Mediation Field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization
By Barbara Ashley Phillips
Summary written by Conflict Research Consortium Staff
Citation: Barbara Ashley Phillips. Mediation Field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization. San Francisco: Jossey-Bass, 2001, 321 pp.
Mediation Field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization considers several dimensions of mediation and aims to expand the potential of mediation as a tool for resolving difficult business, organizational, and family disputes. Phillips includes tips about stumbling blocks and cultural traps she has discovered in her own experience, as well as stories of others' enriching experiences with mediation. This work is about how to let "flow" into conflict resolution scenarios. According to Phillips, "[f]low is a dynamic that arises of its own accord and is characterized by an 'elemental togetherness'" (xiii). Ultimately, this work serves to emphatically challenge "old-mind" forms of adversarial dispute resolution and advocate for the more constructive, higher-trust problem-solving method of mediation.
The work is divided into three parts: 1) Way Beyond Litigation 2) Obstacles to Resolution and 3) Putting Principles to work. Part 1 includes chapters One through Four. Chapter One explains what litigation and mediation actually are, the differences between them, and why mediation is slowly overtaking litigation as the principal dispute resolution method. The main point of this chapter is that mediation gets to the underlying reasons for conflict, thus reaching more holistic solutions that work for all parties involved as well as preserving relationships. Chapter Two offers four personal accounts about the transformative power of mediation, from people who have experienced it. Chapter Three discusses what Phillips calls "lit-think", or the reactionary thought of litigation as the solution to any conflict. The author explains this concept and then proceeds to discuss more practical peacemaking strategies such as listening, speaking from the heart, as well as approaches to mediation itself. The last chapter of Part 1 discusses what it takes for mediation to be a truly transformative experience-from the mediator and the disputants.
Part 2 covers obstacles to resolution that may arise. Chapter Five looks at obstacles that are created by disputants themselves, which are fostered by society's general approach to conflict resolution. Phillips outlines rationalizations that prevent people from trying mediation, as well as attitudes and perceived needs that keep people from negotiating effectively. With Chapter Six, the author considers the mind-set and culture that lawyers are trained to conduct themselves within, which tends to limit the possibilities for transformation when they assume the role of mediator. According to Phillips, lawyers in civil lawsuits, more times than not, bring an evaluative, bargaining approach into mediation sessions, rather than a facilitative, transformative approach. Generally, this chapter looks at the effect of lawyers on mediation and vice versa. Chapter Seven provides advice on how to go about locating a lawyer who is skilled in the practice of mediation. Some of the steps included in this process are to check reputations, interview candidates, and decide whether or not you actually need a lawyer.
Part 3 describes the various stages of the mediation process and things to keep in mind in order to make sure it works out well. Chapter Eight explores various factors that play into evaluating the use of mediation. Phillips answers some frequently-asked questions, provides questions to ask about the process, and suggests what types of disputes can be mediated. Chapter Nine provides advice on how to go about selecting a mediator, including the services the mediator should provide prior to the mediation, and what qualifications and characteristics to look for in a mediator. Moreover, this chapter describes the processes of evaluative and facilitative mediation and the differences between them.
Chapter Ten, "Preparing to Mediate", discusses the early stages of the mediation process. Phillips covers who should attend, convening the mediation, preparatory strategies, and options for how to present one's information and perspective during the mediation. Chapter Eleven serves to examine the heart of the mediation process. Phillips states that mediation is not just about settling a dispute, but also "about changing people's relationships to the problem and to each other" (197). She discusses the role of the mediator, getting to feelings, and opportunities for reconciliation in this chapter.
Chapters Twelve through Fifteen deal with the mediation of specific types of disputes. In Chapter Twelve, the author addresses employment matters and the fact that such disputes are still forced to adjudicative processes rather than mediation. Chapter Thirteen looks at mediation in the construction industry, which Phillips argues can serve as a model for other industries that still cling to old, adversarial forms of conflict resolution. Chapter Fourteen considers contract negotiations and the ways in which employing mediation can enhance and strengthen this traditionally tenuous negotiation situation. The most important advantage to using mediation, according to Phillips, is that the trust that is established allows the parties to address highly sensitive issues that might not otherwise be discussed. In Chapter Fifteen, the author looks at the possibility of incorporating mediation in the public policy arena, so that the political system may become more effective and productive.
The final chapter, entitled "The Emerging Synthesis", discusses how to go about catalyzing a cultural shift in the psyche of Americans. As conceived by Phillips, this shift would be one away from the blaming and adversarial toward a more trustful and problem-solving oriented culture -- from the "old-mind" to the "new-mind."
Also included in the work are multiple appendices, including an exercise on perspective taking, information on how to write agreements in mediation, techniques for dividing property, advice on how to let go after divorce, an example of a mediation confidentiality agreement, and a listing of Internet resources on mediation.