LESSONS FROM MEDIATION: AN EXAMINATION OF DISPUTANT BEHAVIORS DURING MEDIATION AND THEIR POSSIBLE APPLICATION TO SEEMINGLY INTRACTABLE DISPUTES


CONFLICT RESEARCH CONSORTIUM

Working Paper 93-20, July 20, 1993(1)

By Tom Sebok

Director, Ombuds Office

University of Colorado - Boulder


(1) This paper is an edited transcript of a talk given by Tom Sebok for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.


© 1993. Conflict Resolution Consortium. Do not reprint without permission.


For many people involved in disputes, mediation offers an ideal opportunity for engaging in constructive dialogue about their differences. The mediator attempts to establish a safe environment in which the parties can listen to and understand one another. Attention is focused on clarifying the interests of both parties in an effort to assist them in reaching mutually agreeable solutions to their disputes. Even under these "ideal" conditions, disputants sometimes engage in behaviors which seem to increase the resistance of the other party to resolving the dispute.

This paper will identify a number of "resistance-evoking" behaviors, as well as behaviors which seem to lead to cooperation and understanding between disputants. In addition, the possible relevance of these observations to constructive confrontation of seemingly intractable societal conflicts will be explored.

While employed in the Ombuds Office at the University of Colorado at Boulder for the past two-and-a-half years, I have mediated or co-mediated dozens of disputes. During these mediations I have repeatedly observed that, regardless of the content of the dispute, how one disputant communicates with the other usually has a significant impact on the outcome of mediation. Disputes that start with one issue often evolve into two different issues when either of the disputants exhibits certain behaviors in mediation. While numerous disputant behaviors may result in increased resistance by the other party (e.g., focusing on what appear to the other party to be minute, seemingly irrelevant details or insisting on the use of a tape recorder during the mediation), for many participants in mediation, the perception that "disrespect" has been communicated by the other party presents a significant barrier to their desire to cooperate and reach agreements. While eliminating or avoiding behaviors which communicate disrespect to the other party is no guarantee of reaching an agreement in mediation, when one party's goal is to encourage the other party to reach agreements with him/her, "communicating disrespect" does not seem to be a "strategy" that usually works! It is one that, most often, "backfires!"

I hasten to add that because of cultural or other differences between disputants, perceptions sometimes differ about what is--and is not--"disrespectful" communication. Admittedly, individuals may also differ as to the significance attached to "disrespectful communication" within the context of a dispute. For example, in some cultures (or families), boisterous, verbally aggressive behavior during disputes is more accepted than in others. However, for most people I have observed, when they feel disrespected by the other party, I have seldom, if ever, seen an increase in their desire to cooperate and try to settle the dispute! Also, there are some behaviors that seem to be consistently perceived as "disrespectful," regardless of cultural or family background, etc.

For some participants in mediation, avoiding engaging in the behaviors which increase resistance from the other party is extremely difficult. And for some, engaging in behaviors which encourage cooperation from the other party can be equally--if not more--difficult. A disputant may feel angry, fearful, insulted, mistrustful, defensive, or misunderstood by the other party. Additionally, a disputant may have little or no genuine respect for the other party. Given these kinds of feelings and attitudes, what often seems to be a "normal" or "natural" human response is an urge to behave in exactly the opposite manner from that which seems most likely to encourage the other party to listen and to cooperate. Unfortunately, even when disputants recognize in advance that engaging in these behaviors may be counter-productive, they cannot always refrain from engaging in them. The "temptation" is sometimes too great.

Common disputant behaviors which seem to increase resistance during mediation are presented below. Many, if not all of these, are often perceived by the "receiving" party as a sign of "disrespect." Examples are provided wherever possible to illustrate the behaviors.

  1. Negative labeling, insulting, or calling the other party offensive names. (Example: "You are a liar.")
  2. Minimizing or ignoring the other's feelings. (Example: "Frankly, I don't care if you are upset!")
  3. Lying about, denying, or misrepresenting information known to the other party.
  4. Blaming the other for the problem with "you" statements. (Example: "You make me mad when you forget to lock the door when you leave the office!")
  5. Communicating condescension. (Example: "You mean to tell me that you are just now figuring that out?")
  6. Questioning the other party's honesty, integrity, intelligence, or competence. (Example: "How do you expect me to trust you this time?")
  7. Making offensive or hostile non-verbal expressions or gestures. (Examples: rolling the eyes, loud sighs, laughing, "giving the finger," sticking one's tongue out at the other, or groaning when the other party speaks.)
  8. Making interpretations of what the other party says based on stereotypes or prejudicial beliefs. (Example: "All you people ever think about is how you can avoid working!")
  9. Insisting that the other party "admit to being wrong." (Example: "This is not about my perceptions of what happened. I saw you take my floppy disk and you damn well better admit it!")
  10. Using sarcasm in addressing the other party. (Example: "Well, how nice of you to grace us with your presence. I'm shocked!")
  11. Making moral judgments about the other party. (Example: "The Lord will punish you for these sins!")
  12. Making threats to the other party. (Example: "You'd better stick to your word or I'm going to talk with the boss about your behavior!")
  13. Making demands of the other party. (Example: "I demand that you write me a letter of apology.")
  14. Refusing to shake hands with the other party when he/she offers. (Example: At the beginning of the mediation session.)
  15. Interrupting the other party when he/she is speaking.
  16. Shouting at the other party.

