Wednesday, February 20, 2008

When Mediation Works

If you are interested in finding out how to improve the practice of mediation, one way of going about that task is to consider what types of conflict does mediation resolve well. If there are categories of disputes that lend themselves well to resolution by mediation and other categories that don't, then perhaps one can figure out what it is about mediation that fits well with one category or not with the other. If you understand how a tool is designed for some jobs but not others, then perhaps you can proceed to improve the tool.

Thinking about this some, it occurs to me that a mediator's effectiveness depends upon the absence of an outside authority. Essentially, a mediator is most effective when everything a mediator needs to help resolve a dispute is right there in the room...the mediator and the parties. If the mediator has to make an appeal to an external rule or authority to resolve the dispute, especially where the mediator can make no special claim of competence in applying that rule or authority, the mediator is probably working in a field outside mediation's best application.

Take, for example, disputes in the workplace. Human resource administrators are increasingly using mediation to resolve intra-employee disputes. Before considering whether mediation can be useful in a particular dispute, the employer should determine whether the nature of the dispute requires the employer to exercise its authority. If there is a legal question involved, for example, then the employer's legal department will need to get involved, assert the employer's authority and apply the appropriate legal rule. There is no benefit to be obtained by resorting to a mediator in this type of situation. This would also be the case in situations where there are important questions of broadly-applicable company policy that should not be implemented in an ad hoc manner, one mediation at a time.

However, it is not practicable to resolve many disputes that arise in the workplace by making continuous appeals to an employer's authority. These disputes may be referred to as social/political issues, in the sense that there are many questions of social recognition and power allocation among employees in the workplace that do not arise to a level of concern that affects the firm's economic results or general employee satisfaction. In these situations, if the employer stepped into each dispute, the employer would be trying to resolve what are essentially private matters where its authority is not necessarily dispositive; overuse of authority can tend to weaken it, and questions of consistency of treatment might erode the employer's claim that it is exercising its authority in an impartial matter. These private matters can only really be resolved once the parties agree that they have been resolved; hence, enter the mediator.

On the other hand, consider the workplace situation of disputes between partners of law firms. The principal disputes between law partners tend to revolve around compensation, conflicts (whether a partner can take on a new client where this representation may conflict with another firm representation) and allocation of associates (quantity and quality) to partner matters. Here, the law firm's preeminent authoritative rule agreed to by all partners in advance is to increase profitability. Every intra-partner dispute is understood by all partners to be properly decided by reference to whether any particular result will further the firm's objective of enhancing profits. Each firm will develop its own metric to determine how it should go about compensating rainmakers vs. the worker-bee partners, which new clients to take on, how to best allocate associate help to various kind of matters, and other questions that may create partner disputes. A mediator would not be helpful in this situation since no mediator can be adept at discerning or applying the balancing of interests that constitutes the particular firm's profit-enhancing modus operandi (which the firm may need to change on the fly as it responds to changing events). A managing partner or firm committee will decide these matters, as best they can, and all partners agree in advance that these are not private matters, but rather matters that relate to the profitability of all partners in the firm.

I sense that mediators often think mediation is potentially applicable to all kinds of disputes. But if a mediator senses that the proper method of settling a dispute is by resorting to the application of some rule or authority, with respect to which the mediator has no special competence, and not solely by obtaining the parties mutual consent, that mediator is probably involved in a dispute that should not be resolved by mediation.

No comments: