An 85% Settlement Rate and a 91% Compliance Rate:But What Happened to the Rest, and Why?
by William f. Lincoln, Alexander Karpenko, Lena Ivanova, Olga Allahverdova Polly Davis and Dawn Hooper
INTRODUCTION and PURPOSE:
This article addresses and analyses the first thirteen years [1993-2005] of conflict resolution services performed by the Russian-American Program on Conflictology [R-APC] and its St. Petersburg Conflict Resolution Center [CRC] As the title implies, this article focuses on the causes of non resolution of mediated cases as well as causes of non compliance of mediated settlement agreements. In doing so we (a) identify and describe the criteria and methodologies pertinent to the analysis; (b) provide a crisp yet critical examination of causal factors of non resolution and non compliance as contributed by our mediators; and by doing so (c) advance the profession’s knowledge base which in turn enhances both the training and mediation profession’s “best practices” ––– at least in Russia and the Commonwealth of Independent States [CIS], but hopefully within the United States as well.
Prior to presenting the research methodology and its findings the authors will briefly address (a) the context and practise of conflict resolution in Soviet times and the transition in post-Soviet Russia; (b) R-APC’S historical capsule – past and present; and (c) the Russian nature of conflictology.
Additionally, this article exemplifies how R-APC with assistance by its USA partner, the Tacoma Washington USA based Conflict Resolution, Research and Resource Institute, Inc. [CRI], have made significant, tangible, and highly herald positive impacts in Russia as well as several cities within the Commonwealth of Independent States [CIS]. And finally, we note where the likely direction and future of what Russians refer to as conflictology – a very marked and expanded distinction from what Americans and other westerners term as “the field of conflict resolution”, nomenclature which Russian academicians and practitioners regard as limited and incomplete.
CONFLICTOLOGY :
Because the difference between Russian and American subject terminology is more than mere semantic it is best that we immediately address the variance – at least how Russian academicians as well as practitioners view this matter. Clearly the Russian preferred term conflictology denotes the study of conflict, and the connotation is that the approach is comprehensive. Yet it was Lincoln, the co founder and co Director [USA] of R-APC with Alexander Karpenko Ph.D. that actually provided a broad, accurate and functional description of this term:
Conflictology = the comprehensive study of conflict in terms of its causes, functions and dysfunctions, consequences, and costs as well as the theories, processes, strategies, and skill tactics for its prevention, management, mitigation and resolution pertaining to interpersonal, intra-organizational, inter-organizational and international arenas.
Do note the inclusion of “… for its prevention, management, mitigation, and resolution …” The Russian’s contend that their approach has always placed a profoundly heavier emphasis (a) upon causes of conflict and (b) upon prevention and management of conflict than do western practitioners who -- according to their numerous program titles, their countless training designs and the abundance of their field literature -- seem to give emphasis to “conflict resolution”. The western approach appears to focus upon “fixing” or “correcting” a situation in contrast to Russian desires to prevent the conflict from occurring at all, yet ready to develop intermediate management or mitigation attention and even remedy if the scenario necessitates. Obviously, the distinctions between nomenclature, topical philosophy and the resulting emphasis of the Russian and western approaches are not minute differences.
Nonetheless, both Russians and western practitioners agree that the “perfect mediation” is determined by each disputant’s subjective determinations of:
- Procedural satisfaction in that the process was what ever each disputant wanted it to be, e.g., focused, business-like, amicable, thorough, efficient, orderly, etc;
- Substantive satisfaction in that the topical issues addressed resulted in the disputants’ respective interests, i.e., underlying principles, being satisfied at acceptable levels, e.g., as in “all things considered” with regard to economics, time, reputation, professionalism, health, self esteem, security, inclusion, acceptance etc; and
- Psychological satisfaction in that each disputant feels some sense of relief, e.g., achieved ventilation of emotions, the matter is over, closure, confidentiality, lost but not as much as feared or as possible, high level of procedural satisfaction, high level of substantive satisfaction etc.
CONTEXT and PRACTICE of CONFLICT RESOLUTION in SOVIET TIMES and the TRANSITION in POST-SOVIET RUSSIA:
Modern conflictology development in Russia is indivisibly associated with the relatively young transformation of social-political systems, which began during perestroika days, and is still currently continuing to evolve. Traditionally “conflict resolution” in the Soviet Union and in its “satellite nations” was the function of the Communist party bodies and related administrative governmental structures. Their objectives, strategies and tactics were oriented to using power, -- administrative or legal or in discretionary ways of imposing resolution on ideological basis. Moreover, disagreements and resulting tensions were customarily ignored, declared not to exist, or dealt with harshly. In many ways such manners became quite culturally natural.
