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DEBORAH M. KOLB* Roles Mediators Play: State and Federal Practice MEDIATION HAS BEEN STUDIED extensively by economists and social and behavioral scientists using a broad range of theories and methods. Despite this diversity and intensity of investigation, no satisfactory general theory of mediation has been developed. The formal surveys and interviews (Weschler, 1950; Landsberger, 1960; Indik et al., 1966; Kressel, 1972) designed to measure mediator characteristics conclude that mediators pos- sess attributes and attitudes conducive to the successful pursuit of almost any endeavor. Laboratory studies (Johnson and Tullar, 1968; Podell and Knapp, 1969; Pruitt and Johnson, 1970; Vidmar, 1971) simulating the effects of third parties and their strategies on bargaining behavior eliminate (by design) those attributes practitioners claim are most critical to the process: the negotiating history, the types of parties involved, and the wider bargaining environment. Observational studies of mediation have empha- sized only particular elements-the use of pressure (Lovell, 1952), group leadership processes (Landsberger, 1955), and the psychological dynamics of spokesperson behavior (Douglas, 1955,1957,1962). None has examined explicitly the mediator’s in situ perspective on the process. In the most ambitious project to date, Kochan and Jick (1978) employ a multidisciplinary framework to integrate some of the disparate theoret- ical (Stevens, 1954, 1963; Kerr, 1954) and empirical findings (Kressel, 1972) and relate these to outcome measures. Whereas mediators describe each case as unique, populated by different people, issues, and circum- stances, Kochan and Jick’s empirical model postulates “objective,” external, and more or less general characteristics of the dispute that presumably distinguish one type of case from another and suggest to the mediator what strategies to use. The question left unanswered is whether an analytical map (even when constructed from earlier studies of attitudes and perspec- *Assistant Professor, Organizational Behavior and Industrial Relations, Simmons College. INDUSTRIAL RELATIONS, Vol. 20, No. 1 (Winter 1981). 1981 by the Regents of the University of California. 0019/8676/81/215/1/$1.00 1

Roles Mediators Play: State and Federal Practice

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Page 1: Roles Mediators Play: State and Federal Practice

DEBORAH M. KOLB*

Roles Mediators Play: State and Federal Practice

MEDIATION HAS BEEN STUDIED extensively by economists and social and behavioral scientists using a broad range of theories and methods. Despite this diversity and intensity of investigation, no satisfactory general theory of mediation has been developed. The formal surveys and interviews (Weschler, 1950; Landsberger, 1960; Indik et al., 1966; Kressel, 1972) designed to measure mediator characteristics conclude that mediators pos- sess attributes and attitudes conducive to the successful pursuit of almost any endeavor. Laboratory studies (Johnson and Tullar, 1968; Podell and Knapp, 1969; Pruitt and Johnson, 1970; Vidmar, 1971) simulating the effects of third parties and their strategies on bargaining behavior eliminate (by design) those attributes practitioners claim are most critical to the process: the negotiating history, the types of parties involved, and the wider bargaining environment. Observational studies of mediation have empha- sized only particular elements-the use of pressure (Lovell, 1952), group leadership processes (Landsberger, 1955), and the psychological dynamics of spokesperson behavior (Douglas, 1955,1957,1962). None has examined explicitly the mediator’s in situ perspective on the process.

In the most ambitious project to date, Kochan and Jick (1978) employ a multidisciplinary framework to integrate some of the disparate theoret- ical (Stevens, 1954, 1963; Kerr, 1954) and empirical findings (Kressel, 1972) and relate these to outcome measures. Whereas mediators describe each case as unique, populated by different people, issues, and circum- stances, Kochan and Jick’s empirical model postulates “objective,” external, and more or less general characteristics of the dispute that presumably distinguish one type of case from another and suggest to the mediator what strategies to use. The question left unanswered is whether an analytical map (even when constructed from earlier studies of attitudes and perspec-

*Assistant Professor, Organizational Behavior and Industrial Relations, Simmons College.

INDUSTRIAL RELATIONS, Vol. 20, No. 1 (Winter 1981). 1981 by the Regents of the University of California. 0019/8676/81/215/1/$1.00

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tives) matches a mediator’s perspective while he is at work on a case. If we take the predictive power of this model as an indicator of its match to practice, the answer would have to be no!

