l i e s a n d i n o t h e r i n t e r p e r s o n a l r e l a t i o n s h i p s . T h e d e m a n d s e m a n a t i n g f r o m t h i s p h e n o m e n o n h a v e o u t s t r i p p e d t h e c a p a c i t y o f o u r c o u r t s y s t e m s . A s a r e s u l t , s u b s t a n t i a l e f f o r t h a s b e e n m a d e t o f i n d a v i a b l e a l t e r n a t i v e t o o u r t r a d i t i o n a l , a d v e r s a r i a l s y s t e m o f d i s p u t e r e s o l u t i o n . M e d i a t i o n o f d i s p u t e s i s o n e o f t h e c o n f l i c t m a n a g e m e n t a l t e r n a t i v e s w h i c h h a s g a i n e d f a v o u r i n r e c e n t y e a r s . T h i s t h e s i s w i l l a n a l y s e t h e m e d i a t i o n p r o c e s s a s a f o r m o f n e g o t i a t e d , s o c i a l e x c h a n g e w h i c h h a s a s i t s g o a l , r e s o l v i n g c o n f l i c t . T h e f o c u s w i l l b e o n t w o - p a r t y d i s p u t e s s i n c e m o s t o f t h e a n a l y t i c a l m e d i a t i o n l i t e r a t u r e d e a l s w i t h t h i s b a s i c f o r m . H o w e v e r , t h e i d e a s d e v e l o p e d i n t h i s t h e s i s s h o u l d b e a p p l i c a b l e t o a l l m e d i a t i o n s . 1 B. A B r i e f History of Mediation L i k e a b r i l l i a n t b u t r e b e l l i o u s c h i l d , m e d i a t i o n h a s h a d a f r a n t i c h i s t o r y o f g a i n i n g f a v o u r a n d s u f f e r i n g r e j e c t i o n . T o u n d e r s t a n d t h e e v o l u t i o n o f t h e p r o c e s s , a n d t o e s t a b l i s h i t s c u r r e n t c o n t e x t , a b r i e f r e v i e w o f t h a t h i s t o r y i s n e c e s s a r y . T h e f u n d a m e n t a l s o f m e d i a t i o n a r e n o t n e w a n d p r o b a b l y p r e - d a t e t h e e a r l i e s t w r i t t e n r e c o r d s . A l t h o u g h w e h a v e n o w r i t t e n r e c o r d s t o d o c u m e n t t h e f i r s t u s e s o f t h e p r o c e s s , i t i s p r o b a b l e t h e e a r l i e s t p r i m i t i v e s o c i e t i e s u s e d t h i s f o r m o f t h i r d - p a r t y i n t e r v e n t i o n . O n c e a r u d i m e n t a r y s e t o f s y m b o l s e n a b l e d t h e e x c h a n g e o f i n f o r m a t i o n , a n d w h e n v i o l e n t c o n f r o n t a t i o n w a s u n d e s i r a b l e , p r i m i t i v e p e o p l e s w o u l d h a v e h a d t h e t o o l s a n d t h e m o t i v a t i o n t o n e g o t i a t e t h e s e t t l e m e n t o f d i s p u t e s ( F o l b e r g a n d T a y l o r , 12:1984). E v i d e n c e t o s u p p o r t t h i s h y p o t h e s i s i s p r o v i d e d i n a s t u d y o f a f o r m o f m e d i a t i o n f o u n d i n a c o n t e m p o r a r y t r i b a l s o c i e t y ( M c K e l l i n , 1 9 8 8 ) . M c K e l l i n p r o v i d e s a c o m p r e h e n s i v e a c c o u n t o f h o w t h e M a n g a l a s e p e o p l e o f N e w G u i n e a h a v e d e v e l o p e d a t r a d i t i o n o f a t t e m p t i n g t o r e s o l v e c o n f l i c t s t h r o u g h t h e u s e o f a l l e g o r y . F o r . t h e M a n g a l a s e , a l l e g o r y s e r v e s t o f a c i l i t a t e n e g o t i a t i o n b e t w e e n d i s p u t i n g p a r t i e s b y a l l o w i n g t h e d i s c u s s i o n s t o f o c u s o n a b s t r a c t t a l e s a n d t h e i r c h a r a c t e r s . T h i s i n d i r e c t a p p r o a c h e n h a n c e s c o m m u n i c a t i o n b e t w e e n t h e p a r t i e s b y a l l o w i n g t h e m t o c a r r y o n d i s c u s s i o n s w i t h o u t t h e n e e d f o r " p u b l i c l y r e s o l v i n g q u e s t i o n s o f b l a m e o r r e s p o n s i b i l i t y " ( i b i d : 5 8 ) . 2 McKellin c i t e s a case where the guardian of a g i r l who has eloped with a boy from a neighbouring community confronts the boy's guardian. Instead of mentioning the elopement d i r e c t l y , the g i r l ' s guardian t e l l s a story of dogs and cane. The dogs died despite his care and feeding, he says--a loss, and his route to the cane stands was blocked by a f a l l e n t r e e — a n obstacle to a goal. W i l l the members of thi s other community help him with these problems, he asks? Even though the allegory requires i n t e r p r e t a t i o n , both sides know i t s intent: i f the boy's guardian i s w i l l i n g to help the s t o r y t e l l e r recover what he has l o s t , then r e l a t i o n s between the two can return to normal. In t h i s way a constuctive r e s o l u t i o n to the dispute i s proposed without the need for assigning blame or r e s p o n s i b i l i t y (ibid:58). While the use of stories constructed of metaphorical images appears on the surface to have l i t t l e i n common with the forms of mediation familiar to us, there are p a r a l l e l s . For instance, both approaches seek to f a c i l i t a t e non-v i o l e n t , non-destructive resolution of c o n f l i c t ; both use verbal exchange as an alternative to aggression; both o f f e r the disputants the opportunity to express d i s s a t i s f a c t i o n without any e x p l i c i t public f i x i n g of blame. Outside of the t r i b a l context, there i s evidence to suggest that the process of mediation was used i n ancient c i v i l i z a t i o n s from the early dynasties of China to the Mediterranean region of B i b l i c a l times (Kolb,1983a:8). 3 In both these eras, despite the omnipresence of authoritarian regimes, mediation played a r o l e i n r e s o l v i n g interpersonal disputes. From the Shang dynasty a thousand years before Christ, to the time of the Roman Empire, c o n f l i c t amongst the least powerful members of these s o c i e t i e s were mediated by community elders and repected peers. For slaves and peasants, whose l i v e s were subject to the whims of d i v i n e l y i n s t a l l e d masters, mediation provided a peaceful a l t e r n a t i v e to resolving t h e i r differences. The use of community elders and sages as intervenors represents a t r a d i t i o n of neutral, non-coercive dispute r e s o l u t i o n — a mediation of sorts. It was not u n t i l the evolution of the I t a l i a n c i t y - s t a t e s during the 14th and 15th centuries that mediation began to be applied on a f a r wider scale (Leviton and Greenstone, 1984:5-6). Without the ultimate, centralized authority of e a r l i e r times, the c i t y states were caught up i n an ongoing round of aggression and defence which threatened to impoverish them. As an a l t e r n a t i v e , they turned to the church to serve as mediator i n t e r r i t o r i a l and mercantile disputes. Mediation gradually emerged as a domain of professionals i n our own society during the course of t h i s century. It was f i r s t formally recognized as an e f f e c t i v e a l t e r n a t i v e to the often c o s t l y and sometimes lengthy adversarial court system i n the United States. In 1913, mediation was incorporated into the structure of the Department of Labour as a means of amicably r e s o l v i n g 4 worker/management d i s p u t e s . In 1926, the American A r b i t r a t i o n A s s o c i a t i o n was formed as an a u x i l i a r y of the American Bar A s s o c i a t i o n , w i t h the goal of p r o v i d i n g q u a l i f i e d i n t e r v e n t i o n i n t o d i s p u t e s (Moore, 1986:5-6). In the i n t e r n a t i o n a l arena, mediation has p l a y e d a l a r g e r o l e i n such i n t e r n a t i o n a l d i s p u t e s as the the Camp D a v i d accords between I s r a e l and Egypt (September 1978). D u r i n g the Camp David n e g o t i a t i o n s , the American i n t e r v e n o r s used a m e d i a t i o n t a c t i c known as S i n g l e N e g o t i a t i o n Text (SNT) to focus the d i s c u s s i o n s , and move the p a r t i e s away from t h e i r entrenched p o s i t i o n s . In r e c e n t y e a r s , f e d e r a l , p r o v i n c i a l and s t a t e m e d i a t i o n o r g a n i z a t i o n s have emerged to promote use of the p r o c e s s and to c r e a t e and monitor p r o f e s s i o n a l standards. F a m i l y M e d i a t i o n Canada 1 and the American A r b i t r a t i o n A s s o c i a t i o n (which i n c l u d e s mediators) a re j u s t two examples. M e d i a t i o n i s now used to s e t t l e d i s p u t e s r a n g i n g from s c h o o l y a r d spats to i n t e r n a t i o n a l c o n f r o n t a t i o n s . In a d d i t i o n , m e d i a t i o n i s w e l l e s t a b l i s h e d as a v i a b l e a l t e r n a t i v e t o d e s t r u c t i v e deadlocks i n the f i e l d of labour r e l a t i o n s . The 1980s saw the g r e a t e s t expansion o f m e d i a t i o n ' s acceptance and use, w i t h the process r i s i n g t o the s t a t u s o f a r e s p e c t e d and l e g i t i m a t e form of c o n f l i c t r e s o l u t i o n . In 1983, a f t e r decades of mediation l i t e r a t u r e b e i n g s c a t t e r e d a c r o s s a 1As p a r t o f my p r e p a r a t i o n f o r w r i t i n g t h i s t h e s i s , I ac c e p t e d a c o n t r a c t t o w r i t e a s t a n d a r d i z e d t r a i n e r ' s manual f o r t h i s o r g a n i z a t i o n . U n f o r t u n a t e l y , due to e d i t o r i a l d i f f e r e n c e s , i t has not been p u b l i s h e d i n i t s o r i g i n a l form. 5 r a n g e o f a c a d e m i c p e r i o d i c a l s , M e d i a t i o n Q u a r t e r l y w a s f o u n d e d , g i v i n g a u t h o r s a n i d e n t i f i a b l e f o r u m f o r m a t e r i a l o n t h e p r o c e s s . W i t h i n B r i t i s h C o l u m b i a , t h e p r a c t i c e o f m e d i a t i o n h a s g r o w n s i g n i f i c a n t l y s i n c e t h e m i d - 1 9 8 0 s w i t h t h e i n t r o d u c t i o n o f t r a i n i n g p r o g r a m s a t t h e J u s t i c e I n s t i t u t e , a n d t h e f o r m a t i o n o f t h e B . C . M e d i a t i o n D e v e l o p m e n t A s s o c i a t i o n . P e r h a p s n o t s u r p r i s i n g l y , m e d i a t i o n i n t h e p r o v i n c e i s m o s t c o m m o n i n f a m i l y d i s p u t e s . E s t i m a t e s s u g g e s t t h a t F a m i l y C o u r t c o u n s e l l o r s h a n d l e t h o u s a n d s o f s u c h c a s e s e a c h y e a r , w h i l e p r i v a t e m e d i a t o r s w e r e r e c r u i t e d t o i n t e r v e n e i n a l m o s t 1 , 0 0 0 m a t r i m o n i a l c o n f l i c t s d u r i n g 1 9 8 9 ( C h a l k e : 1 9 9 0 ) . T h e s e c o n d m o s t c o m m o n v e n u e f o r m e d i a t i o n i n B r i t i s h C o l u m b i a i n v o l v e s i n s u r a n c e c l a i m s . F o l l o w i n g a t r i a l p r o g r a m i n 1 9 8 8 , t h e I n s u r a n c e C o r p o r a t i o n o f B . C . h a s i n c r e a s e d i t s u s e o f m e d i a t o r s t o r e s o l v e a w a r d c o n t e s t s t o t h e p o i n t w h e r e s e v e r a l h u n d r e d c a s e s w i l l b e h a n d l e d t h i s w a y d u r i n g t h e c u r r e n t f i s c a l t e r m ( I . C . B . C . : 1 9 9 0 ) . F i n a l l y , t h e L a b o u r R e l a t i o n s C o u n c i l h a s b e e n i n v o l v e d i n 5 2 s e p a r a t e m e d i a t i o n s i t u a t i o n s i n t h e p a s t . y e a r ( B . C . L a b o u r R e a l a t i o n s C o u n c i l : 1 9 9 0 ) . I n t e r m s o f i t a c a d e m i c c r e d e n t i a l s , m e d i a t i o n h a s b e c o m e p a r t o f d i s p u t e r e s o l u t i o n p r o g r a m s i n l a w a n d b u s i n e s s f a c u l t i e s a c r o s s N o r t h A m e r i c a . M e d i a t i o n p r o g r a m s e x i s t a s p a r t o f t h e P r o g r a m o n N e g o t i a t i o n a t H a r v a r d L a w S c h o o l , a t t h e N e w Y o r k S t a t e S c h o o l o f I n d u s t r i a l a n d L a b o u r R e l a t i o n s , C o r n e l l U n i v e r s i t y , a n d a t D e n v e r ' s C e n t r e f o r D i s p u t e R e s o l u t i o n . 6 In Canada, u n i v e r s i t i e s have recognized the value and the growing number of applications for mediation. Committees have been formed i n association with law f a c u l t i e s at the Osgood Law School, York University, the University of B r i t i s h Columbia, Simon Fraser University, and Carelton University. The goal i s to organize and implement programs of mediation t r a i n i n g and study associated with existing d i s c i p l i n e s . In addition, the B r i t i s h Columbia Justice Institute i s recognized as one of the foremost t r a i n e r s of mediators i n the country. 2 Yet, despite i t s increasing acceptance i n the f i e l d , the advance of s c i e n t i f i c study of mediation has not kept pace. C. The Current State of Mediation The broad application of mediation has not been followed by development of an a n a l y t i c a l l i t e r a t u r e which might serve to b u i l d a case for i t being a systematic and predictable s o c i a l process. As long as three decades ago, i t was acknowledged that mediation had no "science of navigation", that "the mediator i s a s o l i t a r y a r t i s t recognizing, at most, a few guiding stars" (Meyer, 1960:160). Time and again, the process i s referr e d to as an art (Simkin,1971, Robins and Denenberg,1976, Kheel,1979). Most of what has been written about mediation has focused on two areas. The f i r s t involves analyzing applications of the process through the use of coding structures which i d e n t i f y 2 I completed both levels of mediation t r a i n i n g at the J . I . as part of my research for this thesis. 7 various mediation t a c t i c s and where they are used within a dispute (Bales,1950, Zechmeister and Druckman,1973). The coding involves l a b e l l i n g the strategies which are repeatedly used by experienced mediators. The transcripts of mediations are then coded i n an attempt to i d e n t i f y correlations between s p e c i f i c t a c t i c s and the success or f a i l u r e of the process. The second area i s concerned with creating methodological models to serve as guides for mediators i n the f i e l d (Kessler, 1978, Haynes,1981, Moore,1986, Taylor,1988). What Moore and the others have done i s to prescribe a step by step guide which d e t a i l s the chronology and content of the various stages of the mediation process. There i s a th i r d , smaller segment of mediation l i t e r a t u r e which proposes goals for the s p e c i f i c stages of the process. For instance, i n one such analysis (Leviton and Greenstone, 1984:6) these goals are i d e n t i f i e d as helping the part i e s communicate, separating substantive from emotional issues, developing a re c i p r o c a l appreciation of the problems, and recognizing agreement. As a re s u l t of mediation's "art" la b e l and the "applied" focus i n the l i t e r a t u r e , l i t t l e e f f o r t has been made r e l a t e the process of mediation to a theoretical paradigm or paradigms. The consequences has been to sustain mediation's a t h e o r e t i c a l reputation. However, the argument can be made that mediation can be associated with some established theory. Of p a r t i c u l a r i n t e r e s t 8 to t h i s thesis i s the work that has been done both i n s o c i a l exchange theory, and i n the l i t e r a t u r e on negotiation. Exchange theory argues that an exchange r e l a t i o n s h i p w i l l be i n s t i g a t e d when two parties believe that t h e i r i n d i v i d u a l access to a valued commodity i s controlled by the other. The exchange involves the calculated transfer of valued commodities between p a r t i e s . It occurs when there i s consensus about the d i s t r i b u t i o n of commodities. This thesis uses these propostitions . to explain the dynamics of the mediation process. D. The Outline Chapter 2 w i l l review the relevant exchange theory l i t e r a t u r e , and argue that the theory's propositions can be used to explain the mediation's a b i l i t y to influence the dispute r e s o l u t i o n process. Disputes are disagreements over the d i s t r i b u t i o n of valued commodities. Attempts to resolve disputes without the use • of physical coercion inevitably involve negotiations by, or on behalf of the parties involved. The l i t e r a t u r e suggests that the processes of negotiation and s o c i a l exchange are linked i n that the former i s a means to accomplish the l a t t e r . The negotiation l i t e r a t u r e w i l l be reviewed i n Chapter 3 to provide a foundation for analysis of the in t e r a c t i o n between the parties to a dispute, and between each of those p a r t i e s and the mediator. 9 Mediation i s the intervention into a dispute for the purpose of f a c i l i t a t i n g negotiation between the p a r t i e s with the goal of achieving resolution of a c o n f l i c t . We w i l l argue that negotiation and s o c i a l exchange can be considered the core processes of mediation. Chapter 4 w i l l review the current mediation l i t e r a t u r e , and l i n k the process to these core processes. Mediation i s presented as a series of stages which are used to structure interdependent negotiations—between the par t i e s , and between each party and the mediator. The goal of these negotiations i s to i n s t i t u t e s o c i a l exchange. The goal of the exchange i s to resolve the dispute. In Chapter 5, we w i l l apply s o c i a l exchange theory and the p r i n c i p l e s of negotiation to the steps of mediation to i l l u s t r a t e that the dynamics of the process are captured by t h i s l i t e r a t u r e . Chapter 6 w i l l present conclusions to be drawn from the the s i s . It w i l l comment on the g e n e r a l i z a b i l i t y of those conclusions to other forms of s o c i a l dispute such as those involving more than two parties, and those which employ representatives i n the bargaining process. F i n a l l y , recommendations w i l l be made regarding future studies which could ' be undertaken to test the conclusions offered here. 10 CHAPTER II EXCHANGE THEORY A. Introduct ion The focus of thi s thesis i s the analysis of the process of mediation. It w i l l be argued that mediation i s comprised of a t r i a d of exchange relationships, which can be explained both separately and as interdependent interactions by Exchange Theory. Exchange theory characterizes human i n t e r a c t i o n as a process of commodity transfer. It proposes that the a c q u i s i t i o n of a valued commodity i s a reward, and that the loss of a such a commodity i s a cost. The theory argues that par t i e s are motivated to engage i n a p a r t i c u l a r i n t e r a c t i o n when they share a b e l i e f that i t w i l l provide them with reward at an acceptable cost, i . e . , a p r o f i t . B. The Evolution of Exchange Theory The basic premises of Exchange Theory can be traced back to the economic works of Adam Smith and John Stuart M i l l . In terms of o r i g i n a l emphasis, these men and those who elaborated on t h e i r ideas focused on the exchange of material things, e s p e c i a l l y those with monetary value. This work l a i d an invaluable foundation for subsequent studies of human interaction by establishing that an economic behavior can be analyzed by ca l c u l a t i n g i t s p o t e n t i a l to provide a p r o f i t . T h e b e g i n n i n g o f s o c i o l o g y ' s i n t e r e s t i n r a t i o n a l , h u m a n b a r t e r i n g c a m e i n t h e e a r l y y e a r s o f t h i s c e n t u r y , w i t h t h e r e l e a s e o f G e o r g S i m m e l ' s T h e P h i l o s o p h y o f M o n e y ( 1 9 0 7 ) . S i m m e l p r o p o s e d t h a t h u m a n s i n i t i a t e i n t e r a c t i o n w h e n t h e r e i s a d e s i r e f o r s o m e t h i n g w h i c h t h e y d o n o t c u r r e n t l y p o s s e s s , a n d w h e n t h e p o s s e s s o r o f t h a t s o m e t h i n g c a n b e i d e n t i f i e d . S i m m e l e x p a n d e d h i s t h e s i s b y c l a i m i n g t h a t e x c h a n g e w i l l b e r e a l i z e d w h e n o n e i n d i v i d u a l m a k e s a n o f f e r t o s w a p r e s o u r c e s w i t h a n o t h e r , a n d t h a t o f f e r i s s e e n b y t h e r e c i p i e n t a s p r o v i d i n g a v a l u e d c o m m o d i t y ( T u r n e r , 1 9 8 6 : 2 3 1 ) . T h e c o n t r i b u t i o n o f t h i s w o r k t o u n d e r s t a n d i n g t h e b r o a d e r s o c i a l c o n t e x t i s t o i d e n t i f y w h y a n e x c h a n g e m i g h t b e c o n s i d e r e d , a n d w h e n a n e x c h a n g e r e l a t i o n s h i p c a n e x p e c t t o b e c o n s u m a t e d . T h e a p p l i c a t i o n o f t h e p r i n c i p l e s o f e c o n o m i c e x c h a n g e t o h u m a n i n t e r a c t i o n w i t h i n a s o c i o l o g i c a l f r a m e w o r k c a m e f r o m G e o r g e C a s p a r H o m a n s . C. The Work of Homans H o m a n s ' 1 9 5 0 p u b l i c a t i o n , T h e H u m a n G r o u p , s u r v e y e d a s e r i e s o f s o c i a l p s y c h o l o g i c a l s t u d i e s o f s m a l l g r o u p s t o d e v e l o p a l i s t o f p r o p o s i t i o n s r e l a t i n g t o p r e d i c t o r s o f h u m a n i n t e r a c t i o n . H o m a n s b a s e d h i s a n a l y s i s o n A r i s t o t l e ' s n o t i o n o f D i s t r i b u t i v e J u s t i c e — l a t e r e x p a n d e d b y A d a m s i n 1 9 6 3 t o b e c o m e w h a t i s n o w k n o w n a s E q u i t y T h e o r y - - t o c o n c l u d e t h a t h u m a n 12 exchange i s underwritten by a s t r i v i n g for a balance between investment and reward (Roloff, 1981:39). The propositions developed from t h i s analysis introduce the notion of cost into the exchange equation for the f i r s t time. Unlike Simmel, who focused solely on the d e s i r a b i l i t y of a commodity, Homans argued that regardless of how valuable a commodity might be, the motivation to acquire i t w i l l be tempered by the cost incurred i n the process. Homans made the point that an i n d i v i d u a l might be w i l l i n g to exchange for a marginally a t t r a c t i v e commodity i f the cost involved was minimal. On the other hand, an i n d i v i d u a l might be expected to forego a highly valued commodity i f i t required an exchange which imposed unacceptable cost. Through the next two decades, Homans guided h i s version of Exchange Theory toward a grounding i n operant psychology p r i n c i p l e s . He eventually concluded that a l l human i n t e r a c t i o n involves the give and take of costs and rewards, with the ultimate goal of that exchange being a p o s i t i v e balance at the end of each transaction (Ekeh, 1974:67). In 1974, Homans published the polished version of h i s propositions that i s s t i l l used today. In edited form, the f i v e c e n t r al propositions are as follows. 