This is a concept emphasizing the way of thinking in mediation. It deals with strategies, where cooperation is in contradiction to confrontation. What do you believe? Do you think we need a mediation to solve this contradiction? Maybe, we do. The idea at least would not be strange. It fits to the way of thinking which is ingeniously provided by mediation. Now the question is: is mediation an alternative to court procedures or not?

Mediation mostly is offered to be an alternative to court procedures. That is what customers hear from everywhere. Does it help them applying mediation? I doubt it does. The demand on mediation still is low. Of course it is increasing slowly. But in fact there are many more mediators than mediations everywhere. Although the need for mediation appears to be infinite cases still are rare. While mediation is growing in America for example, in Germany it still is far away from economical success. What we do is trying to establish a product. Unfortunately there are mainly the professionals creating this product. The customer is not really involved in genesis. Do you think we care about the customer’s needs sufficiently? Of course we know the results of conflict resolution can be better by mediation. We know that mediation can fit the needs of resolving the conflict. But we also have to focus the customer’s resources how to get there. Mediation aims to improve the atmosphere of constructive debate. What is the customer’s wish? To understand this, we have to learn about her/his view on conflict resolution. Its not to think what would be fine but what is appropriate to the customer. For her/him the main question is: “Why should I take an alternative, while the claimed solution is right and the other one is wrong?”

Alternatives are offering choices. We usually can chose either or. I wonder if there is really a choice between mediation and court procedure. For sure it is not if we share the customer’s view. Understanding the dynamic of conflict, the simple truth is:

Mediation is not an alternative to court procedures because it is a consequence coming out of it.

Mediation is sole and what is sole cannot be an alternative. But there is another hint discernible, when talking about consequences. A consequence is a next original step and not an alternative. Understanding the difference helps mediators offering mediation. It also helps the customer demanding it. It explains why and when parties are able to change their strategy from confrontation to cooperation. That would be a condition to step into mediation voluntarily. The decision must be done in front of mediation. That means the first step of getting to yes is situated outside the procedure of mediation. From the customer’s view it is just a part of the journey through conflict resolution. It’s just a next step. Will it be worth to go and to take all the efforts and risks? Will it be appropriate to meet the enemy and talk with him? Does that concept fit in our conflict culture while politicians claim themselves “We do not negotiate with terrorists?”. Why should citizens behave different? The answer is easy. It’s because politicians simply are wrong and human beings themselves.

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Let’s have a look on how we typically advertise mediation. What people get aware sometimes sounds like: „Try the mediation. Doesn’t matter if it will fail. You still can claim justice at the court!“ This sounds like a double bind, doesn’t it? Not only from the customers view it matters indeed if the trial will fail. Costs will increase and the litigation following will become a bit more complicated. The stuff to be concluded will increase. Especially in family cases juridical facts will change frequently while time is passing by. Judges are afraid of that. They learned the conflict might escalate. The frontiers between the parties might become stronger. In fact the conflict develops independently from any procedure rules and from the procedure chosen. The customer will focus the outcome for sure. S/he will also focus the investment necessary to achieve results.

I doubt it is enough convincing a customer by an offer where the outcome is completely open. That’s a trap of mediation. As solutions will not come up before phase four, its impossible to provide an idea why the result should be better. The only thing a mediator can promise is the idea that there might be a solution at the horizon coming up. Not more than likelihood that this will be. The mediator will answer: “It depends on you, whether you will find a good solution or not”. It sounds like a bad joke. “I would succeed for sure” will be the stereotypic answer. “But it will be the other side boycotting a good solution. I experienced how stubborn and undiscerning s/he is.” Having that in her/his mind a customer will ask himself: „Why choosing a risky alternative and not taking the shortcut then to immediately go to court?“ I think he is right when court always is seen the last instance. If you also do believe that the court is the final instance of conflict resolution, please check why offering mediation. However, this kind of advertisement sounds weird. It is not really convincing. There must be something else that makes mediation attractive enough to pay for.

Conflict evolution

Seen from a strategic point of view, the steps for choosing mediation are to be gone one after the other. Prof. Gerhard Schwarz from Austria once explored what he called the conflict evolution. It describes the conflict how it naturally is developing. There are 5 different steps to go before you encounter the mediation:

• Escape,
• Destruction,
• Subordination
• Delegation,
• Compromise and
• Consensus.

