Achieving outcomes in mediation: a triumph of style over substance?

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Joanna Kalowski
2006 Freeehills LEADR Fellow

LEADR annual dinner
19 October 2006

Summary:

How often when matters fail to settle is the style of the protagonists the real cause, or at least a major contributing factor?

Recent experience has led me to conclude that we ignore the participants’ conflict style at our peril. Getting them talking early in the process is critical if we are to get a handle on how they “fight” as well as what it is they are fighting about. Concentrating principally on the issues in dispute can distract mediators from attending to other aspects of disputing behaviour which, if identified and carefully handled, may make a significant difference to the parties’ capacity and preparedness to work towards real and durable solutions.

So how to incorporate an issues focus and a conflict styles focus – and whatever became of interests?

Insofar as people in dispute often find their nemesis, a clash of styles is a familiar situation. When parties have very different responses to conflict, such as where one goes out of her way to avoid conflict and the other does not shrink from expressing conflict and differences of opinion openly and directly, accusations of bullying and aggressive behaviour often form part of the presenting problem.

It is important for mediators to avoid value judgements, especially unexamined or culturally based judgements about what constitutes appropriate behaviour. Start from the likelihood that both parties regard their response as appropriate and justified in the circumstances.

While mediators are clear that it is not a question of determining whose approach is the “correct” one, frequently parties will spend time and energy trying to convince you (or others affected by the conflict) that their approach is justifiable. This assists no one, and proceeds from the inaccurate assumption – typical in disputing behaviour - that one is right and the other wrong. Mediation can play an important educative role if the mediator can introduce the idea that there are other, more productive ways of dealing with the situation which are open to both, provided a more conducive climate can be established and new skills deployed. This approach enables parties to learn from the conflict, and to apply the learning in similar situations in future. A future orientation can create a turning point in the mediation, after both parties have adequately ventilated their views and grievances.

When mediation presents the mediator with polar opposites in terms of conflict style, the impact of the present situation on the parties is worth exploring. They frequently both feel surprise and shock at the intensity of feeling the dispute has aroused in them, and become so deeply entrenched in the conflict that they lose faith in the possibility of any outcome, let alone a satisfying one.

This ought not to be seen as a realistic assessment, since neither can be expected to manage a situation in which s/he is also a party, particularly now that it has escalated to such a stage.

Parties are also likely to express frustration at having tried in vain to end the conflict, and distress that their attempts have not been effective, or seen as constructive by the other. This is equally unsurprising. Each person’s attempt at avoidance/confrontation has simply made the situation worse by repeating the patterns that got them into this state in the first place.

In these situations, mediators need to ask for a briefing on the history of the conflict and previous attempts to settle it. Whenever a first attempt has been unsuccessful, It is not enough to regard that as simply a failed first step. Failure to settle intense conflict between parties with significantly different conflict styles is not mere failure; a counterproductive intervention (ill-timed, or poorly managed, for instance) has probably damaged the relationship further, and once parties have lost faith in a process or an intervention, it is hard to get them back to the table. Be prepared to work intensively with parties individually to bring them to the point of readiness to try again, and design and discuss process with them. This may involve your drafting several versions of a process which is circulated to parties until each feels it is safe to agree to make a new attempt at settlement.

Research, both Australian and international, identifies process satisfaction as one of the keys to achieving settlement, and ironically as having a positive effect on a situation even where an outcome is not reached. (Chinkin and Astor: 1992)

A great deal of effort will have to be made to persuade the parties of the value of meeting face-to-face a second time. Having failed so resoundingly last time, mediation is unlikely to sound attractive again unless it is made clear what mediation can still offer.

Remember that where parties have been in deep conflict for an extended period and have made one or more attempts to settle, they become convinced the other does not have a problem, but is the problem.