1) The more an action i s rewarded, the more l i k e l y a person w i l l perform that action (Homans, 1974:16). To understand th i s proposition we must keep i n mind Homans's a f f e c t i o n for operant psychology. His suggestion here 13 i s that humans, l i k e Skinner's pigeons, w i l l repeat actions that produce some desirable r e s u l t . In exchange relationships, indiv i d u a l s w i l l repeat any behaviours which previously gained them a p r o f i t . 2) If a stimulus i s associated with reward for a p a r t i c u l a r action, the more l i k e l y i t i s that future presence of that stimulus w i l l produce that action (ibid:22-23). Again we can return to the pigeon cage for an explanation of t h i s proposition. For the bird, the stimulus was the lever; press i t and the kernel of grain appeared. For humans involved i n an exchange, fa m i l i a r stimuli can be expected to produce predictable behaviour. 3) The more valuable the expected reward i s to a person, the more l i k e l y he or she i s to perform the action which produces that reward (ibid:25). For the pigeon which has gone without food for an extended period of time, the motivating power of the lever was magnified because the value of the kernel of grain has increased. Homans i s saying that humans w i l l respond i n a s i m i l a r manner. This proposition claims that as the value of a reward increases, an ind i v i d u a l w i l l be more ready to accept the costs associated with the action necessary to acquire i t . 4) The more often a person has received a p a r t i c u l a r reward i n the past, the less valuable any further 14 unit of that reward becomes (ibid:2 9 ) . 3 This proposition can also be understood i n terms of the ca l c u l a t i o n of p r o f i t . Homans i s arguing that there i s a s a t i a t i o n point beyond which the amount of cost an i n d i v i d u a l i s w i l l i n g to absorb to acquire a p a r t i c u l a r reward decreases. 5) When an action does not produce the expected reward or produces unexpected punishment, a person becomes angry and i s more l i k e l y to perform aggressive behaviour (ibid:37) . In his f i n a l proposition, Homans jumps from operant psychology to Equity Theory. He appropriates the main thrust of that l i t e r a t u r e by ind i c a t i n g that an i n d i v i d u a l involved i n an exchange relationship w i l l expect that there be congruence between the cost assumed, and the amount of reward received. He extends t h i s argument by suggesting probable consequences of disappointment: aggression and anger. Homans's propositions are an e x p l i c i t statement of the rel a t i o n s h i p between p r o f i t and exchange. He indicates that s o c i a l behaviour i s a function of cost/reward analysis, and that the l i k e l i h o o d of a s p e c i f i c behaviour occurring i s re l a t e d to i t s perceived a b i l i t y to serve s e l f - i n t e r e s t (Foa and Foa, 1980:240) . 3We can see dramatic confirmation of thi s proposition i n the case of human drug addiction, where continued use r e s u l t s i n the amount of drug necessary to s a t i s f y the craving increasing i n f i n i t e l y . 15 Although Homans's work has an economic focus, i t i s important to recognize that s e l f - i n t e r e s t i s not l i m i t e d to the a c q u i s i t i o n of material goods. S e l f - i n t e r e s t can also be served i n exchanges that are non-material or where there are non-material components which augment the exchange of material goods (Skidmore,1960:67). A simple example could be found i n the sale of some item. If I am t r y i n g to s e l l you a car, and there i s reason for me to respect your opinion of me—we are friends, then i t i s possible that I would be w i l l i n g to reduce the price--take l e s s material reward, i n exchange for preserving your opinion of me as a f a i r person--a rewarding sentiment. There i s s i g n i f i c a n t evidence i n the l i t e r a t u r e to support the contention that abstract rewards and costs—assembled under the rub r i c sentiment--can be of equal value i n motivating behaviour. Specific forms of sentiment which can function as motivators include love, status, s o c i a l approval, and respect/prestige (Skidmore,1960, Gergen, Greenberg, and W i l l i s , 1980:80, Roloff, 1981:24). The conclusion to be drawn from t h i s a s s e r t i o n i s that s o c i a l exchange can encompass the f u l l scope of human needs and desires. These propositions are important to the argument of t h i s t h e s i s . But while Homans i s given the l i o n ' s share of the credit for advancing Exchange Theory, others have also delved into the 16 mysteries of s o c i a l exchange. Most notable, are the works of Peter Blau and Richard Emerson. D. The Work of Blau Peter M. Blau's research focuses on the economic aspects of exchange with a special emphasis on the use and abuse of power (Blau,1964, 1977). It i s the s o c i a l structures which emerge from these manipulations of power that are of greatest i n t e r e s t to him. Blau uses economic p r i n c i p l e s such as supply and demand, and diminishing marginal u t i l i t y to conclude that i n d i v i d u a l s base decisions which are related to s o c i a l exchange on the a n t i c i p a t i o n of p r o f i t (Roloff, 1981:26). This part of Blau's work i s i n agreement with Homans's contention that the existence and extent of an exchange r e l a t i o n s h i p i s a product of thi s type of cost/reward c a l c u l a t i o n . The greater the reward, the less marginal i t s u t i l i t y , and the greater the cost an in d i v i d u a l i s w i l l i n g to assume to acquire i t . While t h i s i s s i g n i f i c a n t for the argument of t h i s thesis, of equal importance i s Blau's study of the use of power i n exchange. He contends that compliance with the request of another i m p l i c i t l y involves the comply-er r e l i n q u i s h i n g his or her power to the one whose request i s being complied with (ibid : 2 4 ) . 17 I f we acknowledge that power i s a commodity i t becomes clear that i t cannot be given up without some compensation. Therefore, i t i s c r i t i c a l to the success of a negotiation that a means be found to compensate for the loss of power, represented by compliance, with some balancing reward. Unless t h i s type of compensation i s available, i t i s l i k e l y that both p a r t i e s negotiating an exchange would view the cost of r e l i n q u i s h i n g power to be too high. There are special and extensive implications which flow from t h i s state of a f f a i r s because power i s a commodity which, once acquired, can be used to f a c i l i t a t e further a c q u i s i t i o n s . For t h i s reason, the reward offered i n exchange for compliance must be s i g n i f i c a n t and of considerable value to the i n d i v i d u a l doing the complying. Later i n t h i s thesis i t w i l l be argued that one of the most s i g n i f i c a n t contributions of the mediator to the dispute resolution process i s her provision of that balancing reward. While Blau's work took Exchange Theory a step beyond Homans's beginnings, i t f a i l e d to deal with the question of a p a r t i c u l a r exchange being part of a network of interconnected exchanges. E. The Work of Emerson Richard Emerson provided Exchange Theory with i t s next major step forward by extending Homans's ideas to include an 18 explanation of the role of s o c i a l networks i n determining the course and content of s o c i a l exchange (Turner, 1986:287). Because th i s thesis i s concerned p r i m a r i l y with d i r e c t , one-time negotiations Emerson's work i s not c r i t i c a l to i t s main thrust. However, his ideas are invaluable to the extension of t h i s thesis to representative negotiations such as those between labour and management, and to negotiations between p a r t i e s involved i n an ongoing rel a t i o n s h i p . Emerson viewed each exchange as part of an ongoing relationship, i n contrast to both Homans and Blau who focused on i s o l a t e d individuals engaging i n a one-time exchange of costs and rewards i n the pursuit of p r o f i t . Emerson argued that s o c i a l exchange involved a series of opportunity situations each of which could be linked to the transactions which had come before and those that would follow (Cook, 1987:210). Emerson succeeded i n challenging ( i f not e n t i r e l y defeating) the limitations of Exchange Theory as i t had been proposed by his predecessors. He took e x i s t i n g abstract constructions and placed them i n a believable context. In fact, very few of our important s o c i a l exchanges exi s t i n an empirical vacuum. We might negotiate with a stranger over the use of a t a x i , or we bargain with someone to set the p r i c e of a used car. However, as Emerson suggests, most of our exchanges involve indiv i d u a l s whom we deal with regularly. Our interactions with family members are an example of Emerson's "exchange opportunities" which are part of ongoing 19 i n t e r a c t i o n . The same applies to most of the business we tr a n s a c t - - i t i s done with f a m i l i a r faces i n an established r e l a t i o n s h i p where precedents have been set and the future of that r e l a t i o n s h i p kept i n mind. Emerson did not abandon the arguments of Homans and Blau e n t i r e l y . He examined the factors which lead to the i n i t i a t i o n of each exchange opportunity and concluded that these evolve into . transactions only i f each participant anticipates that i t has the po t e n t i a l to serve t h e i r s e l f - i n t e r e s t ; to provide him or her with reward, the perceived value of which exceeds anticipated cost (Emerson,1966:83-87). His p a r t i c u l a r contribution to t h i s l i t e r a t u r e was to suggest the process by which these i n d i v i d u a l opportunities became part of, and i n fact defined, long term r e l a t i o n s h i p s . From t h i s perspective, we can see that events within one exchange can influence subsequent ones. This p o t e n t i a l i s part of labour/ management negotiations where both sides are keenly aware that t h e i r concessions or resolve can serve to e s t a b l i s h a reputation. Emerson extended his analysis of s o c i a l exchange to include the currency of the process, the actual items being transferred. He argued that: "Valued things have r e l a t i v e but not absolute value." (Emerson,1986:13). This proposition continues Emerson's e f f o r t to make s o c i a l exchange theory empirically relevant. It recognizes that costs and rewards as perceived by partic i p a n t s i n a p a r t i c u l a r exchange are s i t u a t i o n a l l y defined. 2 0 According to Emerson, there i s a f l e x i b i l i t y of demands and perhaps even needs which i s b u i l t into a l l cost/reward equations. Emerson's claim establishes that the rewards and costs contained within an o f f e r of exchange do not ne c e s s a r i l y have a fix e d worth. The implication i s that rewards and costs can be reevaluated, as the components of an exchange are augmented or changed. The potential impact on an exchange can be demonstrated using a simple economic example. Suppose you and I are discussing the sale of a used car. You, as the buyer, are trying to pay as l i t t l e as possible, while I am t r y i n g to get as much as I can from you. Both of us w i l l have set a p r i c e above or below which we are un w i l l i n g to move; we have established a value for the car. Let us further suppose that I am aware that the car i s i n need of s i g n i f i c a n t repairs which w i l l become apparent to you only a f t e r you have driven i t for a week or so. Imagine what the impact might be i f , during the course of our conversation, I fi n d out that you are my boss's son. Suddenly, there i s an additional component to the exchange which can a l t e r my previous evaluation of the car's worth. Two new factors have been introduced to my cost/reward equation. F i r s t , the cost of misrepresenting the car's condition has increased. Previously, the deception might have imposed a few moments of g u i l t at the time money changed hands; a small cost. Now however, the cost i s substantially more. The deception may cost me my job, or at very least, have a negative impact on the boss's opinion of me. The r e s u l t would be that the value of the car r e l a t i v e to the cost of the transaction would decrease. As a consequence, I may decide that the exchange i s simply too expensive to p a r t i c i p a t e i n , or, I may inform you (the boss's son) of the problems and o f f e r to s e l l you the car at a reduced p r i c e . The second factor, i m p l i c i t i n the f i r s t , i s that the exchange opportunity i s no longer an i s o l a t e d event. I t has become part of an ongoing relationship by reason of your association with someone who has the po t e n t i a l to impose future costs on me. These elements are c r i t i c a l to the analysis of the process of exchange. The fact that values are not f i x e d makes i t possible for negotiatotions to take place. A n t i c i p a t i o n of future exchanges with the same party can have a s i g n i f i c a n t impact on r e l a t i v e values, and the c a l c u l a t i o n of p r o f i t . F. Summary In summary, then, Exchange Theory makes the following points. -Economic behaviour i s a product of c a l c u l a t i n g the value of available commodities. -Commodities are not necessarily material, but include such expressions of sentiment as love, s o c i a l acceptance, and power. -Exchange occurs when a desire exists, when a source for s a t i s f y i n g that desire i s i d e n t i f i e d , and where an of f e r of exchange i s made. -The cost of acquisition i s a factor i n ca l c u l a t i n g the potential p r o f i t of an exchange. 22 -Rewarded actions w i l l be repeated. -A stimulus associated with a reward w i l l act as a motivator. -As the value of a reward increases so does the acceptable a c q u i s i t i o n cost. -Rewards are subject to diminishing marginal u t i l i t y . -Expected reward i s a function of investment -Exchange behavious i s a function of cost/reward c a l c u l a t i o n . -Concession imposes cost i n the form of loss of power. -Power i s a commodity which can be used acquire further commodities. -Exchange opportunities are often part of an ongoing exchange rela t i o n s h i p . -The value of a commodity i s r e l a t i v e and not fixed. In the next chapter we turn to the mechanism used to accomplish s o c i a l exchange—negotiation. 23. CHAPTER III N E G O T I A T I O N A. Introduct ion M e d i a t i o n i s l i n k e d t o n e g o t i a t i o n i n t w o w a y s . I t i s a n o u t c o m e o f u n s u c c e s s f u l n e g o t i a t i o n , a n d , i t u t i l i z e s n e g o t i a t i o n t o a c h i e v e d i s p u t e r e s o l u t i o n . M e d i a t i o n c a n b e t t e r b e e x p l a i n e d o n c e w e u n d e r s t a n d t h e f u n d a m e n t a l s o f n e g o t i a t i o n . T h i s c h a p t e r w i l l r e v i e w t h e c o n t e n t s a n d t h e s t r u c t u r e o f n e g o t i a t i o n . We w i l l b e g i n b y o u t l i n i n g s o m e o f t h e c h a r a c t e r i s t i c s o f t h e p r o c e s s , a n d t h e s k i l l s c r i t i c a l t o i t s c o n t r o l . O n e d e p i c t i o n o f t h e p h a s e s w h i c h t h e n e g o t i a t i o n p r o c e s s i n c o r p o r a t e s w i l l a l s o b e e x a m i n e d . We w i l l l o o k a t h o w e m o t i o n a l c l i m a t e , t h e n e e d t o s a v e f a c e , a n d t h e p r e s e n c e o f a n a u d i e n c e c a n a l l i m p a c t o n t h e p r o g r e s s o f a n e g o t i a t i o n . F i n a l l y , w e w i l l c o n s i d e r t h e p o t e n t i a l i m p a c t o f t h i r d p a r t y i n t e r v e n t i o n o n a f a i l e d n e g o t i a t i o n . B. What i s Negotiation? N e g o t i a t i o n i s t h e p r o c e s s o f s e t t i n g t h e d e t a i l s o f a t r a n s a c t i o n f o r t h e d i v i s i o n o r d i s t r i b u t i o n o f a s p e c i f i e d c o m m o d i t y o r c o m m o d i t i e s ( B a c h a r a c h a n d L a w l e r , 1 9 8 1 : 5 ) . M i c h a e l R o l o f f a s s o c i a t e s n e g o t i a t i o n w i t h s o c i a l e x c h a n g e b y a r g u i n g t h a t t h i s " d i v i s i o n o r d i s t r i b u t i o n " i n v o l v e s t h e g i v i n g o f o n e c o m m o d i t y i n a n t i c i p a t i o n o f t h e r e c e i p t o f another (1981:26). He claims that t h i s exchange i s "guided by" each i n d i v i d u a l ' s s e l f - i n t e r e s t (op c i t ) . Roloff makes a number of key points, not the l e a s t of which i s that s o c i a l exchange i s based on negotiation. Of course we can imagine s o c i a l exchanges occurring without negotiation, such as those involving force or authority as well as those prescribed by law, t r a d i t i o n or r i t u a l . However, these types of s o c i a l exchange are not the subject of t h i s t h e s i s . For other types of s o c i a l exchange to occur without negotiation, the parties would have to a n t i c i p a t e , have access to, and being w i l l i n g to provide rewards which exactly matched the other's exchange expectations. Barring t h i s unlikely s t r i n g of circumstances, the only way for two parties to s a t i s f y each other's exchange requirements i s by holding discussions to determine the form and content of an exchange re l a t i o n s h i p . C. The Components of Negotiation. In The Social Psychology of Bargaining and Negotiation, Rubin and Brown i d e n t i f y the following components of a negotiation relationship (1975:6-14). 1) There must be at least two p a r t i e s involved. In order to have a dispute i t seems self-evident that an opponent i s necessary. Nonetheless the point must be made e x p l i c i t . 25 2) The parties to a dispute are involved i n a c o n f l i c t of interests. We can return to Roloff's notion that an i n d i v i d u a l ' s negotiation behaviour w i l l be guided by his or her c a l c u l a t i o n of what best serves t h e i r own s e l f - i n t e r e s t . When there i s an actual or perceived opposed interest, there i s c o n f l i c t between the two p a r t i e s . However Rubin and Brown take pains to point out that the c o n f l i c t i t s e l f must s a t i s f y certain conditions f o r negotiations to occur. They argue that the interests of the p a r t i e s must be s u f f i c i e n t l y divergent to necessitate negotiation, and yet, s u f f i c i e n t l y convergent to permit i t (ibid:10). 3) Negotiation involves a "voluntary r e l a t i o n s h i p " which parties choose to enter and to maintain because of a b e l i e f that i t o f f e r s more p o t e n t i a l for gain than the a l t e r n a t i v e of not entering and maintaining the relationship. This i s a c r i t i c a l condition of negotiation i n that i t requires the parties to a c o n f l i c t , the disputants, to be motivated to make the process work. Some further insight into the reasons for t h i s voluntary p a r t i c i p a t i o n are provided by Bacharach and Lawler and t h e i r concept of " B i l a t e r a l Monopoly" (1981:4). Their argument i s that disputants' are motivated to negotiate by the understanding that t h e i r opponent has exclusive control of some commodity which they value and wish to possess. Exchange relationships are instigated when the p a r t i e s believe that t h e i r best chance of obtaining that commodity at the least cost i s through negotiating with t h e i r opponent. The action i s voluntary. This point also applies to the next condition. 