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Party-Directed Mediation (3rd Edition - January 2014)
446 pages + xvi preface
14 chapters, 3 appendices, index
Author: Gregorio Billikopf, University of California
Public Service of the University of California
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Beth just got turned down by Carlos, the mechanic. She had asked
Carlos to plan on working a couple of overtime hours this coming
Thursday and Friday evenings. Beth's nose was a bit bent out of
joint. She wondered if Carlos did not yield to her because she was
too kind when she asked. Or, because she was a woman. Or, because
Carlos was envious that she got the supervisory position for which
both had competed. Carlos was uncomfortable with the interaction,
If Carlos had no clue that Beth was upset, would this scene still
constitute interpersonal conflict? Perhaps. The seeds of conflict
are planted when disharmony is felt within any one of the
participants. Next time Beth approaches Carlos she may change her
approach. She may be more abrupt, leading Carlos to wonder if Beth
got up on the wrong side of the bed. Carlos may then, in turn, react
negatively to Beth, thus escalating the conflict. Individuals
sometimes encounter stress and negative emotion out of an
interaction—whether or not they ever confront each other about their
Wherever choices exist there is potential for disagreement. Such
differences, when handled properly, can result in richer, more
effective, creative solutions and interaction. But alas, it is
difficult to consistently turn differences into opportunities. When
disagreement is poorly dealt with, the outcome can be
contention. Contention creates a sense of psychological
distance between people, such as feelings of dislike, bitter
antagonism, competition, alienation, and disregard.
Whether dealing with family members or hired personnel, sooner or
later challenges will arise. It is unlikely that we find ourselves
at a loss of words when dealing with family members. Communication
patterns with those closest to us are not always positive, however,
often falling into a predictable and ineffective exchange.
With hired personnel and strangers, we may often try and put
forth our best behavior. Out of concern for how we are perceived, we
may err in saying too little when things go wrong. We may suffer for
a long time before bringing issues up. This is especially so during
what could be called a "courting period." Instead of saying things
directly, we often try to hint.
But the honeymoon is likely to end sooner or later. At some point
this "courting behavior" often gets pushed aside out of necessity.
We may find it easier to sweep problems under the psychological rug
until the mound of dirt is so large we cannot help but trip over it.
Sometime after that transition is made, it may become all too easy
to start telling the employee or co-worker exactly what has to be
done differently. An isolated episode such as the one between Beth
and Carlos may or may not affect their future working relationship.
Persons differ in their sensitivity to comments or actions of
others, as well as their ability to deal with the stress created by
a conflict situation. While it is important that we are sensitive to
how we affect others, there is much virtue in not taking offense
easily ourselves. Or by finding constructive outlets to dissipate
stressful feelings (e.g., exercise, music, reading, an act of
service to another, or even a good night's sleep). It does little
good, however, to appear unaffected while steam builds up within and
When disagreements emerge it is easy to hear without listening.
People involved in conflict often enlist others to support their
perspective and thus avoid trying to work matters out directly with
the affected person.
Our self-esteem is more fragile than most of us would like to
admit (see Chapter 6, Sidebar 3). Unresolved conflict often threaten
whatever self-esteem we may possess. By finding someone who agrees
with us, we falsely elevate that self-esteem. But we only build on
sand. Our self-esteem will be constructed over a firmer foundation
when we learn to deal effectively with the conflict. In Spanish
there are two related words, self-esteem is called
autoestima, while false self-esteem is called amor
propio (literally, "self-love").
It takes more skill, effort and commitment--and, at least
in the short run, more stress--to face the challenge together
with the other person involved in the dispute. Certainly it seems as
if it would be easier to fight, withdraw, or give in. Yet in the
long run, working through difficulties together will help us live a
less stressful and more fulfilling life.
