Party‐directed Mediation

Citation

Ford, J. (2010), "Party‐directed Mediation", International Journal of Conflict Management, Vol. 21 No. 2, pp. 228-232. https://doi.org/10.1108/10444061011037422

I have a theory about books. They are part of the ongoing expression of human wisdom and so the fact that a book has already been written on a particular subject is not a reason not to write. Each generation needs its own writers, its own expression of wisdom. My sense is that Gregorio Billikopf's book, Party‐Directed Mediation is a wonderful distillation of human wisdom and a book that will make an impact on this generation, and endure beyond these times.

There are lots of books about mediation, each describing how best to support others resolve their conflicts. And, we continue to see new approaches. Most significant in our times, have included the transformative mediation model that was introduced by Folger and Bush in their seminal work, The Promise of Mediation (1999), and Monk and Winslade's Narrative Mediation (2002). Chris Moore's The Mediation Process (1996) is generally regarded as the standard articulation of the currently popular facilitative mediation model.

So what is different about Billikopfs' book and what makes me think it will endure? Like his predecessors before him, he grapples with the issue of party self‐determination. For those readers that wonder what all the fuss about self determination is, in the field of mediation, there has been a persistent and nagging debate about the extent to which mediators meddle in the affairs of others, and through an often undefined process influence (some say manipulate) the parties to reach some or other agreement.

The new process he offers is born of his own direct experience mediating agricultural workplace disputes. His concern is to articulate a mediation process that is repeatable, effective, and most importantly leaves the decision squarely in the hands of the disputants themselves. He accomplishes this task admirably, through a very readable and insightful book that addresses anew self‐determination.

What Billikopf has articulated is a process that draws on the orthodoxy of the field: from the facilitative model; from the narrative and even from the transformative model, and yet delivers something different. It is a model that has as its central concern party control. As a process it minimizes the opportunity for the mediator to meddle, while at the same time giving the disputants the benefit that comes from inviting a third person to guide the resolution of the conflict.

As Billikopf states, the purpose of the book is not to negate other writings on the subject of mediation. Rather it is to articulate a mediation process that seeks to empower the participants as fully as possible. To accomplish this, there are two essentials, or as Billikopf describes them, pillars:

1. 1.

   a preliminary meeting (i.e. a pre‐caucus, or pre‐mediation) between the inter mediatory and each of the parties prior to the joint session; and

2. 2.

   a joint session in which parties speak directly to each other rather than through the mediator” (p. 3).

1 Pillar one: the pre‐caucus

Of course, most mediators are familiar with the caucus, (a meeting in which the mediator confers separately with each side,) but most think of it as an intervention to be considered during the mediation. And there are also mediators who eschew the caucus and prefer to mediate solely with all the parties in the room at all times. Billikopf centers the start of the mediation with separate meetings with each of the disputants, called the pre caucus. This presents a time to coach each of the disputants on how to take control and responsibility for the resolution of the dispute with the support of the mediator.

Specifically, the pre‐caucus is a time for the participants to “vent emotions, broaden perspectives, feel the support of a third party, discover blind spots, prepare to negotiate, increase their desire in resolving conflict, obtain hope and come to see the other party as a real person” (p. 9). Some of these aspirations are difficult to guarantee, yet they point in the general direction of empowerment and deliberate choice.

One area where Billikopf is especially strong is in his articulation of the importance of empathic listening ala Carl Rogers. Significantly he touts this form of listening, where attention is put on hearing not diagnosing or solving, as a way to address emotional tension, which he says must be attended to first, before a disputant can think clearly about his own and the others needs. In fact, he suggests that the “more entrenched and emotional the conflict, the more vital the listening role” (p. 13).

Listening empathically is vital during the pre‐caucus. One has a sense from some of the intriguing stories he tells, that Billikopf is a master listener himself and that his ideas, while sourced from theory, are grounded in his practical application of them in his own work. His underscoring of the importance of the pause (often framed as a mediator's ability to handle silence) is brilliant. He notes that when people pause, they in fact continue to think about their problems: “when individuals sense they will not be interrupted, they embark on an internal trajectory, every time deeper, wherein they commence to intensify the process of self‐understanding and analytical thinking” (p. 35).