4) Parties to a negotiation must be dependent on each other for the resolution of issues. Rubin and Brown ref e r to the parties as "Outcome Dependants" (1975:11). The consequences of the negotiation for both p a r t i e s are determined by t h e i r opponent. When we consider that a negotiation i s an exchange relatio n s h i p , i t becomes clear that i n entering into i t , each party makes the success of the outcome dependent upon someone else. Exchange relationships imply dependence. In v o l u n t a r i l y deciding to p a r t i c i p a t e i n the negotiation, the p a r t i e s are demonstrating that they consider the process to provide them with t h e i r best chance of achieving t h e i r commodity goals. Within the process of negotiation there i s also an interdependence between the p a r t i e s . The behaviour of the parties toward each other w i l l be determined by experience and expectation. If a negotiation has been marked by h o s t i l i t y and aggression, then the tendency w i l l be for the p a r t i e s to respond i n kind. If a party anticipates that his or her concessions w i l l . not be reciprocated, then the motivation to provide them i s removed. 27 5) Negotiation i s a sequential process wherein parties alternate between making proposals and evaluating the proposals of t h e i r opponent. There are two aspects to t h i s point: the presenting of proposals and the estimation of t h e i r worth. The presenting of proposals involves one party o f f e r i n g information i n the form of demands and arguments, and the other party accepting that information for consideration. In "ideal form" a negotiation would be comprised of the parties s i t t i n g p a t i e n t l y waiting for each other to make t h e i r points, and then o f f e r i n g considered responses. Because the focus of t h i s thesis i s mediation and not negotiation, we w i l l not deal with a l l of the possible permutations of attack and response that would almost c e r t a i n l y impede the i d e a l i n the r e a l world. It i s important to di s t i n g u i s h between the acceptance of the information for consideration, and the acceptance of the demand. Accepting information involves treating i t with due consideration. If the receiving party dismisses a demand with a perfunctory "Bull twaddle!", then the information has not been accepted. If, on the other hand, the demand i s considered—even i f i t i s ultimately r e j e c t e d — t h e n the information has at least been accepted. The second aspect involves actual acceptance or r e j e c t i o n of the proposal. The receiving party w i l l evaluate the p o t e n t i a l of a proposal to provide them with p r o f i t , i . e . , a valued reward 28 at an t o l e r a b l e cost. Just because an o f f e r i s considered, does not necessarily mean that i t w i l l be accepted. D. Negotiation as Information Exchange There are two important extensions of the idea that negotiation i s a structured process concerned with the exchange of information. F i r s t , i t confirms that negotiation i s a process with predictable form. Once we s t r i p away the bickering and the h o s t i l i t y , we are l e f t with a pattern of proposal and response. We can use t h i s depiction of negotiation to conclude that having the a b i l i t y to control adherence to t h i s i d e a l form can have a s i g n i f i c a n t impact on the process, and by implication, on the outcome of a negotiation (Scott, 1981:43). The second extension of the idea involves the r o l e of the information i t s e l f . The argument has been made (Pen, 1952:39), that information i s a tool with which opponents can influence the course of a negotiation. Parties to a dispute can manipulate each other by c o n t r o l l i n g the content and amount of information given to an opponent. The a b i l i t y to influence the exchange of information between disputants can have a s i g n i f i c a n t impact on the outcome of a negotiation. This influence can impact on three d i s t i n c t aspects of information exchange: the content, the s t y l e of presentation, and the form. Aside from being "outcome dependent" the p a r t i e s are also dependent on each other for information about p r i o r i t i e s and p o s i t i o n s . An individual with the a b i l i t y to control t h i s information exchange has considerable influence over the progress of a negotiation. When the individual with t h i s control i s motivated to promote accuracy and l i m i t h o s t i l i t y , the e f f e c t s can be s i g n i f i c a n t . E. The E f f e c t s of Information Control Control of the content of information exchanged ensures that i t w i l l represent p r i o r i t i e s . This can be accomplished through challenging l i e s or contradictory statements. Control of the style of information presentation ensures that h o s t i l i t y w i l l be kept to a minimum. This can be accomplished through the use of censure. Control of the form of information presentation ensures that i t w i l l r e f l e c t a s p i r i t of cooperation and c o n c i l i a t i o n . This can be accomplished through the use of reframing and in t e r p r e t a t i o n . In a negotiation, the parties are dependent upon each other for access to this control. Without i t , there i s every p o s s i b i l i t y that the exchange of information w i l l be d i s t o r t e d by misrepresentation, h o s t i l i t y , and aggressive presentation with the r e s u l t that negotiation w i l l f a i l . B i l l Scott (1981) has provided a l i s t of means by which t h i s control can be achieved and maintained. Scott argues that the following s k i l l s have considerable p o t e n t i a l to control the negotiation process and the exchange of 30 information: summarizing, c l a r i f y i n g the s i t u a t i o n , c l a r i f y i n g the process, br idg ing , and emphasising agreement ( i b i d : 4 4 ) . Summarizing i s the s i f t i n g of information exchanged i n a negot iat ion for the purpose of e l iminat ing inappropriate or obscuring fac tor s . It encourages and f a c i l i t a t e s the focusing of debate on c r i t i c a l i ssues . C l a r i f y i n g the s i t u a t i o n i s intended to ensure that the par t i e s have a c l ear and shared understanding of the context of the d ispute . C l a r i f y i n g the process ensures that both p a r t i e s are aware of and accept the rules by which the exchange of information w i l l take p lace . Br idg ing i s a strategy of l i n k i n g the goals of the p a r t i e s i n a way that i d e n t i f i e s shared i n t e r e s t s . I t s intent i s to e s t a b l i s h common ground so that the par t i e s are motivated to act i n concert to create agreement and, i n turn , increase the p r o b a b i l i t y of r e s o l u t i o n . By emphasizing agreement within the negot ia t ion process, a precedent i s es tabl i shed to ind icate to the p a r t i e s that they can cooperate. F. The Phases of Negotiation Scott argues that each of these s k i l l s can be used wi th in the various phases of the negot iat ion process. He i d e n t i f i e s f ive phases: explorat ion , b idding, bargaining, s e t t l i n g the deal , and r a t i f i c a t i o n (1981:26). 31 Exploration i s the preliminary stage of the process where the p a r t i e s t r y to learn as much as possible about t h e i r opponent's positions. This, as with a l l other phases, incorporates exchange. In thi s case i t i s an exchange of information. Bidding follows, and i s comprised of the pa r t i e s o f f e r i n g various exchanges of valued commodities designed to meet t h e i r needs. Bargaining i s the attempt to set the terms of resolution be making adjustments to the o r i g i n a l bids. Here, the negotiation i s for the exchange of concessions. In s e t t l i n g the deal, the parties have gone through the bargaining phase and are now at the point where the d e t a i l s of a possible agreement are being discussed. The main areas of contention have been settled, but the fine points need developing. F i n a l l y , i n r a t i f y i n g a resolution, the disputants use some formal mechanism to esta b l i s h that an agreement with i d e n t i f i e d c h a r a c t e r i s t i c s has been stuck. This can be as formal as a l e g a l contract or as informal as a handshake. Scott's i s one depiction of negotiation; as a process which incorporates a series of predictable phases c o n t r o l l e d by cer t a i n s k i l l s . As with a l l descriptions of human i n t e r a c t i o n i t i s an i d e a l characterization of a r e a l event. It i s neither right nor wrong, i t merely provides us with parameters for discussion. 32 G. The Climate of Negotiation There i s an additional factor within negotiation which Scott i d e n t i f i e s as challenging the s k i l l s and pervading the process (1981:5). Climate i n t h i s sense i s the mood of exchange within a negotiation, and i t i s defined by opposing a l t e r n a t i v e s : tough/relaxed, confrontational/cooperative, h o s t i l e / f r i e n d l y . It i s obvious that the second state i n each of these sets i s the more desirable i f the goal of a negotiation i s to achieve agreement. However, the f i r s t state i s more common, and of greater concern. If a negotiation i s to be successful, then these factors which contribute to a negative bargaining climate must be managed. For instance, the negotiators must be able to control t h e i r h o s t i l i t y i f a productive information exchange i s to take place. Exchanging i n s u l t s i s not l i k e l y to lead to a desirable resolution to a c o n f l i c t . However, making the adjustment to the second a l t e r n a t i v e i n these sets i s not an easy process. Being cooperative and f r i e n d l y with someone viewed as an opponent i s not a natural tendency. Thus the challenge to the s k i l l s of each negotiator i s to f i n d an acceptable balance between the aggressiveness which comes naturally, and the tolerance which i s perhaps necessary for agreement. H. The Face Factor The d i f f i c u l t y facing the parties i s that any move away from the tough, competitive persona involves some degree of concession, and i s l i k e l y to be seen as a sign of weakness by others. Even more po t e n t i a l l y damaging to the i n d i v i d u a l making the concession i s the p o s s i b i l i t y that others w i l l see i t as being a c a p i t u l a t i o n . There i s a danger that an attempt to cooperate w i l l "mark a p r i o r commitment as a fraud" and become the source of embarrassment (Schelling, 1966:34). This brings us to the problem of "Face" as i t impacts on the content and the progress of a negotiation. Face can be defined as an i n d i v i d u a l ' s p ublic image of s e l f . It i s the individual's perception of how he or she i s viewed by others. Any behaviour which i s believed to have the capacity to enhance another's opinion of s e l f w i l l be seen as face saving. Conversely, any behaviour which might have the p o t e n t i a l to damage one's public image w i l l be l a b e l l e d as a threat to face. The need to save face i s strong i n bargaining situations, and can lead to increased competitiveness (Brown,1968, Deutsch,1969). The ramifications of t h i s for a negotiation are obvious. Aside from the e x p l i c i t cost of cooperation--the value of whatever i s being conceded—any evaluation of expected p r o f i t w i l l include the i m p l i c i t cost of perceived loss of face. This increase i n the potential cost of cooperation i s c e r t a i n to make the parties more resist a n t to i t , and, as pointed out by the l i t e r a t u r e , lead to an increase i n competition. In t h i s case, saving face—choosing r e t a l i a t i o n over other alternatives—becomes increasingly a t t r a c t i v e . 34 I. The P r o f i t Potential The l i t e r a t u r e indicates that i n a negotiation, the parties w i l l e s t a b l i s h a minimum l e v e l of acceptable p r o f i t , and a maximum expectation. In Moore (1986) t h i s i s c a l l e d the "Range of Agreement", i n R a i f f a (1982) i t i s l a b e l l e d the "Zone of Agreement". Both have the same meaning. Regardless of the commodities being negotiated for, both parties need to f e e l that they have achieved at least t h e i r minimum acceptable p r o f i t i n order to j u s t i f y t h e i r r a t i f y i n g an agreement. A simple example can demonstrate the concept and i t s p o t e n t i a l . I f two people are negotiating the sale of some object they w i l l have separately determined--although not necessarily exclusive—ranges of agreement. These ranges are bracketed by two points. For the s e l l e r , the top of his range i s e x p l i c i t and represented by the asking pr i c e . The low end i s hidden; the least he i s w i l l i n g to accept. For the buyer, the bottom of his range i s e x p l i c i t and represented by his i n i t i a l o f f e r . The high end i s hidden; the most he i s w i l l i n g to pay. If the hidden high end of the buyer and the hidden low end of the s e l l e r overlap, then the negotiation for a purchase p r i c e should be successful. 4 4The ease with which the negotiations are concluded w i l l depend upon how close either party i s required to come to the hidden end of his range of agreement. If, however, the ranges of agreement do not overlap, the fact that the parties are audience to each others' behaviours becomes s i g n i f i c a n t . J . The Opponent as Audience An opponent i n a negotiation i s acknowledged as an audience to the process when he or she i s considered as a p o t e n t i a l evaluator of behaviour. An audience i s defined as anyone other than s e l f who i s witness to our behaviours. The impact of an audience on negotiating behaviour i s s i g n i f i c a n t . Rubin and Brown argue that the mere presence of someone e l s e — p r o v i d i n g that presence i s s a l i e n t — w i l l motivate an i n d i v i d u a l to act i n a way that he or she believes w i l l earn them p o s i t i v e feedback (1975:44). In t h i s s i t u a t i o n , that feedback i s a valued commodity which w i l l become a component of any cost/reward calculations made by the p a r t i e s . S p e c i f i c a l l y , Rubin and Brown conclude that opposing parties to a dispute consider each other as a s a l i e n t audience (ibid:45). As such, each has the a b i l i t y to influence the behaviours of the other. It follows from th i s that the presence of an opponent as audience presents a dilemma for individuals embroiled i n a dispute. On the one hand there i s a need to protect f a c e — t o minimize c o s t — b y r e s i s t i n g cooperation. On the other hand, there i s motivation to act i n a way that w i l l gain them p o s i t i v e 36 rather than negative regard from that audience--to maximize reward. The value of this audience regard can, however, change. The need to protect face can be assumed to motivate both pa r t i e s to consider th e i r ranges of agreement as being f a i r and honest according to t h e i r own i n t e r p r e t a t i o n of these concepts. If these ranges are exclusive, then the implication i s clear. If the s e l l e r ' s range i f f a i r and honest, and the buyer's range f a l l s outside i t , then the buyer's range cannot be f a i r or honest. Thus, the buyer w i l l be l a b e l l e d as u n f a i r and dishonest. This process works both ways. As a product of this l a b e l l i n g , the value of p o s i t i v e and negative regard available from each party w i l l be reduced i n the eyes of the other. The result w i l l be that the negative regard usually associated with h o s t i l e or confrontational behaviour i s less costly, while the positive regard usually associated with cooperative or concessionary behaviour w i l l provide less reward. In the scenario described above, the p a r t i e s have l o s t the a b i l i t y to manipulate each other. By remaining firm i n th e i r ranges of agreement, they have demonstrated that they are unwilling to compromise on the substantive issues of the c o n f l i c t ; that they are unwilling to engage i n an exchange of a c t i v i t i e s . By l a b e l l i n g each other as devalued sources of sentiment, they have removed a l l other commodities from the bargaining table. As a result of this chain of circumstances the negotiation reaches an impasse. The negotiation has f a i l e d . K. When Negotiation F a i l s There are now three options open to the p a r t i e s : they can abandon t h e i r exchange relationship; they can submit to an imposed settlement; they can accept intervention by a mediator. Considering that the parties value the disputed commodities enough to battle to an impasse, i t i s . doubtful--but not impossible--that they would be w i l l i n g to forego the a n t i c i p a t e d reward at this late date. With regards the imposed settlement, there are two p o s s i b i l i t i e s . F i r s t , one of the disputants may be i n a p o s i t i o n to force a resolution to t h e i r benefit. It i s f e a s i b l e that he or she may have withheld that p o t e n t i a l previously, recognizing that such a display of power might lead to resentment and other less than a t t r a c t i v e responses from the other party. Second, the p a r t i e s might e n l i s t the services of the court or some other a r b i t r a t o r to hear both sides and set a binding settlement. This at the cost of relinquishing control over the outcome. Both of these alternatives c l e a r l y have associated costs. F i n a l l y , the parties can e n l i s t the a i d of a mediator to help them reestablish the lines of communication, and reopen negotiations. While the cost associated with admitting f a i l u r e i s not small, t h i s i s nonetheless an a t t r a c t i v e option. It i s t h i s t h i r d alternative that i s the focus of t h i s t h e s i s . S p e c i f i c a l l y , we are interested i n the mediator's a b i l i t y to motivate the parties by augmenting the e x i s t i n g pool of a v a i l a b l e rewards and costs. 38 We w i l l argue that a mediator, acting as an audience to the negotiation, "represents the embodiment of public opinion and forces the disputants to be f a i r e r and more reasonable by exerting normative pressure." (Schelling,1960:73). Brown (1977:285) argues that an audience i s able to influence behaviour when he or she meets three conditions: has an i n t e r e s t i n the events of a negotiation, has access to information about that negotiation, and s c r u t i n i z e s or evaluates behaviour within the negotiation. Brown continues, "To the extent that these conditions exist, a negotiator may become concerned with his image i n an audience's eyes, and may therefore be said to attach salience to (the opinions of that audience)." (op. c i t . ) . Brown goes on to c i t e P r u i t t ' s 1971 conclusion that negotiators can be expected to seek p o s i t i v e evaluations and avoid negative ones from these s a l i e n t referents (ibid : 2 8 9 ) . This establishes the audience as a valued source of regard, with the potential to influence the course of a negotiation by promising p o s i t i v e feedback for desired behaviours and threatening negative feedback for undesirable ones. L. Summary This chapter has argued that the purpose of negotiation i s to create an agreement for the exchange of valued commodities between two or more parties who are "outcome dependent". That 39 negotiation i s a voluntary relationship, guided by the divergent -but not too divergent--self-interest of the p a r t i e s . We have argued that negotiation i s a sequential process comprised of an alternating exchange of proposals and responses to those proposals.. Evaluation of the proposals i s done i n two stages, the f i r s t involving acceptance or r e j e c t i o n of the information they contain, and subsequently, evaluation of t h e i r intent. The point has been made that control over t h i s exchange process i s c r i t i c a l . By c o n t r o l l i n g the content of the exchanges, t h e i r form, and the s t y l e of t h e i r presentation the effectiveness of a negotiation can be influenced. This control can be exercised through the use of t a c t i c s such as summarizing, c l a r i f y i n g , and bridging. We have argued that as a negotiation advances from the i n i t i a l stages of exploration through to the f i n a l r a t i f i c a t i o n of an agreement, there are a number of elements which are c r i t i c a l to the inte r a c t i o n between the p a r t i e s . Climate refers to the tone of exchange, and can range from h o s t i l e to cooperative. Obviously, i f the tone i s aggressive and intransigent, the potential for r e s o l u t i o n i s les than i f the tone r e f l e c t s c o n c i l i a t i o n and compromise. We have argued that each party to a negotiation has a minimum and a maximum l e v e l of cost and reward which they are w i l l i n g to accept. This i s th e i r range of agreement. When thes 40 ranges are exclusive, the a b i l i t y for negotiation to achieve settlement to a dispute i s severely l i m i t e d . Face saving refers to the need of pa r t i e s to the c o n f l i c t to protect t h e i r s e l f and public images. The pa r t i e s behaviour during a negotiation w i l l be greatly influenced by t h e i r subjective determination of the cost or benefit to face of a p a r t i c u l a r action. The extent to which the parties f e e l the need to protect t h e i r images i s a function of the presence of an s a l i e n t audience. The need to protect image i s amplified when behaviour i s seen as being evaluated by an audience whose opinion i s valued. F i n a l l y , we considered the three a l t e r n a t i v e s a v a i l a b l e to disputants when negotiation f a i l s . I t was argued that abandoning the e f f o r t to achieve resolution, and submitting to an imposed settlement impose s i g n i f i c a n t costs on the p a r t i e s . The t h i r d choice, mediation, while s t i l l imposing costs, provides the benefits of sustaining the p o t e n t i a l for exxchange, and allowing the parties to remain i n control of the eventual form and content of any settlement. In the next section on mediation we w i l l look at how a negotiation can be impacted by the addition of a previously unavailable audience. 