Fighting it out. A man sat in his train compartment
looking out into the serene Russian countryside. Two women entered
to join him. One held a lap dog. The women looked at this man with
contempt, for he was smoking. In desperation, one of the women got
up, lifted up the window, took the cigar off the man’s lips, and
threw it out. The man sat there for a while, and then proceeded to
re-open the window, grab the woman’s dog from off her lap, and throw
it out the window. No, this is not a story from today’s Russian
newspaper, instead it is from Fyodor Dostoevsky’s 19th century
novel, The Idiot. The number and seriousness of workplace
violence cases in agriculture seems to be on the rise, and farm
employers can respond with effective policies and increased
Yielding. While most can readily see the negative
consequences and ugliness of escalating contention, we often do not
consider how unproductive and harmful withdrawing or giving in can
be. Naturally, there are occasions when doing so is not only wise,
but honorable (as there are times to stand firm). If a person feels
obligated to continually give in and let another have his way, such
yielding individual may stop caring and withdraw psychologically
from the situation.
Avoidance. When we engage in avoidance, it only weakens
already fragile relationships. These "others" (e.g., sympathetic
co-workers) usually tend to agree with us. They do so not just
because they are our friends, but mostly because they see the
conflict and possible solutions from our perspective. After all,
they heard the story from us. Once a person has the support of a
friend, she may feel justified in her behavior and not try to put as
much energy into solving the conflict.
One particularly damaging form of conflict avoidance is to send
someone else to deliver a message or confront another on our behalf.
At best, the individual not spoken to directly will be hurt that
such a tactic was taken. At worst, the go-between person cherishes
the power trip involved, allowing himself to become a sort of
arbiter in the conflict.
We often are too quick to assume that a disagreement has no
possible mutually acceptable solution. Talking about disagreements
may result in opportunities to strengthen relationships and improve
productivity. Obviously, talking problems through is not so easy.
Confronting an issue may require (1) exposing oneself to ridicule or
rejection, (2) recognizing we may have contributed to the problem,
and (3) willingness to change.
We can reduce stress, resolve challenges and increase
productivity through effective dialogue. Such a conversation entails
as much listening as talking. While effective two-way
exchanges will happen naturally some of the time, for the most part
they need to be carefully planned. There may be some pain--or at
least moving us out of our comfort zones--involved in discussing
challenging issues, but the rewards are satisfaction and improved
When faced with challenges, we tend to review possible
alternatives and come up with the best solution given the data at
hand. Unwanted options are discarded. While some decisions may take
careful consideration, analysis, and even agony, we solve others
almost instinctively. Our best solution becomes our position
or stance in the matter. Our needs, concerns
and fears all play a part in coming up with such a position.
Misunderstanding and dissent can grow their ugly heads when our
solution is not the same as those of others.
Several foes often combine to create contention:
- Our first enemy is the natural need to want to explain our
side first. After all, we reason, if they understand our
perspective, they will come to the same conclusions we did.
- Our second enemy is our ineffectiveness as listeners.
Listening is much more than being quiet so we can have our turn.
It involves a real effort to understand another person's
- Our third enemy is fear. Fear that we will not get our way.
Fear of losing something we cherish. Fear we will be made to look
foolish or lose face. Fear of the truth ... that we may be wrong.
- Our fourth enemy is the assumption that one of us has to lose
if the other is going to win: that such differences can only be solved
The good news is that there are simple and effective tools to
spin positive solutions and strengthen relationships out of
disagreements. But let not the simplicity of the concepts obscure
the challenge of carrying them out consistently. Certainly life
gives us plenty of opportunities to practice and attempt to improve.
However, the foes outlined above take effort to overcome.
Tools for Improved Communication
Two principles have contributed greatly to the productive
handling of disagreements. The first, "Seek first to understand,
then to be understood," was introduced by Steven Covey, in Seven
Habits of Highly Effective People.1
If we encourage others to explain their side first, they will be
more apt to listen to ours.
For instance, I sometimes need to interview farm personnel about
their feelings on various subjects. One day I came across a farm
owner who was less than enthusiastic about my project.
It was clear from his words and tone that I would not be
interviewing anyone on his farm, so I switched my focus to
listening. The farmer shared concerns on a number of troublesome
issues and we parted amiably. When I was on my way to my vehicle the
farmer yelled, "Go ahead!"
