Mediator Reflections on Practice: Connecting Select Demographics and Preferred Orientations Margaret S. Herrman Nancy l. Hollett Dawn Goettler Eaker Jerry Gale
This article uses several indicators of a mediator’s orientation: (1) his or her goals, (2) focus on the process of mediation, (3) perceptions of personal strengths, (4) the signals that tell him or her that a mediation is working, and (5) his or her preferred outcome. We examine how select demographic and practice characteristics—sex, experience as a mediator, professional background, and organizational context—relate to orientations. The characteristics of sex and professional background significantly modify the general pattern in ways that confirm assumptions common in the literatures on negotiation and mediation.
F
ormal mediation of interpersonal disputes ideally occurs in a context that encourages problem solving. For several decades, advocates of mediation have suggested that neutral orchestration coupled with a cloak of confidentiality enhance the milieu while distinguishing it from other forms of dispute resolution. However, serious questions about the practicability of neutrality have been raised. For example, do mediators remove themselves from the flow and shape of problem solving during their mediations? An emerging body of literature suggests just the opposite
NOTE: The Mediator Skills Project was funded by the William and Flora Hewlett Foundation, as well as the State Justice Institute and the Consortium on Negotiation and Conflict Resolution. CONFLICT RESOLUTION QUARTERLY, vol. 20, no. 4, Summer 2003 © Wiley Periodicals, Inc.
403
404
HERRMAN, HOLLETT, EAKER, GALE
(Menkel-Meadow, 1984, especially p. 759, footnote 11; Rifkin, Millen, and Cobb, 1991; Irving and Benjamin, 1995; Jones, 2001).
Influence and Mediator Orientations Everyone relies on his or her orientation to make sense of the world (Breslin, 1989; Hermann, 1989–90). Our meanings and understanding in turn shape what we do and say to others (Von Glasersfeld, 1995). Bartunek, Kolb, and Lewicki (1992) describe how everyone uses interpretive frames to make sense of a conflict, and to formulate actions, including how to orchestrate the social drama of a conflict (Gilkey and Greenhalgh, 1993). It is the mediator’s orientation that privileges, highlights, or ignores the salience of issues during mediation dialogues (Herrman, 1999; Wall and Dewhurst, 1991). Some mediators shy away from working with a client’s expressions of emotion. It is a mediator’s preferences for coherence and subsequent choice of language that frame issues, thus affecting disputant perceptions of “worthy” avenues to pursue (Cobb, 1994). Mediator perceptions of power shape how mediation unfolds (Rifkin, Millen, and Cobb, 1991). Preferences for particular outcomes predispose mediators to steer conversations in desired directions (Greatbatch and Dingwall, 1989).1 Some mediators may not consciously connect their orientations to their mediation practices. Indeed, Lang and Taylor (2000) suggest that mediators need to relate consciously to their personal beliefs, assumptions, and orientations.
Mediator Orientations and Personal Demographics Existing research on the mediation of interpersonal disputes lacks quantifiable definitions of orientations and explicit testing of potential relations.2 The study reported in this article fills the void to some extent. Data from a statewide survey of mediators yield information on select orientations of more than three hundred respondents—orientations operationally defined by several statements: (1) their goal as a mediator, (2) their focus with regard to the process of mediation, (3) their perceived strengths, (4) signals that tell the mediator that a mediation is working, and (5) their preferred outcome. Orientations
The definitive study on mediator orientations has yet to be published. Lang and Taylor (2000) imply that many mediators are unaware of the
Mediator Reflections on Practice 405
orientations that shape their work. Yet several authors describe such paradigms. According to Kolb (1994), mediators idealize an impartial, generic mediator who does not impose personal orientations, content expertise, or solutions on clients. At the same time, Kolb notes inconsistency between how we mediate and the orientations mediators espouse. Sex
Of all the characteristics explored in this article, the potential influence of the sex of the mediator is the most thoroughly researched. One might suspect that men and women respond differently to conflict, but results from previous research are mixed. Many studies show that men and women react in similar ways (Rubin and Brown, 1975). “What is largely different between the sexes is what culture has shown us to expect from men and women in conflict. For example, researchers in one study . . . found that men and women did not handle conflict differently but were judged as being less effective when their behavior was not gender congruent (more competitive for men and more accommodating for women)” (Folger, Poole, and Stutman, 1997, p. 36). Some sex differences have been documented in experimental studies. For example, research based on a strategic-choice model proposed by Carnevale, Conlon, Hanisch, and Harris (1989) indicates that men acting as mediators have more confidence in mediation than women, and they are also more likely to press for a conclusion. Women expressed less confidence and acted less aggressively or relied on integrative messages. Research on mediation in natural settings supports experimental findings on mediators’ foci and actions. Weingarten and Douvan (1985) interviewed twelve men and twelve women mediators and found that men and women described their role as a third party differently. Men emphasized solving a conflict, whereas women tried to understand the parties and relational dynamics. Wall and Dewhurst (1991) documented differences in how men and women talked during mediations. Women talked in ways that encouraged clarity (they restate information to verify details). Men used more controlling talk (they restate ground rules or correct a party if the mediator perceives a misrepresentation of the mediator’s comments). So, what does all this suggest? Despite the mixed research, we are on the side that female mediators place greater value on the importance of working with relational dynamics (for example, emotional content, crisis intervention, and nurturing) than males, and they may recognize a wider array of signals than males (nonverbal as well as verbal forms of communication).