41 CHAPTER IV MEDIATION A. Introduction When a negotiation f a i l s , three things can happen: the dispute can remain unresolved, a t h i r d party can be engaged to a r b i t r a t e a solution, or a mediator can be r e c r u i t e d . By i n v i t i n g a mediator to intervene i n a dispute, the p a r t i e s are acknowledging that they have f a i l e d to resolve t h e i r c o n f l i c t , but, that they wish to continue negotiating. In issuing t h e i r i n v i t a t i o n to the mediator, the p a r t i e s are empowering the mediator to influence the course of t h e i r negotiations. At the heart of that influence i s the mediator's r o l e as a source of valued sentiment. There has been general agreement on what i s mediation. Mediation i s invariably represented as a neutral intervention into a dispute which f a c i l i t a t e s the exchange of information between part i e s without l i m i t i n g i t s e l f to a unidimensional, l i n e a r technique (Moore,1986, Dowd,1987). But t h i s , and the other d e f i n i t i o n s of mediation which we w i l l consider, focus on either the structure or the process of mediation, but do not address the issue of the mediator's influence on the process. The purpose of t h i s chapter i s to present argument that the effectiveness of mediation i s dependant on the mediator being acknowledged as a valued source of regard by the disputants. B. De f i n i t i o n s There are almost as many d e f i n i t i o n s of mediation as there are authors. Four frequently c i t e d d e f i n i t i o n s are presented below. "Mediation i s the intervention into a dispute or negotiation by an acceptable, impartial and neutral t h i r d party who has no authoritative decision-making power, to a s s i s t disputing parties i n v o l u n t a r i l y reaching t h e i r own mutually acceptable settlement of issues i n dispute." --Moore,1986. "In mediation, an experienced, impartial, professional helps the parties reach a voluntary settlement that has been designed by them." --Landau, B a r t o l e t t i and Mesbur,1987. "[Mediation is] the process by which the pa r t i c i p a n t s , together with the assistance of a neutral person or persons, systematically i s o l a t e disputed issues i n order to develop options, consider al t e r n a t i v e s , and reach a consensual settlement that w i l l accommodate t h e i r needs." — F o l b e r g and Taylor,1984. "Mediation i s a complex s o c i a l process which f a c i l i t a t e s interpersonal, intergroup, and international negotiations." --Wall Jr.,1981. These d e f i n i t i o n s agree that mediation i s a neutral intervention to as s i s t parties i n negotiating a voluntary settlement of issues i n dispute. There i s a clea r focus on the purpose of mediation--to achieve settlement, and on the method by which that purpose should be accomplished—neutral intervention. Missing from these d e f i n i t i o n s i s some i n d i c a t i o n of how or why mediation i s an e f f e c t i v e means of dispute r e s o l u t i o n . Moore and Dowd state that mediation i s a non-linear, multidimensional process. The implication being that the dynamics of mediation are too complex to be confined i n a d e f i n i t i o n . Because th i s thesis argues that mediation does have a central and fundamental dynamic, we w i l l o f f e r a working d e f i n i t i o n of the process that incorporates t h i s element. C . Mediation Redefined Because of the complexities of the mediation process, a three-part d e f i n i t i o n has been constructed. The f i r s t i d e n t i f i e s mediation's purpose, the second outlines the method used to achieve that purpose. The t h i r d describes the dynamics of the process. Mediation i s a process with the following c h a r a c t e r i s t i c s : The goal to a s s i s t the parties to a dispute i n creating a settlement of t h e i r own design. The method non-threatening t h i r d party intervention which controls the negotiations between the disputants by i n s t i g a t i n g negotiations between each party and the mediator. The dynamic a voluntary exchange of sentiment and a c t i v i t y commodities between the three participants predicated upon the need for each to protect his or her own s e l f -interest . 44 D. The Issues While t h i s d e f i n i t i o n incorporates some elements of the e x i s t i n g constructions i t has deliberately omitted others. It retains the notion that any settlement should be a product of the disputing parties' own p r i o r i t i e s , and that the ultimate goal of the mediation process i s to achieve agreement. 1. Negotiation Our d e f i n i t i o n concurs with Wall J r . ' s argument that mediation incorporates negotiation. However, i t goes on to i d e n t i f y two channels of negotiation, that between the p a r t i e s , and that between each party and the mediator. The f i r s t of these i s assumed i n a l l d e f i n i t i o n s of the mediation process. The second i s not discussed i n the l i t e r a t u r e . This set of three-way negotiations comprises the cornerstone of the mediation process. Our d e f i n i t i o n rejects two ideas broadly associated with mediation. F i r s t , i t rejects the idea that mediation and mediators need to be perceived as being neutral or i m p a r t i a l . Second, i t questions the recommendation that mediators should evaluate p o t e n t i a l agreements. 2. The e f f e c t s of bias In the mediation l i t e r a t u r e , n e u t r a l i t y and i m p a r t i a l i t y are e s s e n t i a l to the mediation process (Young,1972). Mediation can only be e f f e c t i v e i f the mediator i s perceived as being unbiased. 45 An example w i l l be used to i l l u s t r a t e circumstances where the perceived presence or absence of mediator bias i s overshadowed by other considerations. We begin by considering the impact of bias on the process of mediation. If the target of bias believes him or h e r s e l f capable of overcoming the combined e f f o r t s of the mediator and the opponent, or as benef i t i n g from that collaboration, the bias w i l l not be seen as a s i g n i f i c a n t obstacle to the achievement of objectives. We w i l l i l l u s t r a t e this as well i n our example. A senior judge of the p r o v i n c i a l Supreme Court and her gardener cannot agree on compensation for a p r i z e d rose bush that was a c c i d e n t a l l y destroyed. Despite considerable negotiation, repeated attempts to resolve the issues have f a i l e d . Wanting to end the dispute, the parties c a l l on a mediator to a s s i s t them. The c o n f l i c t i s being mediated by a junior lawyer who, i n t r y i n g to manage the power d i f f e r e n t i a l between the judge and the uneducated layman, shows some sympathy for the gardener. In t h i s instance, i t i s doubtful that the judge would f e e l threatened by an apparent bias on the part of the mediator. Consequently, the mediation process i s u n l i k e l y to be impeded or rejected despite the mediator's p a r t i a l i t y . In fact, i t can be argued that i n th i s instance, the prejudice of the mediator may be seen as a benefit by the judge. If the mediator's assistance to one party benefits the other by helping the former organize or express h i s or her 46 issues, then the interference might even be welcomed (Wall J r . , 1981) . If the gardener i s unfamiliar with the structure and requirements of negotiations, then e f f o r t s by the mediator to a s s i s t him i n c l a r i f y i n g and organizing his case w i l l doubtlessly be welcomed by the judge. As with the f i r s t point, the n e u t r a l i t y of the mediator i s not an issue. In fact, i n t h i s p a r t i c u l a r case, the mediator may be better serving the needs of the judge than those of the gardener by encouraging the l a t t e r to p a r t i c i p a t e i n a process with which he i s not f a m i l i a r . Regardless, the mediator's bias — i n the form of disproportionate assistance to the gardener--does not have an obvious potential to disrupt the mediation process. Both parties to the dispute continue to be motivated by the perception that mediation offers the best a l t e r n a t i v e for s a t i s f y i n g s e l f - i n t e r e s t . The point i l l u s t r a t e d by these two examples i s that rather than mediator n e u t r a l i t y — o r perceived n e u t r a l i t y — b e i n g e s s e n t i a l to the process of mediation, i t i s the disputants' perceptions of the meditator's pote n t i a l to impede t h e i r pursuit of valued goals which i s c r i t i c a l . If both parties are able to anti c i p a t e a p r o f i t from mediation, even with mediator bias factored into t h e i r cost/benefit calculations, then the process w i l l remain an a t t r a c t i v e a l t e r n a t i v e . This argument i s i n keeping with the contention that mediation operates on Exchange Theory p r i n c i p l e s . That i s to say that the absence of n e u t r a l i t y only becomes relevant i f i t imposes, or i s seen as having the potential to impose an unacceptable cost. 3. The fairness requirement The second idea frequently associated with mediation and rejected by t h i s thesis i s i m p l i c i t i n the Folberg and Taylor injunction that mediation must protect the needs of the disputants. Mediator's are expected to monitor the fairness of settlements to guard against either party being v i c t i m i z e d by the process. We w i l l argue that t h i s requirement impinges on the parties freedom to construct a settlement of t h e i r own design, calculated by them to s a t i s f y t h e i r own needs. There has been considerable debate over whether mediators have, as part of t h e i r mandate, a r e s p o n s i b i l i t y to ensure that an agreement i s " f a i r " . In t h i s sense, " f a i r " can be taken to mean that neither party assumes a disproportionate amount of the costs or receives excessive reward associated with the dispute. 5 We w i l l argue against the suggestion that mediation should incorporate a mechanism for evaluating the a b i l i t y of a p a r t i c u l a r settlement to "meet needs" outside of those introduced by the parties themselves. 5While I was unable to f i n d references i n the l i t e r a t u r e on t h i s debate, I am drawing on personal conversations with experienced mediators at various venues as confirmation that t h i s debate i s ongoing. 48 The problems created by t h i s dictate are obvious. Any estimation of the value of a p a r t i c u l a r cost or reward must be subjective. It follows then, that the mediator's estimation of value may not be the same as, nor even r e f l e c t , the p r i o r i t i e s of the disputants. If a mediator's management of negotiation i s predicated on his or her personal evaluation of the "fairness" of a p a r t i c u l a r d i s t r i b u t i o n of costs and rewards she or he introduces a bias into the dispute. The dilemma faced by mediators when t h e i r personal standards are confounded by the form or content of a c l i e n t - approved agreement can be i l l u s t r a t e d by the following case. 6 The s i t u a t i o n involved a divorce negotiation over the d i s t r i b u t i o n of the couple's assets. The mediator was confronted with a wife who had instigated the separation, and who had a well thought out l i s t of demands, and a husband who was distraught at the d i s i l l u s i o n of the marriage and unwilling to claim any of the couple's assets due to an overwhelming sense of g u i l t about being the cause of the breakup. The husband stated that he was w i l l i n g to give the wife everything she asked for i n her p e t i t i o n , and accept what was l e f t of the couple's property as his portion. Needless to say, the wife agreed with t h i s proposal, and an agreement seemed imminent. 6 This case was handled by a Vancouver mediator several years ago. For reasons of c o n f i d e n t i a l i t y , the name of the mediator and the names of the parties to the dispute are not included here. 49 However, the mediator, sensing that the husband's willingness to accept what appeared to be an u n f a i r portion of the assets might be the°product of depression, asked that the arrangement be reconsidered. The c r i t i c a l question for mediation i s whether or not t h i s apparently sound decision i s appropriate. In l i g h t of what has been previously noted about the need to protect s e l f - i n t e r e s t , and the desire to p r o f i t from any exchange, i t can be argued that i n cases of d i s c r e t i o n , we must allow the i n d i v i d u a l control, assuming that they have personal p r i o r i t i e s which are perhaps not clear to us. 7 According to Exchange Theory, the decision to accept a p a r t i c u l a r i n t e r a c t i o n i s based on a c a l c u l a t i o n that the costs w i l l be exceeded by the rewards. In the above situation, we can speculate that the husband's g u i l t over the breakup of the marriage needed assuaging. For him, the cost of any divorce settlement i n terms of d o l l a r s could have been balanced by a personal sense of j u s t i c e . The process by which the husband decides to incur what appears to others to be unreasonable cost can be explained by exchange theory. If we accept that behaviours are the product of cost/benefit analysis, then i t follows that the husband's actions are perceived by him to have the pot e n t i a l to provide a p r o f i t . 7. Obviously there w i l l be cases where the i n d i v i d u a l i s c l e a r l y incompetent, and steps must be taken to protect t h e i r safety or health. However, outside of these extraordinary circumstances, any attempt by a mediator to influence the content of a settlement should be avoided. 50 It might well be i n his best longterm interest to agree to the disproportionate d i s t r i b u t i o n of assets as an acceptable cost of reestablishing a po s i t i v e self-image. For the parties to have absolute authority over the resolution of t h e i r dispute, special care needs to be taken to guard against mediator bias, regardless of how moral or well-intended i t i s claimed to be. The preceding arguments make two points. F i r s t , that mediator bias, while not to be encouraged, w i l l not necessarily r e s u l t i n the f a i l u r e of the process. Second, that mediator attempts to influence the content of a settlement i s to be a c t i v e l y discouraged because of i t s potential to i n f l i c t mediator standards or p r i o r i t i e s on the disputants. E. Analyzing the Process Almost t h i r t y years ago, Stevens suggested that despite i t s popularity, mediation remained understudied and less than understood. He attributed t h i s shortcoming to a f a i l u r e by researchers to analyses the process (Stevens,1963). More recently, that view was repeated by James A. Wall J r . : "At present, neither the nature nor the p o t e n t i a l of mediation i s adequately understood because i n s u f f i c i e n t e f f o r t has been devoted to the analysis and study of the process." (Wall J r . , 1981:157). 51 Others suggest that the process of mediation i s i l l -s uited to systematic analysis (Shister,1958; Rehmus,1965; Kochan and Jick,1978). Regardless of the cause, however, the r e s u l t has been that there i s a very s p e c i f i c s h o r t f a l l of theory-based analysis of the mediation process. This s i t u a t i o n has resulted i n a lack of generalizable guidelines for integrating s o c i a l psychological theory with the models of intervention used by p r a c t i t i o n e r s . The e x i s t i n g mediation l i t e r a t u r e f a l l s into three categories. The f i r s t deals with a methodological agenda by organizing the process into a number of sequential stages. The second r e f l e c t s the argument that each mediation i s a unique product of s i t u a t i o n a l and psychological factors. The t h i r d category delves into the t a c t i c s and strategies employed by mediators i n an e f f o r t to document s p e c i f i c successes. Each of these are examined i n the following sections. 1. The stage models Kessler's (1978) four stage model i s a bare-bones guide to mediation, which outlines the basic steps common to a l l formats. This approach does not break stages down int o s p e c i f i c t a c t i c a l sessions, but rather offers the mediator broad guidelines for gauging progress toward resolution. Included i n Kessler's four stage mediation format are an introduction phase, a phase for exposing the issues, one for information exchange and empathy building, and a f i n a l phase for considering options and defining a settlement. 52 This model i s widely accepted as a foundation for p r a c t i c a l applications. For instance, i t forms the base for the B r i t i s h Columbia Justice Institute's C o n f l i c t Resolution Program's mediation tr a i n i n g (see Burdine,1987). A b r i e f look at the J u s t i c e Institute's model demonstrates how the four stage model i s used by p r a c t i t i o n e r s mediating disputes i n the f i e l d . The J u s t i c e Institute's model includes an introductory phase where the physical setting for the mediation i s established, the process and guidelines for i n t e r a c t i o n are outlined, the roles defined, and a commitment from the disputants to the process i s obtained. The second stage, "Generating the Agenda" mirrors Kessler's exposing the issues. It involves a d e t a i l e d examination of the points i n contention for the purpose of exposing the parties to each others' understanding of the issues. The t h i r d phase involves determining needs, a derivation of Kessler's information exchange. This i s an attempt to s t r i p away the camouflage obscuring hidden agendas, and to l i n k the issues to the parties p r i o r i t i e s . The f i n a l stage, "Problem-solving/Agreement Writing" i s also s i m i l a r to the Kessler model. Here, proposals for solutions • to the c o n f l i c t are generated and examined for t h e i r p o t e n t i a l to meet the previously i d e n t i f i e s needs. This basic model provides mediators with a s o l i d pedestrian base from which to b u i l d t h e i r i n d i v i d u a l s t y l e s of intervention. However, more detailed formats have been created by 53 other authors who believe that the d e t a i l s of the process need to be s p e l l e d out more e x p l i c i t l y . For instance, John Haynes, i n his 1981 book Divorce  Mediation: A P r a c t i c a l Guide for Therapists and Counsellors, adds a f i f t h step to the outline. He proposes a d i s t i n c t stage for introducing the disputants to the mediation process. He argues that there i s a need for this preliminary step to provide the p a r t i e s with information with which they can make a decision about whether mediation i s appropriate for them as in d i v i d u a l s , and for t h e i r p a r t i c u l a r c o n f l i c t . According to Haynes i t also allows the mediator to establish his or her n e u t r a l i t y , and to provide assurances with regards to c o n f i d e n t i a l i t y . By making the requirement for pre-mediation introduction e x p l i c i t , the f i v e stage model provides the disputants an opportunity to evaluate the pot e n t i a l of the process without the pressure of having to engage i n negotiations simultaneously. Haynes believes that this strengthens the p a r t i e s ' commitment to the process, and establishes the safety of the venue. The mediation process i s broken down even further by A l i s o n Taylor (1988). In her seven stage model, Taylor r e f l e c t s the increasing a f f i l i a t i o n between mediation and the law f r a t e r n i t y . Taylor adopts the f i v e stages proposed by Haynes and others, then adds two steps to Haynes' work, c a l l i n g for a legal review of any agreements, and a post-negotiation phase for the review and r e v i s i o n of the settlement. 