It is unhelpful, even dangerous, when people around them adopt this view, too, especially where mediators are told one or other is psychiatrically disturbed. Given the ethical imperative to be sure that parties have the capacity to give instructions or represent themselves at mediation, mediators are often frightened off by such an allegation. If no clear, supporting, expert evidence is offered, the allegation is more likely a sign of desperation rather than an accurate diagnosis. If in the course of a mediation mediators form the view that parties are unstable or at risk, the mediation can always be terminated.

Passivity/avoidance behaviour

Conflict avoidance is so widespread in the Australian cultural setting that some say it is linked with the resort to alcohol as a way of opening the gates to expressing emotions it is otherwise difficult to own.

Typically, people who avoid conflict unintentionally intensify it.

“The emotional and behavioural jump from avoiding conflict to engaging in it is often enormous. As a result, we sometimes observe significant discontinuities in behaviour, attitude and interaction style when a conflict becomes manifest, …. people who appear calm, easygoing, or accommodating until suddenly some switch seems to be thrown that unleashes a much more confrontational, emotional, or rigid approach.” (Mayer: 2000, p 29)

The fact that one party does not cry or raise his/her voice should not be taken to mean s/he is not “emotional” (and is therefore coping). If given the opportunity in private session, such a party will often tell the mediator what an emotionally difficult time s/he has had, how the conflict has shaken his/her belief in him/herself. Avoidance behaviour testifies to considerable anxiety. While the rigidity of a party’s position is not an unusual emotional response to conflict, mediators should be alert to signs of growing rigidity in a conflict avoider’s behaviour.

Mayer goes on:
“Passive avoidance (I refuse to tango)
Staying removed from … a situation is another way to avoid engagement. There are many passive ways of avoiding a conflict such as withdrawing from a relationship, avoiding contact, remaining silent at crucial times, creating distractions, changing the subject or disappearing from the scene.”
And also:
“Avoidance through hopelessness (What’s the use?)
One of the easiest ways to avoid a conflict is to view the situation as beyond repair or deny that one has any power to affect problem. If there is no hope, then what point is there in engaging?” (Mayer: 2000, p.31)

Avoiders often flee a situation which is beyond them, and become rigidly entrenched in the view that the situation is beyond fixing. If avoiders are also high status and/or high achievers, they often successfully communicate this view to people around them, leaving the confrontationist party more and more on the outer. This is especially so in cultures where confrontation is frowned upon, or seen as a sign of low self-control.

It is disquieting to see the extent to which avoiders are affected by a situation they are quite unable to manage. Everything they try is well described in the passages from Mayer above. In an attempt to contain conflict and anxiety, they avoid contact with the other, regardless of the effect this has on the situation, and regard their attempts as laudable – and so the cycle is perpetuated.

In one situation, a senior executive, unable to resolve conflict with a person very much his inferior in status, went so far as to alter meeting times and structures to exclude his nemesis – and to carry it off, even had to exclude his own secretary, normally the group’s note-taker. When asked what sense this made, he seemed genuinely surprised, and could not offer a cogent management principle for the change, except to say it was now a “strategy meeting”. So strategically important that no notes were taken of it!

The unifying principle in that instance was to give avoidance the imprimatur of management imperative.

Failed attempts at containment and avoidance spread conflict.
Conflict avoiders also have a strong preference for people not to raise contentious issues in group settings, but to raise them in private. This preference, called splitting, is asserted as being good practice, and is evidence of discomfort or a lack of skill, both of which a successful mediation can address. The resulting secrecy raises suspicions and fuels speculation around the parties in conflict, and the avoider comes to be seen as manipulative; trust is further eroded. The fallout from unresolved conflict is widespread.

Avoiders often attribute their avoidance behaviour to fear of the other, whose openly critical comments are characterised as somehow dangerous, when such remarks are equally likely to be inappropriate attempts to get satisfaction and closure in a situation of escalating frustration. This fearful effect should be separated from the question of intent: one party is not responsible for the other’s reactions. People’s reactions are their own, and vary dramatically from individual to individual in identical circumstances.