406
HERRMAN, HOLLETT, EAKER, GALE
Professional Background
“No mediator entering the field is immune from his or her personal and professional background. . . . Both lawyers and [nonlawyers] need to address the issues of integration of their past training with mediation” (Gold, 1985, p. 15). Past training contributes to preferences for instrumental or prescriptive problem solving as well as for educational and therapeutic approaches to mediation.3 Marlow (1987), like Gold (1985), suggests that attorneytrained mediators focus on instrumental goals—specifically, aligning outcomes according to relevant legal issues and precedents, and that nonattorney mediators look for opportunities to assist people through a crisis. This study represents an initial test of these assumptions. Organizational Context
It is not unusual for research on mediation to ignore the organizational context in which interactions take place (Strauss, 1978). But how could the organizational context of a mediation practice not influence a mediator’s perceptions? The organizational context “guides practice, the kinds of parties routinely encountered, the interplay between parties and their desires, and the issues brought and outcomes sought” (Kolb, 1989, p. 93). Studies by Irving and Benjamin (1995) and Kressel, Frontera, Forlenza, Butler, and Fish (1994) indicate that public and private practice settings influence what mediators do. Specifically, private-practice mediators rely on passive forms of intervention such as clarification and active listening, whereas court-based mediators focus on facts and issues. Thus mediators working in public, private, or government agency settings may espouse different orientations and practice differently on the basis of objectives and expectations specific to their context of mediation.
Context of This Study At the time of this study (1996), Georgia mediators worked in several organizational contexts: as private practitioners, as volunteers in public programs that serve courts, and in a government program as employees of that agency. Goettler, Herrman, and Gale (1999) found that different organizational contexts supported mediators with different demographic characteristics (men were significantly more likely to identify with private practice settings; those same settings also related to higher reported family incomes). Thus each practice setting tended to attract mediators characterized by differences in demographic profiles.
Mediator Reflections on Practice 407
Although no one setting dominated Georgia at the time of this study, Georgia historically supported the mediation of interpersonal disputes through its courts—not through programs internal to court bureaucracies, but through independent, nonprofit programs that received court referrals. At the time of this study, more fledgling court-annexed programs had developed. Georgia mediators serving public programs volunteer to mediate court-mandated cases in the lower courts (juvenile, magistrate, and select state court cases). Unlike private practice mediators, volunteers who mediate court cases have little control over what they mediate (that is, program staff typically assign cases to mediators). The setting also appears less flexible with regard to when a mediation occurs, the length and number of sessions, and the physical setting (some programs have very limited space, thus restricting freedom to move clients into multiple rooms for caucuses). Some program administrations expect mediations to conclude in a single session, and some judges expect mediations to conclude in an hour or so. Thus public volunteers tend to control less of their environment than would be typical for private-practice mediators. Finally, in Georgia government mediators probably work in the most restrictive environment. Agency oversight is more direct. Thus government mediations occur in a rule-bound organizational context (with regard to scheduling and personnel policies) where the rules are highly visible (borrowing from Mnookin and Kornhauser, 1979, these mediations clearly occur in the shadow of the host agency). By comparison, private settings are institutionally less rule-bound and the restrictions less visible. How might these organizational contexts affect a mediator’s orientations? Research by Thibaut, Friedland, and Walker (1974) suggests that people willingly adhere to rules if the rules are (1) appreciated and (2) visible. In Georgia, we assume widespread mediator support for institutional guidelines. So where institutional guidelines are conspicuous, the settings will influence a mediator’s preference for outcomes and process.
Method The Survey
In September 1996, the Mediator Skills Project mailed 1,025 surveys to mediators practicing in the state of Georgia. Names and addresses of mediators were obtained from three sources: the complete list of mediators registered with the Georgia Office of Dispute Resolution (GA ODR) as of
408
HERRMAN, HOLLETT, EAKER, GALE
September 1996; a list of mediators from a state agency relying on internal mediation at the time of the study; and lists from various private firms. We estimate that the combined list encompassed 90–95 percent of the mediators providing services to Georgia courts, government agencies, and people in the private sector.4 The survey was twenty-five pages long and included questions on mediation practices, mediator orientations, training, and personal demographic information. A total of 365 surveys were returned, for a 36 percent response rate. Given the length and complexity of the survey, this is a significant response rate. Measures
Mediator characteristics are measured in the following ways. Sex is a dichotomous variable. Age is an ordinal variable ranging from “young adult,” ages from twenty-six to forty years; to “adulthood,” ages forty-one to fifty; to “mature age,” fifty-one to sixty; and sixty-one years or older. Professional background is coded as a dichotomy: attorney and nonattorney trained mediators. Experience is an ordinal measure in the range (1) less than two years, (2) two to five years, and (3) five or more years of experience. Organizational context is categorized as public, private, or government agency. Four of the five measures of orientations elicit mediator perceptions about the process of mediation. A fifth measure seeks information about a mediator’s preference for various outcomes. Three of the four questions on aspects of the mediation process (1) presented a contextual statement: “My goal as a mediator is to . . .” “When I mediate I focus on . . .” and “My strength as a mediator is . . .”; (2) asked survey participants to rank four responses from 1 (least important) to 4 (most important); and (3) presented four responses that referenced working with emotions, or social justice issues, or logical problem solving, or aspects of the legal underpinning of cases. The analysis presented in this article is based only on the 4 responses, those indicating the choices considered by survey participants to be the most important. The fourth process question, which asked participants to “list three signals (words or behaviors) that might occur during any one of your mediation sessions that let you know that a mediation is working,” was content coded from well over one hundred responses. Data were first coded into twenty-two and then reduced to seven categories: nonverbal body language; general cooperation; connections with the process; increased cooperation; growth, clarity, or recognition; creativity; and closure.