54 While these steps are not s t r i c t l y part of the negotiation process, they can have s i g n i f i c a n t impact on the form of an agreement, and. on i t s d u r a b i l i t y i n l i g h t of changing circumstances. As already mentioned, Christopher Moore i d e n t i f i e s 12 l i n e a r stages, A General Theory of Mediation (1983), designed to provide the p r a c t i t i o n e r with guidelines for leading disputants through the process. While i t echoes the fundamentals l a i d out i n other models, Moore's depiction offers a more d e t a i l e d s t r u c t u r a l plan of the ind i v i d u a l stages. In Moore's stages, a clear progression from "Introduction" to "Resolution" i s outlined. The theory i n t h i s case concerns the application of strategies which have been found e f f e c t i v e i n the past. It deals with the "How?" of mediation, demonstrating l i t t l e interest i n addressing issues r e l a t e d to "Why?" the process i s e f f e c t i v e . Moore's stages include: 1) Mediator E n t r y — i n i t i a t i o n of the process, and the e f f o r t s to gain unanimous support from the disputants for intervention by a p a r t i c u l a r mediator. This i s the beginning^of negotiations between the mediator and the parties. 2) Approach and Arena--the disputants are introduced to the process, and a venue for the negotiations i s selected. 55 3) C o l l e c t i n g and Analyzing Data--the mediator, in separate meetings with the parties, gathers the disputants' interpretation of the details relating to the cause of the dispute, and then considers the implications of the differences in those perceptions. 4) Design of the Mediation Plan - - the mediator proposes an agenda for dealing with the issues as they have been presented by the disputants. 5) Conciliation- - t h e mediator encourages the parties to acknowledge areas of common interest and the specifics of any part ia l agreements which may have already been achieved. 6) Begin Negotiations - - s t a r t of the mediated exchange of information between the disputants in a face-to-face situation. 7) Define the Issues and Agenda--the mediator confirms his or her understanding of the issues and their relat ive importance to the individual disputants; the f ina l agenda based on the mediator's proposal is approved by the disputants. 8) I d e n t i f y and Explore lssues - - t h e mediator encourages the disputants to engage in productive exchange of sentiments and act iv i t ies about their perceptions of the issues, and the causes of the dispute; the 56 p a r t i e s understanding of each others' p r i o r i t i e s i s e x p l i c i t l y confirmed. 9) Generate Alternatives--the disputants are encouraged to engage i n a brainstorming session to generate suggestions for possible resolutions to the c o n f l i c t . 10) Assess the Options--once the mediator i s s a t i s f i e d that a s u f f i c i e n t range of alternatives has been generated, he or she then supervises a process of evaluation which considers how each option meets or f a i l s to meet the needs of one or both of the disputants. 11) F i n a l Bargaining--once the general components of the agreement has been established, the mediator confirms that a l l of the points on the agenda have been addressed; small d e t a i l s which can d e r a i l the settlement are dealt with to the disputants' s a t i s f a c t i o n . 12) Implement, Monitor, and Formalize the Agreement—in t h i s f i n a l stage d e t a i l s of the agreement are e x p l i c i t l y confirmed and authorized by the disputants; a plan for implementing the agreement i s created. Ideally, a schedule for checking on the success of the agreement i s established and a mechanism for dealing with unexpected contingencies i s set up. --Moore,1983:118) 57 While the p r a c t i c a l value of the work done i n developing the stage models i s indisputable, following these stages does not guarantee a successful mediation outcome. Some authors have argued that i t i s also necessary to manipulate the s i t u a t i o n a l and psychological aspects of the process. 2 . Psychology and s i t u a t i o n Several attempts have been made to attach psychological elements to the process of mediation. For instance, the behaviourist model has been used by several authors to explain the actions of disputants during mediation (Berne,1964, Hallett,1974, Coogler,1978). 8 This l i t e r a t u r e analyzes behaviour from a conditioned response perspective. The argument i s that disputants' actions w i l l be a response to a resevoir of l i f e experience. The suggestion i s that disputants are reactive players whose behaviour can be predicted by stimulus evaluation based on l i f e experience (Coren, Porac, and Ward,1985). By implication, the actions of the parties are predetermined, and the success of mediation i s dependent on the conditioning of the p a r t i e s before they enter the process. This does not r e f l e c t Homans's po s i t i o n or that of other exchange theorists who see conditioning as immediate. For exchange theorists, while previous experience may influence the 8While these works have framed mediation i n terms of conditioned response, none has used Homans' extension of Behaviourism as related i n Exchange Theory. 58 evaluation of options, the behaviour of parties to a dispute i s ultimately determined within the context of that dispute. The difference between the two positions i s that the former sees negotiating behaviour as the product of accumulated experience, while the l a t t e r sees i t as a function of the present s i t u a t i o n . The former argues that activity/reward relationships are developed over time. The l a t t e r argues that these relationships are immediate. The e s s e n t i a l advantage of the exchange theory approach i s that i t recognizes the mediator's pote n t i a l to create new activity/reward or punishment associations on the spot. Other writers have adopted a Freudian approach, incorporating the concepts of ego, superego, and i d i n an e f f o r t to create a mediation theory with these elements as markers for the evaluation and characterization of the process (Freeman,1964, Patterson,1 9 7 3 ) . The Freudian analysis focuses on the needs of the i n d i v i d u a l disputant, and how those needs control the dynamics and progress of the process. The f i x a t i o n r e s u l t s i n mediation being viewed from the participant's side rather than from that of the p r a c t i t i o n e r , such that the conclusions o f f e r l i t t l e i nsight into what i s the source of the processes' influence. This analysis has perpetuated the b e l i e f that the process i s i n e x t r i c a b l y t i e d to the idiosyncrasies of i n d i v i d u a l disputants. 59 The primary d i f f i c u l t y with applying Freud to mediation i s that, by accepting his p r i n c i p l e s of behaviour determinism, t h i s approach i s i m p l i c i t l y acknowledging that the process i s unable to make a s i g n i f i c a n t difference i n the course of a dispute unless the personality predispositions of the pa r t i e s i s sui t a b l e . If t h i s i s the case, then perhaps mediators should only be taking cases i n which the parties have been pre-screened by a psychologist. Both of these approaches have been l a b e l l e d as being too narrow i n focus, and as not increasing understanding of the e f f i c a c y of the process. (Folberg and Taylor, 1984:74-75). The extent of this c r i t i c i s m has not discouraged others from applying additional ideas from the psychological l i t e r a t u r e to mediation. Most notably, t r a i n i n g seminars and programs for asp i r i n g mediators frequently include reference to Maslow's seminal 1954 d i s s e r t a t i o n on "Needs Hierarchy" (see the B r i t i s h Columbia J u s t i c e I n s t i t u t e manual, 1986) . S p e c i f i c p a r a l l e l s have been drawn between the mediation stages leading to resolution, and the stages of fundamental human development leading to s e l f - a c t u a l i z a t i o n . In addition, the writings of Glasser (1965, 1981) have expanded on t h i s notion, encouraging mediators to recognize that i t i s the disputants' perceptions rather than r e a l i t y which often determine behaviour. The adoption of Maslow's hierarchy i s good i n d i c a t i o n of the t h e o r e t i c a l void which surrounds the process. While i t i s a 60 useful system of c l a s s i f i c a t i o n , i t i s too general to provide much understanding of process of mediation. The mediation l i t e r a t u r e also deals to some great degree with s p e c i f i c psychological variables which impact on the progress of the dispute resolution process. Two influences frequently mentioned are face-saving and h o s t i l i t y . According to Johnson and T u l l a r (1972:328), making concessions i s res i s t e d because i t implies personal weakness. The mediation l i t e r a t u r e acknowledges the importance of t h i s factor by characterizing the mediator as someone who can take r e s p o n s i b i l i t y for concessions made by the disputants, and thus r e l i e v e them of any feelings of loss of face which might otherwise be unavoidable. It i s not surprising that the ro l e of mediator as face-saver i s perceived as c r i t i c a l to the success of the process (Hiltrop and Rubin,1982:670). Yet even though t h i s segment of the l i t e r a t u r e begins to look at the inner workings of the process, i t f a l l s short of explaining how mediation motivates disputants to consider concessions i n the f i r s t place. Aside from evaluating the eff e c t s of c o n t r o l l i n g or eliminating the loss of face associated with cooperative behaviour, the mediation l i t e r a t u r e also i d e n t i f i e s some s i t u a t i o n a l influences which impact on the process's success and f a i l u r e . Issues of mediator trust, time pressure, and dispute type have a l l been examined. Carnevale (1985:71) concluded that a 61 lack of trust i n the mediator was one of the top f i v e reasons why the process f a i l e d . Pruitt and Johnson (197 0) claimed that mediation works best when there i s high time pressure to achieve settlement. H i l t r o p (1985:86) argued that salary disputes require a less aggressive intervention s t y l e than do other dispute types. While each of these represent a contribution to the mediation l i t e r a t u r e i n that they provide one more piece of information to improve the pr a c t i t i o n e r ' s e f f i c a c y , they are empir i c a l l y grounded rather than t h e o r e t i c a l appraisals. They r e f l e c t an approach to analysis of the process which r e l i e s on cataloguing and correlation for i t s support. As with the psychological l i t e r a t u r e , they f a i l to propose a source for the mediator's influence. It i s c e r t a i n l y valuable to know that disputant trust of the mediator i s c r i t i c a l to the success of the process, but what we do not know i s why i t i s c r i t i c a l . What does "trust" enable the mediator to do that he or she would not be able to do otherwise? Another contextual-based analysis of mediation addresses the influence of h o s t i l i t y on the p r o b a b i l i t y of achieving settlement. It depicts climate management as essemtial--e s p e c i a l l y the discouraging of aggressive actions. S p e c i f i c a l l y , i t i s argued that h o s t i l e i n t e r a c t i o n decreases the success of the process (Thoennes and Pearson, 1985:120). Along similar l i n e s , Gold (1981:10) contends that the destructive, competitive communication associated with h o s t i l i t y 62 i n h i b i t s mediation's effectiveness. F i n a l l y , Saposnek (1983) suggests that a primary goal of the process i s to replace h o s t i l e confrontation with c o n c i l i a t i o n . This portion of the mediation l i t e r a t u r e appears to dwell on the obvious--that people are u n l i k e l y to agree on anything while they are attacking one another. Disputes have an inherent p o t e n t i a l for h o s t i l i t y and aggression. Analysis of the impact of h o s t i l i t y on mediation, or of the dynamics of climate control need to address the issue of how mediation achieves t h i s goal, and by what means. We now turn to the sizable body of material which deals with the t a c t i c s and strategies of mediation. 3. Techniques and coding Much of what has been written about mediation centres on the techniques used by p r a c t i t i o n e r s i n t h e i r interventions. This l i t e r a t u r e f a l l s into two categories: that which presents and explains the techniques, and that which attempts to i d e n t i f y and c l a s s i f y them. By far the most comprehensive assembly of mediation techniques i s that compiled by James A. Wall J r . (1981:171-175). Wall's l i s t organizes the various t a c t i c s by t h e i r association with the stages of the mediation process. Wall's l i s t i s comprised of widely accepted techniques found frequently i n the l i t e r a t u r e , as well as those with a more l i m i t e d following. In the f i r s t category are t a c t i c s such as c l a r i f i c a t i o n , interpretation, paraphrasing, issue 63 i d e n t i f i c a t i o n , refraining, refocusing, and c o n t r o l l i n g emotional climate. In the second, Wall refers to obfuscation, threat, contriving positions, misrepresentation, and d i s t o r t i o n . While t h i s referenced compilation of strategies i s c e r t a i n l y an invaluable resource for the p r a c t i t i o n e r , i t does l i t t l e - - a s Wall points out himself l a t e r i n his paper--to provide insight into the reasons why mediation i s an e f f e c t i v e means of dispute r e s o l u t i o n . As Wall demonstrates with his review, the i n t e r e s t i n mediation t a c t i c s and strategies has been extensive. Beginning with Jackson's discussion of c l a r i f i c a t i o n (1952), and Peters's argument for the importance of issue i d e n t i f i c a t i o n (1952), through to Burdine's t r a i n i n g handbook (1987,1988) the mediation l i t e r a t u r e i s comprised of an ongoing expansion of the "How to.." of the process. However, the value of these works l i e s i n the assistance they provide to pra c t i t i o n e r s , and not i n any contribution to the understanding of causality. Aside from i d e n t i f y i n g these techniques, much of the mediation l i t e r a t u r e has been preoccupied with developing coding systems which can be used to document t h e i r use. Typical of these i s Slaikeu et a l (1985) , where a descr i p t i v e coding system for analyzing the progress of mediations i s presented. This work breaks the mediation process into manageable component stages and strategies to enable an observer to categorize the techniques used by p r a c t i t i o n e r s i n 64 r e a l m e d i a t i o n s . B y d i r e c t o b s e r v a t i o n o r b y r e v i e w i n g t r a n s c r i p t s o r t a p e s o f m e d i a t i o n s , c o d e r s a r e a b l e t o d o c u m e n t t h e u s e o f v a r i o u s t a c t i c s a n d s p e c u l a t e a b o u t t h e i r i m p a c t o n n e g o t i a t i o n s . O t h e r a u t h o r s h a v e c o n s t r u c t e d s i m i l a r i n s t r u m e n t s ( B a l e s , 1 9 5 0 ; Z e c h m e i s t e r a n d D r u c k m a n , 1 9 7 3 ; W a l c o t t a n d H o p m a n n , 1 9 7 5 ; M o r l e y a n d S t e p h e n s o n , 1 9 7 7 ) w i t h s i m i l a r g o a l s a n d r e s u l t s . T h e s e a r e a l s o d e s c r i p t i v e t o o l s ; t h e y m a y e v e n t u a l l y a s s i s t i n t h e a n a l y s i s o f t h e c a u s a l d y n a m i c s o f m e d i a t i o n , b u t f o r t h e m o m e n t , t h e y r e m a i n g u i d e s f o r c a t a l o g u i n g . F. The Value of Analysis 1 . H a s i t a l l b e e n d o n e b e f o r e ? I n l o o k i n g a t t h e l i t e r a t u r e a b o v e i t a p p e a r s t h a t m e d i a t i o n h a s o n l y b e e n e v a l u a t e d a c c o r d i n g t o s o m e i n t e r n a l s e t o f s t a n d a r d s . W h i l e W a l l ( o p . c i t . ) d o e s m o v e a s t e p c l o s e r t o a n a l y z i n g t h e m e d i a t i o n p r o c e s s s e p a r a t e l y f r o m i t s a p p l i c a t i o n s , h e , a g a i n l i k e M o o r e , r e m a i n s i n s i d e t h e m e d i a t i o n p a r a d i g m f o r b o t h h i s e v i d e n c e a n d h i s e x p l a n a t i o n s o f e f f e c t i v e n e s s . T h e a r g u m e n t i s t h a t m e d i a t i o n w o r k s b e c a u s e w e h a v e t h i s c a s e e v i d e n c e o f i t s s u c c e s s . B y e x t e n s i o n , c r e d i t f o r i t s s u c c e s s c a n b e a t r i b u t e d t o a l i s t o f s t r a t e g i e s a n d t a c t i c s b e c a u s e w e h a v e d o c u m e n t a t i o n t h a t i l l u s t r a t e s s u c c e s s f u l m e d i a t i o n f r e q u e n t l y i n c l u d e s t h e s e t a c t i c s a n d s t r a t e g i e s . T h i s n a r r o w r e d u c t i o n i s m r o b s W a l l ' s w o r k o f t h e p o t e n t i a l t o e s t a b l i s h a b r o a d t h e o r e t i c a l b a s e f r o m w h i c h t h e 6 5 whole of mediation could be observed and analyzed. To escape t h i s t a u t o l o g i c a l whirlpool, there i s a need for the process to be analyzed i n terms of independent, and external c r i t e r i a . This thesis w i l l undertake this task. Given that t h i s l i t e r a t u r e represents the bulk of what has been written about mediation, and that there i s a b e l i e f amongst mediation practitioners and analysts that the process i s too p l i a n t to be captured by hypotheses, i s there any chance that a theory adhering to the tenets of s c i e n t i f i c explanation can be proposed? 2. Is mediation a d i s t i n c t form of s o c i a l exchange? There i s ample evidence that bargaining i s considered a form of s o c i a l exchange (Brockner, Rubin and Lang,1 9 8 1 , Benton,1971 , Y u k l , 1 9 7 4 , Deutsch and Krause , 1 9 6 0 , Garland and Brown,1972) . One of the more succinct characterizations i s found i n Thibault and Kelly ( 1 9 5 9 ) . This l i t e r a t u r e defines a series of c r i t e r i a by which s o c i a l exchanges are c l a s s i f i e d . Mediation meets three of these c r i t e r i a . The process i s one of s o c i a l exchange because: both p a r t i e s have expectations, both receive rewards, and both incur costs as they deal with the other party to the dispute and the mediator. However, for the goal of t h i s thesis to be worthwhile, i t must f i r s t be established that mediation i s a d i s t i n c t form of bargaining. The challenge i s to demonstrate that the process has 66 s u f f i c i e n t unique dynamics to support i t s being analyzed outside of the broader bargaining rubric. The simplest way to do t h i s i s to r e f e r back to the d e f i n i t i o n of mediation presented i n Chapter IV. Because the mediator's role i n the negotiation i s c l e a r l y distinguished from that of the disputants, the process can be considered d i s t i n c t from a l l other types of three party exchanges where the interests of the p a r t i e s are separate. The process i s by d e f i n i t i o n unique. In most cases, the mediator acts as a messenger, relaying information i n a neutral fashion. However, at times when she perceives that the progress of the negotiation i s somehow inadequate, she has the option to take a proactive p o s i t i o n (Wall J r . , 1981:162-163). The mediator can do t h i s by c l a r i f y i n g or biasing the information being exchanged i n the negotiation. The former i s accomplished by ensuring that information has been received and i t s intent understood (Burton,1969). If a more i n t r u s i v e intervention i s seen as desirable, he or she may decide to f i l t e r information (Pruitt,1971), or l e t misunderstandings s l i p by (Douglas,1972). It i s clear that i f a t h i r d party has the power to influence the disputants' understanding of information, then exchange as constructed within mediation has some important differences from direct, unmonitored i n t e r a c t i o n . Even when the mediator i s a messenger, he or she i s an intermediary with the 67 p o t e n t i a l to influence the quality and substance of the message that i s received by the p a r t i e s . If we further accept that the introduction of the mediator brings an additional element to the exchange dynamic, then, following from the tenets of s o c i a l exchange, she or he not only influences the interaction of the e x i s t i n g dyad, but also creates two, new exchange relationships. While the mediator's goal may be to attend to the needs and demands of the primary exchange—that between the disputants concerning the d i s t r i b u t i o n of primary reward—she or he becomes involved i n exchange relationships within the e x i s t i n g structure that have costs and rewards of t h e i r own. Those needs and p r i o r i t i e s are not necessarily those of the mediator, but may be those of the process. The r e s u l t i s that, instead of the negotiations being influenced by the demands of two e n t i t i e s , i n mediation, they must become responsive to the demands of four: the two disputants, the mediator operating within the parameters of that role, and the process of mediation with i t s own d i c t a t e s for the structure and s t y l e of exchange. If we add the injunction that none of the four have any a b i l i t y to impose settlement, then i t becomes evident that mediation does represent a quite d i s t i n c t form of exchange. 