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THE SOURCE OF THE MEDIATOR’S POWER:
HOW WE CONNECT THE DISCONNECTED AND ENGINEER AGREEMENTS

by Jan Frankel Schau

               Dissolution of a marriage after twenty years, the end of violence and bloodshed between two neighboring countries, the unwelcome severance of a career of service for the payment of a year or two of salary:  how do mediators have the power to solve these issues in a dialogue or sometimes a single day?  The answer lies not in our neutrality, but the converse:  the mediator takes a valuable role as a “third sider” in a dispute, serving to change the narrative or mythology of the disputing parties, hold optimism for creative change and ultimate resolution, and strictly adhering to a carefully crafted process designed to reach resolution.

How Did We Get Here?
               The inquiry of the source of the mediator’s power must begin with the source of the mediator’s involvement in the dispute.  Where the mediator, for example, is brought in at the behest of a judicial officer, in a litigated dispute, the power comes from the Court itself.  There is a real consequence for a failure to obey the court’s recommendation or referral to mediation, and therefore all parties (and their agents or attorneys) come to a mediation prepared to cede some degree of power or control to the mediator.
               On the other hand, in many instances the community itself, acting through the government or some outside agency, recommends a mediator to explore the possibility of a settlement of long-standing disputes.  In those cases, the mediator derives her power from the community or the disputants’ peers.  In that case, according to William Ury, our role is to influence “[t]he parties primarily through an appeal to their interests and community norms.  The third side possesses the power of peer pressure and the force of public opinion.  It is people power.”
               Finally, there are those mediations which are purely voluntary, where the parties recognize and acknowledge to one another as well as a third party that they are unable to solve the dispute on their own.  In those cases, the parties actually give the mediator her power, by giving away some of their own power in the service of a settlement of the dispute.  By undertaking a mediation, the parties have already agreed to a more constructive process than the conflict had produced up until that time.  They have undertaken a mutual interest in transforming the “conflict” to a more constructive process, with the mediator acting as the “agent” of that transformation. 
               In a fascinating talk given by Ambassador Dennis Ross, Special Coordinator for the Middle East under both Presidents George Bush, Sr. and Bill Clinton for the Association of Business Trial Lawyers of Los Angeles, February, 2007, the theory of strict neutrality of a mediator was summarily debunked in the context of diplomatic negotiations.  Instead, Ambassador Ross argued that the mediator must have “real weight and authority” to broker any settlements on the world stage.  Indeed, it is the influence that is available by virtue of the special relationship the mediator has with the parties engaged in the dispute that makes him an effective broker.


Much of this article is based upon “The Third Side” by William Ury, Penguin Books, 2000.

Ury, supra, at page 15.

Paraphrased from Ambasssador Dennis Ross’ Speech, ABTLA, February, 2007, Los Angeles, Ca.

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May 2007