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Variables Affecting Mediation Outcomes by George W. Buckingham, Jr.

Introduction

Parties i n dispute throughout soc ie ty have increasingly shunned the cour t s in recent years and sought ou t a l t e r n a t i v e dispute sett lement mechanisms.l The goal i s t o resolve disagreements peacefully and quickly, thereby reducing the costs of a protracted lawsui t . One of t he more frequent vehicles being t r i e d is the use of t h i r d pa r ty neu t r a l s , par t icu- l a r l y mediation.

There a re many indicat ions of the increasing use of these mechanisms as a l t e r n a t i v e s Mediation i s cu r ren t ly pract iced i n t h e medical profession t o set- t o the court systems.

t le po ten t i a l malpractice cases, and is used i n the home building industry through the Home Owners Warranty program (HOW) t o resolve disputes between bu i lde r s and buyers .* Along with a r b i t r a t i o n , mediation i s used t o resolve Ti t le V I I d iscr iminat ion charges .3 Mediation i s a l s o being attempted as a technique t o resolve environmental, community, and mari ta l disputes . ists over the Snoqualmie River a rea near S e a t t l e , Washington was resolved. accomplished an end to the occupation of 612 acres of land i n New York S t a t e by 100 armed Mohawk Indians.

Through mediation the heated dispute between farmers and environmental- Mediation also

Although t h e b i r t h of mediation a s a dispute resolut ion process i s disputed, it has been most widely pract iced i n t h e United S ta t e s i n p r iva t e s e c t o r c o l l e c t i v e bargaining. The primary purveyor of mediation i n labor r e l a t ions has been the Federal Mediation and Conciliation Service (FMCS), created by Ti t le I1 of the Labor Management Relat ions A c t of 1947, which replaced the U.S. Conciliation Service. A c t creat ing the Department of Labor which provided tha t I ! . . . t h e Secretary of Labor s h a l l have the power t o a c t as mediator and t o appoint Commissioners of conc i l i a t ion i n labor disputes whenever i n his judgment t h e i n t e r e s t s of i n d u s t r i a l peace may r equ i r e i t to be done. . . .I1 Regardless of i t s bir thplace, mediation as a process was developed in to a highly ref ined a r t i n t he p r iva t e sec to r labor/management arena pr imari ly through the FMCS.

FMCS t r aces its roots back t o t h e 1913

Paradoxically, although mediation is growing beyond i t s r o l e as an i n t e g r a l p a r t of t h e co l l ec t ive bargaining process i n t o a generalized method of d i spu te resolut ion, i t is a l s o described as "perhaps the least s tudied subject i n t h e f i e l d of i n d u s t r i a l r e l a t ions . "5 David Lewln, Peter Feu i l l e and Thomas Kochan have iden t i f i ed two major reasons f o r t he paucity of research: i s an art ; i . e . , t ha t d i f f e r e n t mediators use d i f f e ren t techniques with equal ly good r e s u l t s ; second, and a s a r e s u l t , very l i t t l e theory e x i s t s t o guide research. The paucity of theory becomes pa r t i cu la r ly not iceable i n the iden t i f i ca t ion of var iables and i n the conceptualization of t he process .6

f i r s t , a l a rge proportion of p rac t i t i one r s bel ieve t h a t mediation

It is my experience t h a t t he high degree of effect iveness enjoyed by mediation i n p r iva t e sec to r labor r e l a t ions creates equally high expectations f o r its successful t rans- ference t o o the r areas both i n degree of success and s imi l a r i t y o f p rac t i ce . noted above, t h e ava i l ab le research necessary t o measure t h e v a l i d i t y of those expectations i s sparse . Nonetheless, while d e f i n i t i v e conclusions cannot be drawn, much can be sa id about the fundamental core which underl ies a l l mediation e f f o r t . Based on t h i s , testa- b l e hypotheses can be generated and useful research undertaken. Against t h i s background, we can c r i t i c a l l y examine the functioning of mediation i n p r iva t e sec to r l abor r e l a t i o n s , publ ic s ec to r labor r e l a t ions , and the non-tradi t ional area.7 important s i t u a t i o n a l cha rac t e r i s t i c s l i k e l y to e x i s t f o r each of t h e th ree areas , and

However, as

I w i l l f i r s t i den t i fy the

then d iscuss the probable impact of those c h a r a c t e r i s t i c s on the mediation process. F ina l ly , I w i l l o f f e r t e n t a t i v e conclusions on the r o l e of mediation i n the non- t rad i t iona l a r ea and d iscuss t h e need f o r add i t iona l research t o maximize i t s e f f ec t iveness .