An alternative approach to building theory about mediation involves recognizing the artistic and strategic essence of mediation and the pivotal role of the mediator, who as a social actor consciously defines his role in the case and shapes the process to fit his own instrumental and expressive objectives (Mead, 1934; Goffman, 1959; Blumer, 1969). The object of this approach is to see the process from the mediator’s viewpoint, to learn the bases upon which he interprets case situations, and then to infer how, when, and why he takes the actions he does. Further, since the majority of full- time labor mediators are employed by government agencies, the study of their practice can best be accomplished by comparisons not just among the individual practitioners but across agencies, cases, and settings as well.

This article presents an overview of a participant-observation study of a total of 31 mediation sessions conducted in some instances by mediators from a field office of the Federal Mediation and Conciliation Service and in others by mediators from a state agency? The results indicate some rather surprising differences in approaches to mediation. Briefly, each agency has its own distinctive brand of mediation. On the basis of observations and the associated explanations the mediators provided for their activities, the role of the mediator emerged as the factor that most distinguished the two approaches. The state mediators act and describe themselves as “deal- makers” while the federal mediators act more as “orchestrators” of the process. These role differences are apparent throughout the cases - in their structure and in the types of strategies the mediators employ to help the parties resolve their disputes, Analysis of the organizational contexts in

‘In a recent study published after my work was completed, Cerhart and Drotning (1980) attempt to model mediation by examination of the link between objective attributes of a case (dispute difficulty) and retrospective measures of mediator style (intensity) and relate these to outcomes (settlement stage). This model like others that precede it neglects the mediator’s perspective, the intentionality that drives his actions and, as a result, findings need to he qualified by what practitioners, Gerhart and Drotning among them, know to be the mediator’s reality. Their data indicate that an intense mediation style results in settlement at an early stage and is therefore more effective in both easy and difficult cases. But these findings are qualified by their observations that mediators have compelling reasons for adopting the posture they do, i.e., whether they judge that such tactics will he successful. For example, to be less intense may be more effective when the mediator judges that a case is destined for further steps. To do otherwise may severely damage the mediator’s credibility with parties he expects to encounter again. To model any match between dispute attributes and mediator tactics, analysts need to build into their models the practicing mediator’s in situ map of the case, otherwise the results of such work will continue to depart from the real world of mediation and have limited impact on Practitioners and policymakers.

*I would like to thank John Van Maanen and Lotte Bailyn especially for their comments, assistance, and support on this paper. They, as well as Edgar Schein, Charles Myers, Abraham Siegel, and, more recently, Robert McKersie, have been important sources of insight and encouragement. The mediators who gave generously of their time and energy to “teach me their craft” deserve my special gratitude. The full report of the findings of this study are in the author’s doctoral dissertation scheduled for com- pletion in Fall 1980, Sloan School of Management, MIT.

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which these state and federal mediators work suggests that differences in agency history, modes of organizational socialization, and interactive struc- ture may provide the most compelling explanations for the divergent approaches to practice.

Research Setting and Method Mediation in the United States is practiced by a wide variety

of individuals, among them, lawyers, professors, clergy, and arbitrators. However, the full-time practice of mediation is confined largely to mediators employed by the Federal Mediation and Conciliation Service (FMCS) and various state mediation and conciliation agencies. One state agency and one field office of the FMCS were selected as sites for this comparative study.

The state agency is housed administratively within the state's labor department. The staff consists of nine mediators who work mainly in the public sector, and occasionally join FMCS mediators on cases involving major employers in the state. Six mediators work from the FMCS field office which is geographically separate but administratively part of the regional office. Under the National Labor Relations Act and subsequent amendments, the jurisdiction of the FMCS covers private employees en- gaged in interstate commerce, federal government employees, and workers in private, nonprofit hospitals and other allied medical facilities. The nine state mediators participate in roughly 450 cases annually; the six federal mediators convene approximately 350.