When the Soviet Union and the Communist system disintegrated Russia became victimized by a huge amount of diverse dramatic conflicts in all spheres of a” free” post-Soviet existence – within private lives, communes, the work place, government at all levels, industrial and commercial establishments, environmental, economic institutions, international “satellites”, etc. it was a seemingly endless national general humanitarian crisis. Because of previous governmental monopolization of conflict resolution via avoidance, declaration, intimidation, or punishment Russia experienced a deficit of equitable, efficient and effective processes and methodologies for addressing people-problems – approaches and results that would be acceptable, not just accepted as in “put up with” thus a cultural paradigm shift would have to occur in Russia simply because it had to.
Yet in post-Soviet Russia the challenge that would complicate the introduction of a new breed of nongovernmental conflictologist would be the presence of persons who still held the very socio-political cultural norms of which we just spoke, namely, the priority of governmental values over humanitarian or individual preference. Raw decisive power rather than “reasonable reason” or “circumstantial reason” was the basis of such a system of values.
But Russia itself helped set the stage for altering its social orientation by turning toward western democracy, or more correctly, inviting the west inside itself. During a relatively short period from 1991 to 1996 Russia exposed it self to numerous western social avenues including new forms of consumerism, governmental decision making processes, innovative forms of social work, judicial reform – and to alternative or “appropriate dispute resolution” [ADR] methodologies including the applicability of negotiation and mediation.
R-APC’S HISTORICALCAPUSLE – PAST and PRESENT:
With the inspiration, guidance, technical support, and financial assistance by the Conflict Resolution, Research and Resource Institute, Inc. [CRI] of Tacoma Washington coupled with Russian authors’ own knowledge, vision, commitment and persistence, the Russian-American Program on Conflictology [R-APC] was developed in 1992 followed by the creation of its St. Petersburg Conflict Resolution Center [CRC] in 1993 under the NGO umbrella of the incorporated “Conflictology Forum.” Additional financial support was granted by the National Peace Foundation, the Eurasia Foundation, the Charles Stewart Mott Foundation, the Soros Foundation, the Hewlett Foundation as well as an abundance of Russian pro bono publico contributions mingled with private donations.
Since 1993 R-APC and the CRC Russian practitioners have addressed approximately 20,000 conflict scenarios sited mostly in St. Petersburg and the Leningrad Region. The intervention services include (a) conflictology-counselling of one party to equip them to effectively address and resolve the dispute by themselves; in problem solving, (b) conciliation in bringing parties together for them to address their dispute and hopefully resolve it, but without the assistance of a mediator; and (c) mediation. The program’s success is rooted in user satisfaction with process as well as substantive outcomes aided by the services of competent mediators.
Competency is not to be regarded as a mere label or conclusion that a mediator completed a training program. For R-APC and its CRC competency is hard-earned through an extensive, consistent and constantly evaluated 230-hour credentialing process2 based on (i) a series of extensive courses in the study of conflict, negotiation, communications, cross-cultural competencies, and mediation; (ii) participation in numerous mock cases; (iii) the results of a comprehensive written examination; (iv) actual case experiences and analysis via observation, co-mediation, and supervised sole mediation; (v) findings and conclusions from a peer review process; (vi) evaluation by disputants; plus (vii) opportunities and requirements for continuing education for further professional development.
Neither R-APC nor the CRC view himself or herself as a factory outlet for flooding the world with would-be or want-to-be mediators. Of the approximately 8,000 persons who excelled in all the various training components cited above, R-APC has only certified 167 mediators from 17 Russian cities and towns and fro Armenia, Georgia and Kazakhstan. The profession as well as the communities to be served deserve and require unfaltering professional standards of competency. For the past few years the certification process is now supervised and granted in conjunction with the Department of Conflictology of the St. Petersburg State University – a department that R-APC has been significantly involved in developing.
While St. Petersburg and the surrounding area remain to be the primary service area, R-APC and its CRC have also provided detailed trainings and focused technical assistance in many other Russian cities such as Borisoglebsk, Kaliningrad, Kaluga, Kostroma, Krasnodar, Tula, Volgograd, and Perm as well as Novosibirsk, Siberia. Several other activities3 are worth mentioning in order that the reader might fully appreciate the depth of R-APC and CRC activities, and thus the seriousness of their study as reported in the following pages:
(a) 1994, R-APC developed with the St. Petersburg State University a full undergraduate degree program via a newly formed Chair of Conflictology in the Department of Philosophy; and in 2001 developed, and now offers graduate degrees.