3. Is mediation a stable process? As has been previously noted, one of the most frequent characterizations of mediation centres around the notion that 68 each mediated s i t u a t i o n i s so unlike the next that i t i s impossible to present the process i n a t h e o r e t i c a l model. The argument suggests that s i t u a t i o n a l and psychological factors override the prerogatives of the intervention. Certainly, the emergence of standardized mediation models i n the past twenty years has gone a long way toward r e f u t i n g the claim that s i t u a t i o n a l factors determine the course of a dispute. It seems obvious that i f the process i s amenable to stage constructions, then i t must incorporate some i d e n t i f i a b l e , l i n e a r progression. Even i f the forms of mediation p r a c t i s e d i n t r i b a l communities and i n i n d u s t r i a l i z e d settings p r i o r to the 1960s were disparate and idiosyncratic, then surely the establishment of widely accepted and u t i l i z e d standards of intervention have removed t h i s objection. The other half of the argument against the p o s s i b i l i t y of developing a broad mediation theory contends that disputants are responsive to i n t e r n a l , psychological influences that are strong enough to overpower any e f f o r t s to manipulate c o n f l i c t behaviour externally (Stuart and Jacobson, 1987:73). The suggestion i s that despite the mediator's s t a b i l i z i n g e f f e c t on the interaction, the effects of the intervention are inconsistent. This inconsistency makes mediation incompatible with s c i e n t i f i c study, so the argument goes, because the influences are themselves mediated by an i n t e r n a l psychological regulator. Simply put, the suggestion i s that every i n d i v i d u a l disputant and every separate c o n f l i c t presents differences of f a c t s a n d d i f f e r e n c e s o f p r o c e s s t h a t a r e c r i t i c a l e n o u g h t o m a k e e a c h i n t e r v e n t i o n u n i q u e , a n d t h u s i n c o m p a r a b l e t o e v e r y o t h e r . E v e n t h e m e d i a t i o n l i t e r a t u r e h a s c o n c e d e d t h a t b e h a v i o u r s a n d p o t e n t i a l i t i e s i n a m e d i a t e d s i t u a t i o n a r e f u n c t i o n s o f t h e e n v i r o n m e n t , t h e c h a r a c t e r i s t i c s o f t h e d i s p u t e , a n d t h e a c t i o n s o f o t h e r s ( K o l b , 1 9 8 3 , C a r n e v a l e a n d P e g n e t t e r , 1 9 8 5 , K o c h a n a n d J i c k , 1 9 7 8 ) . T h e i m p l i c a t i o n i s t h a t t h e s p e c i f i c s o f i n d i v i d u a l m e d i a t i o n s a r e s o c o m p l e x a n d c o n s e q u e n t i a l t h a t c o n t e x t u a l f a c t o r s h a v e t h e c a p a c i t y t o o v e r r i d e t h e i m p a c t o f a n y b r o a d s t r a t e g i e s . T h e m o s t o b v i o u s p r o b l e m w i t h t h e s e c r i t i c i s m s o f e f f o r t s t o c a p t u r e m e d i a t i o n i n a s e t o f h y p o t h e s e s , i s t h a t t h e y a r e i n h e r e n t l y c o n t r a d i c t o r y . W h i l e i t i s n o t n e c e s s a r i l y t h e s a m e p e o p l e d e f e n d i n g b o t h a r g u m e n t s , t h e f a c t t h a t t h e y a r e a t o d d s r a i s e s q u e s t i o n s o f v a l i d i t y . F o r i n s t a n c e , o n e a r g u m e n t s t a t e s t h a t m e d i a t i o n i s t h e o r y r e s i s t a n t b e c a u s e o f t h e u n i q u e n e s s o f t h e i n d i v i d u a l d i s p u t a n t s a n d t h e i r i d i o s y n c r a t i c w a y o f d e a l i n g w i t h t h e n e g o t i a t i o n e n v i r o n m e n t . T h e i m p l i c a t i o n i s t h a t t h e i n d i v i d u a l i s c a p a b l e o f r e s i s t i n g o r i g n o r i n g e c o l o g i c a l f o r c e s . T h e o t h e r s u g g e s t s s o m e t h i n g q u i t e d i f f e r e n t : t h a t t h e i n d i v i d u a l c a n b e o v e r w h e l m e d b y t h e i n f l u e n c e o f t h e m i t i g a t i n g e n v i r o n m e n t a l f a c t o r s . T h u s , i t i s a r g u e d , t h e p r o c e s s o f m e d i a t i o n d e f i e s t h e o r e t i c a l c a p t u r e b e c a u s e i t i s a t t h e w h i m o f s i t u a t i o n a l e l e m e n t s w h i c h c a n o v e r r i d e a t t e m p t s b y a n e u t r a l i n t e r v e n o r t o s t a n d a r d i z e e x c h a n g e o r n e g o t i a t i o n . 7 0 The very incompatibility of these two positions results i n each making the other less creditable. One argues that the si t u a t i o n i s the ultimate determinant of the progress of a negotiation, the other, that the psychological c h a r a c t e r i s t i c s of the i n d i v i d u a l holds sway. Both cannot be true. G. Summary This chapter began with a review of some of the more prominent d e f i n i t i o n s of mediation. It was concluded that while these provided some insight into a p p l i c a t i o n of the process, they did not o f f e r any hint as to how mediation works. The requirement that mediators be neutral and at the same time v i g i l a n t for inequitable settlements was rejected. A new, three-part d e f i n i t i o n was constructed for t h i s t h e s i s . It states that the goal of mediation i s to a s s i s t the partie s i n developing a dispute settlement of t h e i r own design. That the mediator (M) uses negotiations between him or herself and each party (A & B) to control the negotiations between the pa r t i e s : (M<-->A, M<-->B) . And f i n a l l y , that the dynamic of mediation i s comprised of a three-way exchange of sentiment and a c t i v i t y : (A<-->B, M<-->A, M<-->B). We reviewed several of models of mediation applic a t i o n . It was suggested that while a l l the basics of intervention are included i n Kessler's four stage version, i t has been refined over the years to the point where four stages have now become twelve i n Christopher Moore's comprehensive model. For t h i s 71 reason, Moore's adaptation w i l l be used i n our l a t e r a n a l y t i c a l section. Next we considered several issues concerning the v a l i d i t y of t h i s t h e s i s . We asked i f the existing mediation l i t e r a t u r e d i d not adequately deal with the questions raised here. It was argued that because the focus of the l i t e r a t u r e i s on structure and techniques of intervention i t offered no t h e o r e t i c a l base from which the process might be analyzed. There i s scant material on why mediation works. We asked i f i t was possible for mediation to be explained by s o c i a l theory. It was argued that while case studies and applications of psychological paradigms had f a i l e d to capture the dynamics of the process, this did not mean that i t was beyond analysis. Rather, exchange theory offers a revealing viewpoint from which to consider mediation. We asked i f mediation could be considered a d i s t i n c t form of s o c i a l exchange, and thereby j u s t i f y i t s being analyzed separately. It was argued that because the mediator's r o l e has s p e c i f i c parameters, mediation i s not l i k e other forms of three party exchange. F i n a l l y , we asked i f mediation could be considered a stable process, or whether, as much of the l i t e r a t u r e suggests, i t i s susceptible to the whims of s i t u a t i o n a l or personality factors. It was argued that the p r o l i f e r a t i o n of stage models of mediation i s an indicati o n that the process have a predictable 72 course. Further, i t i s the task of this thesis to demonstrate that mediation does indeed have a core dynamic which can be understood using the tenets of exchange theory; that, i n t h i s sense, mediation i s a stable process. In the next chapter we w i l l analyze Moore's twelve stage model to argue that the process of mediation i s c o n t r o l l e d by and i t s e f f i c a c y determined by the quality of the exchange rel a t i o n s h i p s e x i s t i n g between the mediator and each of the disputants. 73 CHAPTER V ANALYSIS A. Introduction To t h i s point we have looked at portions of the exchange theory and negotiation l i t e r a t u r e , and drawn some conclusions about how humans interact when tr y i n g to obtain resources from one another. In Chapter IV we reviewed some of the stage models of mediation, and concluded that, because of t h e i r wide acceptance and a p p l i c a t i o n these could be used as representations of a t y p i c a l mediation process. This chapter w i l l begin by arguing that the dynamics of the mediation process are captured by Exchange Theory. We w i l l then argue that the s p e c i f i c s of the exchange involve the transfer of sentiment from the mediator for a c t i v i t y by the disputants. B. Mediation and Exchange Exchange Theory i n i d i c a t e s that parties w i l l enter into an exchange relationship only i f they preceive the po t e n t i a l for p r o f i t (reward > cost). Using t h i s rule, we can surmise that the parties to a dispute w i l l only allow a mediator to become involved i f they anticipate a p r o f i t for themselves from her involvement. 74 By approving the mediator's intervention, the parties are esta b l i s h i n g her as a salient audience to t h e i r negotiations. As such, she becomes a source of valued opinion. The mediator expresses t h i s opinion as comment on the a c t i v i t i e s of the par t i e s during negotiations. Because the mediator's opinion i s valued, she has the a b i l i t y to influence the a c t i v i t i e s of the p a r t i e s . The mediator engages i n an exchange relationship with each party wherein she provides expected rewards of opinion i n exchange for t h e i r compliance with the rules of mediation. The mediator encourages cooperative or c o n c i l i a t o r y behaviour from the disputants by adjusting the tone of her opinions along a continuum from very p o s i t i v e to very negative. She provides praise (reward) for concession or compromise, and censure (cost) for competativeness or h o s t i l i t y . If the mediator's status as a source of valued opinions for the parties i s sustained or possibly enhanced by intermediate successes attributable to mediation, the exchange relationships w i l l be continued, and the mediator w i l l r e t a i n her capacity to influence the course of the negotiations. Ideally, the consequence of these exchanges i s that the negotiations between the parties advances through the mediation paradigm from issue i d e n t i f i c a t i o n to f i n a l settlement. 75 C. The Role of Sentiment We have just claimed that the basis of the mediator/disputant relationship i s an exchange of opinion for a c t i v i t y . This argument incorporates the p o s i t i o n — p r e v i o u s l y e s t a b l i s h e d — t h a t the rewards and costs traded i n an exchange re l a t i o n s h i p need not be material. It w i l l be argued here that the s p e c i f i c r o l e of sentiment provided by the mediator i s twofold: to serve as a reward for a c t i v i t i e s which had previously imposed only cost, and to serve as a cost for a c t i v i t e s which had previously offered only reward. We can place a c t i v i t i e s demonstrating cooperation and c o n c i l i a t i o n i n the f i r s t category. The l i t e r a t u r e has indicated that these a c t i v i t i e s are l i k e l y to be seen as signs of weakness by one's opponent—a cost. However, these costs can be displaced by or perhaps even eliminated by the mediator's praise or reassurance that they are p o s i t i v e contributions toward agreement--a reward. A c t i v i t i e s f a l l i n g into the second category would include h o s t i l i t y and aggression. Previously, these could have promised intimidation or power advantage—a reward. However, with the mediator present, the these formerly cost-free rewards now carry a p o t e n t i a l for e l i c i t i n g negative regard—a cost. As a r e s u l t of the introduction of the mediator's sentiments, the disputants c a l c u l a t i o n of reward and cost now present a d i f f e r e n t p r o f i t or loss p o t e n t i a l . 76 We can now move on to an analysis of the mediation process to i l l u s t r a t e how the introduction of a mediator influences the course of a dispute. D. The Analysis This section w i l l i l l u s t r a t e how mediation uses negotiated exchange of sentiment and a c t i v i t y between the mediator and each of the disputants to accomplish i t s goals. We w i l l maintain that the parties provide the mediator with i m p l i c i t authority to evaluate th e i r negotiation behaviour when they accept her as a sali e n t audience to t h e i r dispute. It w i l l be further demonstrated that this potential for p o s i t i v e and negative evaluation i s at the core of the mediator's a b i l i t y to influence the course of a negotiation. The analysis w i l l involve examining each of Christopher Moore's (1986) twelve stages i n d i v i d u a l l y to i l l u s t r a t e how the mediation process i s designed to accomplish several goals. The f i r s t i s to es t a b l i s h the mediator's role as an accepted audience to the negotiations. The second i s to structure the negotiations • such that the mediator i s given the opportunity authority to respond to the behaviours of the disputants. The analysis w i l l further seek to i l l u s t r a t e how the mediator uses his or her potential as a valued source of reward and punishment to control the form and content of the negotiation. 77 The f i r s t of Moore's stages, "Mediator entry", focuses on the need to e l i c i t unanimous support for the mediator's intervention. 1. Stage One: Mediator entry The goals of t h i s stage are to i n i t i a t e the process of mediation and to gain unanimous support from the disputants for the intervention. The mediator uses t h i s i n i t i a l i n t e r a c t i o n to e s t a b l i s h an standard of voluntary exchange. She confirms that the disputants understand t h e i r right to accept or r e j e c t her intervention, and to withdraw—either by dismissing her or withholding t h e i r cooperation--at any time. Acceptance of the mediator during t h i s preliminary exchange establishes her as a s a l i e n t audience with a l l the p o t e n t i a l attached to that r o l e . Having vested the mediator with control over a commodity which they value--sentiment i n the form of p o s i t i v e or negative evaluation, the parties have created a double-edged sword which can then be used to influence t h e i r behaviours. This process adds an additional element to t h e i r cost/benefit equations. Now, not only do they have t h e i r o r i g i n a l goals to address, they must also calculate i n the rewards and punishments which may be attached to t h e i r behaviours by the mediator. The importance of unanimous support for the mediator's intervention i s clear. Both parties must acknowledge the value 78 of the mediator's sentiment i n order for i t to be included i n t h e i r c a l c u l a t i o n of p r o f i t from the negotiation. The purpose of th i s e f f o r t i s to prepare the parti e s to e x p l i c i t l y l e g i t i m i z e the mediator's authority at a l a t e r stage. Because mediation, by d e f i n i t i o n , embodies no i m p l i c i t power, t h i s i s e s s e n t i a l . To understand t h i s requirement, we must acknowledge that the mediator and the parties negotiate to decide whether or not the intervention w i l l be accepted. At the heart of t h i s voluntary i n t e r a c t i o n i s the evaluations made by the parti e s about the costs and benefits of allowing the intervention. We concluded e a r l i e r that mediation i s a product of f a i l e d negotiation. The process i s an a l t e r n a t i v e form of dispute resolution that i s considered when the parti e s recognize that they are unable or unwilling to achieve a settlement on t h e i r own. It i s important to es t a b l i s h why e n l i s t i n g the aide of a mediator cannot simply be motivated by the p a r t i e s ' desire to resolve t h e i r differences. If resolution i s the only consideration for the parties, then they do not need a mediator. I f resolution i s the prime objective, then a l l that i s needed i s for one of the parti e s to concede. It follows then that, i f a negotiation has reached such an unproductive state that the parties f e e l they cannot resolve t h e i r differences without outside help, they have personal objectives which outweigh the need for agreement. 79 By considering mediation, the parties i n d i c a t e that they are motivated to s e t t l e the dispute... but not at any cost. Based on Exchange Theory, we can conclude that the mediator i s i n v i t e d to p a r t i c i p a t e i n the negotiations only i f each party perceive her as having the potential to a s s i s t them i n achieving t h e i r objectives. In summary, the f i r s t stage establishes the voluntary nature of mediation, and i n s t a l l s the mediator as a s a l i e n t audience with the perceived a b i l i t y to a s s i s t each party to achieve t h e i r personal goals. 2. Stage Two: Approach and arena In the second stage the mediator introduces the parties to the rules of the mediation process, and a venue f o r the process i s selected. In s t i p u l a t i n g the conditions for venue s e l e c t i o n the mediator emphasises the need for a location which w i l l not provide u n f a i r advantage to either party. This serves to re a f f i r m her non-threatening status, and reassures the part i e s that her intervention w i l l not prejudice t h e i r chances of achieving t h e i r i n i t i a l objectives. Introduction to the rules and structure of mediation serves two purposes. F i r s t , i t f a m i l i a r i z e s the p a r t i e s with the process so that they have an understanding of what i s to come. Further, i t o f f e r s evidence that mediation i s a simple process employing a clear formula for leading the disputants toward a reso l u t i o n of t h e i r differences. 80 Secondly, this introduction presents an opportunity for the mediator to gain an e x p l i c i t commitment from the p a r t i e s to the process. The mediator w i l l ensure that both disputants acknowledge t h e i r understanding of the step by step structure of mediation, and, even more important, what i s expected of them i n r e l a t i o n to the successful completion of those steps. In doing t h i s , the mediator i s creating a set of expectations which the parties acknowledge. This provides str a i g h t forward c r i t e r i a which the mediator can use to evaluate some of the disputant's behaviours during the upcoming negotiation. The value of this careful introduction w i l l become clear l a t e r i n t h i s analysis. In summary, Stage Two reinforces the mediator's non-threatening status, and set a standard of behaviour f o r the p a r t i e s to follow. 3 . Stage Three: Collect data In stage three, the mediator provides the p a r t i e s with an opportunity to t e l l her their side of the story. The use of separate meetings allows the mediator to react to the information and presentations of each party i n an uninhibited way. Under these circumstances each party can o f f e r t h e i r opinion of events without having to be concerned that they w i l l be contradicted or provide t h e i r opponent with valuable information. 81 The mediator i s able to l i s t e n sympathetically to both sides without r i s k of creating an impression of favouring either. She i s able to respond to the information provided without having to consider the impact of that response on the other party. This arrangement also allows the mediator to exercise her prerogative as an audience. She can reward--offer p o s i t i v e s e n t i m e n t — i f a presentation i s calm and reasonable. On the other hand, i f the presentation by one party i s overly h o s t i l e and strays from the issues, the mediator can punish--impose cost i n the form of negative feedback. In either case, these separate meetings provide the mediator with an opportunity to demonstrate her p o t e n t i a l as a s a l i e n t referent without being concerned about whether the evaluation i s a s s i s t i n g or hurting the party's a b i l i t y to achieve t h e i r o r i g i n a l goals. In summary, this stage provides the pa r t i e s with a safe environment i n which to present t h e i r case. It also enables the mediator to exercise her evaluative capacity with minimum cost to e i t h e r party. 