Bases of Influence i n Mediation

Arbi t ra t ion and mediation both involve the in te rvent ion of a t h i r d par ty neu t r a l who provides a s s i s t ance to p a r t i e s i n d ispute . t o an agreement, e i t h e r through l e g i s l a t i o n o r p r io r agreement of t h e p a r t i e s . t r a s t e d t o an a r b i t r a t o r , t h e mediator has no formal power t o make a binding decision. Thus, i n mediation, the neu t r a l must exerc ise a va r i e ty of s t r a t e g i e s aimed a t persuading o r in f luenc ing the p a r t i e s toward agreement. they must have a t t h e i r d i sposa l some source o r base of power. a l l mediation e f f o r t rests on the u t i l i z a t i o n of one o r more power bases .

An a r b i t r a t o r has au tho r i ty t o bind the pa r t i e s A s con-

In orde r f o r mediators t o have inf luence , The fundamental core of

The use of in f luence and persuasion i s obviously not unique t o mediators, but uni- v e r s a l i n our soc ie ty . t h e va r i e ty o f ways an ind iv idua l ' s cognition, a t t i t u d e , o r behavior may be changed.

Several systems have been developed t o c l a s s i f y t h e var ious bases of in f luence .

There is therefore a considerable body of l i t e r a t u r e dea l ing with

One of t he most widely used was developed by John R.P . French and Bertram Raven:

1. Reward. The person with au tho r i ty can give something t h a t is des i red .

2 . Coercive, The person with au tho r i ty can administer punishments.

3. Legitimate. t h e values of t h e person influenced.

4 . Referent. t o model h i s own behavior.

5. Expert. The perso with au tho r i ty has expert s t a t u s and thus i s l i k e l y t o be

The person with au tho r i ty is r i g h t i n exerc is ing power according t o

The person with au tho r i ty is one on whom t h e person influenced wishes

co r rec t and accura te . 8 Two addi t iona l bases added by o the r s seem pa r t i cu la r ly pe r t inen t t o the mediation

process :

6 . Informational. The personwi th au tho r i ty "hasknowledge about t he s i t u a t i o n o r pos i t i ons of the pa r t i e s . "9

7. Affect. The person with a u t h o r i t y i s ' l f r i e n d l y t o both s ides . . . t r y i n g t o de- velop an atmosphere of agreement and mutual consent. "10

A l l mediators opera te from one or more o f these sources of in f luence , and although a l l competent mediators are adept a t using t h e various bases e f f e c t i v e l y , most mediators do so from an i n t u i t i v e o r a t r i a l and e r r o r , learned sense of what works i n a p a r t i c u l a r circumstance r a the r than from e x p l i c i t choices among a l t e rna t ives .

A legit imacy base of in f luence can function i n many ways. For example, i n p r iva t e s e c t o r labor r e l a t i o n s , it has long been accepted by t h e p a r t i e s t h a t a t t h e beginning s tages of t h e process, the mediator w i l l frame the outs tanding i s sues and not en te r t a in any addi t ions a t a l a t e r time. The mediator i s given t h i s " l eg i t ima te power" by the p a r t i e s because they see it as a r i g h t f u l exerc ise of mediator au thor i ty .

Expertise may accrue t o t h e mediator through t h e p a r t i e s ' p a s t dea l ings e i t h e r with Otherwise, t h e base must be developed by t h e o the r mediators or with t h a t mediator.

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mediators' behavior in handling the s i tuat ion. The mediator's analysis, suggestions o r other action must convince the par t ies that here l i e s the s k i l l and experience they need to guide them to a successful conclusion.

Reward, coercion, and information are more dependent on the interaction between the influencer (mediator) and the influencee than a re legitimacy and expertise and therefore require greater explanation.