Mediator Reflections on Practice 409
The fifth and final measure of orientation was response to the question: “What would you say is the most important outcome of a mediation?” Scores ranged from 1 (“most important to me”) to 5 (“least important to me”). As with the other three questions on mediation process, mediators were presented the same types of four alternatives and instructed to rank the alternatives by using each number only once. Data presented in this analysis represent participants’ perceptions of their most important outcome. Data Analysis
To describe a contextual frame for the analysis of associations between mediator characteristics and the select orientations, Tables 1 and 2 present simple percentage distributions of characteristics and then orientations. Table 1. A Profile of Survey Participants Descriptor
Percentage of the Sample
Sex Males Females
50.0 50.0 100.0
Age 26–40 41–50 51–60 61⫹
19.2 38.4 23.8 18.6 100.0
Professional background Nonattorney Attorney
57.1 42.9 100.0
Experience as a mediator Less than two years Two to five years Five or more years
36.2 35.3 28.5 100.0
Organizational context Public/volunteer Private Government agency
57.9 29.3 12.8 100.0
Note: n ⫽ 336.
410
HERRMAN, HOLLETT, EAKER, GALE
Tables 3 through 8 explore the proposed associations. Given the categorical nature of most of the measures, tests of significance rely on the statistic chi square (X2). Significant relations are reported for probabilities of .05 or less. A Description of Characteristics
Of the 365 surveys returned, 336 respondents are active mediators (they have mediated during the past five years). Active mediators provide information for this analysis. Table 1 lists their basic characteristics. Respondents are evenly divided between men (50 percent) and women (50 percent). Although respondents include younger mediators (twenty-six to forty years of age, 19 percent), the mean age is 49.9 years, and 42 percent are over fifty. Survey participants represent varying degrees of experience as mediators. On average, they have actively mediated for almost five years (fiftynine months). A little over a third (36 percent) have mediated two years or less, another third have mediated from two to five years (35 percent), and 29 percent have mediated over five years. A substantial percentage of the respondents have a law degree (43 percent), but more do not (57 percent). Finally, most of the respondents volunteer to mediate in public agencies (58 percent). Another 29 percent are private practitioners, and 13 percent mediate for a government agency. To test whether the respondents were representative of mediators in Georgia and other states, we compared data from the survey to data provided by the Georgia Office of Dispute Resolution, as well as to data provided by other states. Comparisons indicate that respondents are representative of mediators in Georgia and other states as well (Goettler, Herrman, and Gale, 1999). In addition to looking at percentage distributions for each of the characteristics, we computed chi squares between each of the characteristics to see if they are related. First, the distributions of some characteristics occur independent of other characteristics. Specifically, experience as a mediator is not significantly related to sex, professional background, or the organizational context in which a mediator works (given the proportion of men and women responding to the survey, neither men nor women are more experienced than the other). Second, sex significantly relates to age, professional background, and organizational context (each at a ⬍.01 level). The associations can be described as follows. Male mediators tend to be older than females. They are also more likely to be attorneys and to mediate in a private practice. A substantial number of both men and women volunteer
Mediator Reflections on Practice 411
to mediate for public programs across the state, but women are significantly more likely than men to mediate in a government agency. Third, as might be expected, age significantly relates to mediation experience. Younger mediators (twenty-six to forty) are more likely to have mediated for less than two years. Mediators who are at least fifty-one years of age are more likely to have mediated five years or more. Younger mediators also volunteer to mediate for public agencies or work as private practitioners (⬍.05). Finally, attorneys are likely to divide their time between public service and private practice, whereas nonattorney mediators predominantly serve public agencies as volunteers (⬍.01). Mediator Orientations
Table 2 summarizes participant responses to the five questions measuring orientations. Eighty-nine percent reported that their primary goal is to balance emotional and material needs. The primary focus of 75 percent of the survey participants is to satisfy client needs. Mediators feel that their strengths lie in working with relational and emotional dynamics; for example, almost half (40.5 percent) see their strength as supporting reciprocal affirmation, and another third (32.1 percent) note their ability to attend to the emotional dynamics in sessions. Mediators responding to the survey rely on a variety of signals to tell them that a mediation is going well: general cooperation (19.5 percent) and increasing cooperation (17.8 percent); evidence of growth, greater clarity, and mutual recognition (17.4 percent); and a desire for closure (19.4 percent). Finally, two outcomes appear to be primarily important: needs are addressed (42.2 percent) and clients are satisfied (29.2 percent). To see if the measures of orientation are interrelated, we computed chi squares among the orientation questions and found that a mediator’s primary goal, primary focus, and preferred outcome are significantly related (each being ⬍.01). But interestingly, respondent perceptions of personal strengths relate only to what they consider to be the most important outcome (⬍.05), not to their goals or their process focus. In addition, signals that cue mediators that their mediation is progressing well are not significantly related to other orientation statements. Lacking more in-depth data, such as interview data, it is hard to know why these orientation questions cluster as they do, but we speculate that questions about goals, focus, and outcomes invoke easily surfaced responses. Perhaps they tap into elemental reflections that are readily apparent to most mediators, including those with limited experience (for instance, basic training asks mediators to think