4. Stage Four: Plan design In Stage Four, the mediator consider the information--both e x p l i c i t and i m p l i c i t — t h a t the disputants have provided her i n Stage Three. She evaluates the p r i o r i t i e s of the si t u a t i o n , and integrates them with the p r i o r i t i e s of the mediation process. She t r i e s to answer the question of how mediation can best meet 82 the needs of the case. Based on these factors, she creates a plan for applying the process to the circumstances. In addition, at thi s point the mediator develops an agenda for the negotiations between the pa r t i e s . Because this stage i s ca r r i e d out by the mediator alone, not i n the presence of either party, i t does not require any p a r t i c u l a r analysis other than to acknowledge i t s s t r a t e g i c value to the mediation process. The better the plan i s able to integrate the needs of the parties with the requirements of the process, the better the chance for successful mediation. 5. Stage Five: C o n c i l i a t i o n In Stage Five, the mediator makes her preliminary attempts at i n s t a l l i n g c o n c i l i a t i o n as the tone of the negotiations. By pointing to areas of agreement and common int e r e s t , she i s establishing precedents and motivations for c o n c i l i a t o r y behaviour. This i s l i k e l y the f i r s t time a l l three p a r t i e s to the mediation are i n the same room together. This i s an opportunity for the mediator to test the groundwork she has l a i d i n previous stages. The mediator presents a summary of her perception of apparent shared goals and of areas of e x i s t i n g or p o t e n t i a l agreement. She then asks the parties to respond to her summary by addressing each other rather than h e r s e l f . This i s considered a safe way to ease into the mediation 83 process because of the deliberate exclusion of particularly-contentious matters. As a result there i s less chance that the parties w i l l become involved i n h o s t i l e exchanges. By monitoring t h i s interaction, the mediator i s able to r e i t e r a t e the rules of the process i n a r e l a t i v e l y calm environment. At the same time, she can evaluate the p a r t i e s ' commitment to mediation. If they are unable to r e f r a i n from attacking each other at t h i s stage, then i t i s doubtful that they w i l l be able to stay within the mediation guidelines l a t e r i n the process. This stage also represent the f i r s t time the mediator i s required to reward or punish the behaviours of the disputants i n front of each other. This i s a c r i t i c a l test of her a b i l i t y to control the negotiation process. If she i s unable to gain the pa r t i e s ' cooperation here, then she i s u n l i k e l y to be able to influence t h e i r actions when the debate heats up. On the other hand, i f she i s able to have the disputants abide by the rules of the mediation process here, then she i s establishing her authority. If the mediator i s successful i n getting the part i e s to recognize and acknowledge t h e i r common int e r e s t s , and to confirm that some agreement exists, then she has created a precedent which can impact on the balance of the negotiation. In summary, thi s stage o f f e r s the mediator an opportunity to test her influence i n a r e l a t i v e l y cooperative environment. It also enables the parties to e s t a b l i s h a precedent for 84 c o n c i l i a t o r y i n t e r a c t i o n . 6 . S t a g e S i x : B e g i n n e g o t i a t i o n s T h i s i s t h e s t a g e a t w h i c h t h e a c t u a l n e g o t i a t i o n o f i s s u e s b e g i n s . A l l o f t h e s t a g e s h a v e s e r v e d t o p r e p a r e f o r t h i s p o i n t . M o o r e d e f i n e s t h i s a s a s e p a r a t e s t a g e b e c a u s e i t r e p r e s e n t s a s i g n i f i c a n t j u n c t u r e i n t h e m e d i a t i o n p r o c e s s m a r k i n g t h e e n d o f t h e p r e p a r a t o r y s t a g e s a n d t h e b e g i n n i n g o f d i s p u t e r e s o l u t i o n . I n f a c t , i t i s n o t h i n g m o r e t h a n c h a n g e i n c o n t e n t o f i n t e r a c t i o n f r o m t h e p r e v i o u s s t a g e . F o r t h i s r e a s o n , n o a n a l y s i s i s n e c e s s a r y . 7. S t a g e S e v e n : I s s u e s a n d a g e n d a T h e a c t u a l n e g o t i a t i o n o f i s s u e s i n d i s p u t e b e g i n s w i t h t h e m e d i a t o r e n c o u r a g i n g t h e p a r t i e s t o d e f i n e t h e p o i n t s o f c o n t e n t i o n , a n d t o f o r m a l l y a c c e p t a n a g e n d a f o r d e a l i n g w i t h t h e m . T h i s i s t h e s t a g e w h e r e a l l o f t h e m e d i a t o r ' s p r e p a r a t i o n a n d s k i l l s w i l l b e t e s t e d . U n l i k e t h e p r e v i o u s s e s s i o n s w h e r e t h e p a r t i e s p r e s e n t e d t h e i r v i e w s s o l e l y t o t h e m e d i a t o r , o r w h e r e n o n - c o n t e n t i o u s o r m i l d l y c o n t e n t i o u s i s s u e s w e r e a d d r e s s e d , t h i s s t a g e i n v o l v e s m a t t e r s a t t h e h e a r t o f t h e d i s p u t e . F o r t h a t r e a s o n , i t r e p r e s e n t s t h e f i r s t m a j o r c h a l l e n g e f o r t h e m e d i a t o r ' s a u t h o r i t y . I n d i s c u s s i n g t h e s e m a i n i s s u e s i t i s p r o b a b l e t h a t t h e h o s t i l i t i e s w h i c h c a u s e d n e g o t i a t i o n s t o f a i l i n t h e f i r s t p l a c e w i l l r e s u r f a c e . T h e m e d i a t o r i s l i k e l y t o f a c e a g g r e s s i o n a n d 85 r e c a l c i t r a n c e as the parties revert to t h e i r previous s t y l e of i n t e r a c t i o n . Her a b i l i t y to bring these outbursts under control depends of how well she has been able to e s t a b l i s h h e r s e l f as a s a l i e n t , non-threatening audience i n previous stages. By d e f i n i t i o n , the mediator i s an audience, and as such she has the p o t e n t i a l to provide evaluation reward and punishment based on the behaviours of the p a r t i e s . Her status as a non-threatening participant was established by the disputants during t h e i r deliberations a to whether or not to allow her access to the negotiations. Her task at this preliminary stage of d i r e c t negotiations between the parties i s to gain control of the i n t e r a c t i o n by discouraging any aggression without endangering her status as a non-threatening intervenor. She i s able to accomplish t h i s by reminding the parties of t h e i r commitment to abide by the rules of mediation. In t h i s manner she i s able to pose the threat of negative evaluation without appearing to have made a biased judgement on the behaviour of the disputant herself. The rules e x p l i c i t l y p r o h i b i t h o s t i l e behaviour, the party i s being h o s t i l e , therefore, the c r i t i c i s m i s j u s t i f i e d . The conclusion l a i d open to the offending party i s that he the negative assessment i s a product of h i s breaking a promise rather than as a product of the behaviour i t s e l f . 86 On the other side of the coin, the mediator i s able to reinforce p o s i t i v e actions such as cooperation by confirming that the party i s abiding by the rules of the process, i . e . , conforming to the requirements of mediation and thus keeping his word. This assigning of additional punishments and rewards to the behaviours of the parties changes t h e i r cost/benefit equations. If the value of the rewards and punishments i s s u f f i c i e n t l y high, these new factors can make the difference between an action providing a p r o f i t or imposing a l o s s . In summary, the goal for the mediator at t h i s i n i t i a l stage of d i r e c t negotiations i s to e s t a b l i s h her authority i n a h o s t i l e environment without making the conditions so unbearable for the disputants that they reject continued mediation. 8. Stage Eight: Explore issues In t h i s stage, the mediator encourages the p a r t i e s to confirm each others' understanding of the issues. Through a process of uninterrupted exposition and feedback the disputants work together to develop a mutually acceptable statement of the issues i n dispute. Once t h i s has been accomplished, these issues are explored to determine cause and circumstances. The role of the mediator at t h i s point i s to provide reinforcement for the reciprocal actions of the p a r t i e s as they negotiate the form and content of the issue l i s t . There i s good opportunity for c o n c i l i a t i o n and compromise here. 87 However, we must remember that the negotiation l i t e r a t u r e cautions that any acquiescence to the suggestion of an opponent i s l i k e l y to be perceived as a sign of weakness by both the re c i p i e n t and the provider of the concession. As a r e s u l t , any perceived reward that i s the product of a concession must be large enough to overcome the cost inherent i n making that concession i n the f i r s t place. Again, the mediator, i n the r o l e of evaluator i s i n a p o s i t i o n to a l t e r the components and the values i n the p a r t i e s cost/benefit calculations of p r o f i t or loss accrued from an action. By making a p o s i t i v e evaluation of the c o n c i l i a t o r y behaviour and attaching a reward i n the form of p o s i t i v e regard to that behaviour, the mediator enhances the value of the benefits received by the party o f f e r i n g the concession. If that p o s i t i v e regard i s s u f f i c i e n t l y valued by the party, t h i s provision may be enough to outweigh the anticipated costs associated with the concession. This exchange—of sentiment provided by the mediator for a c t i v i t y provided by the party-- i s also at the core of the mediator's a b i l i t y to control the climate of t h i s stage. It i s quite possible that a f t e r the opening dialogue, the parties w i l l revert to t h e i r former combative positions when the discussion of issues takes place. Using the same strategy of rewarding compliance with the rules of mediation and punishing deviation from those rules, the mediator i s able to influence the p a r t i e s ' calculations of p r o f i t and/or los s . 88 For instance, i n their pre-mediation negotiations, i t i s l i k e l y that both parties were able to r e a l i z e p r o f i t from aggression. Perhaps not i n the form of material gain, but c e r t a i n l y i n some form of psychological g r a t i f i c a t i o n for attacking t h e i r opponent. However, with the intervention of the mediator, that aggression now has a new cost attached to i t -negative evaluation from the mediator. It i s important to r e i t e r a t e that the negative regard imposed on the aggressor by the mediator must be perceived as punishment for reneging on a promise to abide by the rules of the process and not as condemnation for the behaviour i t s e l f . In t h i s way, the mediator maintains her non-threatening status by being perceived as evaluating compliance with the d i c t a t e s of the • process, and not as expressing personal approval or disapproval of the behaviour i t s e l f . By weighting the costs and rewards associated with behaviours within the negotiation, the mediator i s able to control the climate of the exchanges. She i s able to encourage the p a r t i e s to comply with the rules of mediation which stimulate cooperation by banning aggression. In summary, the mediator uses th i s stage to promote cooperative, reciprocal actions between the p a r t i e s i n i d e n t i f y i n g and exploring the issues i n contention. The mediator uses her p o s i t i o n as the source of valued regard to influence the behaviours of the parties such that aggression i s discouraged and c o n c i l i a t i o n i s encouraged. 89 9. Stage Nine: Alternatives This stage serves to generate possible a l t e r n a t i v e solutions to the dispute. It incorporates brainstorming and other strategies to enable the parties to put any and a l l suggestions on the table without fear of out-of-hand r e j e c t i o n , and without fear of having t h e i r receptiveness to those suggestions being interpreted as weakness or acquiescence. As with the previous stages, the r o l e for the mediator here i s to monitor and control the negotiation as much as i s needed to keep i t within the mediation structure, and focused on the i d e n t i f i e d issues. By t h i s point i n the mediation, the exchange re l a t i o n s h i p between the mediator and the parties needs to be well established. Further, the negotiations need to have produced s u f f i c i e n t p o s i t i v e returns for the parties that the l e v e l of h o s t i l i t y which dominated the inter-party exchanges at the beginning of the mediation has now subsided. This i s necessary because the effectiveness of the mediator c o n t r o l l e d sentiment as motivators for the pa r t i e s i s probably reduced. The mediator's status as a s a l i e n t referent was o r i g i n a l l y based simply on her being an audience. It i s to be expected that by this stage i n the negotiations the influence associated with that position w i l l have waned. We can explain t h i s phenomenon as a case of diminishing marginal u t i l i t y . As a consequence, the mediator's status needs to have been enhanced by some other c r i t e r i a i n order for her to maintain 90 her authority over the negotiation process. That addi t i o n a l status i s most l i k e l y to be grounded i n the success mediation has had i n a s s i s t i n g the parties to achieve t h e i r personal objectives. If the negotiation i s perceived by the p a r t i e s as having been worthwhile i n bringing resolution closer, then the mediator w i l l be given c r e d i t for the success of the process. That a t t r i b u t i o n confirms the mediator's position as a competent professional, and w i l l provide her with some degree of enhanced status. If, on the other hand, mediation has had l i t t l e or no impact on the dispute, then i t i s doubtful that the diminishing influence associated with the mediator's audience status w i l l be supplemented. The importance of t h i s supplemented status i s amplified by the fact that the parties are l i k e l y to have formed an opinion of the mediation process as a whole by t h i s stage. Again, i f i t i s perceived as having served them well t h e i r evaluations of the process w i l l be p o s i t i v e . If not, the opposite opinion w i l l hold sway. However, regardless of which opinion they have, by t h i s stage i n the mediation, i t w i l l probably be t h i s evaluation and not t h e i r o r i g i n a l commitment that w i l l induce them to comply with or reject the rules. For t h i s reason, the mediator can now evaluate the p a r t i e s ' behaviours based purely on th e i r conformity to the rules of the mediation process. If the disputants view the process as 91 an e f f e c t i v e means of reso lv ing di f ferences , then they w i l l respond to these evaluations by a l i g n i n g t h e i r act ions with the requirements of mediation. I f they view mediation as i n e f f e c t i v e , then they may ignore or contravene the ru le s of the process, and the mediator, whose status has not been re in forced under these circumstances w i l l be unable to motivate compliance. When the mediator's inf luence i s re in forced , she i s able to continue to inf luence the negot iat ion process . In t h i s stage, that inf luence i s appl ied to keeping the par t i e s focused on the generation of poss ib le so lut ions , and discouraging any demonstrations of v e s t i g i a l h o s t i l i t y . Again, she accomplishes th i s through an exchange of p o s i t i v e feedback for construct ive a c t i v i t i e s by each party , and c r i t i c i s m for des truc t ive ones. In summary, th i s stage provides the disputants with the opportunity to develop a l i s t of a l ternate settlements to t h e i r d ispute . The exchange r e l a t i o n s h i p between the mediator and the p a r t i e s enters a new stage. The mediator uses her status as an e f f ec t i ve pro fe s s iona l , a product of successes e a r l i e r i n the process, to maintain task focus and a construct ive c l imate by engaging i n an exchange of s en t iment - for -ac t iv i ty with the p a r t i e s . 10. Stage Ten: Assessing the Options In th i s stage the p a r t i e s , under the watchful eye of the mediator, examine the l i s t of poss ib le settlements and evaluate each a l t e r n a t i v e for i t s a b i l i t y to meet t h e i r i n d i v i d u a l needs. 92 This i s the most c r i t i c a l stage i n the negotiations. Even i f the parties, under the watchful eye of the mediator, have been able to define the issues and generate a large number of settlement options, the success of mediation i s not assured. The disputants must now demonstrate a willingness to make s i g n i f i c a n t movement from t h e i r e a r l i e r positions, otherwise, the mediation w i l l f a i l . We can assume that the mediation would not have reached t h i s stage unless both parties have demonstrated some willingness to cooperate before now. However, we need to recognize that there i s a much larger degree of concession being asked for here. Rather than simply allowing the opponent to say t h e i r piece, or agreeing on matters to be discussed, the p a r t i e s are entering a stage of the negotiations where they w i l l be asked to assume s i g n i f i c a n t costs. On top of that daunting requirement, the p a r t i e s are aware of the additional costs inherent i n making concessions. We can deal with t h i s second issue f i r s t . To t h i s point i n the negotiations, because of the minor nature of the concessions made, the p o t e n t i a l for loss of face has been minimal. This can be attributed, at least i n part, to the fact that these concessions have not asked e i t h e r party to renege on a previously stated p o s i t i o n . Consequently, the degree of loss of face incurred at t h i s stage i s l i k e l y to be perceived as i n s i g n i f i c a n t . As a result, the mediators o f f e r of reward i n 93 the form of praise for the c o n c i l i a t o r y behaviour has been s u f f i c i e n t to outweigh the perceived cost to the p a r t i e s . Now, however, any cooperation by the p a r t i e s which requires them to change t h e i r o r i g i n a l demands w i l l c e r t a i n l y involve a s i g n i f i c a n t change i n t h e i r p u b l i c l y stated po s i t i o n s . The l i t e r a t u r e indicates that the party making the concession i s l i k e l y to anticipate that his acquiescence w i l l be seen as a sign of weakness by the other at the negotiation table. The cooperative behaviour has the potential to impose s i g n i f i c a n t cost to face. The mediator's role enters a new phase with the introduction of face as a c r i t i c a l factor i n the negotiations. It i s doubtful that the mediator's promise of p o s i t i v e regard i n the form of praise i s s u f f i c i e n t l y valuable to the p a r t i e s to overcome t h e i r need to protect face. The mediator must, therefore, f i n d a another strategy to deal with t h i s impediment to resolution. Rather than trying to overcome the cost of concessions, she uses t a c t i c s such as reframing to ameliorate the cost. The cost imposed by concession i n t h i s stage i s a function of the concession being a response to a suggestion or need of the opponent. By reframing statements and assuming authorship of suggestions, the mediator provides the parties with an opportunity to be cooperative without being seen as knuckling under to an opponent. This process reestablishes the previous 94 circumstances where both parties have been able to make numerous concessions to the mediator without a s i g n i f i c a n t loss of face. In t h i s manner, the mediator i s able to e l i c i t c o n c i l i a t o r y behaviours from the parties which would be impossible without her presence. She accomplishes t h i s by reducing the cost associated with a p a r t i c u l a r cooperative action to the point where that cost can be compensated for by her pot e n t i a l to o f f e r p o s i t i v e sentiment. Because some concessions now provide some reward rather than imposing a cost, we can assume that the part i e s are now able to make adjustments to t h e i r positions which were previously impossible. It i s possible that a concession which was previously perceived as imposing a loss (the cost of the concession i t s e l f + major cost to face - reward from the mediator . = loss) w i l l now o f f e r a potential for p r o f i t (the cost of the concession i t s e l f + minor cost to face - reward from the mediator = p r o f i t ) . It i s important to keep i n mind here that some concessions w i l l always be too large for the pa r t i e s to consider, regardless of the praise proffered by the mediator. However, t h i s would not be the case regardless of the circumstances of the dispute. What mediation offers i s the potential to achieve the achievable. During t h i s stage there i s a continuing requirement that the mediator monitor and maintain control of the climate of the negotiations. As before, she provides the disputants with 95 rewards and punishments dependent upon t h e i r compliance with the rules of the process. In summary, t h i s stage sees the parties assessing settlement options and negotiating for concessions from each other. The mediator serves as a surrogate source of suggestions to mitigate the potential loss of face imposed by u n i l a t e r a l concessions by the pa r t i e s . As before, the mediator continues her exchange re l a t i o n s h i p with the parties, o f f e r i n g praise and imposing punishment i n the form of sentiment, depending on the disputants' compliance with the rules of the process. 