What it means to be a mediator is a complex issue. However, from a conventional point of view, a mediator is known by function. To know what a mediator does can be a point of departure to know about the mediator. Apparently, a mediator designs the process of mediation to resolve the conflict. The aim is not to win an argument, but to achieve a mutually agreeable resolution. Therefore, a mediator is impartial and apolitical. To meet this objective, a mediator functions that include: contacting disputants; learning about their points of views; knowing their interests and positions; developing agendas; framing the problem, helping the disputants to generate options; assisting in problem-solving; enabling the disputants to reach an agreement; helping the disputants to develop infrastructures for implementation and monitoring of the agreed terms; ensuring the sustainability of the agreement; and finally exiting from the settled conflict situation. From this perspective, a mediator handles the process of conflict resolution. It is commonly known as the facilitative mediation where the mediator is a process manager, whereas the disputants themselves manage the outcome—the product of mediation(Moore, 2014).
The anomaly of this notion of mediation is: disputants may not know the consequences of resolution from various other perspectives. At this juncture a mediator informs the disputants about the strength and weakness oftheir points from legalperspectives. Mediator helps the disputants to analyze the dispute in question and suggests recommendations that ensures their mutual benefit on the one hand, and complies with the legal framework on the other hand. At this point, to the mediator legal issues are more important than the interests and positions of the parties. To ensure a sustainable and legally valid agreement a mediator intervenes into the process and influences the outcome. This practice is chiefly known as the evaluative mediation. It goes beyond the conventional ground rules of mediation, therefore it is also identified as an oxymoron.
Transformative mediation is another approach that transcends the limitations of the facilitative and the evaluative style of mediation. It can be employed in diverse conditions having multiple stakeholders with varied interests and motives. As a process manager, a mediator first of all builds up a set of ground rules. Disputants are engaged in an active interaction so that they may know each other’s perspectives better than before. The knowledge of the other stakeholders helps the parties to build up packages pf options and they enjoy flexibility in resolving the issue in question. The role of mediation in this process is to inform each other’s SWOT (strength, weakness, opportunity, and threat) so that they would engage constructively to resolve the conflict. Depending upon the situation a mediator may deconstruct the issue to make it more understandable than before. Dealing with a hard issue last or first is another option to ensure the continuation of the process. Additionally, a mediator can help parties to explore options of coalition and opportunities to balance interests with alternatives. In this way, a transformative mediator empowers the parties and enables them to explore a constructive conflict resolution strategy.
However, there are not any comprehensive set of rules or methods that can be used universally in mediation practices. Mnookin is of an opinion that a negotiator should be pragmatic, flexible, strategic and critical. As a negotiator, one must not think “either-or” approach. That is to say: either negotiate or resist the devil. Negotiation is not a short-cut way to conflict resolution. It needs patience, expertise, willingness, doggedness, and above all a clear vision of the future. To achieve something more meaningful for all the stakeholders, a negotiator must employ various tools strategically. According to him, Nelson Mandela is the best negotiator of the twentieth century, who not only achieved the ultimate purpose of his life, but also that of the millions of others through negotiation than resistance or violence(Mnookin, 2010).
Mediation has a significant role in the multi-party negotiation process. It is primarily because of the diversities of the interests and positions of the stakeholders involve in a form of an alternative dispute resolution process. In many cases the type of negotiation is bilateral, whereas it is multi-lateral in many other cases. Likewise, the context of the mediation is also diverse. Sometimes it is at the community level, whereas in many other times it is conducted at regional, national and international levels. The parties engaged in the process do not necessarily know about the issues that matter the others. Therefore, they tend to focus on their personal issue than that of the others. At this deadlock, a mediator facilitates the parties with information and options that help the parties to break the impasse and explore something mutually agreeable to them. In a complex multilateral negotiation, mediation simplifies the process. Step wise it can be conducted within the individuals of a team (sidebar negotiations), thereafter this process of mediation help find a negotiation between the individuals designated to lead the team, and finally it helps find a common ground for the working groups of each team (Moore, 2014). This is how mediation as an alternative dispute resolution method helps resolve thedispute sustainably in various types and contexts of conflict.