"Go ahead and what?" I turned around and inquired. To my surprise
he responded, "Go ahead and interview my workers." The Covey
principle was at work.
The second principle, introduced by Roger Fisher and William Ury
in their seminal work, Getting to Yes,2
is that people in disagreement should focus on their needs
rather than on their positions. By concentrating on positions, we
tend to underscore our disagreements. When we concentrate on needs,
we find we have more in common than what we had assumed. Ury and
Fisher suggest we attempt to satisfy the sum of both their needs
and our needs.
When the light goes on we realize that it is not a zero sum
game (where one person has to lose for the other to win). Nor is
it necessary to solve disagreements with a lame compromise. Instead,
often both parties can be winners. Individuals can learn how to keep
communication lines open and solve challenges when things go wrong.
Learning to disagree amicably and work through problems is perhaps
one of the most important interpersonal skills we can develop.
Putting it all together
If we come right out and tell someone, "I disagree," we are apt
to alienate that person. Successful negotiators are more likely to
label their intentions, such as a desire to ask a difficult question
or provide a suggestion, and are less prone to label disagreement.3
Problems are likely, however, to increase if we put all our needs
aside to focus on another person’s perspective. The other party may
think we have no needs and be quite taken back when we introduce
them all of a sudden, almost as an afterthought.
In order to avoid such unproductive shock, I like the idea of
briefly saying something along these lines. "I see that we look at
this issue from different perspectives. While I want to share my
needs and views with you later, let me first focus on your
thoughts, needs, and observations." At this point, we can now
put our needs aside, attempt to truly listen, and say: "So, help me
understand what your concerns are regarding ...."
That is the easy part. The difficulty comes in fulfilling such a
resolution to really listen to resist the tendency to interrupt with
objections no matter how unfounded some of the comments may be.
Instead of telling someone that we understand (just so they
can finish and give us a turn to present our perspective), we can be
much more effective by revealing exactly what it is that we
understand. All along we must resist, as we listen, the
temptation to bring up our viewpoints and concerns. In trying to
comprehend, we may need to put our understanding in terms of a
question, or a tentative statement. This way we show true awareness.
We may have to refine our statement until the other stakeholder
approves it as a correct understanding of his position or need. It
is necessary not only to understand, but for the other person to
feel understood. Only now can we begin to explain our
perspective and expect to be fully listened to. Once we have laid
out our concerns, we can focus on a creative solution. If we have
had no history with someone, or a negative one, we need to use more
caution when disagreeing. The potential for a disagreement to be
side-railed into contention is always there. It helps if we have
made goodwill deposits over time.
Involving a Third Party
Sometimes differences in organizational level, personality or
self-esteem among the participants in a disagreement require the
participation of a third party. For instance, one supervisor had
resorted to bullying and implied threats to get his way. "I would
have gladly tried to find a way to help my supervisor achieve his
goals," the subordinate explained through her tears. "But now I am
so sensitized, I am afraid of talking to him."
Telling employees to work out their troubles on their own, grow
up, or shake hands and get along may work occasionally, but most of
the time the conflict will only be sent underground to resurface
later in more destructive ways.
A better approach is to allow employees to meet with a third
party, or mediator (which, in some cases, may be a manager or
the farm owner), to assist them in their own resolution of the
All things being equal, an outside mediator has a greater chance
of succeeding. An insider may be part of the problem, may be
perceived as favoring one of the stakeholders, and the stakeholders
may be hesitant to share confidential information with an insider.
If the insider is a supervisor, the mediator role becomes more
difficult, as supervisors tend to become overly directive, taking
more of an arbiter's role and forcing a decision upon the parties.
The conflict management process is more apt to succeed if
stakeholders have respect for the mediator's integrity,
impartiality, and ability. Respect for the mediator is important, so
stakeholders will be on their best behavior, an important element in
successful negotiation. Although not always the case,
over-familiarity with an inside mediator may negate this "best
An outside mediator should treat issues with confidentiality.