Because mediators have, by definition, no rewards of t h e i r own they can dispense, how are they able t o u t i l i z e a reward base of influence? relat ions example w i l l serve to i l l u s t r a t e how a mediator uses the reward base by chan- neling the potent ia l rewards, i f any, the par t ies have for each other:

The following simple labor

In the negotiations between Widgets Inc. and the United Widgets Union, the par t ies are separated by two issues, X and Y. The company would be willing to give i n on item Y to get its way on X. The union, in turn, would be willing t o give the Company what i t wants i f it could be assured of gaining i t s position on Y. However, the par t ies have been unable o r (more unlikely) unwilling to share t h e i r potential for movement with the other. The mediator, on learning of the par t ies ' positions now has "rewards" he can proffer t o bring the par t ies together. that by working through the confidentiality of the mediator, neither party is put i n the position of revealing i ts t rue position without knowing what to expect in return.

Note,

Seldom in rea l dispute is a mediator so fortunate t o find such a neatly packaged trade. A part of h i d h e r c r a f t is to work separately with the par t ies , attempting t o discover o r generate movement which w i l l create "rewards" that give the mbdiator power t o influence the sides into modifying the i r positions. I f neither s ide i s able (or willing) to make concessions, o r w i l l not share that potent ia l , the mddiator w i l l not be able t o work from th is base of influence.

Coercion, a s a base of influence, works i n a similar fashion, except that here the An unwillingness t o move again mediator is working with sanctions rather than rewards.

un t i l movement i s shown by the other s ide, the threat t o break off ta lks ( for the day, indefinitely, e t c . ) and the threat of s t r i k e a re a l l sources of coercive power upon which the mediator can focus to generate positional change. However, the pract ical a b i l i t y t o use coercion as a base of influence is limited. The response t o coercion i s often unpre- dictable, and it is closely akin to possessing a gun with but one bul le t i n it.

Informational power increases to the extent that a mediator keeps the par t ies sepa- rated and moves between them, practicing what has been popularized by Kissinger as "shut t le diplomacy." Without other l ines of communication, the par t ies become to ta l ly dependent upon the neutral for knowledge of where the negotiations stand, options available, and the likelihood of a sat isfactory solution. have a source of power a t the i r disposal.

For it t o exis t , the person to be influenced must closely ident i fy with the personal or role character is t ics of the mediator. tage of i t; otherwise it is ineffective as a source of power, and it is not useful to in- clude i t further in the framework of t h i s a r t i c l e . Neither w i l l we devote further atten- tion t o the a f fec t base.

A s the gatekeepers of information,mediators

Reference power, however, is not a base that can be used with any predictabi l i ty .

In such a s i tuat ion, t h e mediator can take advan-

Affect power is qual i ta t ively different than the other bases. It i s in r e a l i t y what Kressel refers t o as reflexive s t ra tegies; those which the mediator employs to a large

degree i n a l l situations.'' t e r r ib ly helpful i n a framework for understanding mediator behavior.

Since the discretion in use i s the degree of use, i t i s not

L i t t l e research has been done on the u t i l i za t ion of various influence bases i n the mediation process. A study by Icdik, Goldstein and Berkowitz, however, does provide some i n i t i a l analysis.

In a study of s t a t e mediators from the United States, Canada, and Puerto Rico, 113 In one portion of the instrument, mediators responded to a wide ranging questionnaire.

the mediators were asked to ra te f ive bases of influence. t r y f i r s t Fn influencing the par t ies . followed by expertise (10%). i n seeking agreement. acceptability as well as quickly diminishin in effect through repeated use. The infor- mational base was not offered as a choice.15 It i s not surprising that the majority chose the a f fec t base since by definition it is something a l l mediators act ively pursue t o s e t the stage for the effect ive use of other bases. the perceived neutral i ty and credibi l i ty of the mediator are c r i t i c a l underpinnings of effectiveness . Characteristics Affecting Mediation Effectiveness

75% chose the a f fec t bases to Their second choice was a reward base (11%) closely

Significantly, none chose coercion as a base to t r y f i r s t This seems logical since i t s use rapidly uses up chips of mediator

Similarly, mediator acceptability including

In each confl ic t s i tuat ion there may exis t specif ic character is t ics that can and do af fec t the outcome and mediator effectiveness. However, those which seem to make the greatest difference and occur with the most frequency can be grouped into the following four factors: t i e s with bargaining/mediation, (3) the nature of the relationship between the par t ies and ( 4 ) the nature of the issues.