(b) 1996, R-APC was instrumental in forming the Mediators Club, not unlike the Washington, DC based Alliance of Conflict Resolvers [ACR] – previously titled Society for Professionals in Dispute Resolution [SPIDR] -- but localized, and which regularly conducts meetings and seminars involving attorneys, judges, managers, and other “appropriate dispute resolution” [ADR] type practitioners.
(c) 1999, R-APC organized and sponsored the “First International Conference of Practicing Mediators from Eastern Europe and the New Independent States [NIS]”: East meets East. Participants were from Armenia, Moldova, Estonia, Kazakhstan, Romania, Poland, Ukraine, Hungary, Latvia, Georgia, Azerbaijan, and Russia; also train and certify seven (7) mediators within the famed Moscow based human rights non-governmental organization Memorial.
(d) 2000, R-APC took the lead with the Mediators Club in writing a 200+ page book, Conflictology, which has been encouraged by the Ministry of Education to be used in all Russian State Universities.
(e) 2001-2004 R-APC mediated many environmental conflicts in the Baltic Region in conjunction with the World Wildlife Fund, and facilitated-mediated almost a dozen community redevelopment scenarios in and around St. Petersburg.
(f) 2004 R-APC and St. Petersburg State University develop the Negotiation Center as a study / research component within the university.
It was 1992 within its incorporated umbrella the “Conflictological Forum” that the Russian-American Program on Conflictology [R-APC] and its emerging community based Conflict Resolution Center [CRC] with CRI began to develop in response to the need to increase the fairness, practicality, and credibility of truly “alternative or appropriate dispute resolution” processes”. As emerging conflictologists R-APC viewed saw their tasks to be not of destruction, but integration of new approaches into those parts of Russian society most needed and most receptive to “acceptable” ways of preventing, managing, mitigating and resolving dysfunctional conflicts in a variety of social arenas – from home to school to the broader community to police-community relations to business to City Hall and back again.
To be successful – to be effective -- R-APC would have to be flexible, and to engage into a much wider sphere of activities than initially planned, namely, one-on-one interpersonal disputes Furthermore, R-APC with CRI saw the need and value of starting beyond the narrow confinement of “conflict resolution”.
Lincoln put it simply:
“The most frequent use of negotiation is conflict prevention --it’s what everybody everywhere just refers to as ‘planning’; and the second most frequent use of negotiation is conflict management, namely, ‘how to prevent a bad situation from becoming worse’; the least frequent use of negotiation is for conflict resolution – why would we focus only upon only ‘conflict resolution’ as the only application of negotiation and mediation?”
Almost from the beginning of its inception R-APC designed its service program to conflict prevention, analysis, management, general “problem solving”, facilitation, and conciliation as well as negotiation and mediation. Furthermore, R-APC internalized the value that the primary resources to any potential or actual dispute scenario are the parties themselves, not the mediator.
The program would develop through several strategic stages:
(a) Exploring and adapt ting foreign negotiation and mediation theories, processes and methodologies – mostly USA, but Italian, German British and French as well. In addition to the development of R-APC a prestigious group of primarily individual private practitioners and academicians within the disciplines psychology, sociology, political science, and ethnography were convened by the St. Petersburg Harmony Institute for the Annual International Conference on Conflict Resolution. Also, there exists Center of Conflictology of the Russian Academy of Scientists, which places much of its focus upon academic-mathematical models for predicting and analyzing conflict as well as game theory.
(b) Implementing numerous pilot projects in order to test cultural pertinences and topical applicability of processes and methodologies in various spheres, e.g., with children, teachers, environmentalists; emerging business persons; law enforcement officers, governmental officials, etc;
(c) Saturating St. Petersburg and the broader Leningrad Region with programs that R-APC determined were the most appropriate, applicable, effective and valued. For several years the demand for “knowledge based skill building” was endless, and for several years R-APC with its CRI partner worked together in further developing and refining training materials as well as developing the criteria for “professional standards of competency”, i.e., certification [see above]; and
(d) Conceptualizing what and how to create new professions within Russia – the professional negotiator and the professional mediator, and how to create academic avenues for formal credentials as well as credible research routes and opportunities.
R-APC and its CRC partnership began to experience two (2) generally broad categories of cases,4 namely, (a) business and (b) interpersonal.
