Essays In Mediation and Arbitration

Roberto M. Rodriguez

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Essays In Mediation and Arbitration

Table of Contents

Essays In Mediation and Arbitration...............................................................................................1

The Claim of Racial Discrimination during Mediation...................................................................1

The Complaints of My Tenant’s Neighbors..................................................................................13

Brief Evaluation of On-line Arbitration........................................................................................30

The Forming of a Mediator............................................................................................................41

ABOUT THE AUTHOR...............................................................................................................58

1
The Claim of Racial Discrimination during Mediation
The case presented in this paper is a real case in which the author became an unwilling

participant. In this case, two African American employees of Tennant Company, a medium-size

manufacturing company located in Golden Valley, Minnesota, complained to the company’s

Department of Human Resources about their factory supervisor, a White man, alleging racial

discrimination. The Department, which had recently instituted a mediation program, asked the

two employees if they were willing to participate in the mediation session, something that the

two employees readily accepted. Mediation is a process that necessarily involves the

participation of a neutral party who helps disputing parties find solutions to contested issues

(Dana, 2001, p. 14). Their complaint was assigned to one of the company’s mediators, who

scheduled a mediation conference with the parties: the two disgruntled employees and the

supervisor with whom they were having problems. However, rather than resolving the case in

mediation, the two African American employees filed a complaint with the State’s Department

of Human Services, alleging racial discrimination in the workplace and White privilege and

racial discrimination during the mediation session. It was at this time that I became involved in

this unusual case.

Part I – Review of an Organizational Conflict and Related Laws

At first sight, and as described by the complaining employees, this organizational conflict can

be categorized as racial discrimination in the workplace. The law is very definitive about this

issue. All forms of racial discrimination are illegal in the United States by virtue of Title VII of

the Civil Rights Act of 1964, which regulates discrimination in employment on the basis of race,

color, religion, sex or national origin. State laws also make racial discrimination illegal in all

states. An employer is subjected to numerous sanctions for any violation of these laws.
2
 However, in this case an allegation was made that the mediator, and the mediation process

itself, were discriminatory. A two-person dispute is bad enough without discrimination, because

all disputes involve a breakdown of communication, distortions in perception, distrust, and “I

am on the side of the angels and you belong with the forces of darkness” (Rogers, in French, Bell

& Zanacki, 2005, p. 114). It was at this point that I started researching this area with the

objective of gaining some badly needed information about this issue, and what I found really

startled me and my superiors.

Several scholars have been analyzing the issue of how white privilege is perpetuated in

mediation. The general claim –which at first was perceived by me as very partisan and probably

biased- was because racism in the United States is healthy and strong, and that racism permeates

all aspects of society. The idea is that neither the many laws that have been passed to eradicate

the effects of racial discrimination, nor the sustained efforts to educate the population, have

weakened its negative influence. White privilege is a consequence of racism, which is pervasive

in all areas of society, although the presence of white privilege sometimes is invisible.

Mediation, with all its many good goals and characteristics, is not free from the influence of

white privilege because, in most instances, this influence occurs unconsciously or

subconsciously. Mediation is part of the American legal system, and as such, is still a long way

from eliminating white privilege.

White privilege –according to this view- is everywhere, but because it is an integral part of

our social, political, and economic system, it is invisible. White privilege is part of the American

culture, because “obliviousness about white advantage, like obliviousness about male advantage,

is kept strongly inculturated in the United States so as to maintain the myth of meritocracy, the

myth that democratic choice is equally available to all” (McIntosh, 2004, p. 105). In addition,

3
white privilege is mostly unconscious, because “white consciousness of whiteness is

predominantly unconsciousness of whiteness” (Flag, 1999, p. 970). McIntosh (2004) described

white privilege in this manner: “I have come to see white privilege as an invisible package of

unearned assets that I can count on cashing in every day… white privilege is like an invisible

weightless knapsack of special provisions, assurances, tools, maps, guides, codebooks, passports,

visas, clothes, compass, emergency gear, and blank checks” (McIntosh, 2004, p. 91).

According to numerous scholars, White privilege serves several functions in society. Whites

tend to look at themselves, others, and society “through a distorted lens in which the structural

privileges they enjoy and the cultural practices of their group are represented as normal and

universal” (Bell, 2002, p. 12). The main narrative of the American culture implies a white over

color ascendancy because it “serves important purposes, both psychic and material… racism

advances the interest of both white elites (materially) and working-class people (psychically),

large segments of society have little incentive to eradicate it” (Hardiman & Jackson, 2003, p.

17).

The system of white privilege endures, because the benefits obtained by whites are not

perceived as such, and because many non-whites, maybe unconsciously, also cooperate with

their own oppression, colluding in maintaining the status quo “both because they internalize the

false belief that the system is correct and as a means of survival” (Bell, 2002, p. 12).

A startling claim has been made by some scholars that the judiciary system is heavily biased

against non-whites. Persons of color are over-represented in the prison population and frequently

receive longer and more severe sentences than whites. However, this is not because persons of

color commit most of the crimes in society. Whites, which commit most white collar and

corporate/industrial crime “cause more personal injury, death and property loss than all street

4
crime combined, even on a per capita basis” (Delgado & Stefancic, 2001, p. 43). However,

whites fare much better than non-whites in the judiciary system.

The benefits of white privilege in society are pervasive. Numerous studies indicate that whites

“receive more favorable treatment than blacks in virtually every area of social interaction” (Flag,

1999, p. 983). In a documentary film about subtle racial discrimination, produced by the

University of California, John and Glenn were almost identical in age, education, and economic

position, except that John was white and Glenn was African-American. John constantly received

the benefits of white privilege. He was well received everywhere, was able to fill out job

applications any time he wanted, negotiated to purchase a car at a lower price and with a lower

down payment than Glenn, and was not watched carefully when shopping. In addition, when

both men pretended to have been locked out of their cars, John received help from passerby, but

not Glenn.

The system of white privilege is perpetuated because of the existence of racism in our society.

Racism is everywhere, including our legal system. Racism is “part of the structure of legal

institutions” (Delgado & Stefancic, 2001, p. xx). The legal system is influenced by white

privilege, because all disputes, to a certain extent, “are influenced by group membership, such as

race, class, and gender” (Wing & Rifkin, 2001, p. 183). In addition, racism can occur at both an

unconscious and conscious level (Definitions of General Concepts I: Racism, 2005, p. 165).

Racism can be manifested or expressed in many ways, although social scientists have coined

a word for all those racist interactions between whites and non-whites. These events are called

“micro-aggressions”, which, according to Delgado & Stefancic (2001) are “those many sudden,

stunning, or dispiriting transactions that mar the days of women and folks of color. Like water

dripping on sandstone, they can be thought of as small acts of racism, consciously or

5
unconsciously perpetuated, welling up from the assumptions about racial matters most of us

absorb from the cultural heritage in which we come of age in the United States” (Delgado &

Stefancic, 2001, p. 2).

Racism, of course, is not the only form of discrimination in our society, because there are

several other discriminated groups, although in theory all are equal. Hardiman & Jackson (2003)

mention that “examples of the unequal treatment of African Americans and poor people of all

races by the criminal and civil justice system, housing and employment discrimination against

gays and lesbians, unequal access to quality education for the poor and working class, and

exclusion from social and cultural institution such as civic groups and social clubs that have

historically excluded women, men of color, and Jews” (Hardiman & Jackson, 2003, p. 19)

demonstrate the extent of oppression in our society.

The elimination of racism in American society proceeds at a very slow pace. It usually

requires not only to pass legislation, but also to have the police, government officers, and the

courts enforce such legislations, which is not always done. The net result is that little advances

are made, because “our system of civil rights law and enforcement ensures that racial progress

occurs at just the right slow pace” (Delgado & Stefancic, 2001, p. 31).

Part II – Analysis of the Organizational Conflict and Recommendations

One of the stated goals of mediation is to provide a neutral setting where the parties can settle

their grievances and reach a mutually satisfactory solution. However, this goal of neutrality is

illusory, because if the parties are not equal outside of the mediation room they will not be equal

in mediation. Rouhana & Korper (2002) said that “it seems implausible that equal status in the

room, in and of itself, can have a serious impact on the conflict relationship when the unequal

status outside the room remains the status quo” (Rouhana & Korper, 2002, p. 361). Wing &

6
Rifkin (2001) mention that “the predominant view of mediation reflects a devotion to the concept

of neutrality which our approach challenges as impossible and undesirable in an oppressive

society” (Wing & Rifkin, 2001, p. 182-183). The approach followed by Wing & Rifkin (2001)

recognize oppression’s role in society, that many conflicts are likely to emerge as a direct result

of differing circumstances that people experience because of their oppression, and that mediation

should recognize and deal with those issues.

The mediator comes to the mediation session impregnated with the prevailing culture. Cobb

& Rifkin (2001) explored the findings in the conflict resolution field, and concluded that

mediators could not be neutral (Wing & Rifkin, 2001, p. 189). Mediators, like all other human

beings, have “biases, values, and points of view… a mediator’s attempt to remain neutral is to

some extent always doomed to failure” (Grillo, 2001, p. 1587). In mediation, each person “is

viewing the world through one of the stages of racial identity development” (Wing, 1998, quoted

in Wing & Rifkin, 2001, p. 187). The stages of racial identity development were developed by

Hardiman & Jackson and consist of (a) naïve/no social consciousness. (b) passive stage of

acceptance, (c) resistance, (d) redefinition, and (e) internalization (Wing & Rifkin, 2001, p. 186-

189).

In the first stage, the person is naïve or has no social consciousness. The individual is

unaware of the rewards and sanctions associated with belonging to a racial group. People in this

stage accept that Whites are superior to people of color. In the second stage, passive stage of

acceptance, the person unconsciously accepts the white superiority. In the third stage, resistance,

the person focuses on understanding and resisting the existence of racism and its multiple

manifestations in everyday life. In the fourth stage, redefinition, the person focus on redefining

her own racial group’s history and culture. Lastly, in the fifth and last stage, internalization,

7
people achieve a new sense of racial identity not based on or in reaction to the assumptions and

functions of racism, but at this point they have reached a heightened appreciation for the

experiences of oppressed people.

Even if neutrality could be achieved, still this would neglect the needs of people of color and

favor white privilege. Cobb & Rifkin (2001) mention that “the structure of the mediation process

itself contributes to the marginalization of one disputant (the second disputant to tell the story),

setting an accusation/justification sequence in place that perpetuates adversarial interactions and

reconstitutes one story as dominant” (Cobb & Rifkin, 2001, p. 60). The mere opportunity to tell a

story in mediation “does not ensure that one story will not colonize another, marginalizing the

disputant, along with their story” (Cobb & Rifkin, 2001, p. 57). Or worse, in some cases, “one

side never tells its own story; it simply refutes or denies the story of the other” (Cobb & Rifkin,

2001, p. 53).

Mediators are not free from their own cultural baggage because “they also participate

politically in the story transformation by making summaries that re-contextualize important

events in the plot… summaries provide an important opportunity for mediators to shift the

semantic frames and moral orders in disputants’ stories” (Cobb & Rifkin, 2001, p. 56). The same

authors mention that “in 24 of 30 cases, the settlements emerge out of the initial narrative! This

means that 80% of the time, the second speaker never is able to tell a story that is not colonized

by the dominant story!” (Cobb & Rifkin, 2001, p. 61).