412
HERRMAN, HOLLETT, EAKER, GALE
Table 2. Responses to the Orientation Questions Variable My goal People control the process Balance emotion/material needs Community justice Assess legal/technical issues correctly
Percentage 3.4 88.9 7.1 0.6 100.0
Key process: focus Potential court outcome Needs addressed/people satisfied Recognition/validation Community justice implications
6.1 75.2 18.1 0.6 100.0
Key process: my strength Support/affirmation Clarify information Explore social justice Address emotions
40.5 25.2 2.2 32.1 100.0
Signals mediation is working1 Nonverbal body language General cooperation People connect with the process Increased cooperation Growth, clarity, recognition Creativity Seeking closure
16.0 19.5 2.4 17.8 17.4 7.4 19.4 99.92
Most important outcome Agreement signed Address social inequity Recognition/growth Clients satisfied Needs addressed
15.7 1.2 11.7 29.2 42.2 100.0
Note: For this and subsequent tables, percentage totals that do not equal 100 are due to rounding. 1 Mediators could list as many as three signals.
about outcomes—agreement versus nonagreement. It encourages trainees to adopt goals and foci, such as separating positions from interests, whereas questions about personal strengths and signals ask mediators to contemplate practices that are less obvious, more introspective, and may require more experience. We revisit this idea in the discussion.
Mediator Reflections on Practice 413 Connections Between Mediator Characteristics and Orientations
We now look at how select personal characteristics relate to mediator orientations. Table 3 presents the significant relations between mediator characteristics and their primary goal. Remember from Table 2 that 89 percent of these mediators try to balance emotional and material needs. But when a chi square test of difference was run for the four categories of primary goal, it appears that only the professional background of the mediator influences the goal significantly. As predicted, nonattorney mediators focus on balancing emotional and material needs more than attorney mediators. Since only 7 percent of the respondents indicated that addressing community justice issues was a primary goal, one might predict that this goal would not differentiate nonattorney and attorney mediators. However, Table 3 indicates that nonattorney mediators are more likely than attorney mediators to choose to address community justice issues as their primary goal. Attorney mediators are more likely to emphasize self-determination (defined in the survey as people controlling the process). These three goals form the pattern of preferences that distinguishes attorney from nonattorney mediators in a significant way (⬍.01). Table 4 presents the analysis of personal characteristics and a mediator’s primary process focus. The percentages underscore what we found in Table 2. In all the comparisons, the most important focus is on the needs of the parties. Three of the five characteristics do not discriminate beyond this initial finding. Comparisons on the basis of sex and professional background, however, are significant. For the characteristic of sex, and as predicted, males are more likely than females to focus on the potential court outcomes. Females focus on the needs of the parties and mutual validation (⬍.05). Also as predicted, attorney mediators focus on potential court outcomes, while nonattorney mediators are more likely to focus on mutual validation (⬍.01). This finding could be explained by the correspondence of sex and professional background noted earlier (and to be explored further in Table 8). The analysis turns next to how mediator characteristics relate to primary outcome. These data are presented in Table 5. We know from Table 2 that the preferred outcomes are addressing client needs (42.2 percent) and achieving client satisfaction (29.2 percent). Only a mediator’s sex and professional background differentiate preferred outcomes significantly. Certain comparisons stand out. Male mediators emphasize the agreement; female mediators work toward recognition and growth for their clients (⬍.01). When comparing professional backgrounds, we note that attorney mediators more often work toward an agreement (⬍.01). Nonattorney mediators are significantly more likely to seek outcomes that
57.1%
Nonattorney
0.5%
7.3%
Self-Determination (n⫽11)
90.2%
86.9%
Balance Emotional and Material Needs (n⫽287)
Variable
8.2%
5.8%
Community Justice (n⫽23)
Note: Reported as chi squares (2); * ⫽ significance ⱕ.05, ** ⫽ significance ⱕ.01.
100.0%
42.9%
Attorney
Professional Background
Total (n⫽336)
My goal as a mediator is:
1.1%
100.0%
100.0%
12.63
Accurate Legal and Factual Analysis Row (n⫽2) Percentage
Table 3. Descriptive Statistics Comparing Select Mediator Characteristics and Indicators of Philosophy
**
2
Sig1
100.0%
50.0% 50.0%
100.0%
42.9% 57.1%
12.1% 1.6%
9.3% 3.1%
(n ⫽ 20)
Court Outcomes
75.0% 75.0%
73.3% 76.5%
(n ⫽ 245)
Needs of Parties
11.4% 23.4%
16.1% 20.4%
(n ⫽ 59)
Mutual Validation
Note: Reported as chi squares (2); * ⫽ significance ⱕ.05, ** ⫽ significance ⱕ.01.