You might imagine a staircase, which has to be climbed stair by stair. Since there are stairs to climb, there is a development expressed like evolution. Consensus is the last stair. Since it is drawn on top, some mediators want to believe mediation is a top leveled way of conflict resolution. I wouldn’t like to see that. There is an assessment expressing an ethical aspect that is not naturally reflected by people who decide how to solve their problems. For them efficiency might be the primary concern. Efficiency is an important issue, since parties want everything but definitely not to get lost while the adversary is seen to be the winner. I wouldn’t believe it comforts parties to know that their loss was built on higher ethical values. I think parties in conflict are not keen on making experiments without a need to do so. Hence the advertisement I quoted at the beginning really is not convincing. No wonder if the demand on mediation still is low.

To learn about the convincing causes, we need to look deeper on the mechanisms of conflict evolution. Conflict evolution is based on two different strategies, the confrontation and the cooperation. Both are excluding each other. While escape, destruction, subordination and delegation belong to confrontation strategies, compromise and consensus are cooperation strategies. The switch is on delegation, which might become something like an interface between confrontation and cooperation. Delegation happens for example where people go to court. It seems to be important to state this strategy is situated on the ladder of conflict evolution below and not above the consensus, where mediation can be found. The upper level indicates already that mediation is not really an alternative you can choose randomly. An alternative would be on the same level. Mediation is a step of evolution though.

Following the idea of conflict evolution we learn that mediation is another step required to climb the next level of the ladder of conflict evolution. According to that insight an advertisement might be improved. Fitting to conflict evolution theory a promotion will sound like: “Try the litigation. Don’t matter if it will fail. Mediation is possible at least.” It looks like a paradox. But it’s a fact. Consensus can be stronger than any rules. We know that rules and law are obsolete if people are unique. People always are free to conclude something better. Unfortunately they do not engage that freedom. What are the obstacles?

Conflict evolution enhanced

To understand the customer’s behavior, we have to step below the “escape”-stair, which is the first level of conflict evolution. Escape is at the beginning of confrontation strategy. It therefore might also be seen like a switch, which might become something like an interface between cooperation and confrontation. Because of that switch we have to complete the evolution by adding a crucial first step before. Humans are cooperative in principle. Hence people primarily solve problems in a cooperative way. At least they try. Since cooperation is a way of conflict resolution also, we should enhance conflict evolution to complete the picture. Level one of the enhanced conflict evolution will be the attempt of cooperation. On that level parties try to find the easiest way to conflict resolution. Level two is of an increased energy. The level of escape starts as soon as cooperation is expected to fail or not possible for other reasons. There is no other bottom for getting in confrontation. Mostly the parties experience that cooperation is not possible because of the adversary only. They are convinced of confrontation. Angriness, resistance or helplessness assists the way of thinking. Seems not to be the best moment to offer mediation. A disposition to think about cooperation in general should be indicated first. The reason for confrontation has to be removed therefore. As long as it stays, each offer of mediation will advise cooperation where parties still have in mind or where they still experience that cooperation is not possible. Offering mediation now makes Parties wondering: “Why should we cooperate? Cooperation failed already and the opponent evidenced sufficiently before that cooperation with him is impossible! Beside that s/he first should apologize!”

Changing strategy

Offering mediation as an alternative effects like a double bind. On the one hand mediation is recommended. On the other hand it is degraded the same time, measured by the stairs of conflict evolution. Remember, mediation originally is situated at the top of evolution not somewhere in between. Whilst it stays somewhere in between confrontation will stay a valid option. Mediation might be seen an interim step although in fact it is the ultimate step to go. However it seems that parties feel comforted since they will not get lost of confrontation. Confrontation is secure. Cooperation is nothing more than just a chance, pity.

A mediator by the way will feel the consequences, when parties in their mind don’t stop confrontation. He will have to break the mediation when it is not possible to drive parties along cooperation. He knows that cooperation is the most important expression of voluntariness. It reveals readiness for negotiation.

Sometimes it happens that parties still strongly believe in winning the fight although they applied mediation. This might happen, where the judge has forced people to join mediation or where people have been convinced by an advertisement as such quoted at the beginning. The more it happens when there is a lawyer advising parties that they will become the winner for sure in case of a court decision. Mediators intervene persuading parties to mediation. Sometimes they fancy mediation. Sometimes they try to convince parties from the opposite. “Don’t be stupid, mediation is better, cheaper and quicker than court procedures”. It’s a counter advice. How does that feel if we slip into the customer’s mind? Doesn’t it sound like promotion of washing powder? Who will believe it? I think people are too much blunted by commercials to really feel convinced through phrases. Beside that the assertions are not waterproof. It depends on court, on the case, on the way chosen for of mediation and many more criteria to finally assess whether mediation is cheaper, quicker and more effective than a court decision can be. In Germany for example, court relies on best reputation. Justice almost is predictable. That occurs as one of the most challenging obstacles why mediation is not demanded, as it could. Beside promotion it also is not convincing when mediators are valuing ethical aspects and assess the customer’s behavior. I wonder if statements like: “Mediation is the most noble way of conflict resolution” or “Mediation is improving the atmosphere of constructive debate and therefore a must” are plausible for somebody who just want to receive what s/he think is justified. I even wonder if those seeming arguments fit to the face of mediation, which is a procedure beside assessments and away from a mediator’s opinion. However, experience taught, that convincing people that way doesn’t really help. The reason for that is hidden in tricky strategic thinking.