(1) the pressure on the par t ies t o s e t t l e , (2) the experience of the par-

Of these four, the most c r i t i c a l by f a r i s the pressure to s e t t l e . For, without pressure in a serious confl ic t s i tuat ion, the mediator i s l e f t without a base tha t can significantly a l t e r outcomes. This w i l l be true regardless of the conditions i n the other factor groups. reward and coercion also increases, while the usefulness of other bases depends onthe c i r - cumstances with regard to the other three factors.

A s settlement pressure increases, the mediator's a b i l i t y t o use a t l eas t

The level of experience factor w i l l have the greatest impact on the ava i lab i l i ty of reward, expertise, and legitimacy. o r mediation experience and/or experience with mediation, they w i l l be more willing to share position information thereby enhancing reward powerf3more l i k e l y to accept the exper- t i s e of the mediator and more apt to perceive the legitimacy of t h e mediation role .

To the extent that the par t ies have bargaining and/

I f the relationship between the par t ies is recognized as symbiotic, reward and legi- timacy power increase. existence, that party w i l l also deny the legitimacy of bargaining and, of course, the me- diation role. A t the l e a s t , they w i l l resist t rue bargaining, and obstruct movement from a position of intransigence. hand, if the par t ies a re interested i n resolving the confl ic t but prefer or need to avoid contact, the mediator's informational base increases.

I f e i ther party desires an end to the relat ionship or denies i ts

Reward power w i l l then be non-existent. On the other

Finally, the nature of the issues w i l l most direct ly affect reward and expertise power. base. task. Most mediators, however, would prefer more than a single i ssue i n order to have some potential f o r f lex ib i l i ty . the issues to be perceived as expert. However, many mediators hold that i t is expertise i n bargaining, rather than about the issues,that is c r i t i c a l . This school of thought

The more numerous and quantifiable the issues, the greater the power of the reward Of course, the more numerous the issues, the greater w i l l be the magnitude of the

And, obviously, the mediator must have experience with

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holds that the mediator can quickly develop the needed famil iar i ty with foreign issues to be effective.

Private Sector Labor Relations

Such reasoning ignores the perception o f the parties.

It is easy to understand why mediation has been highly successful in private sector labor relations when the following favorable s t ructural character is t ics are examined:

Pressure on the par t ies to s e t t l e . 1. The costs of not settling a r e high for both and are understood. 2. There is no other a l ternat ive to-settlement exceut for the s t r ike . 3. There is a fixed deadline.14

Experience of the par t ies . 1. The par t ies are knowledgable about the process, have rules of the game. 2. Mediation i s a familiar i n s t i t u t i o n long accepted by specific mediator i s familiar as well.

experience, and know the

the par t ies ; often the

Nature of the relationship. 1. The relationship is often long-standing and typically each par ty perceives the other as legitimate. 2. There a re two re la t ively cohesive par t ies involved i n the dispute. 3. Within the contractual relationship, there is a mutual interdependence.

Nature o f the issues. 1. There are a number of issues outstanding, generally non-abstract, and often primarily economic.

While the above character is t ics a r e seldom a l l found t o ex is t to a high degree i n the same negotiation, they are reasonably typical of the private sector bargaining set t ing. Where such an ideal s i tuat ion does e x i s t , the effectiveness of the mediator should be very high, since he/she has v i r tua l ly a l l of the bases of influence from which to operate.

Where there is a mutual interdependence, high costs for both par t ies in the event of a s t r ike , a fixed deadline, and the lack of other a l ternat ives (such as moving o r closing the p lan t ) , the desire of the par t ies t o s e t t l e i s strong, which f a c i l i t a t e s the mediator's overall persuasive ab i l i ty . Such character is t ics , as discussed, par t icular ly enhance the a b i l i t y t o effectively u t i l i z e the reward and coercive base if necessary during the c r i t i - cal period just pr ior t o the deadline. to the i r advantage t o se t t le . effect ive mediation w i l l be d i f f i c u l t i f not impossible. dent on convincing the reluctant party that the settlement a l ternat ive is preferable. In such s i tuat ions, the only sources of influence l ike ly to be effect ive a re reward o r coercion. previously considered o r available, o r may present negative consequences (coercive power) that w i l l resul t from a fa i lure to s e t t l e . settlement a t a l l costs w i l l achieve that goal despite anything a mediator might do.