Attorney Nonattorney
Professional Background
Sex Male Female
(n ⫽ 336)
Total %
When I mediate I focus on:
1.4% —
1.2% —
(n ⫽ 2)
Community Concerns
Variable
99.9% 100.0%
99.9% 100.0%
Row Percentage
Table 4. Descriptive Statistics Comparing Select Mediator Characteristics and Indicators of Philosophy
23.09
7.98
2
**
*
Sig1
100.0%
50.0% 50.0%
24.1% 9.0%
23.0% 7.4%
An Agreement (n ⫽ 52 )
0.7% 1.6%
0.6% 1.8%
Social Justice (n ⫽ 4)
9.9% 13.3%
6.1% 17.8%
Recognition and Growth (n ⫽ 39)
27.7% 30.3%
30.3% 28.2%
Client Satisfaction (n ⫽ 97)
Variable
Note: Reported as chi squares (2); * ⫽ significance ⱕ.05, ** ⫽ significance ⱕ.01.
100.0%
Attorney 42.9% Nonattorney 57.1%
Professional Background
Sex Male Female
Total % (n ⫽ 336)
The most important outcome of a mediation is:
37.6% 45.7%
40.0% 44.8%
Needs Addressed (n ⫽ 140)
100.0% 99.9%
100.0% 100.0%
Row Percentage
Table 5. Descriptive Statistics Comparing Select Mediator Characteristics and the Most Important Outcome
14.56
24.28
2
**
**
Sig1
Mediator Reflections on Practice 417
address needs, favor recognition and growth, and promote client satisfaction (⬍.01). Tables 6 and 7 display the analysis of questions pertaining to orientations that may call for more self-awareness. Data on perceptions of personal strengths are presented inTable 6. A quick glance at the table shows that supporting affirmation, clarification, and addressing emotions are all viewed as strengths. As predicted, females are more likely than males to note working in the area of emotions as a strength. Males see their ability to clarify information as a strength (⬍.05). But in comparison to our prediction, males also see supporting affirmation as a personal strength. Table 7 compares mediator characteristics to the signals they use that tell them a mediation is working. As noted in the methodology section of this article, the categories of this measure were created from a complete list of signals furnished by the survey participants. The analysis resulted in six categories: nonverbal body language; general cooperation; increased cooperation; growth, clarity, and recognition; creativity; and pressures to close the mediation. Although the categories of this measure are not statistically related to the other orientation measures, results of the content analysis are consistent with the distributions of the other measures. As noted in Table 2, most of the participants in this survey respond to the emotional dynamics of the mediations they conduct (for example, the primary goal was to balance emotional and material needs, the primary focus was to address needs, and so on). Similar orientations define several of the signals. For example, nonverbal body language includes signals such as good eye contact with positive body language. Connection with the process includes signals such as “parties really accept me as a facilitator.” Increased cooperation includes signals such as parties talking in a calmer and less agitated manner. Growth, clarity, and recognition includes signals such as willingness to look at dispute from a different point of view. By comparison, two categories seem less indicative of emotional dynamics and more of the logic of problem solving. General cooperation includes signals such as people asking each other questions; and pressure to close the mediation includes signals such as parties coming off their initial demands. Only the sex of the survey participants significantly distinguishes which signals a mediator notes (⬍.01). As we would have predicted, females attend to nonverbal body language and increased cooperation (signals with more emotional content) more often than males. Males attend to signs of general cooperation and pressures to close the mediation (signals with more logical problem-solving content).
Sex Male Female
100.0%
19.2% 38.4% 23.8% 18.6%
39.0% 39.8% 45.9% 32.8%
45.1% 35.9%
Support Affirmation (n ⫽ 129)
23.7% 20.3% 20.3% 46.6%
28.4% 21.8%
Clarify Information (n ⫽ 80)
1.7% 0.8% 4.1% 3.4%
1.9% 2.6%
Explore Social Justice (n ⫽ 7)
Note: Reported as chi squares (2); * ⫽ significance ⱕ.05, ** ⫽ significance ⱕ.01.
Age 26–40 41–50 51–60 61⫹
50.0% 50.0%
Variable
100.0%
Total (n⫽ 336)
My strength as a mediator is to:
35.6% 39.0% 29.7% 17.2%
24.7% 39.7%
Address Emotions (n ⫽ 102)
Variable
100.0% 99.9% 100.0% 100.0%
100.1% 100.0%
Row Percentage
Table 6. Descriptive Statistics Comparing Select Mediator Characteristics and Perceptions of Strength
22.04
8.82
2
**
*
Sig1
100.0%
50.0% 50.0%
11.4% 20.9%
Nonverbal Body Language (n ⫽ 138) 22.6% 16.3%
General Cooperation (n ⫽ 165)
Variable
2.9% 2.1%
19.5% 16.0%
15.9% 18.8%
Connection with the Increased Growth and Process Cooperation Clarity (n ⫽ 21) (n ⫽ 151) (n ⫽ 148)
Notes: Mediators could list as many as three signals. Reported as chi squares (2); * ⫽ significance ⱕ.05, ** ⫽ significance ⱕ.01.