What makes a mediator different than the others is the quality of resolving the issue employing both art and science. Normally, parties to the dispute tend to have an obsessive fixation to be consistent with what they believe “true” or “rational”. The love of consistency is based on their respective world views of being “rational”, “logical”, and to avoid the fear of failure based on the past experiences. Such an attitude exacerbates the situation when it is embedded with expectations. It does not help the parties to reach a mutually agreeable term in negotiation, since their beliefs and expectation and the notion or rationality are not compatible with each other. Issue becomes more complicated and complex when it involves “big issue”like economics, public health, environment, common pool resources, identity, religion, among others. A mediator, under such circumstances, needs to understand the untold ingredients of the negotiation that has significant influence in the decision-making of the parties involved. Use of art not only to understand the sensitivity of the parties in question, but also to transform the conflict situation to a cooperative endeavor is valued in mediation. However, the process of mediation must not go astray. There must be a structure to generate at least a commitment at each step of the mediation process likely to lead to a successful resolution as well as post-mediation sustainability by ensuring integrative bargaining (Susskind &Cruikshank, 1987).But, the structure must be compatible with the responsiveness of the parties; it must not be fixed, but has to be accommodative with the responses from the stakeholders. For this and many other reasons, mediation is both art and science (Raiffa, 1982) to address the complex issue through collaborative engagement of the stakeholders.
Dignity is another significant aspect in mediation. Though it is often difficult to define dignity, human beings are aware of its presence or absence in treatments. Hicks offers a ten-points dignity model of conflict resolution (2011), claiming that dignity is a universal motivating force attributable to both peace and violent conflict. With this framework, human beings are cooperative or even ready to sacrifice their interests and positions when they feel dignified. But the situation will be hostile when they perceive a violation of or threat to their sense of dignity. When they feel violation of their dignity, they tend to react impulsively to restore their sense of dignity. Once an individual or a group feels humiliation, the reaction could be attack or blame or to seek revenge. In both of these responses lie the underlying causes of the conflict, which may evolve further with time. Thus, dignity has a collective consciousness. It does not die even after the death of a person suffered from indignity. It remains in the collective memories or communal consciousness. Extended conflicts like the Rwandan genocide, Sarajevo massacre, and protracted conflict against apartheid South African regime aresome examples of the conflicts having roots in the sense of a collective dignity.
Dignity is a process. One can humanize or dehumanize or re-humanize one’s adversaries. The point is,however, if indignity once surfaces in the socio-political spectrum; it does not stop there, rather sips into the crack of our social structure. It poisons the social bonds and alienates individuals who have a propensity to become permanent enemies, rather than friends. From this point of view, understanding violence is less important than understanding love. It is primarily because knowing violence is a regressive endeavor, whereas learning to love is a proactive behavior. Acceptance and recognition of basic human values can be a point of departure towards conflict resolution. Hence, mediators can act as facilitators or conflict resolution practitioners. By promoting dignity, a mediator can build trust amongst the stakeholders which will further promote social cohesion that connects the stakeholders in a harmonious manner that not only heals psychological wounds, but also paves way to rebuild social connection (Emory IDN, 2012).
Mediation helps heal the wounded relationship. It is practically feasible in troubled relationship where the stakeholders have been unable to repair their relationship with a sense of punitive justice. Theoretically, a crime or an offense can be responded in many ways. Conventionally, crime is addressed through punishment, a form of retributive justice. But the point is: punitive justice does not necessarily bring peace or harmony. It is primarily because of the absence of the stakeholders, including the victim, in the justice process. So, practitioners in the field have turned to seek another aspect of justice that not only offers fairness and dignity, but also restores relationship. This is restorative justice. Mediation in restorative justice engages the victim, offenders, community and other stakeholders to restore the relationship (Johnstone&Ness, 2007).
Another important avenue where mediation can be effective is sexual harassment. Conflict resolution through arbitration or litigation for sexual harassment issues does not offer an option for restoration of the relationship. Additionally, lengthily court process and evidence-based court verdicts do not necessarily deliver justice; rather there exists a chance of emotional blackmailing or insult. In many other cases, the victim might not be able to articulate feeling because of the power dynamics of the community where a particular gender is considered privileged.
Another issue related to sexual harassment is that the victim tends to avoid to be stigmatized. A fear of social insult or exclusion plays a role to silence the voice of the victim. The stigma-threat motivated nondisclosure seems to have persuaded her that there will be no justice in the system (Miller, Canales, Amacker, Backstrom&Gidycz, 2011).Dominant social actors or ideology also play a role to marginalize the victim of sexual harassment specifically in male-dominated communities. There is often a chance of re-victimization, particularly to the female victim. These crucial issues can be addressed effectively through mediation. Mediation can offer a safe space for the victim, and it also offers a space for the offender to restore to the social norms. Hence, mediators have to be very cautious to identify facts and stories related with the issue. A sustainable approach to address such issues can be enacted by developing curriculum, institutions and social practices to discourage sexual harassment at every level of the community. At work place, company policy to address sexual harassment will be effective.