Imagine you have been declared war and the enemy unexpectedly suggests peace talks. What would you think? When in confrontation the problem is that any peace offer will be seen as a part of the fight. An olive branch might become an ugly trap then. There is a risk on the one hand and evidence of weakness and exhausting on the other hand. All of those perceptions become meaningful in the sense of confrontation strategy. Hence people find good reasons to continue confrontation. It seems to be impossible to shift confrontation in Cooperation without causing suspicion.

Exploring what makes cooperation acceptable for adversaries we’ll find sense in game theory. Game theory is a discipline of mathematics caring about strategies. Strategic thinking makes planning comprehensible. Eventually there is a strategy. A strategy describes the way to reach an aim. Since the goal is winning, there are basically two ways how to get there. One is by cooperation; the other one is by confrontation. It depends on conditions which way is seen the best. If only a single winner is allowed, the frame is limited to a so-called null-sum-game. In such a game it would be stupid to cooperate, as this definitely is the wrong strategy. As long as the null sum game is running, cooperation is not useful and therefore not possible. We have to respect that people are not able to cooperate when in confrontation.

The other strategy achieving the goal of winning is cooperation. Cooperation is solely useful, where winners are not limited. Then parties don’t have to manage the adversary to become the loser. They are supposed to focus own interests initially independent from the other side. That kind of game is called cooperative competition. Sometimes it is called a positive-sum-game. In that game, confrontation would definitely be the wrong strategy.

Knowing about the games capturing strategies, we just have to change the game when we want to change the strategy. Coincidentally this happens more or less automatically where mediation is offered like an isolated and separated procedure. When parties switch to mediation, they switch strategy the same moment. The game, which is designed by mediation, doesn’t cause any need for parties to confront.

Now it becomes a bit clearer, what parties need to do for changing the procedure of conflict resolution. They simply need to change the game. For that they need to know the reason why to stop the old game and why to change it. That needs more than a phrase. It needs some good reasons why to stop or avoid the confrontation. Confrontation not always is worst strategy. Especially when the conflict is escalated, reasons to change the strategy must be very strong. Proposing mediation like a trial marks a chance for sure. But they also are weakening mediation when it is just an alternative and not the final goal. In fact neither mediation nor litigation is the final goal. We have to be aware that even if the court stays the last powerful instance, it is not the goal to be achieved. The same is with consensus. Even if consensus is the top of conflict evolution, it’s not the goal to be achieved as well. Both is not more than the way to reach a goal.

We never should mix the goal of the procedure and the goal of conflict resolution. There are different levels of need. One is concerned to the outcome the other one is concerned to the way to get there. These are two different pairs of shoes. Evolution will keep running as long as the conflict is not solved. When the top of evolution has been reached to fail, it doesn’t mean evolution has reached an end. In spite of that it loops from bottom up again. People will find frequent new occasions for quarreling. Hence evolution will be in force till the conflict is solved or till it stuck on one level. There is not a last instance regarding the dynamic of conflict. The clients will find other conflicts fitting to the same pattern until a definite end will be found where conflict is resolved or where the individual pattern of dealing with that conflict has changed. Conflict dynamic really ends when parties find their peace. It also ends when parties feel exhausted. It ends when there is no chance left to resolve the conflict. That is fixed more to the perception of the parties than the opportunities occurring.

To really make clear that cooperation is the sole strategy possible, parties have to learn, that confrontation is useless or that confrontation will fail. Mediation offers some tools to deal with the problem. In transformative mediation we try to change the client’s perception. A tool much better than convincing is maieutic. It is the interrogation technique developed by Socrates. Now the mediator will not argue for mediation anymore. He the more wants to be convinced by the customer, that confrontation indeed is the best way to go. Now the mediator’s intervention sounds like: “Imagine you’ll win the court decision. Is it satisfying you? Is it what you really need to have?” Then the mediator steps thought the clients arguments until he’ll find the lack. Now the client learns whether the planning is smart, which kind of outcome is wanted and what is the way to go. Mediators know very well how to manage and motivate parties to stay in mediation. They also know that parties become curious during the mediation and that they more and more feel motivated to cooperation. To really understand the chances provided by mediation they need to pass phase two at least where the conflict is becoming very clear and the way to find solutions according to that becomes more visible. This effect is increasing in phase three. Unfortunately, mediators will have the chance to do motivate parties singularly while mediation is running. That’s another trap of mediation. The idea of a solution is very open at the beginning. It becomes more and more visible stepping through the phases of mediation. That means the chance to convince a party about mediation is growing during the mediation.