Exceptions are such instances as where illegal activities have taken
place (e.g., sexual harassment).
All parties should be informed of exceptions to the
confidentiality rule ahead of time. Any sharing of information based
on the exceptions needs to be done on a need-to-know basis to
minimize giving out information that could hurt one or both of the
parties. Employees may be less hesitant to speak out when assured of
confidentiality. Sometimes conflicts involve personal issues.
A much more sensitive situation involves the role of the mediator
when stakeholders are not able to come to a negotiated resolution.
Researchers have found that, in some instances, mediation works best
when the third party is able to change roles, and in the event that
mediation fails, become an arbiter. On the plus side, stakeholders
may put their best foot forward and try hard to resolve issues.
Unfortunately, while some mediators may be able to play both roles
without manipulating the situation, the road is left wide open for
abuse of power. Furthermore, individuals may feel coerced and not
trust a mediator when what is said in confidence now may be taken
against them later.
Mediation helps stakeholders discuss issues, repair past
injuries, and develop the tools needed to face disagreements
effectively. Mediators may help participants glimpse at their blind
spots, broaden their perspectives, and even muddle through the
problem-solving process. Yet, successful mediators remember that the
challenges are owned by the stakeholders and do not attempt to
short-circuit the process by solving challenges for them.
Mediators facilitate the process by:
- Understanding each participant’s perspective through a
- Increasing and evaluating participant interest in solving the
challenge through mediation.
- Setting ground rules for improved communication.
- Coaching participants through the joint session.
- Equalizing power (e.g., between persons in different
- Helping participants plan for future interaction.
Understanding each participant’s perspective through a
The pre-caucus is a separate meeting between the mediator and
each stakeholder before the stakeholders are brought together in a
joint session. During the pre-caucus the mediator will briefly
explain the issue of confidentiality and the mechanics of the
mediation process so stakeholders will not be surprised or have a
sense of being lost.
The mediator also should offer stakeholders the opportunity for
regular caucusing (a meeting away from the other stakeholder) any
time they feel a need for it. It is important that stakeholder
control is emphasized throughout the process. Participants should
not agree on something just for the sake of agreement. If there are
yet unmet needs, these should be brought up. Sometimes, a few
changes in a potential solution can make the difference between an
agreement that will fail or succeed.
While there are hundreds of factors that can affect the
successful resolution of a conflict, the pre-caucus is one of the
pillars of conflict management.4
Although any talking between the mediator and one of the
stakeholders alone can be perceived as suspect and potentially
influence the neutrality of the mediator, such fears assume a
mediator-directive approach where the third party wields much power
and often acts as a quasi-arbitrator. When the mediation process is
understood--from the beginning--as one where each of the
stakeholders retains control over the outcome, less importance is
given to mediator neutrality.
The pre-caucus provides each stakeholder an opportunity to be
heard and understood. One of the reasons why conflict situations are
so challenging, is the natural tendency of stakeholders to each want
to express their respective perspectives first which to some degree
takes place in the pre-caucus. The more deep-seated and emotional
the conflict, the greater this need.
At a dairy operation, I had just been introduced to one of the
stakeholders by the farm owner. As soon as the farmer left us alone
to begin our pre-caucus, the stakeholder broke into tears. A similar
situation took place at a row crop farm enterprise where one of the
farm managers began to cry, ostensibly because of other issues
pressing heavily upon him. Had these men come immediately into a
joint meeting with their respective contenders, their feelings of
vulnerability might just as easily have turned into anger and
One manager told me that the pre-caucus would be very short with
a milker who was not a man of many words. The milker spoke for
almost two hours. By the time we finished, he felt understood and
had gained confidence, and by the time we were into the middle of
the joint session with the other stakeholder, this same employee was
even laughing when it was appropriate. I have found that these
"silent types" will often open up during a pre-caucus.
When a stakeholder feels understood, an enormous emotional burden
is lifted; stress and defensiveness are reduced. This makes people
more confident and receptive to listen to the other party.
