The Culture of Mediation: Settlement vs. Resolution

Kenneth Cloke

December 2005

We mediate not in the abstract, but within a given society and culture which define the parameters of what is possible and acceptable. These parameters are paradigms, which limit our capacity to creatively respond to conflict. For this reason, Amilcar Cabral said "liberation is necessarily an act of culture."

Albert Camus wrote:

"Through a curious transposition peculiar to our times it is innocence that is called upon to justify itself." It is worth noting that it is not violence or even law that calls itself to account, but mediation."

There is a culture of conflict which influences how we respond to it. [1] A high context culture is one like mediation, where most of the meaning lies in the context. Law, on the other hand, is a low context culture, as most of the meaning is apparent in the words. Law seeks to abolish context while in mediation context is everything. To understand mediation, therefore, it is necessary to look beyond the words that are used to the context in which they take place.

There are two reasons for mediating disputes: first, because one is frightened of conflict and wishes to avoid or suppress it; second, because one sees an opportunity for transformation through dialogue and problem solving and wishes to promote it.

The former seeks to mollify the opposition without discovering or rectifying the underlying causes of the dispute and seeks settlement for settlement's sake. The latter seeks to bring about a deeper level of understanding and empowerment through honest communication about the causes of the dispute and allows the parties to decide how and whether to end it. The first creates a settlement; the second creates a resolution. The first leads to sullen acceptance, the second to forgiveness and reconciliation.

Conflict is seen by those wishing only to end it as a negative response to an otherwise reasonable and fair social order, as stressful, uncontrollable, violent, fearful, threatening and irrational; as an expression of irresponsibility and a purely procedural failure of communication. (See costs of conflict.)

Conflict is seen by those seeking to resolve the underlying reasons, which give rise to it as essential to all change, growth, learning, awareness, intimacy, work, relationships, etc; as the voice of the new paradigm and an indicator of readiness for change; as a guide to what is not working; as a cry for help; and as a historically proven antidote to stagnation, apathy, dictatorship, racism, sexism, slavery, colonialism, tyranny, exploitation, etc.. Change is brought about through the interaction between conflict and resolution, divergence and convergence, antagonism and unity. The difficulty is not with conflict, but how we respond to it. (See benefits of conflict.)

Conflict can be seen as an expression of the highest level of social and political responsibility; as a necessary byproduct of injustice; as a highly effective method for bringing about social change; as the way of expressing opposition. Tolerance in the face of injustice, as Herbert Marcuse recognized, is itself repressive. A fear of conflict or opposition, of standing up for what one believes, can lead to settlement, but not to resolution.

For example, anti-slavery opinion necessarily generates conflict in slave society, and through opposition, expands opportunities for emancipation. To repress or settle such conflicts in order to avoid opposition is to do so within slave society, i.e., unequally, and therefore to support the status quo. Yet to draw slave owners into an open and public dialogue with their slaves over whether slavery should be continued is to use their conflict to help bring about a resolution of the reasons which created it, which is outside the assumptions of slave society and therefore in opposition to the status quo.

When mediating between the master and the slave, it is important that the slave speak first, not for reasons of sympathy or ideological correctness, but because for the slave the master is a human being, whereas for the master, the slave is merely an object. The master is here enslaved and the slave is master. In order to resolve the issue of slavery, the master must learn humility and slave learn freedom. Each party in a conflict can be seen as a teacher uniquely able to communicate what the other party needs to learn. This is Ghandi's satyagraha, "speaking truth to power."

Many who are interested in alternative dispute resolution (ADR) respond to systemic conflicts with fear or a desire to "make it go away", to silence both the message and the messenger in the interest of agreement, and therefore also of the status quo. In the process, we run the risk of settling disputes that need to be aired, of halting rather than promoting dialogue. If it is true that "the squeaky wheel receives the oil", why not squeak if you are in need of oil? If you cannot be heard without shouting, why whisper? (See Voice.)

Laura Nader has written in critique of alternative dispute resolution practitioners that they "induce passivity" and "trade justice for harmony", that the purpose of ADR is pacification rather than peace. Certainly there are forms of dispute resolution and individual dispute resolvers who, in fear of conflict or in pursuit of profits or privilege, will promote peace at any price.