Schofield (2005) provides a series of steps that a mediator should follow as soon as he or she

identifies his biases and mentions the body cues that may signal when a bias comes into play:

restriction in breathing, muscle tensing or twitching, nerve tingling or a creepy crawly feeling

within the skin, irritability, a hot, cold or clammy sensation, nausea or increased heart rate

8
(Schofeld, 2005, p. 1-2). Rendon (2006) was so concerned about the possibility of prejudice in

mediation that she decided to implement a survey to test her hypothesis. Although only 45

people answered her survey, her conclusion was that “both the literature and comments from the

respondents made me realize that many of us are not as sensitive and educated about these issues

as we believe we are” (Rendon, 2006, p. 4).

Therefore, what mediators understand as neutrality is to follow a symmetrical approach

“could benefit those belonging to a dominant or higher power group, White Anglos, and exclude

and undermine the target or lower power group members, people of color” (Bell, 1997, cited in

Wing & Rifkin, 2001, p. 192). One way in which mediators could balance the relative power of

the parties in mediation would be to make asymmetrical interventions to try to help the weaker

party tell her story and make it part of the final narrative. Issues of race, ethnicity and others,

should be brought forward by the mediator as legitimate issues that may need to be addressed.

Matsuda (2002) reminds us that non-whites feel that “lack of legal redress for racist acts is an

injury often more serious than the acts themselves” (Matsuda, 2002, p. 74).

Many scholars have argued that people of color are more favored by the formality of the court

system than by the informality of alternative conflict resolution methods, including mediation.

Delgado et al. (2005) expressed that “procedural formality recognizes inequality and attempts to

compensate for it by making both parties conform to the same standards… one cannot have

equity and informality at the same time” (Delgado, Dunn, Brown, Lee & Hubber, 2005, 1395-

1396). The same authors added that “adversarial procedure counteracts decision-maker bias

because it combats the natural human tendency to judge too swiftly in terms of the familiar that

which is not yet, fully known” (Delgado et al., 2005, p. 1389).

9
 However, this does not mean that white privilege does not exist in the judiciary or court

system, only that formality may reduce its effects. Although color blindness, and consequently,

white privilege, seems firmly entrenched in the judiciary, a few judges have made exceptions in

unusual circumstances (Delgado & Stefancic, 2001, p. 22).

One way to make the mediation process more “fair” to non-whites would be to establish more

rigorous guidelines or rules that clearly specify the scope of the proceedings, require that such

proceedings be open to the public as in the court system, and provide some form of higher

review if, after agreeing to a settlement, one of the parties decide that the manner in which the

procedures were followed influenced or forced her to accept a settlement that she thought was

unfair.

Alternative dispute resolution (ADR) methods, which have been advanced as providing an

avenue where the parties can talk out their grievances and arrive to a mutually satisfactory

solution, because of its informality and neutrality bases, may actually harm non-white parties.

Alternative dispute resolution “may be speedy and cheap, but if you are a woman or member of a

racial minority group, ADR is apt to compound the disadvantages you bring to the bargaining

table” (Delgado, 2002, p. 1395). The mediation services may be reinforcing society’s tendency

to treat non-whites differently, because mediators, when treating non-whites, avoid “employing

the deferential responses that they typically provide to white disputants” (Cooper, 2001, p. 135).

Delgado and his associates also mention that the purpose of alternative dispute resolution

systems is not to help the parties in the dispute, but to help the courts and to channel anger out of

the courts. He wrote, “informal alternatives were more or less consciously designed to siphon

discontent from courts” (Delgado et al., 2005, p. 1394).

10
 ADR is also advanced as a method that helps resolve problems and eradicate conflicts, which

are seen as aberrations in a civilized society. This view of conflict as abnormal also has been

criticized by scholars. Delgado et al. also mention that “an even more basic premise of ADR –

namely that conflict is pathology, an aberration from a peaceful form or baseline – is false.

Instead, things are the other way around, and conflict is normal” (Delgado et al., 2005, p. 1397).

Delgado added that “conflict is not pathology, but the ordinary and natural state of affairs in a

radical free market society like ours” (Delgado et al., 2005, p. 1402).

The outcomes of mediation demonstrate that non-whites do not fare as well as whites. In

mediation, outcomes favor the stronger party “even more so than standard, in-court lawsuits”

(Delgado et al., p. 1408). In mediation, whites get an advantage as they do in the court system

and everywhere else. Hermann (2004) mentioned that “an ethnic minority respondent could be

predicted to pay twenty cents on the dollar more” (Hermann, 2004 p. 10). When a non-white

party is in mediation, he or she “may agree to something because he is nervous, intimidated,

exhausted, or frightened” (Grillo, 2001, p. 1598). The mediation option may deprive the non-

white party of what he or she is justly entitled, because “you may get no hearing because the

mediator and your adversary may marshal an entire constellation of attitudes and prejudices to

shut you up and trivialize your pleas” (Delgado et al., 2005, p. 1404).

One way to improve not only mediation, but also all alternative dispute resolution methods

may be to identify those types of conflicts in which the dangers of prejudice are greatest, and

direct those grievances to the formal court system.

Recommendations

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 Mediation –as perceived by the two complaining employees and their attorney- is part of a

racist society and, as such, is permeated by an invisible white privilege which is a detriment to

non-whites pursuing this method to resolve their conflicts. However, if mediators could learn to

use the proper lens to see white privilege for what it is and eliminate its noxious effects, then

they could make mediation work for both whites and non-whites.

Mediation could be improved by, among other things:

1. Making compulsory the training of all mediators in race and race related issues, including the

issues of white privilege.

2. Providing rules that clearly specify the scope of the mediation proceedings, require open

proceedings, and provide some form of higher review (Delgado et. al., 2005, p. 1403).

3. Identifying those areas and types of ADR in which the dangers of prejudice are greatest, and

direct those grievances to formal court adjudication (Delgado et al., 2005, p. 1404).

4. Having the mediator make asymmetrical interventions in those cases where there is a non-

white party, “by raising questions of race knowing that some participants may not share the

perspective that it is a relevant topic” (Wing & Rifkin, p. 196).

In this specific case, the issue was settled before going to court. The two women requested –

and the company approved- their transfer to work under another supervisor. However, as a result

of this experience, Tennant Company implemented all the recommendations listed above making

the company’s ADR program much stronger.

References

Bell, L.A. (2002). “Theoretical foundations for social justice education. In M. Adams, L.A. Bell
& P. F. Griffin (Eds.). Teaching for diversity and social justice. New York: Routledge,
pp. 3-15.

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Cobb, S. and Rifkin, J. (2001). Practice and Paradox: Deconstructing Neutrality in Mediation. In
Chew, P.K. (Ed.). 16 Law and Social Inquiry 35, 52-62. Chicago: University of Chicago
Press.

Cooper, C. (2001). Mediation in Black and White: Unequal distribution of empowerment by

police. In J. Asim (Ed.). Not Guilty: Twelve black men speak out on law, justice, and
life. New York: Amistad, HarperCollins, pp. 125-141.

Dana, Daniel. (2001). Conflict Resolution. New York: McGraw-Hill.

Definitions of General Concepts I: Racism. (1997). Racism Curriculum & Design, Wijeyesinghe,
C. Griffin, P. and Love, B. Teaching for diversity and social justice, edited by Adams,
M., Bill, Griffins, P. Routledge. New York: Hardin & Jackson, pp. 88-89.

Delgado, R. (2002). Alternative Dispute Resolution: Conflict as Pathology: An Essay for Trina
Grillo. 81 Minnesota Law Review 1391.

Delgado, R. & Stefancic, J. (2001). Critical Race Theory. New York: New York University
Press.

Delgado, R., Dunn, C., Brown, P., Lee, H. & Hubber, D. (2005). Fairness and formality:
Minimizing the risk of prejudice in alternative dispute resolution. Wisconsin Law Review
953, 1559.

Flag, B.J. (1999). The transparency phenomenon, race-neutral decision-making and

discriminatory intent. 19 Michigan Law Review 953, p. 970-985.

French, Wendell L., Bell, Cecil H., Jr., & Zawacki, Robert A. (2005). Organization Development
and Transformation: Managing Effective Change. 6th Edition.
McGraw-Hill.

Grillo, T. (2001). The mediation alternative: Process dangers for women. Yale Law Journal, 100,
1545-1610.

Hermann, M. (2004). New Mexico Research Examines Impact of Gender and Ethnicity in
Mediation. In Chew, P.K. (Ed). Dispute Resolution Magazine, 10-11 (Fall) American Bar
Association

Hardiman, R. & Jackson, B.W. (2003). Conceptual Foundations for Social Justice Courses, in M.
Adams, L.A. Bell & P. Griffins (Eds.). Teaching for diversity and social justice. New
York: Routledge, pp. 16-29.

Matsuda, M. (2004). Looking to the bottom: Critical legal studies and reparations. In: K.
Crenshaw, N. Gotanda, G. Peller & K. Thomas (Eds.). Critical race theory: The key
writings that formed the movement. New York: New York University Press, pp. 63-79.

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McIntosh, P. (2002). White privilege and male privilege: A personal account of coming to see
correspondences through work in Women’s Studies. In R. Delgado & J. Stefancic (Eds.).
Critical white studies: Looking behind the mirror, pp. 291-299.

Rendon, Josefina. (2006). Mediators’ and Attorneys’ Perception of Prejudice in Mediation: A

Survey. Retrieved on June 12, 2007 from http://www.mediate.com/pfriendly.cfm?
id=2149

Rouhana, N. R. & Korper, S.H. (2002). Case analysis: Dealing with the dilemmas posed by
power asymmetry in inter-group conflict. Negotiation Journal, October, pp. 353-366.

Schofield, Ana. (2005). Bias in Mediation. Retrieved on June 12, 2007 from
http://www.mediate.com/pfriendly.cfm?id=1697

Wing, L. & Rifkin, J. (2001). Racial Identity Development and the Mediation of Conflicts. In
Wijeyesinghe, C.L. & Jackson, B.W. (Eds.). New perspectives on racial identity
development: A theoretical and practical anthology. New York: New York University
Press, pp. 182-208.

The Complaints of My Tenant’s Neighbors

Background of the Case Study

Roxanne has been my tenant for the last 10 years. She moved into the one of my properties

with his family in February 1996. Two years later, her next door neighbor sold her house and it

was purchased by two single men. The residents of the two households lived in peace and

harmony for a few years until about a couple of years ago when the next-door neighbors started

calling me, because I am Roxanne’s landlord, complaining about all kind of situations, such as

that the tenant had not mowed her yard, or that her grown-up children were having parties with

loud music until late hours of the night, or that they had “visitors” who never seemed to go back

home. In at least one occasion, the next-door neighbors demanded that I evict the tenant.