In 1992-93 the process of privatisation was widely spread throughout Russia. This process and time period introduced new business opportunities as well as new challenges thought to be conflict scenarios that offered R-APC opportunity for mastering the how’s of modifying a host of approaches for practical and effective application. Conflicts were often related alleged criminality as well as to how property should be (re) distributed within small to medium sized businesses. The commercial and workplace caseload was significant and growing. But during this time period the Russian criminal world began to influence, infiltrate, and “assume” various past heavy-handed functions of the State, i.e., fulfilling the functions of solving conflicts by their own raw means for their own benefits. Soon R-APC's involvement in the commercial sector decreased because the business world began becoming “closed” to outsiders.
Following the 1998 economic crisis in Russia a new situation occurred which was connected with the “industrial revival.” R-APC’s conflictologists again received an opportunity to work at the plants where the distribution of property had been completed, and the managers of the plants and enterprises no longer had to worry about equipment confiscation and resale; they could now focus upon the organizational issues of the production and distribution processes.
R-APC’s scope of conflicts in the business sphere is quite broad and varied: .
Owners vs. owners;
Owner vs. top management; and
Top management vs. employees [non-contractual personnel].
Almost 200 hundred business mediations were conducted at manufacturing plants, and 75 mediations were conducted in small and average businesses, which were mainly cases involving sole proprietors and the commercial activities of vendor or consumers. Mediations related to labour conflicts were not often in R-APC’s domain. The jurisdiction of trade unions belongs to State agencies that specialize in such cases.
As stated above, business mediation opportunities came and went ––– and later returned. During the “closed” period R-APC / CRC turned its attention to communal-interpersonal conflicts in four (4) basic groupings:
Neighbours in communal apartments;
Adult family conflicts;
Heritage right of property; and
Parent(s) and children
Actually, the arenas of interpersonal conflict were excellent in that they served as a practicing laboratory for the still evolving profession of conflictologists: (a) there existed an ample caseload; (b) cases often contained complex fact patterns and/or were multiparty in nature; (c) many cases were emotional and volatile; (d) cases rarely directly related to national, social or political facets or variables; (e) disputants informally spread good words about R-APC’s service, and even on occasion would produce broad publicity.
Of the four (4) groupings within the interpersonal category the most frequently occurring type case was the neighbours in communal apartments, and reflected many specific concerns and conditions existing in Russia’s urban areas. For example, St. Petersburg inherited from the Soviet’s City of Leningrad [now the City of St. Petersburg] period vast numbers of communal apartments that housed unrelated families. But in post Soviet years the apartments became privatised, thus causing social, legal, and political disorder with regard to interpersonal relations, the ownership of real property, and the division-occupation of space itself. Rural areas were not spared: Whose cow and whose plow ––– and whose fields, and whose out buildings, and whose house and/or its content were all common issues in dispute.
Adult family conflicts are between spouses or relatives seemingly did not / do not vary much throughout Russia or from what is found in most other nations, i.e., perceived attitudes, values, behaviours, economics, residuals from past situations, and life’s dissatisfactions.
A separate group of conflicts related to disputes between relatives associated with the (re) distribution of property and inheritance rights of property. These conflicts were quite new for Russia, and are the results of adopting and applying new laws in the realm of private property rights.
The final grouping in this category were cases involving parent(s) and children caused by rapid social change associated with the changing roles of the family in the new society; role of women in the family as well as in the new society; basic and fluid values in the new society, i.e., rights and responsibilities; new consumerism; western influences; school performance; peers; and use of leisure time.
R-APC mediated, analysed performance, conducted evaluations, recorded findings, and mediated some more. While R-APC and the CRC feel a justifiable degree of success with an 85% settlement rate and a 91% compliance rate R-APC remains ever conscious that success is not at 100%, thus it seeks to find out why ––– and then to do something about it.
DATA GATHERING and ANALYSIS:
Of the 600 random mediation cases examined approximately 70% are interpersonal-communal; 20% are business; 8% are labour; and 2% are miscellaneous, i.e., rightful owner of a dog, various types of accidents for which reimbursement of related expenses and/or general compensation, and youth behaviours.
Documentation Objective, clear, accurate, complete, consistent, and up-to-date information in each case file plus observations and credible reflections are the tools utilized by R-APC. Each case file included (a) intake and basic interrogatory forms; i.e., information that outlined known specifics of the case; (b) initial thought as how to proceed; (c) the disposition of the case [i.e., resolved with a copy of the parties’ complete agreement, or with possible unresolved referral]; (d) analysis with conclusions by the mediator as well as supervisor if applicable; and (f) recommendations as to how to address identified problems or similar dilemmas in the future. Additionally, the files contain responses acquired from the disputants on three (3) separate occasions:
• Immediately upon the conclusion of the final mediation session
• One month later
• Three months from the final session
These surveys address the disputants’ general feelings of (a) the process, (b) the mediator’s impartiality and competency, and (c) the level of satisfaction with the outcome. Whereas the parties are not obligated to provide post settlement responses, and due to the anonymity principle for the protection of disputants and mediators alike the later survey is the most difficult to administer.