Another aspect of empathic listening that Billikopf emphasizes, is validation. Again, his clear articulation of what is contemplated has the hallmark of something tried and tested. He points out how disputants have a sense of who they are in the world, and have a degree of attachment to these identities. A lot of progress is made when we can validate and not question the identity of each of the disputants as they share their perspective of the conflict.

Those interested in mediating deep‐seated interpersonal disputes, will find gems of wisdom and insight in the other topics that Billikopf addresses to support effective pre‐caucus meetings. Like the fact that the privilege to “challenge a disputants blind spot” is something you must earn “by showing empathy and true concern” (p. 53). He also articulates the essence of an interest or needs based approach to negotiation that is based on the classic Getting to Yes text. However he goes way beyond that, and again infuses his ideas with relevant stories and anecdotes to bring the theory to life.

2 Pillar two: the joint session

All of this – the pre‐caucuses with each party – is preparation for a joint session in which the parties speak directly to each other rather than through the mediator. On the face of it, there is nothing unusual about that, and one can certainly relate to this as a pillar of mediation. However, most mediators would be surprised to learn what Billikopf has in mind. For example, in party directed mediation, “the mediator sits far enough away that the contenders must turn their heads if they wish to make eye contact with him or her” (p. 114). It seems that the mediator is placed far enough away to be really aware of who's conversation it is!

While the mediator may explore which topics will be addressed and when, and ensure that all issues raised during the pre caucus, are deal with, Billikopf cautions against mediator interventions (he calls them interruptions!) unless absolutely necessary, as for example to overcome dysfunctional communication or power imbalances (p. 118). I hasten to add that my understanding is not that the mediator does nothing, but, like an official in a sports competition, be very careful in what he or she does. At the end of the day the question is one of control. Billikopfs' vision is that the structure of the pre‐caucus and then the joint session ensures that the disputants themselves take control and address the conflict in the manner that makes sense to them. In this sense, his approach leans heavily toward the Transformative model of Bush and Folger.

3 A case study

The field of mediation lives with an inherent promoting limitation‐what is said in the mediation is confidential and private. As tempting as it would be for mediators to tell their ‘juicy tales’ that is generally not an option. And so, while everyone seems to know what it is that a lawyer does, very few have a real grasp of what a mediator does. Fortunately for all of us, Billikopf has been able to gain the trust and confidence of two mediation participants and obtained their consent to share, with some alteration of identifying information, their experience. A substantial part of the book is devoted to the mediation of two co‐workers, Nora and Rebecca, in the form of a transcribed dialogue that enables the reader to vividly dramatize not just any mediation, but a party directed mediation.

I found this window into the real world of mediation fascinating. Not only does it ably demonstrate the implementation of party directed mediation, but it also contains Billikopf's comments‐his out loud thinking, as it were, of what is going on and why this or that is being done. Of particular interest were the comments about mediator interventions. Billikopf suggests the mediator, “should interfere judiciously” (p. 173). and that “the lack of intervention reflects the mediators confidence in the disputants' willingness and ability to work out a solution on their own” (p. 175).

There are two pre‐caucuses for each of Nora and Rebecca, and then joint session, as the chapter title announces, at last! Here is another example of the useful commentary Billikopf makes about the transcribed process:

Rebecca listens intently, sometimes making eye contact with Nora and sometimes staring at the table between them. Nora is combing several issues in her comments‐not only the incident involving Larry but also Nora's sincere caring about Rebecca. The hurt Rebecca feels because of this long conflict, however, is simply too deep to permit her to accept the partial apology offered by Nora (p. 177).

Billikopf explains that “when someone has been hurt, the person frequently has a need to express that pain. Hearing about pain we have caused another causes us discomfort. Yet, we need to acknowledge when we have hurt another” (p. 177).

The proof is in the pudding! The suggestion that party directed mediation is suitable to chronic relational disputes in a way that facilitates lasting peace is borne out by the note Billikopf receives from Rebecca a month after the actual mediation with Nora. It is recorded in a postscript:

I just wanted to let you know how much you have helped Nora and me. We are now talking regularly, and I'm enjoying the contact thoroughly. All the negativity that had built up for so long is gone, and I feel like I've lost a hundred pounds! The process was tough, but the results were more than worth it (p. 208).