However, rather than telling them to mind their own business, I explained that in this State

(Minnesota) it was almost impossible to be successful in the eviction of a tenant who paid her

14
rent on time for a relatively minor complaint. No judge in his or her right mind would sign the

eviction of a single mother, member of a minority group in welfare with four children, unless she

was doing something illegal like selling drugs or practicing prostitution, which was not the case

here. However, the possibility of having to evict my tenant if everything failed was my BATNA

because my first priority and interest was to avoid a potential lawsuit.

Roxanne is an American Indian woman, single mother, with four children. She herself pays a

very small amount of rent, because her rent is subsidized by the FHA Section 8 Program, which

pays for the largest portion of her rent. She also receives subsidies from the County of Hennepin

and the State of Minnesota for the payment of her utility bills. She is a friendly, affable woman

who had promised cooperation every time that any of these incidents has been brought to her

attention.

These neighbors at one time contacted me asking that I share in the cost of erecting a fence

between the two properties to avoid problems between the members of the two households. I

willingly accepted to share the cost to reduce the growing tension between the two neighbors.

They claimed that the fence between the two properties would provide them some privacy,

because sometimes the minor children of my tenant were seen “throwing garbage” on their yard.

The last of their complaints was that Roxanne’s minor children had thrown ketchup over the

fence into their yard, and that they had written the word “Faggot” in the door of their garage. I

made an immediate apology because “an apology may be one of the least costly and most

rewarding investments” (Fisher & Ury, 1991, p. 32). However, I politely asked them if they had

seen the tenant’s children do any of these activities, and they replied that they had not, but they

were sure that were Roxanne’s children, because who else could be doing this type of thing? I

protested that there were many children in the neighborhood and that unless they had seen the

15
children perform the alleged activities it was going to be very difficult to prove to Roxanne that

their children had been involved. Nevertheless, I promised that I would talk to Roxanne and alert

her about this problem in which her children may have been involved. I made clear that I had

listened to what they had to say because “it has been said that the cheapest concession you can

make to the other side is to let them know they have been heard” (Fisher & Ury, 1981, p. 34).

“Effective negotiators listen far more than they talk” (Ury, 1993, p. 57). Also, careful listening is

important to avoid any misunderstanding because “they reinforce prejudice and lead to reactions

that produce counterreactions” (Fisher & Ury, 1981, p. 19).

Roxanne recognized that her children –as all children- could have done something wrong, but

mentioned that sometimes there were about a dozen children in the alley, or playing in her yard

with her own children, and that it was possible that one of these children may have done these

acts. Roxanne was not defensive, recognized that her own children were not saints, but as I

expected, refused to blame her children for what had happened because nobody had seen the

specific child who performed the acts. In order to punish her children –she reasoned- she had to

know specifically which of her four children had misbehaved. Was she supposed to punish all of

the children? However, she said that recognizing that her neighbors had complained repeatedly

about the manner in which she took care of the property or about the behavior of her children,

that she was going to talk to every one of her children to make sure that this type of situation did

not occur again.

The following week, the two men filed a complaint with the State’s Department of Human

Rights for discrimination. This obviously was an escalation of the conflict which I could and

should have avoided by paying closer attention to the neighbors’ complaints. I did not see this

action as a dirty tactic on the part of the neighbors, just as an act of desperation with my tenant’s

16
children. They claimed that my tenant and her children had been repeatedly harassing them

because they were gay – something that I did not know until that moment. They wrote in their

complaint: “I have been subjected to continuous harassment on my affectional preference by the

tenants who rent the property. The harassment includes graffiti written on my garage, liquids

such as ketchup being thrown on the siding of my home and derogatory comments being made to

myself, my partner and current and former tenants of my home relating to our affectional

preference”. He expressed that I, as tenant’s landlord, had aided and abetted the tenants in their

discriminatory actions toward them and concluded by saying “we would not have been and

continue to be treated in this manner, if we were not gay”.

Request for Mediation

The Department mailed me a copy of their complaint, and requested detailed information

about me, my company, other real estate properties I owned, whether I was a contractor for the

federal government covered by the provisions of Executive Order 11216 and many other

questions. I found quite bothersome this sweeping attempt of the State to gather all kind of

relevant and irrelevant information about me. This is one of the prices we have to pay when we

leave a problem “sneak through the cracks” and become a bigger conflict. It took me almost a

week to gather all the requested information.

However, one of the last requests by the State was to answer a question whether I would be

willing to submit to a mediation session with the complainants. This was a good alternative, and

I said Yes immediately. Mediation would give me a chance to clear all misinterpretations. I did

not even know that the two neighbors were gays and my tenant had never mentioned anything to

me to that effect. In addition, I intended to ask my tenant to accompany me to the mediation

session. This would prove my seriousness about resolving the issue and would allow the two

17
neighbors to discuss their grievances. Hopefully, both of them wanted to remain friends with my

tenant as they have lived next to each other for over ten years. In addition, if the two

complainants claimed discrimination because they were members of the gay minority population,

my tenant was American Indian and she could also sympathize with their situation, because most

likely she also had been victim of discrimination at some point in her life. If somebody knew

about discrimination – I supposed – would be my tenant.

Preparation for the mediation session

The need for preparation for the mediation cannot be emphasized enough.

In my preparation, I collected information not only from the complaint filed by the neighbors,

but also from my own files and recollection about my interactions with them over the years. I

figured out that although the complaint specifically mentioned only certain facts, that more

elements could be introduced by them in the mediation session, and that I should be prepared for

this potential event. I also should be aware of my “blind spots”, because “a negotiator can

perceive only a part of the whole puzzle interactions, perceptions, and intentions” (Fisher & Ury,

1981, p. 77). In addition, any fact or situation which could be favorable to my interests should be

written down. However, I should keep in mind that “arguing over positions produces unwise

agreements” (Fisher & Ury, 1981, p. 4). In addition, “the difference between positions and

interests is crucial” (Fisher & Ury, 1981, p. 40). I need to reframe the situation to make it more

amenable for a satisfactory solution. Ury mentioned that “reframing means redirecting the other

side’s attention away from positions and toward the task of identifying interests, inventing

creative options, and discussing fair standards for selecting an option (Ury, 1993, p. 78).

Complainants in the past have made allegations about the behavior of tenant’s children, and

all these incidents have been discussed with my tenant in an effort to resolve them. The loud

18
music problem apparently was resolved with the cooperation of my tenant. The neighbors had

expressed previously that tenant’s children were noisy or that their music was too loud,

sometimes at late hours of the night. Another complaint that some of my tenant’s children were

trespassing on the neighbor’s property apparently was resolved when complainants decided to

build a fence between our two properties and asked me to share in the cost of building it, which I

did. All of their complaints in the past have been about issues that had nothing to do with

discrimination because of their sexual orientation. The neighbors have complained about the lack

of cleanliness of my tenant’s porch, yard, or garage. These issues have always being brought to

the attention of the tenant and satisfactorily resolved.

All of their previous complaints have been oral over the phone or by leaving a message in my

answering machine, with the exception of a copy of a letter sent to me by one of the

complainants in August 2002, addressed to the tenant and asking her to pay for a broken window

in the neighbor’s residence, which supposedly had been broken by one of my tenant’s children.

However, I need to be prepared to listen to these complaints again and I should listen carefully.

“People derive genuine satisfaction from voicing their feelings and resentments” Ury, 1993, p.

57).

Specifically about the present complaint, I remember a phone conversation in which one of

the neighbors told me that one of the minor children of my tenant wrote something in the door of

his garage. The complainant did not see the child writing on the door, but assumed that the

offense must have come from one of the tenant’s children. His phone message did not indicate

that the word written on the garage was “Faggot” nor that he thought that such action was

committed because he was gay.

19
 The written complaint with the State also alleged that my tenants had made derogatory

comments to himself, his partner, and to current and former tenants of his home. Complainant

never called me about any of these derogatory comments and up to the moment of receiving the

complaint I was not aware that he has or had tenants at his home. However, I should focus on

their interests and not their positions. I already know that my interests are to avoid a potential

lawsuit and keep Roxanne as a tenant if possible. Fisher and Ury mentioned that part of the

negotiation is to know our own interests, which are the needs, desires and fears that drive our

negotiations (Fisher & Ury, 1981, p. 21).

In every case that I can remember, whenever the neighbor has complained about the tenant, I

have either called her over the phone or came over to talk the issues with her in an effort to find a

satisfactory solution. However, this may have been perceived in a different way by the

neighbors. I have to be prepared to recognize that “behind their attacks may lay anger and

hostility” (Ury, 1993, p. 8).

I have found my tenant, a mother of four, always willing to cooperate with any situation in

which her children may have been involved. At no time has she mentioned to me anything about

the sexual orientation of the neighbors, and I doubt very much that she or her children have done

anything with a discriminatory intent. This could serve as a communality between the two

parties. Dr. Erbe explained the importance of communality and establishing a common ground in

one of her lectures.

This attitude will come loud and clear in our mediation session, and this may be seen by the

neighbors as a “golden bridge” of understanding and support. Ury mentioned that the job of a

negotiator is “to build a golden bridge across the chasm” (Ury, 1993, p. 109). This is an

American Indian family and they probably know the negative feelings of being discriminated

20
against. I believe that now that the neighbors have disclosed their sexual orientation (something

that I believe was not known by the tenant) that she would be even more cooperative in trying to

eliminate even the perception that anything that may have been done by her children was with a

discriminatory intent. My goal, obviously, would be to achieve an optimal conflict resolution,

win-win situation, (9,9) in the Blake & Moutons grid.

In addition to being prepared with data and information about past events and situations

which could be brought to light during the meeting, I should be prepared to “give myself some

time to think” (Ury, 1993, p. 44-45). I should anticipate going to the balcony to recollect my

thoughts, especially if the meeting turns confrontational. In addition, Ury has also recommended

that “negotiations are more productive when they are broken up by frequent time-outs” (Ury,

1993, p. 48).

The Mediation Session

The meeting has been scheduled for April 15, 2007.

References

Fisher, R. & Ertel, D. (1995). Getting ready to negotiate” the getting to yes workbook. New
York: Penguin Books.

Fisher, R. & Ury, W. (1981). Getting to yes: Negotiating agreement without giving in. New
York: Penguin Books.

Ury, W. (1993). Getting past No. New York: Bantam Books.

Attachment A

Interest
1 - Identification of the relevant parties

The people on “my side” who may care about the outcome: Tenant and tenant’s family.

The people on “their side” who may care about the outcome: Complainant and his significant
other, the local community organization and local gay rights groups.

21
 Interest 2 - Clarification of the Interests

What do I care about?

Personal
I would like to get out of a potential lawsuit.
I would like to be seen as a responsible landlord.
I would like to improve my relations with the neighbors of my rental property.
I would like to avoid constant complaints by the neighbors about my tenant.

Business
I would like my tenant to remain in the property.
I would like to avoid potential future complaints to the
City or the police for “problems” existing at my rental
property.
I would like to avoid the potential cancellation of my
rental license.

If I were in their shoes, what would I care or worry about?

Personal
Make sure that none of the neighbors make disparaging
comments about their sexual orientation or living
habits.
Feel as a respected member of the community.
Eliminate offensive behavior against them or their
property which they believe to be a consequence of
their sexual orientation.

Business: N/A

What are the concerns of others who may be significantly affected?

