Defining the Terms

Conflict Management And Mediation

The word “mediation” stems from the Latin root “mediatio”, meaning “in the middle”. It goes back to Ancient Greece and to “mesitía” and its active proponent, the “mesítäs”. The wortstamm shows already the position of the mediator as a third-party intermediary in the middle of the disputants. The word “mesítäs” can be found in papyri dating 300 B.C. It describes the neutral or “person of trust”, who even gave out guarantees for the settlement of disputes. Mediation is commonly defined as a process of settling conflict in which a third party oversees the negotiation between two parties but does not impose an agreement (Kressel, 2000; Montada & Kals, 2001; Moore, 2003; Kressel & Pruitt, 1989).

Gulliver (1977) observes:

Hence, the mediator has no legitimate authority to render a decision. Yet, the mandate for all mediators is to settle cases (Fn.). The mediator faces a dilemma: to settle a case without imposing a decision. The process of mediation and the role of the mediator in particular, are shaped by the strategies adopted to cope with this tension between the need to settle and the lack of power to do so. Mediation is seen as the most important intervention method in a conflict management system. Mediators range from the passive facilitator to the active shaper of solutions (Gulliver, 1977; Nader and Todd, 1978; Merry 1982; Kolb, 1983). This variation is cased by the differing compromises mediators make between paradoxical expectations. Mediation styles fall along a continuum between two main types: bargaining and therapy. This is reflected in the literature.

Two main principles have contributed to the field of conflict management:

“Seek to understand, then to be understood” was the first concept, introduced by Steven Covey in “Seven Habits of Highly Effective People” (2004).

The second principle, introduced by Roger Fisher and William Ury in their seminal work “Getting to Yes” (1981) is that people in disagreement should focus on their needs rather than on their positions. By concentrating on positions, people tend to underscore disagreements. Ury and Fisher propose to satisfy the sum of both needs of the other and one self’s needs. Mediators work towards the settlement of cases by controlling interaction and communication in the mediation session (cf. Kolb, 1983). This is an important function and a critical aspect for their ability to settle cases. Even though Bush and Folger (1994) turned the focus to communication in mediation – qualifying the dialogue, micro-dynamics, empowerment and recognition – not much has been written about the individual communication styles that make a successful mediation or that lead to its failure. Hence, this research work will shift the focus from the frames around the mediation process to a more content-based approach and the dialogue between the parties. In addition to the flow of communication, mediators manage the substance of communication by controlling, through direct statements, the construction of an account that both parties will accept. Mather and Yngversson describe this process as the “re-phrasing” of a dispute (1980, 1981). Control of the substantive issues seems to involve four distinct steps: broadening, selecting, concretizing, and postponing issues. Usually, the mediation process is presented in phases. These phases differ according to the authors’ approach: In Pruitt, McGillicuddy, Welton and Fry (1989), the mediation process is staged in 3 phases; Montada and Kals (2001) offer 6 phases; Moore (2003) elaborates on 12 phases. Nevertheless, the typology shows the same characteristics, consisting of a preparation phase, a conflict analysis stage and the negotiation phase, followed by a sustainable agreement.

As diverse the approaches to the phases of mediation are, so are the various definitions, for example:

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