4 Applied mediation: negotiated performance review

Most of us do not think we mediate because we know there are professionals who do.

And yet, if we reflect for a moment, we realize that mediation is really a communication skill, and that in some way or another we have mediated in life. It may have been between siblings, or peers at work, or friends, and if our career has taken us into HR for example, we would appreciate that we mediate in that role all the time.

What is exciting in my view, is the ways the skill of mediation is being woven into the fabric of our cultures. And so, Billikop's application of mediation – he calls it preventative mediation – to the knotty challenge of performance appraisal in the workplace was a pleasant bonus for me. This second model focuses on mediation between supervisor and subordinate rather than peer‐to‐peer mediation.

In addition to reading about this model in the book, I also took a four day workshop with Billikopf in July 2009 to explore this unique application of mediation to a common management challenge. To my amazement we did not end the workshop with an abstracted role play, but an actual real life performance appraisal ourselves! Observing the process in action and hearing from supervisors and subordinates themselves was an unbelievably rich learning experience.

Billikopf describes the negotiated performance process as a tool that can “improve interpersonal communication and thus avoid conflict escalation early on” (p. X). It requires that the supervisor act more as a coach than a judge, and focus on how to support the subordinate to be responsible rather than blame (p. 211). Although it is possible for the supervisor to follow the process without a mediator, it is suggested that the use of a mediator enhances success (p. 215). My own observation was that mediation would be suitable for chronic or acute conflicts, and that through coaching the ultimate goal should be for the supervisor to be able to use the process alone.

The process itself involves the development of three lists by the supervisor and four by the subordinate. At a joint meeting they share the contents of their lists and focus on tangible outcomes for future performance. If the process is mediated, there is a pre‐caucus and the joint session is facilitated in the same manner as party directed mediation. To this extent this tool can also be described as a mediation model.

Both the supervisor and the subordinate bring the following three lists.

Areas in which the subordinate:

1. 1.

   performs well;

2. 2.

   has shown recent improvement; and

3. 3.

   needs to improve” (p. 215).

Only the subordinate completes the fourth list and answers this question for the supervisor: “What can I do differently as your supervisor, so that you can become more effective in your job?” (p. 232). For those interested in learning more, I highly recommend this book. Another enhancement is the inclusion of performance appraisal transcripts, illustrating with clarity the application of the tool.

My biggest take away from this process was emphasis on giving feedback, Billikopf's thinking and ideas about the ratio between positive and negative comments, and how best to give a compliment, such “that it is really felt by the recipient” (p. 220). Behaviorally specific examples are key, as is “spending at least twenty minutes honoring what an individual does well” (p. 223). That is a lot, and is a cultural stretch. But as one who has seen it in action, I can report that it is possible and it does work!

5 Concluding comments

If you are responsible for the relationships of others whether as a manager or as a mediator, especially those with the potential for negativity, this wonderful book provides two models, one preventative and one transformative. The author has based his conclusions on the rigors of his direct experience as a professional mediator and the countless research videos that he studies and uses in his workshops to demonstrate what he is talking about. What will make this book popular and enduring is the efficacy of both the conflict resolution process itself, and also the people wisdom that carves a careful but minimalist role for a mediator who wants the parties to direct the outcome. In my opinion, the manner in which he explores listening as vital skill for humans to get along, let alone use it as a vital mediation tool, is of the highest order. I believe that the clarity with which the ideas are expressed, humbly, through example, with an emphasis on simplification make them accessible to both the beginner and the more advanced practitioner who wants to add to their tool box. It has been a pleasure reviewing the book, and recommending it to others.

A About the reviewer

John Ford works to support individuals and organizations approach conflict with greater confidence and effect. In addition to serving as Managing Editor for Mediate.com since 2000, John is a past president of the Association for Dispute Resolution of Northern California. He continues to mediate workplace, health care and elder disputes, teach mediation in the graduate school of professional psychology at JFK University, and provide skill‐based corporate training in communication, negotiation, conflict resolution emotional literacy and mediation. John Ford can be contacted at: johnford@mediate.com