Personal
Keep harmony in the neighborhood.
Keep mutual respect among all neighbors.
Have Tenant become more responsible in cleaning her yard and porch which may be seen as a
neighborhood “nuisance”.
Have tenant reduce the amount of noise in her house because of visits, parties, and so on,
especially after 10 PM.

Business: N/A

Interest 3 - Probe for Underlying Interests

22
Important Interests Basic or Underlying Relative Importance
Interest – Why and for what (Allocate 100 points)
purpose?

Mine

Keep the tenant 50

Avoid a potential lawsuit 40
Being seen as a responsible landlord
By the community 10

Theirs

Not being harassed by my tenants 50

Get “something” out of their complaint 10
Being respected in their sexual orientation 40

Options I – Create Options to Meet Interests

My Interests
Keep the tenant.
Avoid a potential lawsuit.
Being seen as a responsible landlord
by the community.

Their Interests
Not being harassed.
Being respected in their sexual orientation.
Get “something” out of their complaint.

Potential Options
-Apologize to the complainers about any wrongdoing or
potential wrongdoing.
-Have the tenant apologize in the same manner.
-If necessary, if any of tenant’s children can be
identified as having committed harassment, have him or her
apologize for such misbehavior.
-Produce an apology in writing.
-Include a clause in tenant’s lease that she will be
evicted if any member of her family harasses the neighbors
for their sexual orientation.
-Participate in the “neighborhood” meetings and ask the
tenant to do so in order to become more “accountable” to
the community.
23
Option 2 – Find Ways to Maximize Gains

Inventory of skills Combine similar Combine different

and resources resources to resources to
produce value produce value

Me Can evict tenant

Could fight in court
Could recognize mistake
Could promise good
behavior on tenant’s part
Could make this good
behavior part of her lease

They Could take me to court

Could make me lose my
rental license

Alternatives I – Think of my alternatives to a negotiated agreement:

My key interests:
Avoid a potential lawsuit
Keep the tenant
Being seen as a responsible landlord
by the community

What could I do to satisfy my interests if we do not reach an agreement?

Terminate tenant’s lease to avoid a potential lawsuit

Possible Alternatives Pro Cons

Terminate lease Probably satisfies neighbors Need to get new tenant

Alternative II – Select and Improve my BATNA

Of my alternatives, what will I really do if no agreement is reached (my BATNA) why?

24
 Terminate tenant’s lease to avoid potential lawsuit. For me the first priority is to avoid a
potential lawsuit which will involve thousands of dollars in legal fees plus a potential penalty or
fine for discrimination. The fact that I feel that I am completely innocent is irrelevant. Even if I
were to win the lawsuit, the amounts spent in legal fees would be quite substantial. In addition,
all lawsuits take a tremendous amount of time and multiple mental and psychological
aggravations.

What can I do to improve my BATNA? (Write down concrete steps you could take to improve
your BATNA even before you go into the negotiation)

-Ask tenant to sign an addendum to the Lease clearly specifying that the Lease will be terminated
if there is any other complaint from the neighbors about discrimination for sexual orientation or
for any other matter.

Alternatives III – Identify alternatives open to the other side

Their key interests:

Not being harassed
Being respected in their sexual orientation
Get “something” out of their complaint

What could they do to satisfy their interests if they do not reach an agreement?

Terminate tenant’s lease and evict tenant if she does not move out voluntarily.
Place a clause in tenant’s lease making the lease conditional on no more complaints.

Possible Alternatives Pro Cons

Lease termination Satisfies neighbors Need new tenant

May lose rents if property
vacant
Expenses and time
May need to paint house
Place clause in contract Satisfies neighbors? Difficult to enforce in court
Tenant stays

Alternative IV – Estimate their BATNA

What would I do in their shoes?” (Which of their self-help alternatives looks best for them?)

Threaten with a lawsuit

How might I legitimately make their BATNA less attractive?

25
Reminding them that my company has an attorney in its payroll

By making it harder to pursue?

Tenant could counterclaim discrimination for being American Indian.

By influencing their perception of how unwise or costly it might be?

They would have to hire their own lawyer because the State would not provide one free for them.

Legitimacy I – Use of external standards as sword and as a shield

What specific substantive question has to be answered in this negotiation?

Will my tenant’s children continue harassing the neighbors because of their sexual orientation?

Possible standards (precedents, benchmarks, prior practice, accepted principles, etc.)

Harassment is illegal and can be prosecuted.

Each standard is placed in a hierarchical order from least favorable to me (at the top) to most
favorable to me (at the bottom). Below each standard I have indicated what that standard would
mean in this case.

Other standards that may be relevant or that require research:

Community view.

Legitimacy II –Use of the fairness of the process to persuade

Persuasive processes:
Convince complainants that the best solution is to give tenant an opportunity to take charge of
the situation and control the misbehavior of her children.

The test of reciprocity

Tenant may argue that she is the one who has felt discriminated by the neighbors because she is
an American Indian.

In this case reciprocity can be very persuasive.

What standards or arguments can I use in this situation?

Tenant could talk about her impressions in dealing with the neighbors.

26
She could talk about specific instances in which she has felt discriminated because of being an
American Indian woman.
Explain that what the neighbors perceive as noise and loud music may be due to the type of
music they hear in her culture.

How can I apply those standards or arguments here?

The best strategy would be to talk and clarify the situation. Tenant is not antagonistic to gays
because she has a member of her family who is gay.

Legitimacy III – Offer them an attractive way to explain their decision

If they had to explain the result of this negotiation to someone important to them, they could
convince their constituents with the following few points:

-Giving an opportunity to the tenant is reasonable.

-The tenant was not the person who committed the offense.
-The tenant is a minority who may have difficulties finding
new, appropriate housing for her and her children if she
were evicted.
-The children could have been joking or made the remark
without bad intent.

Communication I – Question my assumptions and identify things to listen for.

In order to deal with my blind spots, I should become aware of them. In the left-hand column, I
am listing my assumptions about their intentions and perceptions. In the right-hand column, I am
writing down key phrases my counterpart might say that should lead me to question my
assumptions.

My assumptions Things to listen for

I assume that the neighbor may What solutions they

be willing to compromise a little present.

May feel satisfied with just an Will they ask for the
apology and an assurance that the eviction of the tenant
acts will not be committed again. as the only solution?

Communication II – Reframe to help them understand

My perspective: (3-5 statements to clearly put forth my interests)

My main interest is to avoid a potential lawsuit.

27
If possible, I would like to keep the tenant.
In addition, I would like to be seen as a reasonable and responsible landlord.

How might they hear me? (For each statement list my counterpart’s possible response, such as
e.g. “Yes, but…”

Yes, but you give me no choice than pursuing this action

in court.
Yes, you would like to keep the tenant but your legal
rental income will not be enough to pay your legal
expenses.
Yes, but all the neighborhood complains about your tenant.

Reframing: (Restate my interests so that they will hear them better)

I will not tolerate harassment or discrimination of any kind by my tenant or her children.

Relationship I – Separate people issues from substantive issues

Describe my relationship:
Have talked to the neighbors a few times but do not know them really well. About the specific
neighbor who filed the complaint I have seen him only once (when I came to his house to give
him a check to pay them for one-half of the cost of erecting a fence between the two properties).
However, I have talked to him over the phone several times.

Separate the relationship from the substance:

A healthy relationship has not been developed as a consequence of the behavior of tenant’s
children toward them.

Substantive issues and problems:

Recognize the hurt of the neighbors by having been discriminated because of their sexual
orientation by my tenant’s children.

Substantive options and remedies:

Make the promise that this behavior will not be tolerated in the future and that my tenant will
guarantee the good behavior of all of her children.

Relationship issues and problems:

The relationship between the two next-door neighbors should improve after this problem is
resolved.

Ways to improve the relationship:

Making sure that this potential agreement, or any other agreement that we reach at the meeting,
is strictly implemented and followed-up.
28
Relationship 2 – Prepare to build a good working relationship

What might be wrong now? What can I do…?

They don’t speak to each other Encourage communication between parties

What might be causing any To try to understand them better?

present misunderstanding?

Tenant children behavior Listen carefully to what they say

What might be causing a lack To demonstrate my reliability?

of trust?

Past complaints may not have been Suggest enforceable agreements which
dealt correctly require tenant’s accountability

What might be causing one or both of To put the focus on persuasion

us to feel coerced? instead of coercion?

Possibility of being sued Put myself in their shoes

What might be causing one or both of To show acceptance and respect?

us to feel disrespected?

Lack of communication – we have Express to them that I do not discriminate

rarely talked to each other against guys nor does my tenant

What might be causing one or both of To balance emotion and reason?

us to get upset?

Neighbors feel that their dignity has Offer recognition and respect
been violated

Commitment I – Identify the issues to be included in the agreement

Overall purpose of the negotiation

The purpose of the negotiation would be to clarify our interests that I will not tolerate
discrimination of any kind by any of my tenants, that anything that may have happened must
have been a misunderstanding, and that if in reality such activities occurred by my tenant’s
children, they should cease immediately or the tenant’s lease would be terminated and asked to
move out. Then, if she doesn’t move out voluntarily, she would be evicted.
29
Expected product of negotiation
(Draft a table of contents for a final agreement that would be operational and durable).
Present an apology to the neighbors
Offer them (by the tenant and me) a promise that such behaviors will not occur again, and that if
they were to occur they would be dealt with drastic measures such as the eviction of the tenant.

Specific purpose of the meeting

Find a friendly solution to the present problem and avoid a potential lawsuit.

Tangible product of the next meeting

(A piece of paper which I would produce during the meeting)
An agreement in which my tenant and I apologize to the neighbors for any misunderstanding or
incorrect behavior on the part of my tenant’s children and a promise that such activities should
cease immediately or the tenant would have to move out.
Hopefully there will be no need for a second meeting.

Commitment II – Plan the steps to agreement

Decision makers: names of those who will “sign” the agreement

Tenant, Landlord and two complainants.

Implementation: Information that the agreement should include about what happens next: Please
see below

Implementors who should perhaps be consulted before agreement is final: Same as decision-
makers.

All the parties for the implementation would be present at the mediation session:
Tenant, landlord and two complainants.
However, my tenant’s children (four of them) would not be there.

Possible obstacles to implementation:

The complainants may request that the tenant’s children become part of the agreement, as they
were the individuals who had harassed them.

Ways to deal with obstacles

If absolutely necessary, the tenant could be asked to bring to a second session all of her children,
and they would be asked to promise that they would not engage in any discriminatory behavior.
Strict observance of this agreement would then become a clause in the tenant’s new lease
agreement.

Steps necessary to get the binding agreement

30
Reach a preliminary agreement in the first mediation session.
Bring the children to a second mediation session if necessary.
Put the agreement in writing and have it signed by all the parties.
Include the agreement by reference into the tenant’s present lease agreement.