Male Female
Sex
Total % (n ⫽ 336)
Signals that the mediation is working:
6.2% 8.8%
Creativity (n ⫽ 64)
21.6% 17.0%
Closure (n ⫽ 164)
100.1% 99.9%
Row1 %
Table 7. Descriptive Statistics Comparing Select Mediator Characteristics and Signals That a Mediation Is Working
23.58
2
**
Sig2
420
HERRMAN, HOLLETT, EAKER, GALE
Given the potential for an interaction between sex and professional background, we conducted a final analysis, presented in Table 8. We examined relations between professional background and indicators of orientations for men and women separately. From Table 8, separating men and women produces interesting results. If the mediator is female, professional background has little bearing on orientations (that is, there are no significant connections). But, if the mediator is male, professional background significantly affects the mediator’s perceptions of goals and the process focus. Specifically, male attorneys are more likely than nonattorneys to consider client self-determination during the mediation as a goal. Males who are not trained attorneys more often have a goal of balancing emotional and material needs. The other significant relationship involves the process focus. Male attorneys more often focus on the potential court outcome, whereas males not trained in law are more likely to focus on helping their clients achieve recognition and validation.
Discussion In a field that openly explores its orientations (see Menkel-Meadow, 1993; Bush and Folger, 1994; Riskin, 1996; Lang and Taylor, 2000), it is important to listen to the voices of mediators at large. Mediators responding to the MSP survey are not an ethnically or culturally diverse group, but (1) they resemble mediators across Georgia and other states as well and (2) they are heterogeneous in other ways (for instance, there are approximately equal numbers of men and women as well as attorney trained and nonattorney trained mediators; in addition, participants represent a range of age and experience in mediation). As representatives of typical mediators, their orientations are noteworthy. Few studies explore the orientations of mediators at large. Even fewer look at mediator characteristics in conjunction with how they think about their work. The degree of heterogeneity of the respondent pool affords an opportunity to look at variation within a large group of mediators. Primarily, survey respondents approach their work less from an evaluative or competitive bargaining perspective (fact finding or distributive orientation) and more from both an integrative (individual needs-oriented problem solving) and a relational perspective (problem solving that senses joint needs and ongoing interactions). Of note, the primary goal regardless of demographic characteristics was to balance emotional and material
Most important outcome Agreement Social inequity Recognition and growth Satisfaction All needs met
Process focus Court outcome Needs addressed Recognition/validation Community implications
My goal People control process Balance emotion and material needs Community Justice Assess legal and technical issues
Profession
Sex:
13.5% — 6.8% 36.5% 43.2% 100.0%
1.4% 73.2% 25.4% — 100.0%
— 93.0% 5.6% 1.4% 100.0%
Nonattorneys
30.8% 1.1% 5.5% 25.3% 37.4% 100.1%
15.6% 73.3% 8.9% 2.2% 100.0%
10.2% 85.2% 4.5% — 99.9%
Attorneys
Males
8.24
16.77
8.86
2
Table 8. How Sex and Professional Background Relate to Select Orientations
NS
**
*
Sig1
5.3% 2.7% 17.7% 26.5% 47.8% 100.0%
1.8% 75.9% 22.3% — 100.0%
1.0% 89.3% 8.9% 1.0% 100.2%
Nonattorneys
12.0% — 18.0% 32.0% 38.0% 100.0%
6.0% 78.0% 16.0% — 100.0%
2.0% 89.8% 8.2% — 100.0%
Attorneys
Females
NS
NS
NS
Sig1
(Continued)
4.54
2.69
0.82
2
12.1% 21.7% 3.8% 20.0% 13.3% 5.4% 23.8% 100.1%
100.1%
44.9% 25.8% 3.4% 25.8% 99.9%
Attorneys
10.5% 23.8% 1.7% 18.8% 19.3% 7.2% 18.8%
45.2% 31.5% — 23.3% 100.0%
Nonattorneys
Males
6.13
3.02
2
Note: Reported as chi squares (2); *⫽ significance ⱕ.05, **⫽ significance ⱕ.01.