11. Stage Eleven; F i n a l bargaining This stage reviews the general components of the agreement reached i n the previous stage, and c l a r i f i e s the d e t a i l s of the proposed settlement. The task i s to ensure that a l l issues have been addressed, that the parties share a common understanding of the agreement, and that both are s a t i s f i e d with the outcome of t h e i r negotiation. We can safely assume that i n most disputes, even a f t e r the major issues have been resolved, some smaller points of contention may remain. It i s the mediator's r e s p o n s i b i l i t y at th i s stage to decide how far back along the mediation model the partie s w i l l have to go to s e t t l e these remaining matters. If the dispute over these items i s small and the mood remains c o n c i l i a t o r y , then the mediator may decide that c l a r i f y i n g the issues and brainstorming are not necessary, and that a solution can be found i n simple face-to-face discussion between the p a r t i e s . On the other hand, an unforseen contingency-may cause latent h o s t i l i t y to reappear and threaten the c a r e f u l l y developed climate of cooperation. In eit h e r case, the mediator needs to remain v i g i l a n t for digressions from the rules or agenda of the mediation plan. The process for resolving these matters would mirror the i n i t i a l mediation i n a number of aspects, but on a smaller scale. As i n previous stages, the mediator would r e l y on her status as a s a l i e n t audience and as an e f f e c t i v e dispute r e s o l u t i o n p r o f e s s i o na l to maintain control of the s i t u a t i o n . However, there i s now a new factor which can prove just as important i n motivating the parties to be cooperative at t h i s stage. I f the parties were to get into an exchange of aggressions now, they would r i s k destroying the settlement already achieved on major issues. An awareness of t h i s potential w i l l serve to temper the actions of the disputants during negotiations over the fine points. Nonetheless, there i s a p o s s i b i l i t y that disagreement over a seemingly i n s i g n i f i c a n t point could lead to escalating h o s t i l i t y and eventually to a destruction of the settlement created i n the previous stage. If the existing settlement i s not s u f f i c i e n t to motivate the p a r t i e s to be conciliatory, then the mediator reassumes her r o l e as active intervenor, and, using the exchange relationships she has previously developed with the p a r t i e s , she once again 97 o f f e r s the promise of posi t i v e regard and the threat of negative regard i n exchange for the behaviours of the disputants. In summary, thi s stage i s for cleaning up the d e t a i l s of the settlement a f t e r the main issues have been resolved. The mediator may p a r t i c i p a t e merely as an observer audience, or, i f he negotiations take a negative turn, she can intervene. Both the form and the s t y l e of her intervention w i l l mirror the structure of mediation at e a r l i e r stages i n the process. When t h i s stage i s complete the f i n a l agreement w i l l be i n hand. 12. Stage Twelve: Followup In t h i s stage, the settlement i s formalized, implemented, and monitored. This serves to ensure that a c l e a r statement of the d e t a i l s of the agreement i s available, and that i t i s i n place. It further serves to provide a mechanism fo r keeping track of the effects of the agreement. This can be invaluable i f the agreement results i n unforseen problems, and adjustments are necessary. This stage i s not part of the dispute r e s o l u t i o n process. It i s included i n the mediation model to help apply and maintain the agreement created i n negotiation. As such, i t i s not relevant to the theme of th i s thesis that mediation uses negotiated exchange between the mediator and the p a r t i e s to influence the course of a dispute. Because the events of t h i s stage take place a f t e r the settlement has been achieved, they w i l l not be analyzed here. 98 E. Summary This chapter offered evidence that mediation i s a process which r e l i e s on the mediator's a b i l i t y to gain voluntary acceptance from the parties that she become a s a l i e n t audience to t h e i r dispute. Further, that as an audience, the mediator has a po t e n t i a l to evaluate the behaviours of the disputants. The perceived worth of th i s evaluation by the parties determines the extent of the mediator's a b i l i t y to influence the negotiations. The mediator engages i n an exchange r e l a t i o n s h i p with each party where she offers p o s i t i v e evaluations for desired behaviours. However, her influence i s subject to the e f f e c t s of diminishing marginal u t i l i t y , and unless the mediator i s able to supplement her status with a demonstrated capacity to achieve r e s u l t s at an early stage of the process, the value of her o f f e r i s reduced. The success of mediation i s determined by the mediator's s k i l l i n maintaining the value of her evaluations, and sustaining exchange r e l a t i o n s h i p with both disputants. 99 CHAPTER VI COMMENTS AND RECOMMENDATIONS A. Comments This thesis has, for reasons of s i m p l i c i t y , considered only one form of dispute i n i t s analysis: a d i r e c t confrontation between two disputants. We recognize, of course, that there i s a whole range of disputes which present s p e c i f i c problems not touched upon, presented here. The following i s an attempt to address some of the issues which ari s e i n tr y i n g to apply the argument of t h i s thesis to other types of dispute. If we consider a dispute where the issues are so c r i t i c a l to the parti e s involved that they are w i l l i n g to endure s i g n i f i c a n t loss of public image to achieve t h e i r goals, then we might expect that the mediator w i l l have no a b i l i t y to influence the negotiation. We could imagine a c h i l d custody case where both parents f e e l that relinquishing control to the other would re s u l t i n serious consequences for the child' s safety. In t h i s s i t u a t i o n , the mediator w i l l be unable to motivate either party to forgo t h e i r claim simply by threatening negative appraisal of behaviour. However, to the degree that a solutio n to the dispute exists, i t can be argued that the mediator w i l l be able to influence the parents to explore a l l possible options using the sentiment-for-behaviour paradigm. If we accept that t h i s i s a constructive step with the pot e n t i a l to reveal areas of possible agreement which might have 100 otherwise gone unnoticed, then we can argue that the mediator i s able to increase the pr o b a b i l i t y of agreement between the p a r t i e s . This i s a valuable contribution even i f , i n the long run, the dispute remains unresolved. The mediator's a b i l i t y to influence settlement of a dispute simply by approving or disapproving of behaviour can also be questioned i n situations where the negotiators are representing a larger constituency. Here, we can expect that the negotiators w i l l c e r t a i n l y be more susceptible to the evaluations of the constituency than to those of the mediator. However, to the extent that the mediator i s the embodiment of public opinion (see Schelling, 1960:73) she must be granted some degree of influence. The impact of the mediator's assessments w i l l be lessened when they i n t e r f e r e with the goals of the constituency, however, th i s i s s i m i l a r to the s i t u a t i o n where there i s face to face negotiations between the disputants. In both cases, the mediation process must be responsive to the needs of the pa r t i e s . In summary, while the effectiveness of mediation may be a function of the disputants' v u l n e r a b i l i t y to the mediator's evaluation of t h e i r actions, i t nonetheless has some po t e n t i a l to influence negotiating behaviour under most circumstances. 101 B. Recommendations for Future Research This thesis provides a focus for future research. F i r s t , i t would be valuable to explore the extent to which mediator assessments of negotiator behaviour impact on the course of a dispute. Second, i t i s important to discover to what extent current mediation strategies and models serve to enhance the mediator's status as an evaluator and to f a c i l i t a t e opportunities for the mediator to use her influence. The f i r s t objective could be achieved i n an observational study of actual mediation. By noting the frequency and locations of mediator evaluations of disputant behaviour, and the subsequent actions of the party effected, conclusions could be drawn about the correlation between these two events. The second objective could be addressed by creating contrived disputes i n an experimental s e t t i n g . For instance two subjects holding contrary personal b e l i e f s about abortion could debate t h i s issue. The mediator could then attempt to influence the course of the debate by making suggestions aimed at c o n t r o l l i n g the climate of the exchange. On some occasions these suggestions would be combined with evaluations of the p a r t i e s ' behaviours, and at other times s i m i l a r suggestions would be made without presenting an evaluation. The experiment would serve to demonstrate whether the suggestions accompanied by evaluation are more r e a d i l y or completely conformed with. 102 The findings would support or not support the argument of t h i s thesis that: -the e f f i c a c y of the mediation process i s based on mediator evaluations of negotiator behaviour -the c r i t i c a l dynamic of the mediation process i s one of s o c i a l exchange between the mediator and each of the p a r t i e s . T H E END 1 0 3 BIBLIOGRAPHY Bacharach, Samuel B., and Edward J . Lawler. 1981 Bargaining: Power, Tactics, and Outcomes. San Fransisco: Jossey-Bass. Bales, Robert Freed. 1950 Interaction Process Analysis: a Method for the Study of Small Groups. Cambridge, Ma.: Addison-Wesley Press. Benton, A.A. 1971 "Productivity, D i s t r i b u t i v e Justice, and Bargaining among Children." Journal of Personality and Social Psychology. 18,68-78. Berne, E r i c . 1964 Games People Play: The Psychology of Human Relationships. New York: Ballantine Books. Blau, Peter M. 1964 Exchange and Power in Social Life. New York: John Wiley and Sons. Brockner, J . , J.Z. Rubin, and E. Lang. 1981 "Face-Saving and Entrapment." Journal of Experimental Social Psychology. 17, 68-79. Brown, B.R. 1968 "The Ef f e c t s of Need to Maintain Face on Interpersonal Bargaining" Journal of Experimental Social Psychology. 4, 107-122 . 1977 "Face Saving and Face Restoration i n Negotiation" i n Negotiations: A Social Psychological Perspectives. Daniel Druckman ed. London: Sage. Burdine, Marj e. 1987 Mediation Skills Workshop: Level II. Participant's Workbook. Vancouver: Justice I n s t i t u t e of B r i t i s h Columbia. Burton, J . W. 1969 Conflict and Communication: The Use of International Relations. New York: Macmillan. Carnevale, P.J., and R. Pegnetter. 1985 "The Selection of Mediation Tactics i n Public Sector Disputes: A Contingency Analysis." Journal of Social Issues. 41(2), 65-81. 104 Chalke, Douglas. 19 90 Interview, Vancouver. Coogler, O.J. 1978 Structured Mediation in Divorce Settlements. Lexington, MA: Heath. Cook, Karen S. 1987 Social Exchange Theory. London: Sage. Coren, Stanley, Clare Porac, and Lawrence M. Ward. 1985 Sensation and Perception. 2e. Toronto: Academic Press. Deutsch, Morton, and R.M. Krause. 1960 "The E f f e c t of Threat on Interpersonal Bargaining" Journal of Abnormal and Social Psychology. 61, 181-189. Deutsch, Morton. 1969 " C o n f l i c t s : Productive and Destructive." Journal of Social Issues. 25,7-41. Douglas, A. 1962 I n d u s t r i a l Peacemaking. New York: Columbia University Press. Dowd, E. Thomas. 1987 "Paradoxical Interventions i n Counselling Psychology." Journal of Counselling Psychology. 15, Jan., 159. Ekeh, Peter P. 1974 Social Exchange Theory: The two t r a d i t i o n s . London: Heinemann. Emerson, Richard 1969 "Operant Psychology and Exchange Theory." i n R. Burgess and D. Bushell eds. Behavioral Psychology. New York: Columbia University Press. 1986 "Toward a Theory of Value i n Social Exchange." i n Karen S, Cook ed. Social Exchange Theory. Newbury Park, CA. : Sage. Foa, Edna B., and U r i e l G. Foa. 1980 "Resource Theory: Interpersonal behaviour as exchange. " i n Social Advances in Theory and Research. Kenneth J . Gergen, Martin S. Greenburg, and Richard h. W i l l i s (eds.). New York: Plenum, 77-89. Folberg, J . , and A. Taylor. 1984 Mediation: A Comprehensive Guide to Resolving C o n f l i c t s Without L i t i g a t i o n San Francisco: Jossey-Bass. 105 Freeman, H. S. 1964 Legal Interviewing and Counseling. New York: Free Press. Garland, H., and B.R. Brown. 1972 "Face-saving as Affected by Subjects' Sex, Audiences' Sex, and Audiences' Expertise." Sociometry 35, 380-389. Gergen, Kenneth J., Martin S. Greenburg, and Richard H. W i l l i s . 1980 Social Exchange:Advances in Theory and Research. New York: Plenum, 77-89. Glasser, W. 1965 Reality Therapy: a New Approach to Psychiatry. New York: Harper and Row. 1981 Stations of the Mind:New Directions for Reality Therapy. New York: Harper and Row. Gold, L. 1981 "Mediation i n the D i s i l l u s i o n of Marriages" A r b i t r a t i o n Journal. 36, 9-13. H a l l e t t , K. 1974 A Guide for Single Parents: Transactional Analysis for People in C r i s i s . Millbrae, Ca.: C e l e s t i a l Arts. Haynes, J.M. 1981 Divorce Mediation: A P r a c t i c a l Guide for Therapists and Counselors. N.Y.: Springer. H i l t r o p , Jean Marie, and J.Z. Rubin. 1982 "Effects of Intervention Mode and C o n f l i c t of Interest on Dispute Resolution" Journal of Personality and Social Psychology. 42, 665-672. H i l t r o p , Jean Marie. 1985 "Mediation Behavior and the Settlement of C o l l e c t i v e Bargaining Disputes i n B r i t a i n . " Journal of Social Issues. 41(2), 83-95. 106 Homans, George C. 1950 The Human Group. New York: Brace-Jovanovich. 1958 "Social Behavior as Exchange." American Journal of Sociology. 63, 597-606. 1967 The Nature of Social Science. New York: Harcourt, Brace, and World. 1974 Social Behaviour: I t s Elementary Forms. New York: Harcourt Brace Jovanovich. I ndus t r i a l Relat ions Counci l of B r i t i s h Columbia. 1990 Interview with James Toogood, Council mediator. Jackson, Elmore 1952 Meeting of the Minds: A Way to Peace through Mediation. New York: McGraw H i l l . Johnson, J . F . , and W.L. T u l l a r . 1972 "Style of Third Party Intervention, Face-saving and Bargaining Behaviour." Journal of Experimental Social Psychology 8, 319-330. K e l l y , Harold. H. 1959 The Social Psychology of Groups. New York: Wiley. Kess ler , S. 1978 Creative C o n f l i c t Resolution: A Mediation Leader's Guide. Atlanta GA: National Institute for Professional Training. Kneel, T. 1979 "Co n f l i c t Resolution--Or Agreement Making?" i n Personnel. 56, 28-37. Kochan, Thomas, and Todd J i c k . 1978 "The Public Sector Mediation Process, a Theory and Empirical Examination" Journal of C o n f l i c t Resolution. 22, 209. Kolb, D.M. 1983a. The Mediators. Cambridge: MIT Press. Lev i ton, Sharon C , and James L. Greenstone. 1984 "Mediation i n Potential C r i s i s Situations: An A l t e r n a t i v e to L i t i g a t i o n . " Emotional F i r s t Aid. 1:4, 5-12. McKel l in , Wi l l iam H. 1988 "Allegory and Inference: Intentional Ambiguity i n Managalase Negotiations." i n Disentangling: C o n f l i c t Discourse in P a c i f i c Cultures. G. White and K Watson-Gegeo eds., Palo Alto: Stanford University Press. 107 Moore, Christopher W. 1983 A General Theory of Mediation: Dynamics, Strategies, and Moves. Unpublished, Rutgers University, N.J. 1986 The Mediation Process: P r a c t i c a l Strategies for Resolving C o n f l i c t . San Francisco: Jossey-Bass. Morley, I. and 6. Stephenson. 1977 The Social Psychology of Bargaining. New York: A l l e n and Unwin. Patterson, C H . 1973 Theories of Counseling and Psychotherapy. 2e. New York: Harper Row. Pen, J . 1952 "A General Theory of Bargaining." The American Economic Review. 42,24-42. Peters, E. 1955 Strategy and Tactics in Labour Negotiations. New London, Connecticut: National Foreman's I n s t i t u t e . P r u i t t , D.G. 1981 Negotiation Behavior. New York: Academic Press. P r u i t t , D.G., and D. Johnson. 1970 "Mediation as an Aid to Face-Saving In Negotiation" Journal of Personality and Social Psychology. 14, 239-246. R a i f f a , Howard. 1982 The Art and Science of Negotiation. Cambridge: Harvard University Press. Rehmus, B. 1965 "The Mediation of Industrial C o n f l i c t . " Journal of C o n f l i c t Resolution. 9, 118-134. Robins, Eva, and T i a Schneider Denenberg. 1976 A Guide For Mediators. Honolulu: University of Hawaii Press. Roloff, Micheal E. 1981 Interpersonal Communication: The Social Exchange Approach. London: Sage. Rubin, J e f f r e y Z., and Bert R. Brown. 1975 The Social Psychology of Bargaining and Negotiation. N.Y.: Academic Press. 108 Rubin, Jeffrey Z., and Thomas Lang. 1981 The Dynamics of Third Party Intervention. New York: Praeger. Saposnek, D.T. 1983 "Strategy i n C h i l d Custody Mediation: A Family Systems Approach" i n Successful Techniques for Mediating Family Breakup. J.A. Lemmon ed. San Francisco: Jossey-Bass. Schelling, T. C. 1960 The Strategy of C o n f l i c t . Cambridge: Harvard University Press. 1966 Arms and Influence. New Haven, Connecticut: Yale University Press. Schister, J. 1958 " C o l l e c t i v e Bargaining." i n N. Chamberlain, F. C. Pierson, and T. Wolfson, eds., A Decade of I n d u s t r i a l Relations Research 1946-1956. New York: Harper and Row. Scott, B i l l . 1981 The S k i l l s of Negotiating. Aldershot, England: Gower. Simmel, Georg. 1900 The Philosphy of Money. Leipzig:Duncker und Humblot. (reference taken from The Sociology of Georg Simmel. Kurt H. Wolfe, trans., and ed., New York: Free Press. 1950.) Slaikeu, K.A. 1985 "Mediation Process Analysis: A Descriptive Coding System" Mediation Quarterly. 10, December. Stevens, CM. 1963 Strategy and C o l l e c t i v e Bargaining Negotiations. N.Y. : McGraw-Hill. Stuart, R.B. and Barbara Jacobson. 1986 "Principles of Divorce Mediation: A S o c i a l Learning Theory Approach." Mediation Quarterly. 14/15, Winter 1986/Spring 1987. Taylor, Alison. 1981 "Toward a Comprehensive Theory of Mediation." C o n c i l i a t i o n Courts Review. 19(1), 1-12. Thibault, J.W. and H.H. Kelley. 1959 The Social Psychology of Groups. New York: John Wiley. 109 Thoennes, Nancy A., and Jessica Pearson. 1985 "Predicting Outcomes of Divorce Mediation: The Influence of People and Process." Journal of Social Issues. 41(2), 115-126. Turner, Johnathan H. 1986 The Structure of Sociological Theory. 4e. Chicago: Dorsey. Walcott, Charles. 1975 Readings in Behaviour. New York: Holt Reinhardt. Wall, J.A. J r . 1981 "Mediation: Analysis, Review, and Proposed Research" Journal of C o n f l i c t Resolution. 25, 157-180. Young, O.R. 1972 "Intermediaries: Additional Thoughts on Third Parties." Journal of C o n f l i c t Resolution. 16: 51-65. Yukl, G.A. 1974 "The Effects of Situational Variables and Opponent Concessions on a Bargainer's Perception, Aspirations, and Concessions." Journal of Personality and Social Psychology. 29,227-236.. Zechmeister, Kathleen and Daniel Druckman. 1973 "Determinants of Resolving a C o n f l i c t of Interest: a Simulation of P o l i t i c a l Decision Making." Journal of C o n f l i c t Resolution. 17, March, 63-79. 110 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0098738/manifest

Comment

Related Items