Brief Evaluation of On-line Arbitration

The development of computer technology, and especially the Internet, has opened new

possibilities for alternative dispute resolution (ADR). It seems that a great opportunity for

expansion exists now for all areas of ADR. However, some theorists have expressed some

concerns about online arbitration. Katsch & Rifkin (2001) expressed the opinion that they

believed that “arbitration is unlikely to be the prevalent online method for resolving disputes”

(Katsch & Rifkin, 2001, p. 107). In addition, the same authors pointed out that almost all

consumer groups oppose binding arbitration in the consumer context, although they also

suggested the possibility that nonbinding arbitration may become a popular form of online

dispute resolution or ODR (Katsch & Rifkin, 2001, p. 108). The objective of this paper is to

analyze the advantages and disadvantages of online arbitration, and suggest that the availability

of qualified, experienced and trustworthy on-line arbitrators could greatly improve the chances

for this alternative method of dispute resolution to succeed.

Background information

There are numerous websites that provide on-line arbitration services to potential litigants,

and the costs of proceeding with an on-line arbitration case are generally much lower than

litigation. The Virtual Magistrate offers free online arbitration and attempts to render a decision

within 72 hours. Online Resolution, Inc. charges for their services on an hourly basis. Nova-

Forum, Inc. charges on a per-party rate based on specific service plans. MARS’ Fair and Square

31
ADR Program charges a flat fee for claims under $ 1,000, or 15% of the settlement for

claims over $ 1000 (Ponte & Cavenagh, 2005, p. 88).

The American Arbitration Association (AAA) is the largest business-to-business dispute

resolution organization in the United States (Rule, 2002, p. 32). Many business contracts include

an arbitration clause naming the AAA as the organization that will administer arbitration

between the parties. This organization maintains a website which can be accessed by the public

to file claims. There is a fee for filing a claim, but the process is fast and confidential (American

Arbitration Association, 2006, p. 1). The AAA maintains a roster of over 9,000 trained neutrals

and has a long history of working with the federal government. The AAA has established

arbitration panels for the Library of Congress, and has provided arbitrators and on-line arbitrators

for the US Air Force, the Department of the Interior, the National Finance Center, and the

Internal Revenue Service (IRS, 2005, p. 1). In the international area, the International Chamber

of Commerce is the most prestigious international arbitration body in the world (Rule, 2002, p.

31). It maintains a website called NetCase, where arbitrators and the parties can conduct their

arbitration in a secure environment (International Chamber of Commerce, 2006, p. 2).

Advantages of On-line Arbitration

Theoretically, arbitrators are able to decide any type of claim, even very complex ones. On-

line arbitration supposedly combines the efficiency of arbitration, an important alternative

dispute resolution method, with the power of the Internet to save businesses money, time, and

frustration (Rule, 2002, p. 3).

In addition, on-line arbitration, in general, is a much less complex communications process

than on-line mediation, and the technology and software required for on-line arbitration will, as a

result, tend to be less complicated (Katsch & Rifkin, 2001, p. 138). Nevertheless, on-line

32
arbitrators still need to have a detailed knowledge of the technology they use, so that, if needed,

they can serve as the first line of technical support to the litigants (Rule, 2002, p. 235), although

it is expected that it will be relatively easy for the parties to learn the technology they use when

conducting their arbitration. In most cases, there is a form that the initiating party will fill out,

and the submission of all documentation either can be copied and pasted on specific screens, or

submitted as attachments to the arbitrator and the other party or parties.

Another advantage of arbitration, and also of on-line arbitration, is that it can be binding or

non-binding. There may be particular instances in which the litigants may prefer not to get a

final, binding decision, but just to “test the waters” and see how strong their case is. Non-binding

arbitration may provide those parties an opportunity to get feedback information about how a

neutral third party could rule in the case.

Also, arbitration (and on-line arbitration) allows the parties to select the arbitrator, and

supposedly give them the opportunity to choose someone who is familiar with their type of

litigation. On-line arbitrators are usually, but not always, lawyers with legal expertise in the

matters on which they are called to decide (Rule, 2002, p. 42). If the disputants decide to go to

court, the judge assigned to the case will most likely know nothing about the case’s subject

matter, and the parties will have the responsibility to educate him or her from scratch (Rule,

2002, p. 69).Other advantages which the on-line version shares with offline arbitration are lower

costs, faster time, and overall efficiency.

It is also important to note that in the area of international arbitration, it may be significantly

easier for the parties to enforce international arbitration awards (than judicial decisions), in the

national courts of signatory nations, due to the existence of the 1958 United Nations Convention

on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York

33
Convention (Ponte & Cavenagh, 2005, p. 97). With knowledge of this potential benefit, the

parties can exercise greater control over the procedures and the selection of the on-line arbitrator

(Ponte & Cavenagh, 2005, p. 28).

Disadvantages of On-line Arbitration

Ponte and Cavenagh (2005) mention that the main disadvantages of ODR are “the need for

party consent, the lack of face-to-face meetings, the problems with limited discovery, the loss of

public access to ODR proceedings and public pressure on ODR participants, the difficulties

related to the enforcement of ODR outcomes against non-complying parties, and the absence of

ODR standards and regulation” (Ponte & Cavenagh, 2005, p. 31). Another disadvantage (for the

losing party) is not having the possibility of appeal, because the grounds for appeals are narrow,

and do not invite a retrial of the facts of the dispute (Ponte & Cavenagh, 2005, p. 97). Also,

persuading a respondent to participate in arbitration after the complaint has been filed may not be

successful in all cases (Katsch & Rifkin, 2001, p. 106), and, of course, arbitrators do not possess

the authority to enforce their own awards (Ponte & Cavenagh, 2005, p. 96).

In addition, personal contact with the other party does not exist. Personal contact may help

some parties to understand better the other side’s concerns and recognize the importance of

acting quickly to resolve the dispute (Ponte & Cavenagh, 2005, p. 32).

Another disadvantage is that the costs of initiating arbitration “are often much greater than the

costs of litigation for consumers or employees claiming wrongful discharge” (Ponte &

Cavenagh, 2005, p. 95). This is because some arbitration organizations impose up-front and

continuing fees that in a court situation, most likely, would be included in an attorney’s

contingent fee arrangement, or would be offered for free, or at a very low cost in the public court

system (Public Citizen, 2005, p. 2).

34
 Moreover, the online arbitrator will make his or her decision based on the evidence submitted

on line, which means that a talented digital photographer, for example, has a huge advantage

over someone who lacks the same skill when he or she can artistically prepare an image and post

it for evaluation by the arbitrator (Ponte & Cavenagh, 2005, p. 113).

Obviously, on-line arbitrators, like all arbitrators, are expected to use high ethical standards

and have a conduct beyond reproach. Judge Black, in a well-known court decision, argued that

arbitrators’ ethical behavior had to be impeccable, because their decisions could not be appealed.

He wrote “we should, if anything, be even more scrupulous to safeguard the impartiality of

arbitrators than judges, since the former have completely free rein to decide the law as well as

the facts and are not subject to appellate review” (Commonwealth Coatings Corp. v. Continental

Casualty Co., 393 U.S. 145, 1968).

However, the field of on-line dispute resolution is just emerging, and no uniform national or

international ethics guidelines or standards of practice have been identified and adopted (Ponte &

Cavenagh, 2005, p. 131). In addition, the validity of ODR clauses on websites is largely untested

in the US courts so it is unclear whether or not such pre-dispute clauses will also find judicial

support (Ponte & Cavenagh, 2005, p. 120). Fortunately, these disadvantages are probably going

to change very rapidly, as scholars in the field, and arbitrators in general, recognize that the

adoption of some kind of standards is extremely necessary if the field is going to obtain the

confidence of the litigants and the public.

In international online arbitration, the parties must specifically ask the arbitrator or the arbitral

panel, for the opportunity to undertake some discovery, because otherwise it will not be allowed

(Ponte & Cavenagh, 2005, p. 83). In addition, there is not normally an opportunity for the parties

to employ lengthy written advocacy, or to undertake extensive direct questioning or cross-

35
examination of witnesses, and the proceedings and outcomes are normally not made publicly

available unless previously agreed to by the parties (Ponte & Cavenagh, 2005, p. 25), something

may be a disadvantage, because the American Bar Association Task Force has recommended

that “participants should be encouraged to allow the decisions to be published with any

confidential or propriety information deleted” (ABA Task Force, 2002, IIe).

The qualifications of a good on-line arbitrator

It seems that an important consideration in whether to use on-line arbitration or not will

depend on the availability of able, experienced and trusted arbitrators. However, it is almost

impossible to say what coursework would be required to become a good mediator or arbitrator

(Rule, 2002, p. 240), especially because of the potential variety of cases that they may be asked

to decide. Most likely in the future, most on-line arbitrators not only will be lawyers, but will

also be specialized in certain types of cases.

An on-line arbitrator must have several qualities to be effective. In addition, there are some

qualities that the arbitrator should not have, especially if he is deciding cases involving parties of

more than one nationality. Some important qualities are the following:

Education: The on-line arbitrator should be knowledgeable about the area of the law that

pertains to the cases he or he will be deciding, and on-line international arbitrators should be

familiar with international law, and specifically with the contents of the New York Convention

and other international agreements that may have an impact on international commercial

disputes. The on-line international arbitrator should also be knowledgeable about the differences

between the European and the London General Rules used in drafting agreements, as well as on

the Rules of Evidence of the International Bar Association and the AAA International

Arbitration Rules (Online Arbitration Procedures, 2005, p. 2). Online arbitrators also should be

36
up-to-date in what is going on in the field, and should consider the subscription to specialized

publications such as those listed in Appendix A – Sources that a good arbitrator should consult

regularly.

In addition, although it is not an absolute requirement that the on-line arbitrator has to be

trained as a lawyer, most international arbitration organizations, such as the International Court

of Arbitration, the Dispute Settlement Body of the World Trade Organization, the Court of

Arbitration of NAFTA, the International Arbitration Committee of the WIPO, and others prefer,

although do not require, arbitrators who are attorneys (Miccioli, 2006, p. 1).

Experience: An effective on-line arbitrator should have experience in the area in which he or

she is making decisions. Most companies place a higher value on experience than education.

Organizations hiring on-line arbitrators will pay close attention mostly to experience in

commercial disputes. An on-line arbitrator who is an attorney, and who has worked as a

corporate counsel for a business multinational entity, probably will have both the education and

the experience to succeed as an on-line arbitrator.

Integrity: Honesty and integrity are required and expected from everybody, but much more

from an on-line arbitrator. An on-line arbitrator is a professional, and as such, has to behave

according to a Code of Ethics. If the on-line arbitrator is also an attorney, he or she will also be

bound by the Rules of Professional Responsibility of the ABA, if the on-line arbitrator is an

American lawyer. Organizations hiring an on-line arbitrator will make sure that the arbitrator has

the highest professional ethical standards. International on-line arbitrators should be aware that

the use of bribes is a normal way of doing business in many countries of the world, especially in

the developing countries of Asia, Africa, and Latin America, and international online- arbitrators

37
should be cognizant of this situation, and that they could be approached by one of the parties for

this purpose, and be ready to respond accordingly.

Paying attention to detail: If arbitrators should be good listeners, on-line arbitrators should

pay great attention to detail. The on-line arbitrator should read the documents carefully, and not

miss any detail mentioned by any of the parties, because such data or information could be

crucial to one of the parties’ arguments. This may be even more important in the case of

international arbitrators, because they have to deal with parties in different countries and where

different laws may apply. In addition, paying attention to detail demonstrates respect for the

parties and for the process.