This i s because the par t ies perceive tha t i t is But, i f e i ther party chooses a non-settlement a l ternat ive,

Mediator success w i l l be depen-

The mediator may attempt t o point out settlement benefits (reward power) not

However, a bargainer determined to r e s i s t

Within the experience factor , where mediation and/or the mediator is highly accepted and the par t ies a re knowledgable about the process, use of the legitimate base is imme- diately available. a tor ' s leading the meeting, framing the issues, se t t ing the agenda, and acting on various other procedural matters. sumption of expertise which the mediator can enhance in the ear ly s tages of involvement with the par t ies . able enough about bargaining to share confidences with the mediator.

The par t ies ' pr ior experience w i l l promote acceptance of the medi-

Prior experience and/or reputation w i l l a l s o provide a pre-

In addition, the reward base i s available when the par t ies a re knowledg-

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With a long-standing r e l a t ionsh ip , high in t ra -par ty cohesiveness, and a mutual i n t e r - dependency, t h e p a r t i e s r ead i ly accept t h e legit imacy of t h e mediation process, and in- c r ease t h e po ten t i a l of t he reward base. Sometimes, however, t he degree o f tension be- tween t h e p a r t i e s i s so high t h a t i t i s counterproductive f o r them t o engage i n face-to- f ace meetings. I n t h i s case , t h e mediator 's informational base may increase i n impor- tance , a s he/she serves a s t h e only contact through which information passes .

The na ture of the i ssues i n p r iva t e sec to r c o l l e c t i v e bargaining heightens reward and exper t power. Because mediation has been an i n s t i t u t i o n i n c o l l e c t i v e bargaining f o r decades, t he mediator i s and i s quickly perceived as exper t i n t h e sub jec t a t hand. And, economic, non-abstract i s sues f o s t e r a wide array o f poss ib l e so lu t ions from which t o work i n o f f e r i n g rewards.

Publ ic Sec tor Labor Relations

As mediation moved i n t o publ ic s ec to r labor r e l a t i o n s , mediators found t h a t they had t o opera te d i f f e r e n t l y i n response t o d i f fe rences i n s t r u c t u r a l c h a r a c t e r i s t i c s . An examination o f t h e four f a c t o r s provides ready explanation f o r t h e g r e a t e r d i f f i c u l t y experienced i n t h e public s ec to r . As l i s t e d below, d i f fe rences from the p r i v a t e sec to r weaken t h e e f fec t iveness of t h e various bases of power across t h e board:

A. Pressure t o s e t t l e . 1. There a r e of ten o the r a l t e r n a t e procedures a f t e r t he mediation e f f o r t . 2. h a d l i n e s have a d isconcer t ing way o f receding.

B. Nature o f t h e r e l a t i o n s h i . 1. Managements a r e less k l i n g t o recognize t h e legit imacy of t h e union.l5 2 . There a r e any number of power pa r t i c ipan t s away from t h e bargaining t ab le .

C . Experience of t he p a r t i e s . 1. The p a r t i e s t y p i c a l l y lack expe r t i s e i n the c o l l e c t i v e bargaining process. 2 . Because bargaining is r e l a t i v e l y new, mediation has no r i c h t r a d i t i o n on which t o t rade .

D . Nature o f t h e i ssues . 1. The i s sues involved a r e genera l ly more a b s t r a c t .

Regardless of t he arena, mediation requi res t h a t both p a r t i e s have a des i r e t o bargain t o an accord. Therefore, unless t h e pressure of t h e s i t u a t i o n o r t he mediator can e s t a b l i s h t h a t requirement, t r u e bargaining w i l l no t take p l ace and t h e mediation pro- cess w i l l be less than e f f ec t ive . mediation, t h e mediator loses t h e a b i l i t y t o use any base of persuasion. The p a r t i e s con- c e n t r a t e on pos i t ion ing themselves f o r t h e next s t e p , be it fac t - f ind ing o r a r b i t r a t i o n , r a t h e r than on se t t lement . S imi la r ly , i f deadlines a r e movable, t h e pressure t o s e t t l e never rises t o t h e ex ten t needed f o r mediator influence. It i s t h e pressure of t h e ap- proaching deadline t h a t a ids t h e mediator 's e f f o r t s . poned, consequences must be faced. It i s a t t h i s s t age t h a t t h e e f f ec t iveness o f t he reward, expert and coercive sources of influence a r e a t t h e i r peak. l i n e , t h e p a r t i e s w i l l simply postpone tough dec is ions .