Over a two-year period, I was a participant-observer in these two agencies. I frequented the offices, met informally with mediators, trainees, and parties to disputes, reviewed old cases (from the official records, pencilled notes, and retrospective discussions), attended some training seminars, and social- ized over numerous luncheons and dinners. To study mediation practice in situ, I observed five state and four federal mediators in 31 mediation sessions covering 16 cases (of which 12 were observed from start to f i n i ~ h ) . ~ Although the mediators and parties knew of my research purpose, we agreed that I could best learn their approach to the practice of mediation if I were treated as a trainee. I reviewed the historical records, learned all the mediator knew about a case prior to its start, and discussed proposed

"The number and occupational type of the observed cases may be summarized as follows:

Industrial workers 3 Teachers 5 College employees (nonprofessional) 1 Firefighters 2 Nurses 1 Housing workers 1 Broadcasting staff 1 Other educational workers 2

FMCS State Agency

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strategy for the case with him. During the sessions, I was present at all the meetings and caucuses, including many that took place “off-the-record.” When lulls occurred, the mediator and I discussed his view of the case, the “readings” he made of the issues, positions, and people, his plans for the next move, and his analysis of the one just past. The data comprised well over 1,000 pages of notes and partial transcripts. Analysis proceeded accord- ing to categories the mediators use to order a case (assessment of the parties; learning the issues; gauging movement; and encouraging movement), the observations I made on the number and types of meetings, and on the descriptions of roles and processes the mediators gave the parties. Frequen- cies (counts) of actions and mentions were crudely tabulated according to these categories; comparisons of the frequencies yielded many of the differ- ences discussed here.

Patterns of Mediation Practice State and federal mediators see their roles in fundamentally

different terms. State mediators describe themselves as “dealmakers”: I am here to make a deal. Negotiations are over as far as I am concerned. I refuse to play a passive role and just let the parties talk. I will not be a messenger either. First they have to convince me and then we will see what I can do with it.

Federal mediators see themselves more as “orchestrators” of a negotiating process : My role is to help the parties reach a settlement. I am just a third party, another forum to talk about your differences. I want to develop a dialogue on these open issues and hopefully reach an agreement but the burden of reaching that agreement rests with the union and management.

These differing role conceptions reflect different theories each group of mediators holds about how disputes between the parties will be resolved. State mediators typically believe that a successful outcome (an acceptable deal) is a direct result of their efforts to produce the elements of that deal. State mediators credit their knowledge of other settlements in the geograph- ical area, their understanding of the proper language in common contractual clauses, their ability to gauge the components of a “reasonable” package, and their talents for explaining and persuading the parties to agree to the package as key factors in a dispute settlement. For the federal mediators, in contrast, settlement is achieved by providing the parties with a forum to “explore their differences” with only intermittent, well-timed “injections of reality” or “input” from the mediator. Whereas state mediators emphasize their contribution to the substantive development of the final package, the federal mediators stress the process by which the parties are able to reach agreement.

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The roles of “orchestrator” and “dealmaker” are realized only as the individual mediators enact, embellish, and articulate them. There are observable differences in the types, emphasis, arrangement, and timing of the strategies used by the federal and state mediators. Space permits dis- cussion of just a few types of strategies? Those selected- structuring the sessions, reducing the issues, and helping the pro - most clearly illustrate the contrasts in strategic usage.

Structuring the session. Mediators convene meetings and caucuses as part of their procedural function (Simkin, 1971). But in the arrangement of these meetings - types, sequences, and timing- a case structure evolves. The case structure is most often of the mediator’s design and is seen by mediators as a strategic element that is frequently as important as the more directive actions that are normally labelled strategies. State and federal mediators seem to favor different prototype meeting structures: “orches- trators” prefer a joint meeting approach, while “dealmakers” emphasize a separate meeting pattern.

The federal mediator’s pattern is initiated when the mediator “kicks off” the case with a joint meeting for the parties to introduce their positions and establish agreement about where they stand on the issues. The mediator follows the joint meeting with a separate meeting, usually with the “moving party,” which is in turn followed by a separate caucus for the development of a counterproposal. These proposals are then presented across the table in a joint meeting and so the process continues: meet with the mediator, caucus, and then exchange proposals across the table. The amount of time spent in each phase varies during the different stages of the case. The joint meeting pattern may vary with situational contingencies and, in certain circumstances (e.g., “flagrant antagonism and hostility” between the parties), it may be abandoned altogether. On average, 30 per cent of the meetings federal mediators convened were in joint session, 44 per cent were separate meetings with one party or the other, and 26 per cent were caucuses held without the mediator present?

In the meeting structure used by the state mediators, joint meetings normally occur only at the conclusion of a case, to review the agreement and rarely, except under extraordinary circumstances, during the case. Mediators learn the issues in dispute in separate meetings with the parties, remain with the committee while members formulate their proposals and counterproposals, and then carry the proposal themselves to the other

‘A full treatment of strategic usage is reported in the author’s dissertation, The Mediators: A Compar- ison of the Institutional Practice of Mediation (in progress).