Monitoring the durability of settlement agreements was performed directly and sometimes indirectly. Either way, the response level was not as high as R-APC would have liked. For example, although R-APC would request the disputants to voluntarily telephone staff within a month regarding compliance factors of the agreement the success rate of this monitoring process was only 20%. R-APC did much better when it performed the one-month follow-up evaluation survey call. However, whenever a settlement agreement appeared to be broken the aggrieved party would call R-APC in quest of advice or additional direct assistance. Occasionally R-APC staff would receive feedback indirectly from relatives, neighbours, or friends. Nonetheless, all information entered the case file.
Although R-APC maintained normal records of all mediations, staff provided detailed attention to those cases that did not settle and those cases in which settlement agreements were not fully implemented or were aborted. To further explore such scenarios R-APC employed additional review of file information such as (a) disputants’ responses to the immediate post session interview, particularly with regard to questions and concerns about their procedural, substantive, and psychological satisfaction levels [see above] on the part of client users, mediator, and observer/supervisor which they recorded in post session standardized questionnaires; and (b) an honest and objective research to determine personal characteristics of the disputants, i.e., age, gender, marital status, educational level, occupation, socio-economic status, nature and length of relationship between disputants, nature and seriousness of the complaint, attitude regarding the effectiveness of the mediation process, behaviours within the mediation process, etc. None of this information was used to ignore or to explain away any errors or deficiencies on the part of the mediator. R-APC was then as it is now ––– committed to identifying and addressing verifiable factors and reasons.
Demographics
Evidence clearly indicated that as a whole client users with higher levels of education or specialized training and/or with previous judiciary or similar administrative experiences [such as with personnel matters, or in schools, or with law enforcement] (a) better understood the mediation; (b) held a higher degree of confidence in the process; (c) were more active in participating in the session(s); and were (d) instrumental in developing and reaching agreements than those disputants who had a distinctly different profile. Without dispute, there were many exceptions to the previous statement thus no tautology is even suggested! Other demographic information proved “interesting” but how useful such data are still remains debatable among us. Based on R-APC’s data the mediation process was most promising among persons between ages 15-22 and 30-35; with women; persons not in the teaching or legal professions, not having a significant difference in their social status, not strongly oriented to power, and not attached to their last experience of conflict resolution. Yet as R-APC took critical examination of specific “case failures,” if you will, patterns of correlation did not exist as they do prevail in the explanation and attributes for success. There had to be other explanations.
85% SETTLEMENT RATE: WHY 15% DID NOT SETTLE?
According to R-APC’s research and statistical analysis parties didn’t achieve a settlement agreement in 15% of the cases despite their previously stated intention to resolve their differences. If the answers to this dilemma do not rest in a reliable disputant profile [above] ––– then what are the case elements or process components or skill factors which contribute to the dilemma? The findings below are not based upon theory, but upon the (a) clinical observations documented by R-APC mediators, (b) review of evaluations and surveys analysed by R-APC staff and the authors. In order to make the research finding “live” the authors have determined that it is necessary to provide numerous vignettes accounts of actual cases to illustrate specific examples.
The findings listed below are neither in order of frequency nor designated by percentage of frequency.
Case Complexity
Sometimes cases were too complex ––– particularly in business disputes with regard to new laws and accounting procedures ––– for either the disputants and/or the mediator to unravel, understand, and conduct effectively within the time frame which both parties were willing to dedicate to the mediation process. A useful tool for case analysis developed and taught by R-APC’s American CRI partners appears below in an abbreviated grid for identifying five (5) distinct categories of causal factors of conflict:
Data factors which were exceedingly technical, incomplete, and conflicting with regard to accuracy, interpretation, relevancy, non verifiable, and on occasion simply data resource overload;
Structural factors regarding law, policy, practices, job descriptions, workload, equipment usage and jurisdiction, time and price schedules, lines of command and accountability, and so forth;
Value factors of a personal, cultural, professional, political, ethnic, religious or gender nature pertaining to virtually anything but most often related to one’s operative definitions of a work ethic, morality, fairness, sensitivity, responsiveness, accuracy, efficiency, and circumstantial practicality as well as situational ethics;
Relationship factors best described by adjectives, i.e., functional, dysfunctional, compatible, in/compatible, respectful, disrespectful, responsive, non responsive, sensitive, insensitive, accessible, inaccessible, trusting, non trusting, volatile, etc.; and
Behavioural factors, namely, who did or didn’t do what, how, when, with or without due cause.