Yet there are others who would not discourage the slave from communicating anger or resolve, but seek instead to empower those who are less powerful through empathy, role reversal, active listening, summarizing, acknowledging, power balancing, problem solving, generating options, eliciting interests, focusing on the future, requiring consensus, creating process awareness, negotiating solutions, and permitting each side to chose a better alternative to negotiated settlement (BATNA).

This dilemma is not restricted to conflicts between masters and slaves, but is found in small scale issues where values and ethics typically reside. The master and the slave appear wherever power is distributed hierarchically, as in the family and the workplace. Conflict in these arenas often reflects the momentary failure of a paradigm in the battle of new against old, or frustration at the inability to break a system that is oppressive yet comfortable because it is known and familiar. These are some of the conflicts that families generate, especially in divorce when systems unravel.

All our attitudes toward conflict from fear to rage are learned in the family. The family is the crucible of culture and conflict. It is supportive of settlement, but rarely of resolution.

Many battles, i.e., those between slaves, have less to do with justice than the other infinite sources of human strife. For these, mediation is far superior to power or rights-based resolution systems, and a choice for settlement is less likely to be one that risks justice.

The problem for mediators is: how do we know when we are promoting social peace over social justice? The culture of conflict, in which mediation participates, is one of demonization and victimization, of "first strikes" and "taking one's marbles home", of bravado and self-justification.

The solutions, then, for mediators, consist of their continuous effort to:

1. Recognize and affirm the conflicts people experience as positive, as learning experiences, opportunities for growth or change, as indicators of the need to break a system or shift a paradigm;

2. Use empathy to place oneself as deeply as possible in both parties places, while at the same time recognizing clear boundaries between ownership of the dispute and understanding it;

3. Shift parties away from power and positions which favor those who are already powerful, toward interests which favor equality;

4. Focus efforts not simply on settlement, but on a full resolution of all the underlying issues;

5. Risk the perception of neutrality by being deeply honest and giving truthful feedback to both sides;

6. Search out power imbalances and ways of correcting them;

7. Through storytelling and reframing, separate the mask from the person, the demon or the victim from the human being behind the image of the other created by the speakers own fear;

8. Speak from an impeccable intention and clarity, without judgment, and therefore from the heart and spirit rather than from the head;

9. Do not impose your idea of justice on others, but elicit from the parties why an alternative feels fair;

10. Genuinely do not care if the parties knowledgeably chose litigation based on an accurate understanding of what it entails.

These approaches, however, do not fully solve the problem. Mediation may be unbiased but it is not value-neutral. The culture and context within which mediation occurs produce values in the form of behavior.

The values, which flow from the settlement process, are those of impatience and conformity, of giving up what is important so the conflict will go away, of surrendering to expediency. A different set of values flow from the resolution process.

1. Acceptance of conflict as positive.. as a journey or adventure, an opportunity for growth or change, or an invitation to communication, intimacy and relationship;.

2. Celebration of diversity, a validation of difference and equality;

3. Rejection of behaviors based on superiority and inferiority, victory and defeat, hegemony and powerlessness, correctness and heresy;

4. Affirmation both of opposition and the underlying human unity, which transcends it;

5. Recognition and acknowledgment of the legitimate interests of each, including an interest in not compromising or settling the dispute;

6. Rejection of the assumption that zero-sum games are the only ones possible;

7. Affirmation that cooperation is primary and competition secondary;

8. Observation that process encodes and recreates content;

9. Integration of intellect, emotion, body and spirit;

10. Refusal to leave any one behind.

We require a culture in which conflict is integrated and accepted, where it is celebrated and honored, where settlement is the least virtue and resolution merely a beginning.

[1] Edward T. Hall distinguishes between "high context" and "low context" cultures in The Dance of Life. (Knopf Doubleday Publishing Group, 1984). <>.

Use the following to cite this article:
Cloke, Kenneth. "The Culture of Mediation: Settlement vs. Resolution." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: December 2005 <>.

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