SFor each case, the percentage of total meetings in a session that were joint, conducted separately with the parties, and held without the mediator present were calculated. The percentages are averages across each agency’s caseload.

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committee where the pattern is repeated. State mediators used joint meet- ings only 10 per cent of the time and conducted most of the mediation in separate meetings with the parties (74 per cent). Caucuses without the mediator present (16 per cent) are rarely initiated by the mediator, but are frequently requested by the parties (particularly as the dispute nears resolution).

In summary, the state dealmakers attempt to build a mediation structure that increases their access to information, their ability to influence the development of the case, and to push the settlement in the direction they perceive as favorable. In contrast, the federal orchestrators adopt a structure that minimizes a substantively active role for them and maximizes the opportunity for the spokesman to work with his committee and for the parties to confront their differences face-to-face.

Reducing the issues. According to both state and federal mediators, they frequently work with committees who come to mediation with long lists of unscreened demands from membership meetings. The mediators’ reac- tions to this situation differ by agency.

To the federal mediator, committees that come to mediation with “un- weeded” lists of demands demonstrate lack of preparation, a sure sign of inexperience. Before “real” mediation can begin, the number of demands must be reduced, so federal mediators instruct the “unprepared” committee to meet in caucus with their chief negotiator and develop a counterpro- posal that narrows the issues. One mediator described his reasoning for such an action: Is it better for me to go over that list point by point and pressure them to drop a demand or should I tell them to do it themselves? I tell them they have to do it. That way, I haven’t tried to convince them to change their positions on issues that may be unimportant.

The state mediators similarly view long lists of demands as evidence of a committee’s inexperience. But state mediators feel committees typically lack the sophistication, knowledge, and experience to drop demands them- selves without substantial prodding and pushing from the mediator. Bar- gaining committees need his assistance, the state mediator reasons, to decide what should legitimately go into subsequent proposals and what should be dropped along the way. To that end, in separate meetings, proposals are evaluated item by item. State mediators try to determine by direct question- ing the “rationale, commitment, and degree of flexibility” a committee attaches to each demand. The mediator tries to convince the committee to drop demands he perceives as “unrealizeable or lacking in merit.” One mediator described this strategy as “hammering.”

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I go over it item by item, asking them what they want. But as we go over it, I try to steer the proposal my way.

The differences in approach the mediators took to reduce the issues was reiterated many times in this study as they variously plied their strategies to get the parties to face reality, move off positions, and ultimately reach a compromise agreement. Typically, state mediators spend a great deal of their time pushing the parties to accept a particular plan or position. The federal mediators engage in considerably less cajoling; they tend to arrange the process so the parties convince themselves and each other of the best way to resolve the issues.

Helping the pro. Certain chief negotiators are labelled as “pros” by the state and federal mediators. Pros are distinguished by their experience and expertise in negotiations, their contact with mediators on many different cases, and the complementary relationships they enjoy with the mediators on a case. Though federal and state mediators designated spokesmen as pros with approximately equal frequency, they view the pro/mediator relationship differently.

To the federal mediators, the pro is an effective negotiator who is well- acquainted with the elements of a reasonable package and often better informed than the mediator about the local character of the issues in dispute. According to federal mediators, the development of a package is a process of narrowing issues and building commitment. The chief engineer of this process is the pro working with his committee-it is the pro who does the work of negotiating. He acts as a stabilizer, reasoning with his committee and recommending certain actions so that in successive waves of proposals each side can narrow the differences separating them.

Because the pro is an outsider brought in for negotiations and has, there- fore, only an intermittent relationship with the members of any given com- mittee, the federal mediator will explicitly assist the pro to gain and maintain the trust of his committee! Accordingly, federal mediators try to convey the impression that committee members are involved in all aspects of the decision-making to avoid having the members feel that a “deal between the pros and the mediator is being hatched behind their backs.” The federal mediators deliberately use tactics that encourage the parties to feel involved.

They learn and use the names of committee members. They rarely instigate off-the-record meetings, except for procedural matters. If

RHelping the pro is conceptually akin to facilitating “intraorganizational bargaining.” Strategies articulated by the mediators in the process of assisting the pro may further our understanding of intra- organizational bargaining outside mediation as well, since chief spokesmen may provide similar assistance to each other in the absence of mediation (Walton and McKersie, 1965).