Anyone of these factors could contribute to the making of a protracted conflict such as with a boundary dispute (structural) between communes or nations or with one’s job description or even “one’s space” in an office setting. A series of complexities could make mediation very difficult if time, patience, persistence, and commitment are low in quantity and quality on the part of any of the parties ––– or due to miscomprehension on the part of the mediator.
- Case Not Mediatable
On occasion one or more of the disputants were actually profiting from the status quo, and feared any resolution that had to be based on full disclosure would be very costly. There may be pain in the conflict, but possibly even more feared from a resolution. While the reader’s mind might easily turn to a commercial dispute the authors wish to provide an actual interpersonal example from R-APC files.
A young couple asked for a mediator’s help. After three years of marriage this couple remained childless. The wife had her health checked and it was concluded that she was not the reason. Her husband promised her that he too would go to a doctor, but he didn’t for a long time. After many attempts to encourage him to go, the wife refused to have intimate relationships with him until he visited a specialist. This celibacy lasted for two full years. Nevertheless, both spouses wanted to save their marriage. The husband loved his wife and valued her; the wife liked his warm character, his help with housework, and their shared social and political interests. During a caucus the husband disclosed that he had already visited a doctor, and was told about a high probability of infertility. Because the wife very much wanted children the husband feared she would leave him if she learned of his condition. The husband knew that his wife had acquired a boyfriend [she believed that her husband didn’t know], but he preferred the current situation instead of a divorce. Attempts failed to consider an alternative to having a child, e.g., adoption. The parties preferred not to make any agreements, but to keep living through the current situation.
- Dispute Was Not Yet Ready-Ripe
On occasion one or more of the disputants were “not yet through conflicting upon the other(s)” ––– (a) disputant(s) still had depths of the hurt, anger, suspicion, mistrust, sense of betrayal or a desire, need or value for vengeance was still strong thus causing high degrees of worry, discomfort, disruption, embarrassment or even the wanting ness to cause irrevocable harm was deemed necessary if justice was to be achieved; (b) disputant(s) had not fully assessed the possible consequences of a protracted conflict or actual impasse upon themselves; and (c) disputant(s) didn’t trust outside intervention of any kind coupled with the fear of a loss of power which could result in harm against them.
- Emotional State
A party may have been apathetic, and felt nothing in terms of responsibility, sorrow, or regret. Or, on the other hand, one’s anger or hurt was too much of an obstacle for the mediation process to over come ––– perhaps even exceedingly intrusive or disruptive. There was no “break through”; there was no sense of hope.
- Dispute Was Old, And On The Road To Inevitability
Below is an example of a case that wined its way through cumbersome internal personnel and external legal processes while building political support that sought a “win” or at least a precedent.
A railway cashier received a sharp reprimand and a financial penalty from her Chief for her mistakenly arranging a ticket that could have resulted in monetary losses [even though the loss didn’t occur]. Not satisfied in discussing this issue with the Chief, the cashier lodged a claim against him in Court. Her Chief’s own legal consultant believed that she would win, and thus recommended that she receive monetary and moral compensation. The Chief asked for mediation. The insulted cashier who was actively supported by the working collective and the labour union didn’t want and/or was politically able to withdraw her claim. This conflict possessed a deep principle. Guess what happened in Court and the resulting impacts on the employment relationship.
- Revenge Was The Primary Goal
Revenge may be a very powerful factor in preventing disputants from developing resolve. Perhaps a party wants to take revenge, but may imitate a readiness to resolve the situation by misusing mediation as one more possible way to torture the victim by causing “neurotic swings” between hope and desperation. The avenger also often suffers in this situation, but is ready to pay the price for a chance to hurt the other party ––– again, and again.
Fifteen years ago a young attractive woman refused to marry her fiancé. Instead she “jumped into a marriage” with another man. Several years later, already both divorced, they met again and renewed their romantic relationship. The woman became pregnant, but her partner immediately told her that he didn’t want children, and that he would not regard the child as his own. Nevertheless, the woman decided to bear the child, and promised not to ask for any support from the child’s father. She raised the son alone while experiencing significant financial and other difficulties. Everybody carefully hid the child’s birth secret. The father often visited the home but always seemed non-attentive and angry. Constant emotional tension caused his nine-year-old son to despise “that man.” The child developed many emotional problems as well as difficulties at school. The mother asked for a mediator’s help to try to regulate the adult relationship and to receive paternal financial support during crisis situations, or at least to borrow money from her child’s father who had recently received a significant inheritance. The situation appeared hopeless. In separate caucuses it was revealed by the man that he was glad the woman had such problems; and in the woman’s caucus she stated she was proud that she was not obliged to him.