Cultural Sensitivity: An on-line arbitrator, domestic or international, will have to decide cases

with parties from different races, languages, and cultures. An international on-line arbitrator

should be respectful of the norms and customs of people from other cultures. People from

different cultures present information in different ways, because their cognitive styles are

different. While an American attorney representing one of the parties may go immediately to the

essence of the matter, litigants from other countries may prefer to explain the background in

which the conflict occurs, and only then address the important issues in the case.

On the other hand, there are some qualities that an on-line arbitrator, and more so an

international on-line arbitrator, should not have, because those qualities may be a great

impediment to conduct a fair arbitration. Some of these negative qualities are the following:

Ethnocentrism: To a certain extent, we all are ethnocentric. However, on-line arbitrators,

especially those working in the international scene, should be respectful of other cultures and

countries, and try not to be ethnocentric. Ethnocentrism may be manifested in many ways. It may

even pop up unconsciously when an on-line arbitrator is deciding a case, because he or she is

38
relying on the law of his or her country of origin rather than on the laws according to the

arbitration agreement. Ethnocentrism can also be demonstrated even in what people in one

culture consider to be right or moral. Ethnocentrism generally is manifested by being arrogant,

over-confident, or overbearing. It may also be reflected in discounting information provided by a

witness from another culture, but not from one of our own culture.

Prejudice: If we are honest, all of us are a little prejudiced about something or somebody.

On-line arbitrators should, at least, become aware of these inclinations, and attempt to neutralize

them as much as possible. An on-line arbitrator deciding disputes internationally, for example,

may be prejudiced about the strictness of the law in a certain country, or about the political

regime in a jurisdiction, or about some business practices. In all cases, knowing what one is

prejudiced about may help an on-line arbitrator to become a better arbitrator.

Lack of planning or disorganization: While the advantages of good planning and organization

are obvious in practically all tasks, lack of planning or disorganization is a deficiency that an on-

line arbitrator cannot afford to have. An on-line arbitrator should be a model of good planning,

promptness, clear agendas, and organization. The parties should know where they stand in the

process at all times, and notifications should be produced and delivered on time.

Concluding Comments

Although on-line arbitration, as Katsch & Rifkin suggested, is unlikely to be the prevalent

online method for resolving disputes, it seems that the availability of well-qualified, experienced,

organized, and culturally-sensitive arbitrators could make a big difference in advancing and

promoting this method of alternative dispute resolution.

References

39
American Arbitration Association. (2006). Retrieved on June 9, 2006 from
http://www.aaa.org

American Bar Association Task Force on E-Commerce and ADR-Recommended Best Practices
for Online Dispute Resolution Service Providers. (2002). Retrieved on June 2, 2006 from
http://www.law.washington.edu/ABA-eABA/documentation/2002.09.05.doc.html

Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968).

Dispute Resolution Procedures. (2005). Retrieved on June 9, 2006 from

http://www.adr.cand.uscourts.gov/adr/welcome.nsf/354c0e78f4dde1a6882564e1000be22
8/3497c16ea0c5d3b388256f31005bcfa3?OpenDocument

International Chamber of Commerce. (2006). Retrieved on June 9, 2006 from

http://www.iccwbo.org

Internal Revenue Service. (2005). Retrieved on June 8, 2006 from

http://www.irs.gov/newsroom/articles.html

Katsch, Ethan & Rifkin, Janet. (2001). Online Dispute Resolution: Resolving Conflicts in
Cyberspace. San Francisco: Jossey-Bass.

Ponte, Lucille M. & Cavenagh, Thomas D. (2005). Cyberjustice: Online Dispute Resolution
(ODR) for E-commerce. Upper Saddle River, NJ: Pearson-Prentice Hall.

Public Citizen. (2005). Retrieved on June 9, 2006 from http://www.citizen.org

Miccioli, Gloria. (2006). A Selective Guide to Online Arbitration Resources. Retrieved on June
12, 2006 from http://www.llrx.com/features/intarbitration.htm

Rule, Colin. (2002). Online Dispute Resolution for Business. San Francisco: Jossey-Bass.

Appendix A - Sources that a good on-line arbitrator should consult regularly

Arbitration Law Online

Produced by Juris Publishing, ArbitrationLaw Online covers primary and secondary

arbitration materials. It includes commentary and analysis from over 30 of Juris'
publications. The database is updated daily. ArbitrationLaw Online also allows the creation of e
a customized subscription consisting of an individual publication or any combination of
publications. This database is a good option for researchers who do a lot of international
arbitration research.  The Rules database presents the full text rules of both international and
national institutions plus commentary and a "Comparison of International Arbitration Rules",
which compares the rules of procedure from the major international arbitral institutions on a rule-
by-rule basis. 

40
Westlaw Arbitration Databases

Westlaw covers a wide range of international arbitration materials, including those of

international and national arbitration organizations and tribunals.  Dates of coverage and
comprehensiveness of the information vary depending on the database, but overall, coverage is
quite good.  The Westlaw Database Directory lists what is available. The databases are
categorized.  Among them are Awards and case law, Conventions, Institutions, Model Laws,
Model Clauses, Rules, and a very helpful category, Materials by Location. For example, ICSID-
AWARDS is a file of ICSID arbitration awards as published in International Legal Materials
since May 1982.  The ICC International Court of Arbitration Awards database (ICC-AWARDS)
goes back even longer, to 1975, but consists only of abstracts and commentary on the arbitral
awards.  This is another good place to find the international arbitration materials of many
organizations in one place.

Lexis Arbitration Materials

In contrast to Westlaw, Lexis covers relatively few sources of international arbitration, but it
provides many documents in full text for what it covers.  It is possible to find a WTO Dispute
Settlement file (filename WTODS), which has dispute settlement reports of the WTO which
have been made available to Lexis.  They date from 1996 and include panel reports, appellate
body reports and arbitrators' reports and mutually acceptable solutions.  WIPO Arbitration and
Mediation Center Administrative Panel Decisions about domain disputes are in the CYBRLAW-
WIPODD file and date from 2000.  Selected awards that are published in International Legal
Materials can be found in the ILM file.

Some of this information comes from the specific websites of Arbitration Law Online, Westlaw
Arbitration and Lexis, as well as from: Miccioli, Gloria. (2006). A Selective Guide to Online
Arbitration Resources. Retrieved on June 12, 2006 from
http://www.llrx.com/features/intarbitration.htm

The Forming of a Mediator

1 Introduction

1.1 Issues addressed in the paper

It has become increasingly popular and has been widely accepted to use mediation as a model of

consultation in cases of conflict. This paper examines the issue of how a future consultant may

attain the best-possible education and which training concept gives the student a realistic chance

41
of starting a professional career in this business field. Various training ideas are compared and

subsequently evaluated by course graduates for the purpose of this thesis.

The author later analyzes and examines the effectiveness of implementing communication

techniques with regard to core competences of a user of mediation techniques. That

implementation process basically constitutes the concept of broadening the core competences, as

taught in training courses. Most of the communication techniques named and presented in the

paper can nowadays be retraced to the topic range of Neuro-Linguistic Programming. In this

study mediation is understood as a procedure of appeasing conflicts and a tool integrated into the

work of other consulting and vocational groups. This allows to showcase the versatility of

mediation, and this is why we also speak of “applied mediation”. Specialist literature on

mediation concerns itself mostly either with the basic stage model for consulting procedures or

with the specific ways of implementing mediation in various areas of activity.

The study does not dwell on the issue of whether successful mediation depends on other factors,

which enhance that mediation process and which broaden the core competences of a consultant,

or on a broadened system horizon manifesting itself in the knowledge about various models of

conflict dialogue.

In order to clarify those matters further, the thesis transfers the liability for the mediation process

from the stage model back to the mediator, taking into account his competence in the fields of

communication and guaranteeing the course of the procedure.

1.2 Goals and methodology of the study

This analysis is not only to give an idea about the market of education in the field of mediation

and conflict management, but it is also supposed to answer the fundamental question underlying

all study courses, as well as education in general and follow-up trainings: when is it possible to

42
start professional activity - which training content is fundamental, what should be the time frame

of the course in question and how can one achieve the necessary level of competence? The

subjects of conflict know-how, mediation and communication – just the way they are treated

jointly in Neuro-Linguistic Programming analyses – constitute the three main theoretic pillars of

this thesis and they are connected functionally with each other. In order to give a clear

understanding of the basic terms as used by me in this paper, they have been detailed in

subsection 1.3. Since the methodological content regarding mediation and communication

techniques of Neuro-Linguistic Programming has not been defined in detail, in the subsequent

section 2 I have enclosed a factual presentation of the techniques which are known to the

participants of the panel discussion and which were thought to be of importance to the

investigated matter. This catalogue of knowledge and methods has been established by means of

a write-in procedure and reflects the system elements which participants report to have used or

which have been deemed important. As part of that initial description of terms it is further

explained how communication techniques are used with regard to content and what knowledge

or competences are required of a mediator. The path of a communication technique becoming a

real tool of the mediator or the conflict consultant has been presented accordingly. The

subsequent panel discussion focuses on the comparison of theoretic principles and definitions

with real-life experience and conclusions gained in practice. The thesis also focuses on the

separate presentation and the juxtaposition of various training concepts and who they are offered

by. This part will serve the purpose of a market overview and of presenting different ways of

acquiring mediation competences. In subsection 3.4 you will find a presentation of the first

educational concept. It was not possible to reveal the name of the provider/s of the educational

concept, since 1) it is a highly popular concept, 2) the feedback of graduates might be

43
detrimental to the provider/s’ reputation, therefore I kindly ask for your understanding of this

situation.

1.3 Basic terms

In the paragraphs below you will find a content-related description of the three basic subject

fields of this thesis.

1.3.1 The conflict

Conflicts mean the collision of at least two attitudes, viewpoints, expectations or strategic

approaches. They constitute a normal and necessary element of our lives. The individual result of

a conflict is usually not predetermined. Conflicts can be hidden or quite evident, that is they can

have a positive or a negative outcome and course of events. Whether a dispute can turn into an

opportunity for constructive change depends on the parties involved. Moreover, one can

distinguish between constructive and destructive and/or warm and cold conflicts (see Muldoon,

1998). In case of constructive conflicts the dispute can lead to the creation of an individual or a

group’s added value. Destructive conflicts may lead to the loss of one or both parties or to a halt

of all communication between them. Each and every conflict can be attributed to a particular

conflict psychology and conflict environment. The conflict psychology defines the background

of and the motivation behind a conflict, both of which manifest themselves in strategies. The

conflict environment concerns itself with the problem whether or to what extent social issues are

apparent or appear in a conflict. In accordance with those factors, a dispute is different from a

conflict. We distinguish conflicts with oneself, conflicts (of an individual) with a opponent and

conflicts between groups.

1.3.2 Mediation – a defining attempt

44
To begin with we need to make it clear that this is by no means a detailed textbook definition,

describing an exact sequence of actions to be taken; it is rather a depiction of the external

framework or a viewpoint on the structure of that action. If we talk about mediation than we will

soon realize that there are numerous approaches, ways of teaching about and viewpoints on this

matter. Those differences can be found on a national, continental and intercontinental level. My

experience in working with English and American colleagues has taught me that in English-

language environments stage models are often cut down in size or compressed. In order to find a

common research ground for this thesis and to assess what mediation meant to each of the

participating parties, I have enclosed the following attempt at an explanation.