When a l t e r n a t e procedures are ca l l ed f o r following

Decisions can no longer be post-

With a movable dead-

Where the na ture o f t h e r e l a t ionsh ip i s such t h a t management is unwill ing to recog- n i ze t h e union's r i g h t t o represent employees, i t may be d i f f i c u l t t o g e t t h e p a r t i e s t o nego t i a t e a t a l l . Whatever minimal in f luence t h e mediator has can e a s i l y be used a t t h i s s tage , so t h a t even i f t h e p a r t i e s reach t b tab le , discussion i s l i k e l y t o be l imi t - ed t o sur face bargaining. The absence from the t ab le o f power p a r t i c i p a n t s poses an

add i t iona l stumbling block: d i r e c t l y o r through t h e i r representa t ives . than d i r e c t confrontation.

t he mediator must f i nd a s t r a t egy o f g e t t i n g t o them e i t h e r Ind i r ec t persuasion oaviously has less impact

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When the par t ies lack col lect ive bargaining experience and/or experience with the mediator, they generally w i l l r e s i s t sharing the i r f l e x i b i l i t y on issues which elimi- nates the ,reward base as an option. Further, the mediator i s less l ike ly t o be seen as an expert a t the outset. In such a s i tuat ion, the mediator must perform an educa- t ional function and i n the process demonstrate h i d h e r expertise, i n order t o tap both the expert and reward bases. If the mediator is successful in t h i s endeavor, the legi- timacy base w i l l be available to him/her; otherwise it w i l l continue to be absent by def ini t ion.

To further confound matters, issues i n the public sector tend t o be more abstract and less negotiable than those i n the private sector. I t is much easier t o trade off on a desired wage increase, for example, than on demanded acknowledgment of the r igh t to s t r ike . This s ignif icant ly detracts from the mediator's potential reward base.

Although t h i s discussion on the public sector has deal t with the negative forces that limit the options available to the mediator and make the task more d i f f i c u l t , medi- ation can and has played a successful role in public sector labor relations. ' Some of the negative character is t ics l i s t e d ( i . e . the unwillingness of management to recognize' the union, lack of expertise by the par t ies and inexperience with mediation) a r e no different than existed in the pr ivate sector several decades ago. They changed in the pr ivate sec- t o r and they are also changing i n the public sector. Until they do, the mediator w i l l of necessity have to operate different ly i n the public sector to be effective.

Generally, mediation has to begin ear l ie r than i n the private sector. The par t ies w i l l need time to learn and become comfortable with the functions the mediator is t o perform (legitimate power), and to develop an appreciation of the mediator's expertise. I f , as the bargaining progresses, the par t ies ' acceptance of the mediator increases, they w i l l increasingly share t h e i r room for movement. The mediator w i l l now have reward and informational bases of influence with which to work. This i s different from the pr ivate sector in that i n i t i a l l y the mediator's options a re severely limited and a sense of pro- gress delayed. ceived as less effect ive than i n the pr ivate sector. But, by concentrating on the sources of mediator influence it should be apparent a mediator's approach i n such a se t t ing must track a different course.

The Non-Traditional Area

In such a public sector se t t ing , the mediator might i n i t i a l l y be per-

In the non-traditional area, the character is t ics of the four factors a r e s t i l l further removed from the ideal i n the following ways:

A.

B.

C.

D.

Pressure to s e t t l e . 1. It i s often d i f f i c u l t t o impose a r e a l i s t i c deadline.

Nature of the relationship. 1. There i s often no contractual relationship -- nor may there be an interdepen- dence of needs.

Experience of the par t ies . 1. There a re no rules to the negotiations -- thus 2. Mediation has no reputation with the par t ies .

no expectations of behavior.

Nature of the issues. 1. There is great divers i ty of subject expertise necessary t o be able to func- t ion effectively. 2. The issues are narrow, abstract , emotional and often non-quantifiable.

Mediators in the non-traditional area operate from the same limited sources of

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influence as i n any other area. Each of the above character is t ics renders the mediation task more d i f f i c u l t because one by one they narrow the sources available to the mediator. If the par t ies do not understand the mediation process there is no range of behavior deemed legitimate. Each move of the mediator w i l l be questioned and subject to objection.

The d i f f icu l ty of mediation without the pressure t o s e t t l e of a deadline has already been discussed and, as previously mentioned, undercuts a l l bases of influence. There i s no s t r ike to threaten, and other potential costs of nonsettlement are unclear; the mediator's coercive base is los t . It is equally unclear what s o r t s of rewards each side can of fe r the other, o r what the mediator can suggest would accrue to one o r both, as an inducement to settlement.