Separating the people from the conflict. Winslade and Monk
in Narrative Mediation argue that while people are
theoretically free in terms of what they say in a conversation, most
often stakeholders feel their responses are influenced by the
remarks of the other. They often see themselves entrapped within the
Winslade and Monk ask individuals how they might have felt
forced by the conflict to do or say things that they wish
they had not. Or, how the conflict has affected them negatively in
other ways. By placing the blame on the conflict
itself, the mediator allows the stakeholders to save face and
slowly distance themselves from the conflict-saturated story. Such a
situation can help stakeholders detach themselves from the conflict
long enough to see that each has a choice as to whether he wants to
continue feeding the conflict. The authors further suggest that if
the mediator listens with an ethic of curiosity, unexpected
benefits are likely to arise. Instead of merely listening to confirm
hunches and reconcile facts, the third party realizes that
stakeholders often bring to mediation an olive branch along with
their anger and despair. Thus, stakeholders often hold the very keys
to the reconstruction of broken relationships and to the solving of
challenges. But the mediator has to have enough confidence in people
and in the process to allow these issues to surface and to be on the
lookout for them so they do not go unnoticed.5
During the pre-caucus, the mediator notes as many issues as
possible from each stakeholder (they often overlap considerably) and
later introduces them in a systematic fashion for the stakeholders
to discuss in the joint session. The more issues raised, the greater
the opportunity for discussion and the less likelihood that
important issues will be left out.
Increasing and evaluating participant interest in solving
challenge through mediation
There seems to be a pattern in deep-seated organizational
interpersonal conflict: each stakeholder is overly distracted with
the stress of the conflict, has difficulty sleeping at night, and is
generally thinking of quitting. Sometimes individuals may be in
denial about the negative effect that contention has in their lives.
One manager claimed that he just got angry and exploded, but that
his anger did not last long. He explained that he did not hold
grudges, that by the next day he had put aside any bad feelings for
the other person. During a mediation session this same manger
admitted that a recent confrontation with the other stakeholder had
made him so angry it left him sick for a couple of days. Part of the
role of the mediator in meeting individually with each stakeholder
is to help individuals visualize a life without that stress.
In the process of meeting with the stakeholders, the mediator can
make a more informed determination as to whether to proceed with
mediation or recommend arbitration or another approach. As effective
as mediation can be, under certain circumstances more harm than good
can result from bringing parties together. The purpose of mediation
is not to simply provide a safe place for stakeholders to
Transformative opportunities. In The Promise of
Mediation, Bush and Folger suggest that mediators watch for and
recognize transformative opportunities in terms of
recognition that can be offered between participants. Such
recognition may involve compliments or showing understanding,
empathy, or other forms of mutual validation.6
A fruit grower, almost as an aside, had something positive to say
about the other party, "One thing I really value about the farm
manager is that he shows pride in his work--something I really
admired in my father." The grower reacted negatively to the idea of
sharing this with the farm manager, yet decided to do so his own
during the joint session.
Looking for the positive. While a number of issues can
affect the likely success of a joint mediation session, perhaps none
is as telling as asking each stakeholder what they value in the
other contender. This question should be asked after the
participant has had a chance to vent, and the mediator has shown
understanding for the challenges from the stakeholder's perspective.
There is a human tendency not to find anything of value in a
person with whom there has been deep-seated contention. After a
person feels understood by the mediator, there is a greater
likelihood that the stakeholder will see a little light of good in
Without this tiny light of hope, without this little olive
branch, there is no point in proceeding. If there is nothing of
significance that one person can value about the other, more harm
than good can come out of the mediation. And it is not enough to say
that the other person "is always on time," "drives a nice pick up,"
"is attractive," or "does not smell."
Sometimes one of the stakeholders will be more noble than the
other, a little more prone to see good in the other. On one
occasion, I had already met with such an individual in a pre-caucus
and asked the second stakeholder, during his pre-caucus, for the
positive characteristics of the first. When the answer was “none,” I
shared the positive things that were said about him by the first
employee and asked again. Because stakeholders want to seem
reasonable, especially after hearing something positive about
themselves, I was surprised by a second refusal by the more reticent
stakeholder to find anything of value about the other.