- Parties Didn’t Have Enough Resource Capability or Will For Resolve
At times one or more parties easily developed and exchanged promises ––– sometimes prematurely without taking a prior inventory of “what will it take” in order to determine either the full costs or the availability of potential resources [time, money, energy, etc.] or did not think of the practicality of such usage. Perhaps a party had the commitment but not the capability or authority which would have had to be conferred by superiors or constituents. Or perhaps the party had capability, but not commitment. In any case “the promise” was not a promise but a mere intent, or a premature utterance, or a lie.
A mother was trying to establish a good relationship with her son, often by accommodating his demands. Her parental style was awkward, difficult, and confusing since she displayed inconsistencies in trying to fulfil her promises to her son and to her husband to whom she had committed to being strict in raising their son.
There was a conflict between the working collective and a local Section Chief when he gave the order to the Personnel Manager to employ a new associate from outside the collective. The new person had lower qualifications than an existing staff member who had prepared for the promotion to the vacancy. It was impossible to get a substantive agreement in the mediation because it was revealed that the new person was a protégé of a superior level manager. It was impossible for the local Section Chief to ignore this order; and felt he had to hide the fact that he was not delegated responsibility to resolve the problem in the rightful manner that it deserved.
- The Power Party Was Not Present
The real responsible “power party” sometimes choose not to be directly involved in the mediation process, yet actually choose to exercise her/his social status, political influence, organizational authority, or brute force such as implied threats to “resolve” the problem situation.
Several high school male students were “written up” in police records. The school’s principal then relocated the students to other classes as a punishment for their misbehavior with other children. Mediation between the parents, both groups of children, and the principal was held. One of the boy’s fathers was a high status official, and he began to pressure the principal and the police. The principal became scared, and began to resist mediation sessions by way of administrative excuses. No agreement was made.
- Fear of Appearing Weak
R-APC experienced situations where a party sincerely relied on “the honour of the tunic,” i.e., one’s professional or social rank and responsibility, and how even consideration of his/her participation in joint problem solving would adversely affect one’s own credibility or that of the position held.
- Long-term Experiences of External Resolution Resources One or more parties may have had an idea that conflict resolution was not their responsibility. They expected somebody else to resolve the matter.
A 50-year-old wife was used to being successful in influencing her meek husband to seek and utilize State support programs to force him to better provide benefits to her and to their family. She even managed to receive his salary instead of him. Then she had him committed to a mental hospital. During the next ten years they lived together ––– then separately from time to time. The husband was very comfortable in complying with somebody else’s decisions. It was impossible to develop or acquire any truly mutual agreements in the mediation process.
- Basic Interests, i.e., the Underlying Principles, Are Fully Opposite
One of the typical examples of incompatible basic interests in Russian culture is the issue of power, a tendency to force persons to respond to even senseless orders ––– not for business success ––– simply because obedience is a demonstration of submissiveness to one’s authority.
The Chief of several commercial bank affiliates often demanded his lawyer penalize certain subordinates who, in the lawyer’s opinion, were not guilty or their “fault” should have been made void because they complied with prescript orders. A permanent tension between the two men as well as within the collective developed, and it negatively affected the organization’s efficiency. Attempts failed to settle this situation because the Chief believed that his “view is better from above,” and he insisted that the lawyer’s responsibility was to find ways to fulfil the Chief’s directive ––– even if in violation of law in some way which shouldn’t be a problem for a real legal specialist. Because the attorney was afraid of losing his profitable and prestigious job the fragile modus operandi of the organization was maintained despite dissatisfaction throughout the business.
- Irrational Demand
Parties sometimes were unreasonably stubborn ––– and they stayed that way. Evidently they viewed negotiations as simply pronouncing “first, fair, and final offer” ultimatums, and when asked why and how could the opposing party comply with such a demand their usual response was “That’s not my problem!” Such stances were viewed as insensitive and insincere offers, and made with the intent to manipulate or to coerce.
The Chairman of the Community Council made an illegal written addition in the protocol book to resolve a political issue. One of the Deputies from the political opposition supported by the rest of the Deputies threatened to inform newspapers unless the Chairman appointed him to occupy the vacancy of the Budget Commission Chairmanship. During mediation both persons developed and presented unrealistic demands. They made tentative agreements, but always cancelled them at the next mediation session. This activity was repeated again and again. Mediators concluded that the parties were stretching time to resolve the issue of power as each tried to attract more followers and to gain support of public opinion.