The lack of perceived interdependency further erodes the avai lable reward base. The fact that the par t ies have no contractual relationship limits the mediator's legitimacy base as well as the reward base. par t ies by the other complicates the negotiation in much the same way that it does when a public sector union is not recognized by management. Whatever influence the mediator has, regardless of base, is apt t o be severely diminished in ge t t ing the par t ies t o the table, leaving l i t t l e f o r the negotiation process i t s e l f . To make matters worse, deal- ing with more than two par t ies makes the process nuch more complicated and t h e i r dis- organization makes it d i f f i c u l t f o r them t o speak for , l e t alone make commitments for, t h e i r constituencies, and opens the opportunity for individual power maneuvering which is counterproductive to the goals of settlement.

The perceived illegitimacy of one o r both

Without mutual recognition of negotiation rules, it may be well nigh impossible to hold the par t ies a t the tab le during d i f f i c u l t times, and even more d i f f i c u l t t o pre- d i c t reactions to possible mediator s t ra tegies . par t ies removes the normal source of the mediator's legitimacy base.

Mediation's lack of reputation with the

Single emotional issues often negate coercive, reward and expert power. The parties fee l that giving in would involve compromising t h e i r principles; under t h i s emotional impact, they are able to withstand high levels of coercion. In the same way, non-nego- t iab le positions undermine the rewardbase. Catch-22 s i tuat ion. Without subject matter expertise, the mediator m a y be dismissed as ignorant and therefore incompetent. I f the mediator has the expertise, It may well have been gained through an al l iance with one of the vested in te res t s and thus destroy needed acceptability.

The divers i ty of subject matter presents a

Because of these s t ructural d i f f icu l t ies , a mediator i n the non-traditional area must look to the affect base of influence ( the weakest base) -- being friendly to both sides and trying to develop an atmosphere of agreement and mutual consent as a s ta r t ing point. By try- ing t o develop an atmosphere of agreement and mutual consent, the mediator can direct the i r attention away from continued confrontation and toward a mutually agreeable solution. and through education, widen the bases of influence available. I f however, any of the par t ies prefer continued confl ic t , it w i l l continue. But, the problem solving environ- ment offered by the a f fec t base represents an on-going opportunity for the par t ies t o qui t the ba t t le f ie ld and seek peaceful resolution.

The par t ies t o a dispute a re looking for a way t o solve t h e i r problem.

From that beginning the mediator can, through familiarization with the par t ies

Conclusion

Mediation as a dispute resolution technique r e l i e s on the use of a range of influ- ence bases; i .e. reward, coercion, legitimate, referent , expert, information, and affect . The effectiveness of these power bases is i n turn dependent on numerous character is t ics in each confl ic t s i tuat ion. The most important of these appear t o be pressure t o s e t t l e , the nature of the relationship, the experience of the par t ies with bargaining and

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mediati03 aod the nature of t h e i s sues . these f ac to r s vary widely between t h e p r iva t e sec to r , the publ ic s ec to r and the non- t r a d i t i o n a l dispute arenas. Mediation must, of necessi ty , t he re fo re , be approached d i f - f e r en t ly t o meet t he needs of t h e s t r u c t u r e of the pa r t i cu la r conf l i c t .

A s has been pointed o u t , t h e circumstances of

The theo re t i ca l construct suggested here i s obviously not a blueprint f o r grading mediator act ion, but hopefully a vehicle leading t o a b e t t e r understanding of the medi- a t ion process and acceptance of t he need fo r d ive r s i ty i n mediator behavior. Hope- f u l l y , researchers w i l l begin t o test out t he asser t ions made i n t h i s ar t ic le (and o the r comparative statements made by p rac t i t i one r s about t he na tu re and effect iveness o f mediation). Through this undertaking, t he asser t ions can not only be proved o r disproved, but a l so ref ined and expanded. explain the l i k e l y effect iveness o f mediation can be iden t i f i ed . suggestions can be derived t o increase the effect iveness of mediation in t h e many d i - verse arenas in which i t i s used.

New intervening and primary va r i ab le s which I n t h i s way, r e a l i s t i c

NOTES

1.

2.

3.

4.

5 .

6.

7.

8.