In order to find a common ground for this thesis and to determine what mediation means to the

parties involved in this study, the author will attempt to explain the term in the following

paragraphs. Mediation, as practised in the USA and defined in accordance with the guidelines of

the U.S. Equal Employment Opportunity Commission (EEOC), is described as a procedure of

“Alternative Dispute Resolution”. In German-speaking countries it is referred to as an

alternative, “out-of-court” conflict management. The mediation involves at least two conflicted

parties (disputants) and one mediator who takes the position of a neutral third party and who

moderate the parties’ attempt at overcoming their dispute on their own account. Once the

procedure has been launched, the conflict is no longer treated as a negative circumstance, but it is

rather seen as an opportunity to change something in the future. As a result of the detailed

processing of the conflict matter the parties work on a solution satisfactory to both parties, on the

basis of a stage model, which means that both participating parties ought to benefit from the

mediation. That way the conflict which hitherto had been perceived negatively is given a positive

framework. The participants ought to be aware of the fact that mediation is not a sign of lacking

45
capability. It should be made clear that the conflicted parties are taking a point of view that

proves their professional attitude and responsibility towards the dispute. However, the

responsibility for reaching a compromise does not lie with the mediator, but it remains a task of

the disputants. The mediator accompanies the disputants on their path to reaching an agreement.

The possibly most peaceful cooperation of disputants is supposed to showcase the advanced

status of mediation. While handling the process, the mediator can make use of various

communication models and strategic courses of action. The existing state of matters, as well as

the changing situation during the process, determine which of these techniques can be applied by

the mediator. The most commonly used mediation model is called a “session focused on one

party, but held in the presence of the other”. That way the specific position of an individual is

discussed and analyzed in the presence of the other disputant. Both parties have equally many

opportunities to get to know and to understand views and priorities of the opponent. During

mediation each party gets the same amount of attention and enough time to convey his/her

issues. Usually the participation in a mediation process is a matter of the disputants’ own choice.

Each of the participants is free to resign from taking part in the mediation at any time, without

having to name any reasons (see Erdmann, 2007). Seen as a way of crisis management, the

mediation techniques serve to slow down the escalating dispute. During the process of mediation

the facts of the case are neither embellished nor judged; the parties carry out an objective

analysis, moderated by the mediator. This is done unconsciously – through the internalising of

events and emotions linked to them. Thus an “objective reality” remains, in fact, always a

subjective one. A person makes new decisions within this model of perception all the time,

subconsciously choosing those options that constitute a bigger benefit for oneself in the system

created by him/her. As a result thereof certain actions are not seen as negative, but are

46
understood as a personal necessity, required to survive in the structure created by oneself. In

view of this profound self-programming of the reality perceived by a person it is assumed that

processes of change can be undertaken only by him/herself. The user of NLP methods works on

the basis of this knowledge and pursues the goal of conditioning the interlocutor by way of

applying specific communication methods, in order to make the recipient perceive the sender’s

information in such a way as was intended by the sender. A detailed explanation on conditioning

methods has been provided in section 2 hereof.

This analysis is to clarify whether communication techniques of NLP have an optimizing effect

on an interpersonal discourse, whether the integration of those methods into the mediation

process – in terms of broadening the core competences - is reasonable and which training

concept proves useful for the acquisition of those competences.

2. Theoretical basis

2.1 The conflict

In this part of the thesis we will present the three cornerstones of the analysis, starting with the

understanding of the expression conflict, how it is structured, how it is handled and what a

conflict means to the group of people involved. The thesis focuses first of all on the term of

conflict, as this is the foundation for methods associated with or centred around the issue, such as

mediation and NLP. An analysis of the core issue makes it easier to start working with an

assembly of methods and it allows later for a better understanding of problems in various fields

of application. I follow mainly the reasoning of the works: Apfelbaum, E (1974) On Conflicts

and Bargaining. Advances in Experimental Social Psychology 7, 103-156, Coser, L. (1956) The

Functions of Social Conflict. Illinois: The Free Press, Deutsch, M. (1973) The Resolution of

Conflict. New Haven: Yale University Press.

47
2.1.1 The core conflict and further proceedings

A conflict may be seen as a unique situation which has gained its individual shape and

particularity through its components. A skilled conflict consultant is able to work out a crucial

interweaving of the components, such as the people participating in the process, the social or

professional environment, by applying various mediation techniques (see Deutsch, 1973). In

order to be able to work as efficiently as possible on a conflict, it is necessary to find the core

problem and to work on it separately. The cause for conflicts, or internal core conflicts, is usually

concealed or have nothing to do with external conflict, it would seem at the first glance. If the

core conflict has been established as the main issue to be worked on, then it is necessary to keep

strictly in line with the external behavioral framework during the mediation procedure. This

prerequisite is of decisive force, since the mediator and the disputants start cracking the conflict

and working analytically. Only the safe boundaries of the rules of conduct allow for a focused

and respectful cooperation. If there is a basic acceptance between the opponents, it can be

assumed that the parties will work and act while focusing on the result. If the opposed party or

the mediator are not respected, the system of rules will not be obeyed. In my experience such a

situation can puts the process in danger of a quick failure, due to the destructive character of the

mediation participants.

2.1.2 Conflicts as a trigger of changes

From a social point of view a conflict has usually a negative, unpleasant and destructive

character. However the latest approach of social sciences is such that conflict is actually quite the

opposite. It is assumed that conflicts are not avoidable in social interactions between people in

general and that, in fact, they are the fundamental trigger of changes (see Touraine, 1973).

Irrespective of the elementary release of energies during the communicative conflict

48
management, it becomes possible to express one’s personal viewpoint and get to understand the

opinion and needs of the opponent within that process. By using his methods the mediator takes

on the task of providing the mediation participants with the opportunity to perceive the conflict

as a process of changes. The present-day personality of a human being is shaped by his

individual, life-long encounters with and overcoming of conflicts, and so it has not been created

by external sources of influences, but it has been moulded by the person him/herself through

internal processes induced by external stimuli. A popular saying in German pronounces that a

man is the sum of his experiences. The psychological profile of a person is determined by that

person’s conflict experience, i.e. when conflicts occurred, what subjects they pertained and how

these were being or had been processed.

For instance social conflicts, where two parties clash with each other, are often caused by

competition issues. Personal opinions, notions and aims are defended and pursued in these

circumstances/cases. There are attempts to end the conflict in favor of oneself and thus to push

into the background all the other viewpoints of the other party. Conflicts are distinct in the sense

that they are neither limited by space nor by time. They are given an individual direction thanks

to the following specific elements:

a) character of the opponents,

b) temperament and emotions of a person during interactions,

c) Forms of expression and representation, conduct at the time of the conflict resolution,

d) Perception of all circumstances and information.

Conflicts have a rational and an emotional component. Both contribute to a conflict and require a

similar degree of attention of the mediator during the processing of the conflict. The positive

feature of a conflict is that when somebody disagrees with himself/herself, another person, a

49
circumstance or facts, this will triggers a change or a progress. Even though a conflict is as

individual and unique as the opponents involved in it, and even though the personality of the

people involved is reflected in the nature, structure and the progression of a conflict, it is the

task of a mediator to give the conflict a structured and positive course, so as to guarantee that a

positive added value is created for both parties involved in the process by the end of the conflict

resolution (see Erdmann, 2007).

2.1.3 Conflict analysis as an element of the consulting activity

The mediator conducts a conflict analysis on the basis of the stage model of mediation,

whereupon trying to get to the bottom of the parties’ needs constitutes a key issues. At this point

it becomes clear that conflicts are generally much bigger and more deep-rooted than meets the

eye. In view of the fact that each conflict party is conditioned by his/her own life story, an

individual programming and personal drive for action (as above), and because these components

usually are not known to or realized by the opponent, mediator and sometimes even the person

him/herself, the resolution procedure often takes quite an unexpected way. Every external

dispute is preceded by an internal conflict. When dividing conflicts into categories one can

discern hot, cold and hot-cold mixed disputes. Hot conflicts manifest themselves by loud and

emotional exchanges and are caused by interpersonal relations. Cold conflicts, on the other hand,

are rather based on a matter-of-fact and economic background, and they are of a more composed

nature. A mixture of these two forms occurs e.g. in the case of divorces, as both emotional

understanding and division of material assets constitute the context of the dispute. The analysis

of the conflict and its classification is an important step to helping the mediator to determine his

strategy. With regard to this aspect Ana Maria Ruiz Abascal speaks of the existence of four areas

in which a conflict may arise:

50
- factual issues

- personal domain

- conflicts about conflicts

- conflicts concerning the resolution of a conflict

2.1.4 Handling a conflict

As conflicts are a constant part of our lives, various strategies have been devised to handle those.

Be it conscious or unconscious, one always chooses a solution best for oneself and looks for a

way to protect one’s own needs and personal viewpoint. The motivation for such a behaviour is

always the will to cope successfully with the situation at hand. The four personality types

presented below are characterized by distinct behavioral structures (see Erdmann, 2007).

a) the blamer – blames immediately somebody else, thus establishing free space for himself.

b) the placator – analyses the situation, but puts aside his own viewpoint and submits himself to

an external opinion.

c) the computer – analyses the situation, but does neither blame others nor take responsibility

himself.

d) the distractor – turns attention away from himself, making statements that are confusing with

regard to facts and questioning generally accepted notions.

2.1.5 The influence of character traits on conflicts

Aggressiveness is a kind of internal reaction of an individual to external circumstances. In order

to investigate the dynamics of aggressive behavior it is crucial for the disgruntled person to

release that energy. Freud was of the opinion that psychic energy needs releasing for the well-

being of the individual. Irrespective of whether the releasing process is of a positive/constructive,

51
or a negative/destructive nature, carrying it out is vital for mind and body. That way a person

enters his/her individual path to coping with a specific situation. An aggressor can choose from

three ways to channel his/her energy:

a) he blames himself for the existing circumstance

b) he blames the catalyst of his frustration

c) he indicates another person as the liable one and blames him/her

If aggressiveness is not allowed to be released, a destructive, irrational model of behavior will

usually develop instead. Two responses are possible in such a case:

one lives with the unsatisfied drive to channel one’s energy

a person’s frustration is aimlessly transferred to somebody else.

Another human attribute, with an equally big impact on the formation and later development of a

conflict, is fear. Fear is described as an inner state of tension, referring to the tangible perception

or the mere suspicion of an existent or future danger. At the beginning of the mediation

procedure the conflicted parties are often in a state of tension, as the actual outcome of

mediation is unclear. The disputants fear the forfeiture of their goals at this point. This state may

affect various other attitudes as well, causing a party to suspect the opposing party of

uncooperative behaviour, making it unable for the party to see its interests incorporated in the

agreement or leading the party to believe that the opponent is the sole gainer. This condition of

fear may cause a fixation of opinions and block the mediation process. The emotion of fear is an

expression of the person’s wish for safety. The ongoing procedure, with a pending conclusion,

represents a factor of uncertainty. Controlled only by the initiator himself, his straightforward

objections can create blockades. That way the disputant blocking the procedure is actually taking

over the control temporarily.