Capacity building

Mediators need words that assist them to give parties something to hope for, something to trust in, a way out of what can be a shameful situation. The way the conflict affects their sense of self and makes them question their abilities, both professional and personal, is a fruitful avenue of exploration in private session. At the very least, it is an opportunity for personal insight, and at best, may lead to an awareness of the need to learn other styles and approaches.

When mediators call this “capacity building”, parties are off the hook. The new skills they discover they need in order to move on are a challenge and a relief, and the obvious place to try them out is right here, right now.

Mediators are often surprised to find they are role models for parties, who are casting about for a way out of the current mess, and a new way to relate (though not necessarily to the person with whom they are in dispute...)

Hostility, confrontational behaviour:

While confrontational behaviour is the antithesis of passivity, its results are similar: it ensures conflict remains unresolved.

Hallmarks of this behaviour, in a positive sense, are that more hostile parties are often also highly assertive, and exhibit signs of “high arousal” – emotional, watchful and highly tuned to the feelings and disposition of others. This alone can be confronting and irritating to avoiders, who are more frequently low-context communicators.

Let me explain. High and low context are cultural as well as interpersonal constructs. Low context communicators believe the circumstances of an event warrant little attention, and their focus is far more on the objective facts conveyed. They tend to filter out surrounding circumstances. High context communicators, on the other hand, believe surrounding circumstances play a key role in interpreting data. They rely on factors such as gesture, posture, tone of voice, the social status of the speaker and the social setting of the interaction to interpret spoken words.

Little wonder they find one another so irritating.

Low context communicators will often describe high context communicators as verbose and unfocussed, and will find them long-winded, and their descriptive interpretations of events as time-wasting and excessively personal; high context communicators find low context communicators cold, impersonal and insufficiently empathic. When conflict is added to the mix, the difference in style – sometimes intriguing or even delightful, such as when we are travelling in a foreign country or falling in love – can make parties feel like total strangers to one another. Every word adds to the sense of alienation, and people’s best efforts at calming a situation can inflame it.

Here is where mediators really earn their keep. We can draw on past experience to point out that their intentions differ from their behaviours, and that while they each fervently wish the conflict were over, they differ about how it should be ended and what should be said or not said to bring about acknowledgement and closure.

If acknowledgement is emotional and closure rational, we have the two keys to settlement at a profound level. Profound because it lasts; profound because it feels as if it’s over.

Postscript:

I have recently applied this thinking in my work as a judicial eucator with both the judges of the Family Court of Australia (Children’s Cases Pilot, 2004 – 2006) and the National Judicial Orientation Program (Managing tension in the courtroom workshops, 2002 – 2006, ongoing).

There judges face a growing number of litigants in person, and are having to address parties directly, manage tension and distress, and elicit issues in what is, in the Family Court context a “less adversarial”, if not exactly inquisitorial process.

The results have surprised us all.

One judge sent me transcript of an unfinished matter, and asked for my comments prior to the resumption of the hearing. In the case, an unrepresented defendant in a state of high emotion and distress consistently ignores the judge’s invitations to take the stand, and fails to grasp how vital it is that he do so in his own interests.

The defendant also threatens suicide, and the transcript reveals both the judge’s concern for his state of mind, and the defendant’s desperation.

My response was as follows:

I can't remember ever reading anything quite as poignant. His language and yours; his grasp of what is happening as against yours - they are light years apart. He really has come to the end of the road, sees himself as totally alone, and sounds deadly serious about doing away with himself. You come across as very concerned, but he has not helped you at all - far from it. Whatever you suggest, he rebuffs. It's possible he does not understand, no doubt because of the emotional state he is in, and to which he refers over and over again. ("I hate being like this; it's going to be worst; I hate the law; this has been going on for years.")