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such meetings are held (frequently at the behest of the pro), plausible reasons are proferred first to the committee. When trust is deemed a problem, a pretended phone call or other artifice may be used as a subterfuge to enable the pro to meet away from his committee. During off-the-record meetings, in problem situations or not, time away from the committee is carefully monitored by the mediator and after “reasonable” lapses, he will often suggest that the pro return to his committee.

Helping the pro gain and maintain his committee’s trust is but one exam- ple of ways the federal mediator assists the pro. Other observed practices include calling attention to the pro’s expertise and role as leader‘ of the committee and responding to both verbal and nonverbal signals for assist- ance.

Whereas the federal mediators continually make references to these efforts to help the pro and, in fact, consider them a major component of mediation, the state mediators do not. Their relationship with the pro is quite different. When working with a pro, the state mediator expects to conduct a major part of the mediation in off-the-record meetings out of hearing of the respective committees. Because they are both knowledgeable in the prerequisites of a reasonable settlement, the pro and the mediator should act as a team and develop and refine a package that the mediator claims should on its “merit” be acceptable to the parties. The mediator, in concert with the pro, then tries to “sell” such a deal to the committees. The mediator/pro relationship, as seen by the state mediators, takes the form more of a reciprocal “informational-selling” relationship than as one where the mediator provides support to the pro. As one state mediator described his relationship to the pro: I need him to tell me what his group wants and he needs me to help sell it. If we get the deal we both look good.

The state mediators did not make the pro’s relationship to his committee a central focus of their mediation strategy. Quite the contrary, in their efforts to make a deal, the state mediators sometimes quite explicitly tried to isolate a reluctant pro. Pros who lacked authority to deal were often derogated before their own committees, and at times, in the presence of the opposition as well. One state mediator claimed that embarrassing a spokesman before his committee was a tactic he used to pressure the spokesman to adopt the mediator’s suggestion. State mediators say that the credibility of the pro with his committee, if damaged somewhat during negotiations, is rebuilt by a “responsive and fair” settlement that proves to the committees that the pro has served them well.

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Consequences of Mediation Practices Factors largely outside the mediator’s control - the economic

climate, public policy, and relative bargaining power of the parties -are often thought to have greater impact on bargaining outcomes than the actions of the mediator (Kerr, 1954; Kochan and Jick, 1978). Yet within the domain of the mediator’s activities, different approaches have consequences for how credibly and competently the mediator can fulfill his role.

The role of dealmaker, with its attendant attempts to control and manipu- late a strategic process whose outcome ultimately rests with the committees, seems particularly fraught with the potential for making mistakes that may threaten fragile conceptions of mediator credibility and competence. Deal- makers were embarrassed occasionally by their fallibility. One mediator told a committee that if they reformed their proposal in accordance with his suggestion, the opposing side would concur, but then found that the other side was not fully convinced of the proposal’s merit. There were also occa- sions where spokesmen agreed to deal but then failed to “deliver” and became, in the words of the mediators, “renegers.” The state mediators, in their role of active message carriers, often conveyed their interpretation of a committee’s priorities only to find that they had misunderstood and mis- interpreted these priorities or that the priorities had changed. In these instances, a mediator’s Credibility was compromised; parties openly chal- lenged him and questioned the utility of the mediation process itself. In the most extreme situations, a mediator’s position can be so damaged that he is relegated to the hallway, away from the action for the duration of the case.

Mistakes of this sort are rarely made by federal mediators because they assiduously avoid situations in which they might occur. On principle, these mediators do not promise that they can get something for the other side. They prefer across-the-table transfers of proposals to insure that positions are not misstated: “That’s why I want them to tell each other directly, so I don’t blow it in translation.” When forced to act as a message carrier, federal mediators made certain that all proposals, questions, or requests for information were carefully recorded. In one case, a final proposal was checked four times with the committee before the mediator carried it to the other side. This contrasts with the state mediators’ more casual efforts to convey messages sometimes without notes. This contrast is not one between sloppiness and punctiliousness, but reflects the different conceptions of who is responsible for the content of the messages.

Challenges to the federal mediators’ credibility come from other sources. In their effort to avoid possible errors and entanglements, the federal medi- ators sometimes appear passive and inactive. This is particularly true in the

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later stages of a case, when the parties (particularly if they are at a stalemate) seem to be waiting for a new idea or suggestion from the mediator, who, instead, expects the pro to make such suggestions. In several instances, the pro had no new ideas to offer and an awkward, uncomfortable silence ensued. The discomfort was not necessarily a problem per se, but the media- tor’s lack of suggestions was in obvious conflict with the official view he had given of himself as a creative problem solver.