52
2.1.6 Conflict behaviour and social systems

Social structures shape and impact in a collective way the cultural and social characteristic, or

the programming, of each and every one of us. As an existing functionalism society constitutes a

fusion of interdependent individuals with specific tasks allotted to them. This is how a social

system – or a society – is created. In order for society to work as a whole, the tasks become

expectations, which the society demands reflectively of the individual. The members of a social

system turn into the respective society. The social rules and laws phrased and adopted by the

members of the system as universally valid imperatives are binding for all people in the

respective group. In turn, people have to fulfil the tasks and expectations resulting specifically

from their social positions, roles and functions. That way they operate within the framework of

activities they have set up for themselves, and as a result they also configure the socio-cultural

programming of future generations. Forms of behaviour which question the present structure are

deemed abnormal. Spuriously, those socio-cultural conflicts are challenged far too rarely by

society. It is socially accepted to blame a lack in education as a decisive factor for the conflicts.

Censorious people or even social workers deem a personal conflict the result of an internal battle

of interests. Society is as much compelled by the need to act, as is an afflicted individual or

group. All afflicted parties develop strategies so as to cope with the existing situation and to

achieve particular goals or requirements. A mass of people who have merged into a society relies

on the consistent observance and implementation of a set of rules enforced by that society. That

is why people or groups not complying with the standards are not tolerated, which, however,

leaves every person’s basic wish for uniqueness – i.e. for enjoying one’s individuality and one’s

own ideas and find fulfilment in life - completely unrecognized. The collective influence wielded

on a person by the tolerated social structure deprives a person of his/her individuality.

53
Consequently, some people adapt to and thus process the continuing collective manipulation in

their own way. a strategy of resistance is designed in cases of deviating attitudes. Conflicts are a

natural manifestation of this social phenomenon. If questioning the established system is met

with a positive attitude, and if the possibility of a sustainable social benefit is assumed, the

conflict that has arisen may lead to the creation of an added value for the society, and the

motivating group will be reintegrated into society as a valuable constituent thereof. Such a

treatment of conflicts provides for the opportunity of reworking old configurations and values, as

well as the formulation of new social structures (see Closer, 1956). If such challenging

currents/trends are not taken into account or if they go unnoticed, it is possible that a kind of

frustration will emerge, manifesting itself through aggressive, i.e. destructive conduct. But if a

conflict is seen as a positive chance, it will be possible, or even mandatory, for the involved

parties to approach each other. The stability of a social system requires a certain amount of

intolerance, so as to design a secure framework for actions. However, from a scientific point of

view society remains in a state of controlled conflict concerning the processing of its history, the

integration of research results into present times and therefore the active shaping of the future.

That is why working on a conflict is a creative process and a propulsive force for all changes (see

Closer, 1956).

2.1.7 Conflict as the result of a balance of power

A regulated social cohabitation is characterised by a system of hierarchy between the people

involved. That hierarchy is, in turn, a part of the established set of rules. These interpersonal

relations represent a balance of power, linking together people. The balance of power is not only

a source of structure, but it also creates areas of friction/tension. The following enumeration

illustrates how these areas of tension, or the artificially generated hierarchies, can affect social

54
interactions and how these constructs may give rise to conflicts at a later point. Ana Maria Ruiz

Abascal elucidates in her paper Alternativa constructiva – El Proceso de la Mediación five

different social structures in which person A may hold power over or exert pressure on person B,

in specific ways:

The power of control:

A holds a permanent position of control over B. B cannot escape censure or punishment applied

by A.

The power of reward:

A is in a position enabling him/her to provide a reward to B or withhold it from B. Accordingly,

B strives to obtain the position of A, so as to be as powerful or B feels compelled to act so as to

receive the reward from A.

The power of contract:

Following the conclusion of a contract B agrees to A exerting power over B within a certain

hierarchical structure, and to the fact that there is a respective difference in rank.

The power of a personal bond:

If A and B are related to each other or are friends, B can be manipulated by A, or A is, as a result

of the private relationship between the two people, in a safe position.

The power of competition:

If A has been provided a special information which is of relevance to B but has been kept back

from him, B will be dependant on A.

The multitude of relationships in which power constitutes a link between the people involved is

much more comprehensive, of course, but for the purpose of resolving conflicts one needs to be

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aware of that fact that the involvement in a power structure constitutes a stress factor and that it

often triggers a conflict. In case of a mediator this means basically that an analysis of the relation

between the disputants may give a clue as to what conflict resolving strategies can be applied in

the given case. The personal point of view, as well as the expectations and demands resulting

thereof, depend on the distribution of power. If A and B are on par with each other, the dispute

will take a different course than when A and B team up against C, or when A and B are in

conflict and are controlled by C. If threats are being uttered by parties on equal footing, the

conflict is about replacing the imbalance of power with a balance (see Apfelbaum, 1974). If

more than two parties are involved in a conflict, these parties will often ally with others, creating

a shift in the power distribution. When parties establish a coalition they decide to give up their

differing points of view in order to join their forces against a third party. Such coalitions have a

time limit and disband as soon as there is no more need for it. Then the parties resume their

original individual identities.

2.1.8 The climate of a conflict

The climate of a conflict refers to the part of negotiations and the elementary treatment of each

other or the motivation for negotiations (see Lewin, 1948). Attention is turned in particular

towards the behaviour and the perception of the individual conflict parties. In a cooperative

environment conflict parties will collaborate, will support mutual interests, will confide personal

facts to each other and will treat each other with frankness and respect (see Lewin, 1948). In a

competitive environment the conflicted parties will focus on opposing interests and will try to

exert pressure on the adversary. Their personal points of contention are kept protected through

excessive proliferation and deepening of the issue. At this point the parties do not actually want

to conciliate; they abandon temporarily their wish for an analysis of the conflict. The parties

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hang on to their points of view. The communication is not only limited to a minimum, but it also

is subject to many misunderstanding. The stressed behaviour reflects that the mediation process

is at a difficult point that way determine the overall climate of the conflict. In such a situation the

conflict can only grow worse. The disputants protect themselves through this negotiation block

and thus create a manageable, though extremely limited room for the mediation procedure.

Emotions have a strong impact on the internal argument regarding the subject of the conflict. The

conflict partners return to the level of emotions, as they feel affected by the conflict. In purely

objective terms one can distinguish between emotional / hot and rational / cold disputes (see

Thiel, 2003). In order to lead the disputants back to the resolution level, and in order to condition

them verbally in accordance with that stage, it is crucial to figure out which properties could be

originally attributed to the conflict and the role of each disputant. It is my belief that a correct

diagnosis of the conflict climate, and the subsequent construction of a negotiation climate

favouring the establishment of a solution, constitute the first and foremost task of a mediator.

2.1.9 Constructive and destructive conflicts

Even if the possibility of sustainable changes, resulting from a conflict, suggests that conflict is

now seen on a positive note, the involved individual will still feel dejected, powerless and

depressed during the resolution or handling of a conflict. In my experience, this can be attributed

to the following circumstances:

The competitiveness of the disputants - it causes them to be more radical and nurtures strongly

subjective attitudes.

The distortion of one’s own perception and that of somebody else – it leads to a negative notion

of the conflict in terms of emotions.

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The reduction of communication – which actually is supposed to be the key to the conflict

resolution.

The merging of all problems into such a dense structure that it becomes impossible for anybody

to distinguish the origins of the conflict.

Compromises to which the party has forced itself, when, in fact, those compromises cause an

even more stubborn and irrational insistence on defending one’s position.

The expansion and deepening of differences between the attitudes of conflicted parties as well as

a minimizing of similarities.

2.1.10 Frame of actions in a conflict

In mediation the environment in which a conflict may take place is categorized in terms of the

size or number of parties involved in it, into:

a) conflicts between single people

b) conflicts between groups and

c) conflicts within groups.

The so-called conflict level constitutes the framework of activities or the range of influence of a

dispute. All three levels of conflict may exist independently of each other.

ABOUT THE AUTHOR

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Biographical Sketch
Roberto Miguel Rodriguez

Roberto M. Rodriguez is President of Proton Investments Incorporated, located in Minnesota.

Previously, he held managerial posts at Tennant Company, Palm Beach Beauty Products, CTC
Incorporated, and Conwed Plastics, all in Minnesota. Presently, he is also Professor of
International Relations at Euclid University and Professor of Mediation, Arbitration and
Negotiation at Novus University. Also, he was Cuban Ambassador in Cairo, Egypt.

He holds a Ph D in Educational Policy and Administration from the University of Minnesota

(1998), and a Juris Doctor (2006) and Doctor of Juridical Sciences (2008) from Northwestern
California University School of Law. He also holds Master degrees from all of the following
institutions: University of Minnesota (Business Administration, 1981; Business Taxation, 1992;
Public Health, 1993; Education, 1994; Arts: Educational Policy and Administration, 1995;
Liberal Arts, 1997; Agriculture, 2005); the University of Saint Thomas (Software Systems,
2002); Iowa State University of Science and Technology (Professional Agriculture, 2002);
Americus (Economics, 2003); the University of the State of New York (Liberal Studies, 2003);
California State University Dominguez Hills (Humanities, 2004; Negotiation, Conflict
Resolution and Peacebuilding, 2009); Athabasca University in Canada (Integrated Studies, 2004;
Distance Education, 2009); Texas Christian University (Liberal Arts, 2006), Central Michigan
University (Science in Administration, 2007); the University of Alabama (Human Environmental
Sciences – Interactive Technology, 2007); Novus Law School (Legal Letters, 2007); American
Military University (Political Sciences, 2008; International Relations, 2009; Intelligence Studies,
2009; National Security Studies, 2010; Space Studies, 2011); Troy University (Science in
International Relations, 2008); University of Malta (Contemporary Diplomacy, 2010); Charles
Stuart University (Australia) (Sustainable Agriculture, 2011). He is currently pursuing a
Doctorate in Political Science at SMC University (Switzerland) and a Master of Laws in
International Business Law at the University of Liverpool (United Kingdom). He speaks
Spanish, French, Portuguese, and Russian.

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 He is a member of Golden Key International Honor Society, the Alpha Epsilon Lambda of the
University of Alabama, the National Scholars Honor Society, The Honor Society of Agriculture
Gamma Sigma Delta, and others. He is listed in the Wall of Tolerance in Montgomery, Alabama,
“honoring those who are taking a personal, public stand against hate, injustice and intolerance,
and who are leading the way toward a more just America.”

He received the Capps Capozzolo Award for Academic Excellence from the University of
Southern Colorado, the American Medal of Honor from the American Biographical Institute; the
International Peace Prize from the United Cultural Convention in Washington, DC, and the
Medal of Honor for Intellectual and Vocational Excellence from the International Biographical
Center in Great Britain.

He is listed in Marquis’ Who’s Who in America, the International Biographical Center in

Great Britain, Strathmore’s Who’s Who Registry, Cambridge’s Who’s Who, and the American
Registry of Outstanding Professionals. He can be reached at rbrtrod@earthlink.net or
rodriguez@euclid.int or rodriguez@sokura.org

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