Misunderstandings can prevent disputants from identifying ways to resolve their disputes. Effective listening minimizes this problem. The behaviors which follow are examples of the type that seem to encourage listening and facilitate understanding between disputants in mediation. Often, these behaviors seem to enhance the desire of the "other" to cooperate:

  1. Using "I" statements, rather than "you" statements. (Example: "I am frustrated about how frequently the office door has been unlocked when I have arrived at work in the mornings.")
  2. Conveying that the disputant has been listening attentively. (Example: "It sounds as if your biggest concerns are for your long-term job security and recognition for your accomplishments. Is that right?")
  3. Making "appropriate" eye-contact. (Note: This one is extremely culturally dependent. The key issue is for Disputant A to make eye contact with Disputant B in a way that is comfortable for Disputant B.)
  4. Expressing a desire to see both parties get as much of what they want as possible from mediation. (Example: "I'd like to see both of us walk out of here happy.")
  5. Acknowledging responsibility for part of the problem whenever possible. (Example: "You know, I hadn't seen it before, but I think I did make some mistakes in the way I approached you.")
  6. Acknowledging the other party's perceptions whenever possible. (Example: "I haven't considered this matter from that perspective before, but I think I can see how it looked that way to you.")
  7. Identifying areas of agreement with the other party whenever possible--especially if he/she does not recognize that such areas of agreement exist. (Example: "You know, Conrad, I agree with you that we ought to make time management more of a priority for our office in the future.")
  8. Allowing the other party to "let off steam." (Note: This requires extreme self-control, but if the other party has not expressed him/herself previously, this can be extremely valuable.)
  9. Avoiding assumptions. (Example: "Could you help me understand why having these specific days off is so important to you?")
  10. Indicating that the other party "has a good point" when he/she makes a point you believe has merit. (Example: "You're absolutely right about x.")

While many of these disputant behaviors appear to promote either cooperation or resistance between parties in mediation, these same effects can be observed in negotiations which do not involve a mediator. What, if anything do these observations suggest about how larger-scale, seemingly intractable conflicts might be constructively confronted? To answer this question, it is necessary to examine common behaviors exhibited by participants in social conflicts and to describe what it means to constructively confront a seemingly intractable conflict.

Social conflicts involve challenges to values, mores, customs, norms, laws, etc. Often in these conflicts participants seek to dramatize their beliefs and/or positions to make others aware of their concerns and motivate them to action. When opposing groups confront or refer to one another, they may engage in negative labeling (name-calling and insults), sarcasm, moral judging, threatening, and/or, in the most extreme cases, physical violence and/or property damage against those on the "other side." These behaviors do not illustrate constructive confrontation of conflict. It is possible that some of these behaviors are so unpleasant that the desire to avoid them could motivate one side to negotiate with the other. However, it is also likely that, at least for some period of time, when participants engage in these kinds of behaviors, the effect is that the conflict is merely perpetuated in its current form, or escalated and made more intractable. This suggests some possible reasons why participants might wish to confront their differences in more constructive ways:

1) To avoid the negative consequences and/or minimize the costs of continued involvement;

2) To promote understanding between and/or among stakeholders; and,

3) to have an opportunity to positively influence the beliefs and/or actions of the "other side."

Observations of disputant behavior in mediation, would suggest that when participants in seemingly intractable conflicts wish to constructively confront their differences, this is more likely to occur when they avoid the kinds of behaviors described above, and engage instead, in behaviors which promote listening, understanding, and cooperation. Constructive confrontation requires communication which honestly acknowledges differences and demonstrates respect for the dignity and rights of all participants.

Constructive confrontation can occur when participants interact with one another directly or indirectly. Direct interaction often occurs in a "public forum," such as a debate, demonstration, or "town meeting" where individuals are given the opportunity to express opinions, raise questions or concerns, etc. in the presence of those on the "other side." A more indirect opportunity to engage in constructive confrontation can be seen in advertising campaigns (which, by definition, are designed to influence the beliefs and/or actions of others).

These suggestions clearly have relevance only for participants who wish to constructively confront the issues which divide them. The suggestions outlined above will not, by themselves, settle or resolve these conflicts. However, based on observations of individuals who experience success in mediation, it is fairly evident which kinds of behaviors seem to prevent escalation of a conflict and promote a civil climate in which thoughtful, meaningful discussion can take place. These are potentially useful first steps toward constructively confronting seemingly intractable conflicts.