Mediator Accounts The federal and state mediators are aware that their ap-

proaches to practice differ markedly. The accounts they give to explain their respective styles emerge from assessments they make about the types of third-party assistance the disputants require? But such assessments and diagnoses are highly subjective and not independent from the mediator’s own role and purpose in the proceedings.

The state mediators, who work primarily in the public sector, argue that the novelty of collective bargaining for these workers and employers, their multilateral bargaining structures, and the presumed absence of the strike compel thein to take an active teaching role. Specifically, state mediators regard both union and management as inexperienced in the ways of nego- tiation. Union committees exhibit their inexperience, according to the state mediators, in the preparation of unwieldy proposals (both in number of demands and probability of attainment) and in a tenacious attachment to positions over time. Similarly, management committees, to the state media- tors, are made up of political office holders and/or government bureaucrats who lack the experience and the flexibility to negotiate competently. A key indicator of committee members’ inexperience and the most critical justifica- tion for the state mediators’ activist (dealmaking) role is the way committees utilize their spokesmen. In these mediators’ view, inexperienced committees are reluctant to delegate negotiating authority to the pros who have the very bargaining experience the committee members lack. More specifically, an inexperienced committee is thought to control its spokesman in such a way that the pro’s leeway for making an off-the-record deal is severely limited.

The state mediator’s sense that committees are inexperienced, do not know their priorities, and do not give pros rein to act like pros serves to produce and continually reaffirm the state mediator’s rationale for his own role. He must “educatc” the parties about the realities of mediation.

:Accounts have a particular meaning in this context. They are the socially learned justification for action, as much a part of an occupational culture as the actions themselves. In terms of their contcnt, accounts typically serve to present actions as plausible, practical, and rational (Garfinkel, 1967; Lyman and Scott, 1970; Zimmerman, 1970).

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I am a teacher here. In the process of putting together this deal I am showing them what is a reasonable position and what is not, what comparisons they should make, what they should hold on to, and what they should trade. That way, the next time around, they will know how to do it.

Like their state counterparts, federal mediators consider union committees as typically inexperienced and therefore reluctant to “move” on their issues. Similarly, the inexperience of management committees is seen in their ten- dency to adopt a bottom line position early in the proceedings that inhibits, according to the federal mediators, the flexible exploration of issues. But, unlike the state mediators, federal mediators consider inexperienced com- mittee members to be the norm. Federal mediators point out that even with a long bargaining history, the infrequency of negotiations, coupled with turnover on committees and staff, leaves most members of a committee, management or union, with little opportunity to become expert. The federal mediators regard the pros as the experts. But because pros are often out- siders to the particular local or company they speak for, they need time, space, and assistance, all provided by the mediator, to establish themselves with their committee. He is a pro. He is moving that committee but you have to remember he has to live with them. He knows the settlements, but he has got a five-man committee and there is a limit to how much they can drop at any point.

The federal mediator accounts for his orchestrator role as a way to provide maximal assistance to the pro in his interactions with his committee, which in turn furthers the possibilities for settlement.

Agency Ideology and Mediation Practices Some researchers and, as noted above, some mediators have

argued that the nature of public sector mediation obliges the mediator to take an active, persuasive role as a substitute for the economic pressure that exists in the private sector (see Liebowitz, 1972; Robins, 1972; Kochan and Jick, 1978; Gerhart and Drotning, 1980). Inexperienced union and management committee members appear to place additional pressures on mediators. However, three lines of evidence from this study suggest that neither sector nor the varying expertise of the parties is a sufficient explana- tion for the differences in state and federal mediators’ practices.

First, state mediators are just as active, or so they say, in pursuing a deal in “cross-overs” or private sector cases as they are in the public sector. Similarly, federal mediators with experience in the public sector assert that they do not adjust their style to sector-“the recipe is the same, only the ingredients differ.” For the federal mediator, a forum is as appropriate in the public sector as it is in the private (Yager, 1974).

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Second, some of the federal caseload exhibits attributes associated with the public sector: workers in the health fields are characterized as equally inexperienced as public sector employees, and federal workers similarly are denied the right to strike. The basic federal pattern of role and strategies are just as common in these cases as they are in the more traditional private sector cases.