Mediation involves both empathy and assertiveness. Parties leaning towards empathy are accommodative or cooperative in nature. Whereas those inclined towards assertiveness are competitive. Mediators have a great role in such situations to inspire the parties to explore an optimum balance between assertiveness and empathy that would ensure the effectiveness of mediation. Lord Krishna of the oriental Vedic tradition as depicted in the Mahabharata (Buck, 1973) was described as a mediator, who successfully inspired the parties not only to make peace but also to wage war against injustice.
Mediation should not be confused with pacification. Rather, it is an advanced tool of conflict resolution. At the beginning of its development, mediation was practiced by religious figures or social celebrities. But, with the development in social institutions and practices, mediation too has attained enormous importance to resolve conflict of various types. In the business world, it has attracted attention of the parties. Because, it is a voluntary dispute resolution process, other than litigation and arbitration. And it has been efficient and is faster and cheaper than litigation (Haynes, Gretchen &Fong, 2004). In the same way, it has also influenced conflict resolution practitioners to address issues like family dispute, work-place disputes, border dispute, and common pool resources dispute, among others.
With the globalization, the geo-cultural frontiers of the communities have shrunk. It has brought people closer than before. This closeness can contribute to peace-making as well as violence. Though legal infrastructures, national, regional or international, are in place, they have been unable to address the complex issues of the contemporary conflict. Increasing numbers of the treaties, complexities of the international laws, and other similar peace enforcement instruments have not offered a reliable peace foundation. Rather, they have added more complexities to the ongoing conflict situation. Additionally, the rise of non-state actors and opening of the new battle grounds, for example cyber space and schools, has made peacebuilding more challenging than before. At this point, mediation can offer a hope for peace. Because it is voluntarily performed and it does not rely on the enforcement mechanism, therefore, it has a scope to engage the stakeholders constructively to resolve the dispute. The stakeholders take the ownership of the agreement and work together to address the issue in question in an effective way. Moreover, mediation works on humanitarian principle voluntarily; therefore, there is often a scope to re-humanize the conflict parties with dignity. This is a sustainable way to conflict resolution. Mediation, as an evolving paradigm, has attempted to answer the complexities of the contemporary conflict in a constructive way.
Buck, W. (1973).Mahabharata. Berkeley: University of California Press.
Emory IND [Emory Institute for Developing Nations]. (2012, May 10). A conversation with Donna Hicks, Author of Dignity: The Essential Role is Plays in Resolving Conflict . Retrieved from https://www.youtube.com/watch?v=P5OKWjBQ25Y
Haynes, J., Haynes, Gretchen L., & Fong, Larry Sun. (2004).Mediation : Positive conflict management (SUNY series in transpersonal and humanistic psychology). Albany: State University of New York Press.
Hicks, D. (2011).Dignity: The essential role it plays in resolving conflict. New Haven, CT: Yale University Press.
Johnstone, G. & Ness, D. W. van. (2007). The idea of restorative justice. Johnstone, G. & Ness, D. W. van (eds.). Handbook of Restorative Justice. Devon, UK: Willan Publishing.
Miller, A.K., Canales, E.J., Amacker, A.M., Backstrom, T.L., &Gidycz, C.A. (2011). Stigma-threat motivated nondisclosure of sexual assault and sexual revictimization: A prospective analysis. Psychology of Women Quarterly 35(1):pp. 119-128.
Mnookin, R. (2010). Bargaining with the devil: When to negotiate, when to fight (1st Simon & Schuster hardcover ed.). New York: Simon & Schuster.
Moore, C. (2014). The Mediation process: Practical strategies for resolving conflict. San Francisco, CA :Jossey-Bass.
Raiffa, H. (1982). The art and science of negotiation. Cambridge, MA: Belknap Press of Harvard University Press.
Susskind, L. & Cruikshank, J. (1987). Breaking the impasse; Consensual approaches to resolving public disputes. Cambridge, MA: MIT-Harvard Public Disputes Program.
[This article is received from Mr. Dahal and we published it to draw attention of the stakeholders towards a peaceful social transformation in the Nepalese context. Editor]