Director, Partners for Democratic Change
Interviewed by Julian Portilla, 2003
This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).
Q: Talk a little bit about how the Boards are different from the traditional one mediator-two parties model.
A: Well, I think the terminology is important. I've always used a distinction between mediation and conciliation. Many people in the field are not comfortable with this distinction. I think it's helpful to use two separate words to try to make a distinction around the point, the question that you just raised. I think the goal in a mediating process is to get a resolution. In a classic mediating process, you hire a mediator or go to a mediator because the parties want a resolution.
Of course, the classic place you most often see it is in business, professional settings, and labor management. Labor management want a settlement around fringe benefits, working hours, health and safety issues. They want concrete outcomes. The issue at the end of the day is concrete outcomes, what I call "time-place manner." It is very factual. You're going to write them up, you're going to agree to it, etc. In situations where parties have ongoing relationships such as husbands and wives, ex-spouses who are dealing with children and visitation rights and things like that, spousal rights, people who are roommates, these kinds of situations, school situations. There the issue isn't so much the concrete settlement of a specific issue; the real issue is what's the quality of the relationship that generated the dispute to begin with.
If you don't deal with the relationship then it's very likely that some variation of that dispute will show up again, just in a different form or a different context. So you really want to look at what will conciliate the parties and bring them back together around the things that concern them the most. What's broken down the relationship between children? What's broken down the relationship between the parent and the teacher? What's broken down in the trust that's at the heart of all relationships? How do you resuscitate trust? How do you make it possible for people to take another step with one another? In a contractual, business, labor management situation, that's less relevant because you're going to make an agreement and you're going to be together.
Labor management is going to be together today and it's going to be together tomorrow. It needs to have a working agreement on what I call "time place and manner." People who are maybe going to school can shun one another, can be cruel to one another, and can abuse one another. You need to build the relationship between those people. You need a conciliating model that is open. The mediating model, the "classic model," is much more shuttle diplomacy. That is, you have the Kissinger-like model of going from one side to the other. They are trying to find the bottom line that is relevant at some point to bring the parties back together, to say, "I think I've got a deal that each of you will accept. Here's the package. None of you are going to get exactly what you want, but you're going to get enough of what you want that you're going to take it." That formula is probably not so workable in an ethnic and national minority situation, children, etc. Where you really want people to really understand one another is from the point of view of how do we make a relationship that's going to make the social work or the relational work we want to do together go forward? It's not a contractual situation.
You want to create the forum and you want to use the dispute as an opportunity to enhance the quality of the relationship by improved understanding. So you don't want to do a shuttle diplomacy model at all; you absolutely don't want to have caucuses and private meetings. It's exactly the opposite; you want everything on the table. Otherwise, how would the other party ever know what motivates you and what's on your mind unless they heard you say it. That's not true in the labor management situation. It's not so important what's in the other person's mind exactly as long as both feel that they've got a fair deal at the end of the day. Would it help to do it? Yes. Is it required? No. Would it help on the other side? Well, if you do a classic mediation model in an ethnic and national minority dispute, as we have these ethnic conciliation commissions all over central and eastern Europe through Partners, it wouldn't help at all, because the parties need to hear one another, because it's in the communication that the trust-building starts.
If you're looking at the Roma who want the police to stop beating them up, and you have a mediator who talks to police, and who talks to Roma, talks to police, talks to Roma, and the mediator says, "I've got a deal for you," it'll last about one week. It'll have no weight to it. It has no emotive quality to it. And even when everybody's operating on the best terms, the first time there's a mistake people will say, "See? I knew it would never work," because they have no organic relationship with the party that they want to have an organic relationship with.
A dispute is a great way to create a new relationship, or an improved relationship, and understand what happened, where the breakdown took place. That requires a mechanism that allows that dialogue to take place and that understanding needs to be realized. That's the reason why I think that conciliation is a model that's open, that's relationship-oriented; you want to use the dispute as a vehicle to enhance the relationship. A mediating process is really and truly a process where you want concrete resolution and concrete outcomes. Will you get improvement in the relationship? Probably. Is it the reason you're doing it? Absolutely not. If you did a classic mediation model on an ethnic and national minority dispute, I just don't think you'll get very far.
Let me put it this way, you won't get as far as you could have gotten if you did the harder work. And I think it is harder work, if you did a conciliation model - a more open and conciliating model, that didn't have the controls that a mediator has when they're doing caucuses and all this stuff, because the person who's most powerful in that is the mediator, whereas in the conciliating model, the parties are, and it's much more difficult, and it's far more messy. The third parties don't have as much control, but everybody's got the same information. It's the information you're looking for, it's the way it's delivered, it's the way you want people to talk with one another, that's what you're looking for, not the material outcome.