Finally, state and federal mediators view each other’s approach with disdain. Federal mediators describe state mediators as so active in their pursuit of a deal that they ignore the preferences of the parties and contin- ually demonstrate their naivete about how mediation works. In contrast, state mediators claim that federal mediators do nothing but let the parties meet. As one state mediator put it, “They don’t like to work with me because they think I take over and I do,” Given each group’s preference for its own modus operandi, the possibility that either would move in the stylistic direction of the other because of sector seems remote. Probably working on an ongoing basis in a particular sector has some influence on the character of mediation practice, but the impact of sector does not by itself satisfac- torily account for the observed differences.

Another, more sociological, explanation for the contrasts in practice can be drawn from an examination of the history, structure, and organizational culture of the two agencies. From their inception, the state and federal agen- cies had different conceptions of the role of mediation in collective bargain- ing. This historical divergence has widened over time, as new mediators come into each agency and learn the ideology and rules of practice that prevail there.

The FMCS’s present form as an independent agency with a highly decentralized regional and field office structure dates from 1947 when the agency separated from the Department of Labor to preserve an atmosphere of neutrality. Though other services, such as arbitrator referral, are part of the FMCS’s mandate, these are handled by a separate administrative structure.

The state agency was a response to the increasing numbers of strikes and lockouts which occurred in the late nineteenth century. In the early years, itinerant agency members, empowered to mediate, conciliate, and arbitrate, traveled the state freely doing what they deemed necessary to resolve disputes. Typically, the agency member would mediate first and then render an arbitration decision if mediation failed. It was not until 1938 that a structural distinction between mediation and arbitration was made: mediators were hired solely for that function and the politically appointed board members confined their activities to arbitration. (Moran [ 19681 notes, however, that the distinctions between these third-party techniques remain

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blurred.) The state agency’s position within the State Department of Labor and the appointment of the mediators by its commissioner historically have given rise to allegations of patronage as the overriding criterion for hiring. Comments from other practitioners and the parties themselves suggest that the historical blurring of dispute resolution techniques and the political overtones of the agency are still live issues in perceptions of state-run mediation.

The historical contrasts between the two agencies yield in the present day to differences in how new mediators are recruited and trained. Typically, federal mediators have considerable negotiating experience prior to joining the FMCS. Potential mediators are often recruited by practicing mediators from the ranks of the pros. The FMCS admission process is lengthy and stressful. Applicants are screened first at the regional and then at the national level. The commitment of the trainee to the Service and his accept- ance of the FMCS’s procedures are tested in a number of ways. During an open-ended probation period, trainees are paid at a level well below their previous salary. One trainee discussed other aspects of this “testing.” There are other ways besides the money that they test to see whether you can make it. They want to see how we and our families take the traveling. They want to see you deal with sitting around-can you handle those 24 hour sessions while you spend a lot of time twiddling your thumbs while the parties caucus?

The person selected for training by the FMCS develops a sense of profession- al importance and elitism. From the FMCS’s viewpoint, those selected (6-12 per year) are individuals most likely to fit the role of the federal mediator.

The state agency has no formal selection criteria; the people who work there have diverse occupational backgrounds. Most of the older mediators entered the agency under the provisions of Civil Service and had no prior experience in labor relations. No longer covered by Civil Service, some of those more recently hired have come from union backgrounds and were brought in directly by the labor commissioner. Only two of the state mediators had prior exposure to mediators before becoming one themselves.

The training a new federal mediator receives is both formal and collective, processes that tend to foster occupational perspectives congruent with the organization (Van Maanen and Schein, 1978). Each new class of trainees participates in a two-week intensive training program at the FMCS’s national headquarters. From there trainees are sent to perform adminis- trative work in the regional office of their assigned area and to participate in cases there and in the region’s field offices. During this probationary period, the trainees act as apprentices to the experienced field mediators and get to experiment, in actual disputes, with the techniques and tactics

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they were taught in the classroom. The trainees meet with the parties and witness how the mediators interact with them. They learn the bases upon which experienced mediators “read” a dispute and how they manage in difficult situations with particular types of people. As trainees, they absorb the accumulated wisdom of seasoned mediators; learn the limitations of practice; grow more comfortable with ambiguity; and come to see a strike as an integral part of mediation, rather than as a commentary on the mediator’s performance!