9 .

10.

11.

l lSet t l ing Out of Court: 1981) :61.

Shortcut t o Jus t i ce , " U.S. News and World Report (June 15,

Ibid.

"Mediation Achieves Increasing Recognition," Arbi t ra t ion Times: News and Views from the American Arbi t ra t ion Association (November 1980) :4. The, a r t i c l e concerns t h e awarding of a $7OO,OOO gran t by t h e Equal Employment Opportunity Commission to t h e American Arbi t ra t ion Association to test the use of mediation and a r b i t r a t i o n tech- niques in resolving these disputes .

"Se t t l i ng Out of Court," U.S. News and World Report (June 15, 1981) :62.

Charles M. Rebus , "The Mediation of I n d u s t r i a l Conflict: A Note on t h e Literature," The Journal of Confl ic t Resolution I X , 1 (March 1955) :118.

David Lewin, Peter Feu i l l e and Thomas Kochan, Public Sector Labor Relations: Analysis and Readings (Glen Ridge, N . J . : Horton, 19771, p. 225.

Although mediation i s being used i n s i t ua t ions where individual p a r t i e s represent t h e i r own interests (e.g. marriage, medical), what I ' m r e f e r r i n g t o by " the non-tradi t ional area" i s l a rge r group disputes such a s occur i n community, environmental, housing and neighborhood arenas.

John R.P. French and Bertram Raven, "The Bases of Social Power," Studies i n Social - Power, D. Cartwright, ed. (Ann Arbor: of Michigan, 19591, p. 155.

B. Raven, V o c i a l Influence and Power,11 Current Studies in Social Psycholo , I . D . S t e ine r and M. Fishbein, eds. (N.Y.: Holt, Rinehart and Winston, Inc. , 1 9 8 , p . 373.

Monroe Berkowita, Bernard Goldstein and Bernard Indik, "The S t a t e Mediator: Self-Image and Att i tudes," Indus t r i a l and Labor Relations Review 17, 2 (January 1964) :273.

Research Center f o r Group Dynamics, University

Background,

Kenneth Kressel, Labor Mediation: An Exploratory Survey (New York: Association of Labor Mediation Agencies, 19721, p. 13.

64

12.

13.

14.

15.

Berkowitz, Coldstein and Indik , "The S t a t e Mediator," I n d u s t r i a l and Labor Relations Review 17, 2 (January 1964) :273-74.

By bargaining experience, I mean t h a t t he p a r t i e s have previously engaged i n negoti- a t ions (with o r without a t h i r d p a r t y ) i n which they 've become fami l i a r with and ab le t o compromise. A par ty with bargaining experience i s more l i k e l y than one without i t t o be a b l e not only t o c l e a r l y frme i ts pos i t ion on i s sues but a l s o t o develop a l t e r - na t ive o r f a l lback pos i t i ons on which bas i s compromise can be made.

It is normally t h e e x i s t h g con t r ac t which f ixes t h e deadline. t r u e , t h e cont rac t may be extended thereby postponing the deadl ine . l i k e l y t o do t h i s only if they feel t h a t it is t h e lack of needed time which i s block- i n g an agreement and if they be l ieve t h a t they can reach agreement given more time. Even i n t h e case of a con t r ac t extension, however, a new deadl ine i s l i k e l y t o be fixed.

Another way of s t a t i n g t h i s i s t h a t management tends t o opera te from a perspec t ive of t r y i n g t o ge t r i d o f , o r undermine, t h e union, r a t h e r than one of accommodating t o i t . Three th ings should be noted here, however. F i r s t , t h i s statement is a r e l a t i v e one, i . e . , publ ic s ec to r managements a r e more l i k e l y t o be o r i en ted towards g e t t i n g r i d of t h e union and pr iva te s e c t o r managements t o accommodating. Second, a t t h e ou t se t of the p r i v a t e sec to r l abor movement, managements i n t h i s s ec to r themselves approached unions as organizations t o be eliminated o r disempowered. Third, in t h e pub l i c s ec to r , management begins t o move toward a pos i t i on of accommodation a s it l ea rns t h a t t h e union cannot be eliminated as a fo rce and a s they l ea rn t h a t c o l l e c t i v e bargaining i s no t t h e nePativo element i n i t i a l l v feared.

I n some cases , i t i s But, p a r t i e s a r e

Drawing by Faye Mattingly