If the court has a welfare officer, having them come forward to be with him, even after today's hearing, might be one course of action. Another might be to talk to him in very simple language so he understands (and the transcript shows) that you believe he may have a defence but that it's difficult enough if people try to handle it themselves, and far too hard for him to do today. If what you say is a summary of what you heard him say, it might calm him and help him understand you are trying to help him. As it is, you are asking him to make decisions (in his own interests) but he doesn't hear you.

Your summary could be in two parts: first, a summary of what he said, and then a simple explanation about how important it is for him to say that again from a different part of the court.

"Mr M, you are very upset today, and you have told us things that explain why. You said that the fight was not straightforward, and that you were only defending yourself from Mr C, that you didn't start the fight. You said you tried to run away from him when you thought it was over, but he hung on to you, and kept on fighting you. You called out to him to let you go and he didn't, and then other people joined in and hit him, too. You said you were injured in the fight, too.

Now I understand that some of the others who joined in the fight (and were charged?) were juveniles and that's why no one is going after them for the money...

Is that correct? Is that what you are telling us today?

(Get agreement or correction.)

Next you said you were very upset about what happened in court the first time. You said you were not having a laugh about it at all, and maybe the judge thought you were. You took it seriously, but you couldn't really say what happened in your own words. Is that right?

Now, Mr M. Today you have another chance to speak for yourself, and I'll explain what to do. It's not hard. You have to go over there, and tell us again what you just said. I know it seems silly because you've already said it, but that's the law.

If you go over there into the witness box and say you'll tell the truth and nothing but the truth, and tell us your story all over again, I can take notice of everything you say. I know you think it's all the same - lots of people do - but it's not. It will make a real difference if you just walk over there and tell me the whole story, and then answer some questions from Ms D.

Do you want to think that over? Or will you just get up and go into the witness box now, have a drink of water, and tell us your (side of the) story again?

I am sure your suspicion that he is suicidal is borne out by his (verbal) presentation, and I am assuming that your not calling on him to speak more appropriately in court was because you saw the behaviour as despair more than contempt. In those circumstances, I wonder if you have any leeway to order psychiatric help?

If he is not so strung out that he can't hear you, you might just get through to him if he gets the feeling - via the summary - that at last someone is listening and understands. I know this is hard for you, because you can't sound sympathetic, but your accurate summary in simple language will make a big difference in getting through to him in his state of desperation. In fact, it could be a turning point.

The matter of the judgment is another thing entirely, because none of the above (procedural/psychological) will alter the decision if it comes down against him, and triggers what he threatens. Hence the court welfare officer/psychiatric help ideas.

I hope this is of some use. The bottom line is that people in this state will only hear their own pain, and it will get in the way of every higher demand on them - like decision-making, participation in a sophisticated process, etc. If you echo it in your summary, you stand a chance of getting through. The only remaining question is whether a judge can do what I suggest, and if so, at what personal and professional risk.
(End of note.)

The skills we mediators use have wide application, and as our analysis of them deepens, we have much to share with other professionals and other disciplines.

Joanna Kalowski
Sydney
19 October 2006

Quotations from Bernie Mayer, The Dynamics of Conflict Resolution: 2000

1. Exploring interests is a tactic, not an end in itself

• It is part of a process of uncovering the real issues that separate the parties.

• Once underlying issues are identified and addressed, durable outcomes can be created.

• True progress is made by arriving at agreements on divisive issues.

• This frees people to begin to address the deeper, more complex needs that drive their conflict.

2. Value of a focus on issues

• People are often more willing to engage in a focused and limited intervention because it does not have ‘personal growth’ as its primary purpose. They want a process that is powerful and effective.

• If the intervener helps parties recognise each other’s concerns and humanity in the midst of a dispute, that is a great achievement.

• The experience of reaching an outcome in a complex dispute is empowering in itself, and can paradoxically open doors to deeper levels of insight than a direct attempt to achieve empowerment and recognition.

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