The state agency has no formal training program. Historically, new mediators were assigned cases immediately and left to develop their own style of practice by trial and error. Over the years, a variety of (voluntary) informal training methods have been initiated. For example, a new mediator might choose to observe an experienced mediator on a few cases before going on his own. More recently, an ad hoc training procedure, spearheaded by one mediator, has emerged. All new mediators accompany him on cases for a specific period of time, typically a few weeks. His style epitomizes the “dealmaker,” and, through his informal training role, he has managed to instill his mode of practice into the approaches of the newer and younger mediators. Where the FMCS, by design, exposes the apprentice to an ap- proach colored by different styles, the state’s ad hoc training may inadver- tently emphasize one approach and one style- dealmaking.

Mediation approaches taught to new mediators in both agencies are subtly reaffirmed over time. Though a federal mediator works by himself on a case, for reasons of preference and strategy these cases are typically convened in the agency offices. This gives the federal mediators ample opportunity to interact with each other during, between, and after cases to seek advice and support. Further, the FMCS continues to provide the mediators with new skills and information essential to their performance. Federal mediators participate annually in seminars, regional conferences, skills workshops, and public policy information sessions.

In contrast, state mediators, because of office space constraints, are continually on the road and are more or less left on their own to assess and evaluate their effectiveness. In the absence of interaction with colleagues, feedback on their process and performance is difficult to obtain. Parties will rarely comment on the mediator’s approach unless they are moved to com- plain. Indirect feedback may be inferred by demand for a particular medi- ator’s services, but case assignment procedures typically place geography above the parties’ requests, obscuring this potential information. Finally, state mediators do succeed. They have a relatively high settlement rate, and

‘The field office in this study has a reputation within the FMCS as one of the most professional and competent in the service and is seen, therefore, as suited to pass on its approaches to mediation.

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in those cases where a dispute is not resolved in mediation and moves to factfinding, the mediators tend to see external forces, not their own actions, as causal. As a result, any approach a state mediator adopts is more likely to be reaffirmed than altered.

Discussion The clarity of selection, the formal, collective character of

training, and the structural opportunities for collegial interaction may explain the FMCS pattern of practice. But the absence of these elements in the state agency might logically suggest that state mediators would develop diverse and idiosyncratic styles of practice, not the relatively con- sistent pattern observed in this study. Two possible explanations have al- ready been cited. Historically, in the state agency the role of mediator has been intertwined with that of arbitrator. Without formal procedures for training, the informal influence of one mediator adept at a particular style of practice predominates, at least for the new mediators. But these are only partial explanations. Evidence from this study suggests other possible reasons that derive from the management of settings and impressions (Goffman, 1959).

To be a credible mediator is to be seen as one by the parties. Federal mediators have resources at their disposal, resources the state mediators lack, to manage impressions of the mediator’s role. The offices of the FMCS are spacious and business-like, with rooms to accommodate multiple meet- ings of varying sizes. Federal mediators each have separate, well-appointed offices that overlook the city. Having these accommodations means that the federal mediator can summon the parties to his turf, and control the use of rooms consistent with his particular strategy. This not only signals to the parties the seriousness and business-like climate of the situation, but puts the mediator, independent of any actions he takes, firmly in command. The title of “commissioner” further reinforces this impression. Access to govern- ment reporting services and journals, with the time and space to read them, provides the federal mediators with information about practices and trends in bargaining which they can put into practice in ways that enhance their credibility.

State mediators have only minimal access to documents and journals and are forced to rely primarily on their first-hand knowledge of practices, which is understandably limited and open to challenge. Because their offices are inadequate to accommodate meetings, state mediators are usually guests on the parties’ turf in some library, school, or town hall. Ordinarily the state mediator has little control over meeting room; he lacks an office, and when

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not in a meeting may have to pace the hallway. Thus, his setting lacks many of the accouterments and resources the federal mediator has to communicate his status and position. Perhaps this, too, amplifies the activist role of state mediators for, according to one state mediator, they have only their results (settlement rates) to ride on.

They [federal mediators] have a reputation. We are newer. We have to be more active; we have to show people we provide a service.

None of the proferred explanations can totally explain the existence of a consistent state approach in the face of organizational processes that suggest otherwise. But Yager’s (1979) observation that full-time arbitrators, who mediate only occasionally, tend to adopt a style of practice similar to that described for state mediators, suggests one final explanation. Perhaps an activist, off-the-record, dealmaking stance is the naturally occurring response for a mediator to take unless he is taught otherwise. What this study suggests is that further research into the structure and culture of the organizations in which mediators work and the means by which new media- tors learn, may enhance our understanding of the varieties in mediation practice.

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