“Well, if there is nothing positive you can say about the
other employee, there is no purpose in attempting a conflict
management session together,” I explained. I suggested a short
break. When we returned, the taciturn stakeholder had prepared a
long list of positive attributes about the other employee.
Repairing past injuries. Occasionally, it helps to role
play to identify potential pitfalls ahead of time. For instance, at
one farm operation, a manager's angry outbursts were well known.
Martin, the manager, had minimized the seriousness of his problem. A
co-mediator role-played the other party in the contention. "Martin,"
she began. "When you get angry at me, shout at me and use profanity,
I feel very badly."
"Well, I am so sorry I have used bad language with you and been
angry at you," Martin began nicely. "But ...." And then Martin began
to excuse himself and to place conditions on controlling his anger.
At this moment I had to interrupt. An apology with a comma or
a but is not a true apology, but merely a statement of
justification, I explained. In total frustration Martin turned to me
and said, "Look, everyone has their style. Some people deal with
disagreement this way or that. I am an expert in
intimidation. If I can't use intimidation, what can I do so I
don't get run over? Am I supposed to just sit here and tell him how
nice he is and not bring up any of the areas of disagreement?"
When mediators have done their homework during the pre-caucus,
the joint session can be very positive. This case involving Martin
was one of the most difficult I had ever dealt with, yet once the
joint session began, both managers did most of the talking. They
were extremely cordial, attentive, and amicable, showing
understanding for each other. Although the problems were not solved
from one day to the next, a year later there had been much positive
Setting ground rules for improved communication
Individuals attempt to cultivate an identity or projection of who
they are. For instance, a person may see herself as an intellectual,
another may see himself as an outdoors person, a cowboy, or an
artist. Such identity labels are just a small part of a much deeper
and complex set of traits that any individual would value.
An important part of mindful interpersonal communication is the
mutual validation of such identities, through a process of identity
negotiation. People tend to build bonds with those who seem
supportive of the identity they attempt to project.7
Such mutual validation is one of the keys to effective interpersonal
relations. Lack of validation normally plays a vital role in
interpersonal conflict, as well. Some of the most hurtful things
another individual can say to us, are an attack on our self image or
People do not just project identities of who they are, but also
the personal qualities of who they wish to become. When a person's
weaknesses are exposed, he may reason that it is not worth trying to
pretend anymore. Because those who are closest to us are more likely
to have seen our weaknesses, we may first stop pretending
with family, close friends, and people at work. This attitude also
plays an important part in interpersonal conflict.
One of the important roles of a mediator is to help stakeholders
who have crossed the line and stopped pretending, to re-cross back,
and thus get a second chance at a relationship. If we have decided
to thus change our behavior, it helps to clearly state our
intentions ahead of time, so that our new and corrected behavior is
Coaching and modeling effective interaction styles is an ongoing
task for the mediator. The objective is for stakeholders to increase
their understanding of effective interpersonal relations. Before
conflicting parties meet, it helps to set ground rules that will
help parties avoid hurtful comments, and even increase positive
validating ones. Ground rules will help the conflict from escalating
and save time once mediation is under way. It is not the role of the
mediator to simply allow the contenders to exchange cynical remarks,
insults, name calling, and threats in a psychologically safer
environment. Nor should the mediator allow contenders to drag her
into the controversy. Instead, the mediator may have to remind
employees to direct their comments to (and keep visual contact with)
the other person involved in the disagreement.
Overly vague or broad statements such as, "You are
inconsiderate," or, "You are overbearing," do little to facilitate
mutual understanding. Specific issues, or events, and what motivated
each to act in certain ways, may be more useful. In the pre-caucus,
ask the stakeholder using such sweeping statements for examples of
times when the other individual acted in inconsiderate, overbearing,
untrustworthy or selfish ways. These behaviors can later be
discussed in the joint session.