Signals Nonverbal body language General cooperation People connected with the process Increased cooperation Growth and clarity Creativity Closure
My strength Affirmation Clarification Explore justice Address emotions
Profession
Sex:
NS
NS
Sig1
Table 8. How Sex and Professional Background Relate to Select Orientations (Continued)
99.2%
20.8% 17.4% 1.3% 14.1% 18.8% 8.1% 19.5%
30.6% 24.1% 3.7% 41.7% 100.1%
Nonattorneys
100.0%
21.2% 13.6% 3.8% 20.5% 18.9% 10.6% 11.4%
47.9% 16.7% — 35.4% 100.0%
Attorneys
Females
9.96
5.73
2
NS
NS
Sig1
Mediator Reflections on Practice 423
needs. Meeting client needs (individualistic and relational needs were not specified in the question we asked and we cannot assume one or the other), coupled with client satisfaction, constitute primary foci. When comparing characteristics and the orientations examined in this article, we started with five characteristics and quickly found that two, experience and organizational context, occur independent of the indicators of orientations. Given the potential each characteristic has to shape outlooks on mediation, the lack of significant relations surprised us. These nonfindings suggest the need for additional research with even more diverse groups of mediators. We speculate that a lack of differentiation may be attributable to both a truncated range of experience within the current study group and the lack of a critical mass of mediators with thirty (or even twenty) years of experience (only a third have mediated over five years). To increase the probability that future studies might yield a clearer picture of associations (or confirm a lack of connection as seen in this study), future research might begin with a stratified sample of sufficient size to categorize a critical mass of mediators according to both practice setting and experience. Results presented in this article somewhat confirm predictions. The characteristics—sex and professional background—are important. For example, males, regardless of professional background, favor instrumental orientations (such as seeking agreement) more than females. Males holding a law degree also stand out. More than other mediators, their goals include more emphasis on client determination of the process and less emphasis on balancing emotional and material needs. They also are more likely to focus on court outcomes, less a hallmark of other mediators responding to the survey. By comparison, female mediators, regardless of their professional training, value the importance of working with emotions and nonverbal body language. What are the implications of the results of this study for trainers? Perhaps there is a self-selection process such that men or women gravitate to trainers and training packages that affirm the lens through which the trainee sees mediation. Perhaps trainers experience mismatches between their content and a student’s goals when there is a mismatch between an orientation or comfort level and the orientation emphasized by the trainer. Gale, Mowery, Herrman, and Hollett (2002) point to a need for mediators to balance problem solving and attention to the socioemotional dynamics of a mediation. This analysis suggests that mediators may consciously or
424
HERRMAN, HOLLETT, EAKER, GALE
subconsciously orient toward either logic or emotions. One role trainers might take is to raise the awareness of trainees of their own potential preferred orientations, as Gilkey and Greenhalgh (1993), and more recently Lang and Taylor (2000), suggest. The next step might be to explore openly how mediators might draw from this awareness to create balance in practice. Notes 1. Critics of mediation consider mediator influence worrisome and suggest that rigid intervention structures such as a court eliminate such influences (Folger and Bush, 1994). But disputes are transformed by extraneous forces regardless of the level of formality of the dispute resolution forum. Sarat (1976) notes, for example, several ways that litigation influences disputes. 2. Only a few studies actually test hypotheses (see Carnevale, Lim, and McLaughlin, 1989). Menkel-Meadow (1984) and Lang and Taylor (2000) suggest that mediators need to be aware of the links between orientations and actions, and this article suggests a need for more hypothesis testing research. 3. Indeed, Gold (1988) suggests that mediator teams that combine professional backgrounds engender more effective mediation. 4. The survey was mailed to the total population of mediators registered with the Georgia Office of Dispute Resolution, not a sample. Goettler, Herrman, and Gale (1999) previously reported that respondents are representative of both the Georgia ODR population and populations of other states. Therefore, there is no reason to suspect a difference between respondent and nonrespondent mediators in Georgia.
References Bartunek, J. M., Kolb, D., and Lewicki, R. “Bringing Conflict out from Behind the Scenes: Private, Informal, and Nonrational Dimensions of Conflict in Organizations.” In D. Kolb and J. M. Bartunek (eds.), Hidden Conflict in Organizations. Newbury Park, Calif.: Sage, 1992. Breslin, J. W. “Breaking Away from Subtle Biases.” Negotiation Journal, 1989, 5 (3), 219–222. Bush, R.A.B., and Folger, J. P. The Promise of Mediation. San Francisco: JosseyBass, 1994. Carnevale, P.J.D., Conlon, D. E., Hanisch, K. A., and Harris, K. L. “Experimental Research on the Strategic-Choice Model of Mediation.” In K. Kressel, D. G. Pruitt, and Associates (eds.), Mediation Research: The Process and Effectiveness of Third-Party Intervention. San Francisco: Jossey-Bass, 1989. Carnevale, P.J.D., Lim, R. G., and McLaughlin, M. “Contingent Mediator Behavior and Its Effectiveness.” In K. Kressel, D. G. Pruitt, and Associates
