Fighting Futility Iv: Dealing with Defensiveness in Mediation

Article excerpt

I. INTRODUCTION

Mediation, offering an alternative to the rigors of formal litigation in a courtroom, has become a successful conflict resolution tool because it provides an opportunity to resolve virtually any issue in "a cost effective and timely manner."^sup1^ Moreover, according to Gene Valentini, director of the Texas Dispute Resolution System, one can speak freely in mediation "about anything you feel will get you to a point of resolution because nobody's recording or saying it's out of order, whereas in the courtroom you may not be able to address those things."^sup2^ Businesses of all sizes should be more aware of the dynamics of mediation in order to understand how this process either can be successful or an exercise in futility. Only when business leaders have some understanding about those dynamics can they both prepare for and manage a successful mediation.

This paper is the fourth article in a series designed to offer insights into how to prepare for and conduct mediation so that the time and energy expended will not be wasted. Building on earlier work applying models from the field of group dynamics to improve mediation, this paper focuses on defensiveness - a common cause of mediation failure. Four models discussed include Common Defense Mechanisms in Mediation, Gordon's Experience of Defensiveness^sup3^, an integrative Model of Defensive Reactions and Conflict Style, and Gibb's Characteristics of Defensive and Supportive Climates.^sup4^ The extent to which business leaders apply these models to address defensiveness can determine whether mediation succeeds or fails. Before considering how skills can be developed using the models, it is important to examine the meaning of mediation, its use, and its success in resolving conflict.

II. THE MEANING OF MEDIATION

What are the characteristics of mediation? Texas statutory law defines mediation this way:

(a) Mediation is the forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues or that of the parties.^sup5^

This statutory definition, however, offers little insight into what mediation can and should be. When successful, mediation can be characterized as proactive, forward-looking, and problem-solving in nature. Evoking less stress than formal litigation, mediation is enlightening, flexible, and confidential. It also can effectively diffuse emotional time bombs because it basically involves negotiation through a disinterested third party. It is not a drastic action and does not involve the surrender of freedom that arbitration dictates, as the latter requires an impartial third party who breaks a deadlock by issuing a final binding ruling.^sup6^ One drawback mars this otherwise rosy picture: neither side is bound by anything in mediation. Arbitration binds; mediation intervenes benevolently. If the parties involved remain stubborn, intervention can sour, and mediation then becomes an exercise in futility.

Proactive use of mediation can help businesses keep conflict out of costly litigation and can even help settle conflicts already in litigation. For this to happen, though, business leaders must know what should happen in mediation and how to prepare for it.

III. THE USE OF MEDIATION

Over the past two decades, the use of mediation has exploded. Business leaders have discovered it to be a valuable, cost-effective alternative to litigation in the traditional adversarial system. In Texas and Oklahoma, the number of mediation cases is staggering. Mediation cases have exploded in Texas in recent years. The cases received by Texas alternative dispute resolution centers in the most recent three-year period for which records were kept total an average of almost 20,000 cases annually, with a total of more than 58,000 cases from 2003 to 2005.^sup7^ The same type of growth holds true in Oklahoma. …