Name-calling can have a very negative effect. For instance, a
Mexican dairy employee called another employee a racist. That
is a pretty big word, with very strong connotations. The other
stakeholder, a Portuguese milker, was very hurt by the use of such a
word. The mediator stopped the conversation to make sure all were
defining the word in the same way. "Are you saying that this milker
treats you different because you are Mexican and he is Portuguese?"
After the term was well explained and a few more questions asked,
the Mexican milker ended up apologizing, and the Portuguese employee
had the opportunity to tell a story that illustrated he was not
racist. It is not the role of the mediator to reject such as
accusation without allowing stakeholders to speak what is in their
Beside name-calling, the use of other labels can increase
contention. Calling someone by a label, even when the person
identifies with such (e.g., a person's nationality), can be
offensive depending on the tone and context. A more subtle use of
labeling, one that can have the same negative effect, is describing
our own perspective as belonging to a desirable label (e.g., a
particularly cherished philosophy, principle or belief), while
assigning that of another to an undesirable one.
Stakeholders also look for ways to enlist even theoretical others
into supporting their views. They may attempt to inflate the
importance of their opinions with such statements as, "everyone else
agrees with me when I say that ...." Or, attribute a higher
source of authority to their words: "According to such and such
(an author, or respected person)..." A stakeholder may wish to
discount the opinion of others by speaking of their experience: "In
my twenty years of experience ..." Once again, the tone and context
of the conversation may make some of these statements appropriate in
one circumstance and not in another. People may resort to
dysfunctional tactics when the force of their argument does not
stand on its own merits.
Along with labeling, threats--both direct and veiled--can
reduce a stakeholder's negotiating power. When these intimidation
tactics are bluffs, then the loss of negotiation power is further
The mediator may also coach employees into owning up to their
feelings by using "I" statements.8
"I feel upset when you change my radio station while I am
milking," is preferable to "You make me angry when ...."
Only one person should speak at a time, while the other makes
every possible effort to understand what is being said. One
defensive tactic is to change the topic. While sometimes two topics
are so closely related that they cannot be separated, generally new
topics can be placed on a "list of other matters" to be brought up
Workers involved in highly charged conflict situations frequently
try to ridicule their contenders by distorting or exaggerating what
has been said. I call this distorted mirroring. For instance,
an employee may inaccurately mirror a comment, such as: "So you are
telling me that you never want me to... ," or, "I get it, you
think you are the only one who ...," "You used to be
[something positive] but now [negative statement]," "It seems that
you are always ... these days."
Participants may sometimes seek shelter from a true give-and-take
with such statements as, "That's just the way I am,"9
or, "Can't you take a joke?" While a mediator cannot force someone
out of his shell, he may help participants understand the detracting
effects these statements may have. The earlier the mediator
disallows distortions or manipulative tactics, the sooner employees
will realize that this is not a verbal battle.
A mediator may also need to coach employees on how to formulate
questions and comments. Participants need to talk without putting
each other on the defensive or coming across as accusatory.
Especially when under the stress of a conflict, people will be quite
sensitive to intended and non-intended statements of double meaning.
A critical role for the mediator may be to ask for clarification or
coach stakeholders in properly reflecting statements.
Coaching participants through the joint session.
The time has come to bring both stakeholders together into a
joint session. A mechanical aspect to mediation that is extremely
powerful is the seating arrangement. Have the two parties sit
facing each other such that they are in a position to have good eye
contact, yet making sure there is enough space between them so their
personal space is not violated. This arrangement underscores the
message that they are there to talk to each other. Because
people who are in conflict often discount the other person, having
to exchange eye contact can be powerful medicine toward
reconciliation. A table may be appropriate in some
The mediator sits far enough away that stakeholders would have to
turn their heads if they wished to make eye contact with him. It is
not easy for the stakeholders to check if they have "scored a
point," or to enlist the mediator to their side. If the stakeholders
make such an attempt, the mediator reminds them that the person they
need to convince is the other party.