Now it comes clear that convincing about mediation is a process itself. In some countries, where court internal mediation is offered, a court agent fills the gap between litigation and mediation, which is conducted by another judge of the court. The court agent, a clerk, is well trained to offer and convince parties of mediation. Since the court agent is not the authority of the decision process s/he hardly can fund on arguments coming out of the concrete questions to be answered. Those questions are targeting chances and risks not in general but in the individual case. From a project in the Netherlands we learned that parties are not convinced with cheaper and quicker arguments but with sustainability. The attempts of those court agents are improving the demand on mediation for sure but the success rate still is not high. Now we can wait until people learn about sustainability in conflict resolution in general or we can help them individually to get there.

Outlook

What parties need is some kind of conflict management, which is over the procedures at all and not a part of them. That could be the task of lawyers. It also could be the task of the sitting judge, the therapist or whoever is in contact with the clients. In all those cases, the professionals need to feel an own benefit when they shift parties to mediation. An advantage they have for sure occurs when parties switch to cooperation in general. That makes working on the case much easier, cheaper and quicker, independently from mediation. We should take in consideration that procedures of conflict resolution like mediation or litigation are to be seen like the manual not for the over all process but just for parts of the way of conflict resolution parties have to go along. It definitely is not the whole way. We mostly forget this as we think juridical procedures and mediation is covering all the needs parties could have. We intend to see them like omnipotent. It is a narrowing view and unfortunately it’s not the truth. Thinking like the customers do, those procedures always are covering just a part of their way. Thinking like a marketer those products are incomplete. At the end conflict management still is laying in the parties’ hands. A procedure covering the whole way to conflict resolution having all the procedures in mind and steering through them is missing. Also missing is somebody taking the parties at one’s hand going all the steps through conflict resolution, from the very beginning to the very end independently from the procedure chosen. This is needed the more than procedures are seen in a kind of competition where one procedure is claimed to be better than the other one. From a strategic point of view these are just steps described how to get some kind of results. The customer doesn’t care about the procedure. S/he just looks how to get out of the conflict as easily as possible. For her/him mediation is not the easiest way to go. Thus it’s normal if mediation is not her/his first choice. Better the customer learn how far confrontation is able to solve her/his conflict or not in concrete and in his individual case. Nothing more is needed. Customers are smart enough to understand, where cooperation is helpful and where not. Parties learned to switch from cooperation to confrontation before already as a part of their own conflict history. They should know that switching to cooperation again is not stepping back but forward. It mainly is not repeating the cooperation they tried already on the first level of the enhanced conflict evolution. Cooperation following now differs in so far, as the thinking behind is totally different. While the first level of cooperation was to convince about who is right or wrong, the cooperation now leaves the contradiction as it is. There is no need to decide who is right or wrong any more. Parties have to learn to let this question open. It’s not easy for them as it means to accept the adversary in her/his strange thinking. But it’s the basic idea of mediation and its the trick that makes cooperation possible to work. It is a natural development after cooperation failed to confrontation. And confrontation is a step itself to get there. Now it helps explaining to parties that another attempt of cooperation will be very different than the cooperation they tried before. If they understand they learn that mediation now is the sole way of cooperation left and the only logical consequence. Its not a choice anymore, it’s a must where solving the conflict is an aim declared. Thus we need to have a view over all the procedures putting them in a concept like a kind of a meta-procedure, which is able to arrange the cooperation of each attempt of conflict resolution. It’s not enough to look on only one procedure but on the whole process.

The question at the beginning I think we have to agree with. The question was: “Do you think we need a mediation to solve this contradiction between litigation and mediation? Now the idea of integrated mediation is coming up. Integrated mediation understands mediation more like a psychological process of understanding than a formal procedure. It is to be seen to be the over-all-procedure, describing step by step with interfaces between each procedure in case it is going to fail. The end of a procedure is not the end of integrated mediation. The steps of cognition necessary to mediate understanding between the parties could be gone through even if a pure mediation is not the procedure chosen. How that works? It works perfectly. There was an evaluation where the sitting judge tried to use mediation skills in that way during the litigation. It evidenced that the parties as well as the professionals are more content then in conventional processes and it proves that parties opening for cooperation will find the way into mediation for sure however it looks like at the end.

Arthur Trossen