- Rigid Cultural Stereotypes
This factor is self-explanatory and relates to gender, age, religion, race, ethnicity, nationality, regional demographics, occupation, and even life styles. The prejudices range from distrust, stupidity, laziness, undisciplined, or fear of “social contamination” by association.
A St. Petersburg automobile repair company provided low quality service on a woman customer’s vehicle. She persuaded the firm’s manager to participate in mediation. Almost at the beginning of the session he stopped the mediation efforts in order to agree to all demands. It was later learned that the manager fully accommodated because he perceived the dark complexioned mediator from Moscow was really a criminal representative. However, in other cases similar suspicions also lead to distrust of both the mediator and the process thus resulting in no agreements.
- Empty Offers
In order “to win” the conflict sometimes one of the parties tried to show willingness by offering resources such as money, products, connections, etc. which later proved to be baseless in terms of capability or willingness. The bluffing party was simply engaged in making false resolutions for self benefit in terms of time, temporary relief, money, or the wearing down of the other party through continual conflict aftermath.
- Use of Caucuses
While we practitioners of mediation understood the value of caucusing some parties resented such private sessions that the mediator held with the opposing disputant(s). Confidential? “That means secret, and we’ve had too many secrets during our Soviet experiences.”
- Written Agreements
This factor occasionally served as an obstacle to attaining settlement agreements, and had to be historically and culturally understood:
(i) Historically, Russian merchants sincerely yet casually promised each other only by word of mouth. A merchant’s word was a guarantee to any agreement as a rule of commercial dignity and integrity. The only case in which they had to sign a paper was the case in which merchants/business people did not trust each other. Thus, in a lot of cases in the process of mediation parties find the necessity of signing any kind of agreement offensive, as an indication of mistrust, and reason not to participate in the process.
(ii) For a long time part of Russia’s general non commercial public’s mentality seemed to dictate in saying one thing but doing something else. Such historical-cultural experiences often lead to the conclusion that signing an agreement is unnecessary for such a gesture does not guarantee fulfilment of the agreement.
- Settlement Provisions and Language
Whether it be educational level, fear and trembling of written forms, residuals of the conflict, mistrust or offence to signing settlement agreements, or other reasons such as the existence of a historical paper record and its possible legal implications in the future ––– whatever the reasons, some disputants were unable or unwilling to gain closure by differentiating the emotional aspects of the conflict from a rational resolution as articulated in the specific and clear terms of settlement. So, it didn’t happen.
So, fifteen percent [15%] of the time within R-APC’s first thirteen years [1993-2005] of operation of its CRC mediation and other intervention programs [see above] no settlement agreements were consummated due to one or more of the above sixteen (16) factors. Why is it that R-APC can help the parties create a breakthrough some of the time, but not at other times? R-APC is not yet sure of the answers, but at least it has identified the most common circumstances. Below the authors discuss what R-APC intends to do about it. But first there are additional findings to report.
91% COMPLIANCE RATE: WHY DID 9% FAIL?
Upon review of the case files as described above coupled with R-APC’s reflective conversations with disputants, mediators, and supervisors the most common reasons have been identified for the predicament of non-compliance of settlement agreements. The findings listed below are neither in order of frequency nor designated by percentage of frequency. Again, In order to make the research finding “live” the authors have determined that it is necessary to provide numerous vignettes accounts of actual cases to illustrate specific examples.
- Not All Issues Identified . . . or if so, not addressed and resolved
Without excuse or a sense of defensiveness R-APC acknowledge this condition is a result of the mediators not always being fully vigilant and thorough. R-APC and its CRC staff inarguably have the responsibility to assist the parties in (a) identifying and agreeing on the exact descriptive wording of the issue agenda, (b) determining the general sequence of the order for address, (c) addressing each issue and acquiring proper closure, and (d) resisting temptation to ignore or to dismiss issues without obtaining agreement as to why “disposition of issues by omission” would be appropriate – or acceptable. An incomplete settlement invites non-compliance and will likely cause conflict aftermath, i.e., the resulting ripple effects and latent functions of the conflict.
A mother had a conflict with a university's administration representative because of his refusal to refer her 17-year-old son to the university from a factory, a normal practice to prepare future specialists. The problem was mediated, and the parties appeared satisfied with the agreement to provide such a possibility to the youngster to obtain a proper referral for the specific enterprise profession coupled with his obligation to return to work at the enterprise. Later the mother learned that other students were receiving financial support from their respective enterprises. She wrote a number of complaints to upper level managers that put her previous settlement agreement partner into a very difficult position. The reopened conflict was escalated, and became very personal with accusations of deception and ungratefulness.