The seating arrangement described above is such a powerful tool,
that I have seen people apologize to each other, be more
considerate, call each other by name, and use many positive
behaviors even when the complete mediation approach outlined in this
chapter was not used. The seating arrangement is a second mediation
Figure 13-1. Seating arrangement for participants (red) and
mediator (blue). Table (yellow) is optional.
The mediator can also encourage participants to call each other
by name. This can be a difficult thing at first. People who have
been contending tend to discount the other person and instead the
person "he," "she," "the boss," or something other than the person's
name. Addressing someone by name acknowledges and validates the
other person's humanness.
Successfully dealing with any issue under contention (e.g., the
offering and accepting of an apology, or having participants agree
on how they will deal with a future challenge) can be very
energizing and give the participants the confidence they need to
face the next difficulty that comes up.
It is good to talk about the past. A discussion of past behaviors
is essential to analyze patterns of conflict and help
participants find constructive ways of handling future
disagreements. Without understanding the past, it is hard to prepare
for the future. At some point, however, the focus of discussion
turns to that of future behaviors, rather than past injuries.
The sooner the participants can focus on the future, the greater the
chances of successful resolution.10
One of the roles of the mediator is to encourage participants to
be more specific in their agreements, to help question potential
landmines, and to encourage stakeholders to recapitulate what seems
to have been agreed upon. When dealing with more difficult
challenges, part of the role of the mediator is to keep the parties
from becoming discouraged by showing them how far they have
Stakeholders can be taught to utilize the concepts introduced
earlier, in terms of participant positions versus
needs. Recall the case of Beth and Carlos at the beginning of
the chapter, where each of their stances appeared incompatible with
that of the other (i.e., whether Carlos should yield to the
prescribed overtime request).
Mediators help dissipate contentious feelings by teaching
stakeholders how to find creative ways to achieve the sum11
of the needs (theirs and the opposing ones). By going past an
obvious stance and looking into needs, we may find that (1) Beth
wanted the tomato harvester repairs completed before harvest--which
is scheduled to begin early next week, while (2) Carlos wanted to be
home to celebrate his daughter's quinceańera (coming of age
party) Friday evening.
Once the manager and mechanic understand each other's needs, they
can agree on a solution—perhaps the mechanic can work the overtime
on Wednesday and Thursday. This case may seem simple and the
solution obvious—except, perhaps, to Beth and Carlos before they
explored each other's needs. The approach works well for more
complex issues, too.
Separating position from needs, in such a way that parties
attempt to understand each others needs is another mediation pillar.
Mediators should not be in too big of a hurry to move
participants from their position statement and explanation of their
fears and needs, to problem resolution. It is vital to first truly
understand the nature of the challenges that seem to divide
individuals. Allowing stakeholders to hold an initial position
allows each to feel understood and to retain a sense of control and
ownership over the process. A great tool is to have stakeholders
explain, to the best of their ability, the position of the other.
Stakeholders tend to discount each other by refusing to even
acknowledge that the other has a position. For instance, a cook was
asked to recognize that the field foreman needed meals to arrive on
time to the crews. Yet the cook could not focus away from the fact
that there were meals being wasted each day.
“You see, its his fault because …”
“We are not talking about faults at this time, we just want you
to state the perspective of the field foreman,” the mediator
“Well, you see, he thinks that he can get away with ….”
The cook had to be stopped over a dozen times, because it was so
difficult for him to even state (and thus validate) the other’s
position. Once he stopped evading the process and gave the position
of the field foreman, and the field foreman did the same for the
cook, they quickly came to a solution that benefited everyone and
saved the grower money. A missing step here, one that may have
helped smooth the transition between an internal focus and stating
the other stakeholder's position, would have been to first encourage
the stakeholders to ask fact finding and non-judgmental questions of
An agreement was made that the field foreman would radio the cook
with an exact meal count for the day. Because the cook had an exact
count, he had fewer meals to cook and thus could produce them
faster. A structured way to clarify positions and needs for a
two-person negotiation is outlined in Sidebar 13-2.
Sidebar 13-2. Position vs. needs13
in conflict management