Mediator Reflections on Practice 425
(eds.), Mediation Research: The Process and Effectiveness of Third-Party Intervention. San Francisco: Jossey-Bass, 1989. Cobb, S. “A Narrative Perspective on Mediation.” In J. P. Folger and T. S. Jones (eds.), New Directions in Mediation: Communication Research and Perspectives. Thousand Oaks, Calif.: Sage, 1994. Donohue, W. A., Drake, L., and Roberto, A. J. “Mediator Issue Intervention Strategies: A Replication and Some Conclusions.” Mediation Quarterly, 1994, 11 (Spring), 261–274. Folger, J. P., and Bush, R.A.B. “Ideology, Orientations to Conflict, and Mediation Discourse.” In J. P. Folger and T. S. Jones (eds.), New Directions in Mediation: Communication Research and Perspectives. Thousand Oaks, Calif.: Sage, 1994. Folger, J. P., Poole, M. S., and Stutman, R. K. Working Through Conflict: Strategies for Relationships, Groups and Organizations (3rd ed.). New York: Longman, 1997. Gale, J., Mowery, R., Herrman, M. S, and Hollett, N. L. “Considering Effective Divorce Mediation: Three Potential Factors.” Conflict Resolution Quarterly, 2002, 19 (4), 389–420. Gilkey, R. W., and Greenhalgh, L. “The Role of Personality in Successful Negotiating.” In J. W. Breslin and J. Z. Rubin (eds.), Negotiation Theory and Practice. Cambridge, Mass.: Program on Negotiation, Harvard Law School, 1993. Goettler, D. E., Herrman, M. S., and Gale, J. “Background Characteristics and Incentives of Mediators in Georgia: Exploring Differences in Public, Private, and Government Agency Mediators.” Mediation Quarterly, 1999, 16 (3), 221–233. Gold, L. “Reflections on the Transition from Therapist to Mediator.” Mediation Quarterly, 1985, 9, 15–26. Gold, L. “Lawyer and Therapist Team Mediation.” In J. Folberg and A. Milne (eds.), Divorce Mediation: Theory and Practice. New York: Guilford, 1988. Greatbatch, D., and Dingwall, R. “Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators.” Law and Society Review, 1989, 23 (4), 613–641. Herrman, M. S. “ADR in Context—Linking Our Past, Present, and a Possible Future.” Journal of Contemporary Legal Issues, 1989–90, 3, 35–55. Herrman, M. S. “Exploring Deeper Wisdoms of Mediation: Notes from the Edge.” Peace and Conflict Studies, 1999, 6 (1), 67–77. Irving, H. H., and Benjamin, M. Family Mediation: Contemporary Issues. Thousand Oaks, Calif.: Sage, 1995. Jones, T. S. “Emotional Communication in Conflict: Essence and Impact.” In W. Eadie and P. Nelson (eds.), The Language of Conflict and Resolution. Thousand Oaks, Calif.: Sage, 2001. Kolb, D. M. “Labor Mediators, Managers, and Ombudsmen: Roles Mediators Play in Different Contexts.” In K. Kressel, D. G. Pruitt, and Associates (eds.), Mediation Research, San Francisco: Jossey-Bass, 1989. Kolb, D. M. When Talk Works. San Francisco: Jossey-Bass, 1994.
426
HERRMAN, HOLLETT, EAKER, GALE
Kressel, K., Frontera, E. A., Forlenza, S., Butler, F., and Fish, L. “The SettlementOrientation vs. the Problem-Solving Style in Custody Mediation.” Journal of Social Issues, 1994, 50 (1), 67–84. Lang, M. D., and Taylor, A. The Making of a Mediator: Developing Artistry in Practice. San Francisco: Jossey-Bass, 2000. Marlow, L. “Styles of Conducting Mediation.” Mediation Quarterly, 1987, 18, 85–90. Menkel-Meadow, C. “Toward Another View of Legal Negotiation: The Structure of Problem Solving.” UCLA Law Review, 1984, 31, 754–842. Menkel-Meadow, C. “Lawyer Negotiations: Theories and Realities—What We Learn from Mediation.” Modern Law Review Limited, 1993, 56 (May), 361–379. Mnookin, R. H., and Kornhauser, L. “Bargaining in the Shadow of the Law: The Case of Divorce.” Yale Law Journal, 1979, 88, 950. Rifkin, J., Millen, J., and Cobb, S. “Toward a New Discourse for Mediation: A Critique of Neutrality.” Mediation Quarterly, 1991, 9 (2), 151–164. Riskin, L. L. “Understanding Mediators—Orientations, Strategies, and Techniques: A Grid for the Perplexed.” Harvard Negotiation Law Review, 1996, 7 (Spring), 1–34. Rubin, J. Z., and Brown, B. R. The Social Psychology of Bargaining and Negotiation. Orlando: Academic Press, 1975. Sarat, A. “Alternatives in Dispute Processing: Litigation in a Small Claims Court.” Law and Society Review, 1976, 10, 339. Strauss, A. Negotiations: Varieties, Contexts, Processes, and Social Order. San Francisco: Jossey-Bass, 1978. Thibaut, J., Friedland, N., and Walker, L. “Compliance with Rules: Some Social Determinants.” Journal of Personality and Social Psychology, 1974, 30 (6), 792–801. Von Glasersfeld, E. “A Constructivist Approach to Teaching.” In L. P. Steffe and J. Gale (eds.), Constructivism in Education. Hillsdale, N.J.: Erlbaum, 1995. Wall, V. D., Jr., and Dewhurst, M. L. “Mediator Gender: Communication Differences in Resolved and Unresolved Mediations.” Mediation Quarterly, 1991, 9 (1), 63–85. Weingarten, H. R., and Douvan, E. “ Male and Female Visions of Mediation.” Negotiation Journal, 1985, 1 (4), 349–358.
Margaret S. Herrman is a senior research fellow at the Vinson Institute of Government at the University of Georgia. Nancy L. Hollett is adjunct faculty in the Department of Child and Family Development at the University of Georgia.
Mediator Reections on Practice 427
Dawn Goettler Eaker is a doctoral student in the Marriage and Family Therapy Program in the Department of Child and Family Development at the University of Georgia. Jerry Gale is an associate professor and director of the Marriage and Family Therapy Program in the Department of Child and Family Development at the University of Georgia.