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Conflicting values How neutrals' ideology affects their clients.

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Alternatives
TO THE HIGH COST OF LITIGATION
VOL. 23 NO. 1 JANUARY 2005
CPR INSTITUTE FOR DISPUTE RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publishers:
Thomas J. Stipanowich
CPR Institute for Dispute Resolution
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John Wiley & Sons, Inc.
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Alternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the CPR Institute for Dispute Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.
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10 ALTERNATIVES
CPR INSTITUTE FOR DISPUTE RESOLUTION
Conflicting Values: How Neutrals’
Ideology Affects Their Clients
VOL. 23 NO. 1
•
•
BY BERNARD S. MAYER
There is nothing wrong with these valMediation to a large extent is an ideologi- ues. Indeed, I share most of them. The
cally driven field. Most mediators do this problem is that they are not necessarily the
work not simply out of an interest in the values of our clients. When they are and we
field or a sense that this is a reasonable way share these values with our clients, particuto make a living, but because
larly when all parties to a disthey believe mediation is conpute share these values, we
tributing in an important way to
are able to provide especially
improving our world.
rich services.
ADR
As a result, mediators tend to
But there are two other
be committed to an approach
possible dynamics that we
SKILLS
that does not just help people
have to consider. Our clients
resolve their disputes, but has a
may not share our values, but
further, if not always articulated,
our values may not be in sigagenda of changing the way peonificant conflict with theirs,
ple handle conflict and interact with each or we may have conflicting values.
other. Not all mediators come from this perFor example, clients may not care
spective. Some would say that they are here about being able to communicate or findsimply to guide people to a solution to the ing an integrative solution—but they
dispute. But many mediators speak of using might not object to it either. Or clients
mediation to transform people, empower may actively want to win, continue to be
participants, open up new ways of commu- antagonistic, or maintain negative communicating, and help promote a more peaceful nication with each other.
world. These goals stem from a view of how
This can lead to a disconnect between
people ought to interact, how decisions the type of mediation clients want and the
ought to be made, and how society should type many mediators offer. This is not necapproach conflict, and as a result we are fairly essarily a problem if the mediator and the
ideologically driven in how we approach our client, in a process akin to an interest-based
actual practice.
negotiation, can work through these differAmong the values and beliefs embed- ences or if the mediator can “start where
the client is at” and work toward a broader
ded in our practice are these:
social goal.
But this disconnect can often lead to a
• Resolution is better than conflict.
• Cooperation is better than competition. situation where clients want something dif• Integrative solutions are better than dis- ferent from what we offer and are reluctant
to use our services because they do not see
tributive solutions.
these services as meeting their needs.
• The coercive use of power is bad.
• Interests are important; positions are a Clients may want some of the following
things, but many mediators do not feel
problem.
• Communication among antagonists is they can accommodate them:
desirable.
• Pressuring people to accept a solution is • Clients want to be told who is right and
who is wrong.
not helpful.
• Empowering disputants to solve their • They seek vindication.
• They want to be told whether a solution
own problems is important.
being suggested is fair and reasonable, or
The author is a partner at CDR Associates, a Boulder,
whether they are being played for a fool.
Colo., consulting firm focusing on conflict resolution
•
They
want help in convincing other parsystems design and training. This article is adapted
ties of the merits of their case or the reafrom Chapter 3 of the author’s book, “Beyond
Neutrality: Confronting the Crisis in Conflict
sonableness of their proposals.
Resolution,” published last year by Jossey-Bass, ©
•
They
want substantive information and
2004 by John Wiley & Sons Inc., used by permission.
advice.
For more information, see www.josseybass.com.
•
JANUARY 2005
They want to know how other people
have solved the same problem.
They want the mediator to guide the
process with a firm hand, making sure
that they do not waste time and that
they are not subject to attacks, dirty
tricks, or a level of emotional engagement that they are not prepared for.
They want to get out of the room.
Of course, not all clients wish these
things, and many mediators will accommodate some of these needs, particularly if
they approach their work from an evaluative perspective. Evaluative mediators will
provide substantive input, give clients a
sense of how others may have solved the
same problem, provide input as to the reasonableness of a proposal, and pressure
parties to accept each other’s offer. However, in the process, they give up some of
the potential benefits of mediation.
Sometimes clients may well be advised
to “watch out for what they ask for because
they may well get it.” That is, clients may
want something that will not serve their
interests particularly well in the long run.
In many circumstances, clients or advocates seek a very particular type of mediation that is not in keeping with the underlying ideology or values of the conflict resolution field. That may in part account for
the popularity and growth of judicial mediation, med/arb, evaluative mediation, and
in general the growing dominance of
lawyers in many different segments of
mediation.
As a field, we have every right to maintain our values and to push the public and
our client population to reorient their thinking. Other professions have done this fairly
successfully (mental health, public medicine,
child development, urban planning, education), but we are also in danger of creating
too big a divide and having a difficult time
broadening the reach of our services.
In response to this concern, evaluative
mediators might argue that their approach is
the only one that will work from a business
point of view over time, and many referring
attorneys would agree. The downside of this
approach is that it does not really change the
way conflict is addressed in keeping with the
broader needs of society and the values of
most of us in this business.
DOI 10.1002/alt.20053
(For bulk reprints of this article, please call
(201) 748-8789.)
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