The definition of mediation is often as contextual as the conflict it attempts to resolve. Mediation is often thought of as a last step to adjudicate disputes.
In this article, professor Lawrence Susskind spells out the hidden advantages of using mediation early in the process to solve problems and reach voluntary compliance agreements. He reveals the three requirements necessary for problem-solving mediation using a practical negotiation case study.
The Organization for Economic Cooperation and Development (OECD) holds multinational corporations to appropriately high standards of corporate social responsibility. OECD member states include thirty of the major economies of the world.
Back in 2006, they adopted guidelines regarding human rights, environmental protection, the rights of workers and child protection. In 2016, they were in the throes of a ten year review. Every member country appointed an NCP — a National Contact Point — to investigate claims that multinational corporations headquartered in their country, or their subsidiaries wherever they might be located, had violated the guidelines. The NCPs investigated as best they could (often with very limited staff and budget).
How Alternative Dispute Resolution (ADR) Resolves Disputes and Creates Value for Each Side
The assumption is that being called out by a national government would push multinationals to correct whatever guideline infractions they or their subsidiaries may have committed. Unfortunately, it was been hard for the NCPs to complete many of the needed investigations, particularly those filed by unions or NGOs in far off corners of the world. On some occasions, NCPs did not find sufficient evidence that the guidelines had been violated, but there were clearly circumstances that needed attention. At a recent meeting of all the NCPs and some of their constituent organizations (including their Trade Union Advisory Group, their Business and Industry Advisory Group, and OECDWatch) the NCPs were reminded that their goal should be to rectify inappropriate practices, not just determine whether the guidelines had been violated. More generally, the NCPs were urged to step back from their adjudicatory (or investigatory) efforts and build their problem-solving capabilities.
Definition of Mediation as a Problem Solving Process
In particular, they were urged to take their mediation mandate seriously.
I am very supportive of a “problem-solving” view of mediation. In too many situations, mediation is viewed as the last step in adjudication (i.e. when impasse has been reached), rather than as the first step in a collaborative effort to head off a problem or work out a creative solution.
When a complaint is filed, an NCP must determine whether the charges should be taken seriously. It sometimes does this by asking its national embassy to “make inquiries” about the reputation of the company against whom a complaint has been filed. Then, it might follow up with a call to the company and ask for “its version” of the story. In short, the NCP tries to determine whether the company has, in fact, violated the OECD corporate social responsibility guidelines. They proceed this way because their primary goal is to determine the legitimacy of the claims that are brought. If, however, the NCP’s goal were to correct inappropriate practices or implement appropriate remedies, it might, instead, select a qualified mediator — located in the place where the infraction presumably occurred — to meet informally with the relevant parties and see what might be worked out. The more informal the interaction, the less likely the parties are to overstate their claims or react defensively. If such problem-solving fails, the NCP can always revert to its investigatory role.
If you were a company accused of violating OECD guidelines, wouldn’t you prefer to meet privately with a neutral party (who would keep what you said confidential) than to have to defend yourself in a public way as an official investigation gets underway? From the standpoint of preserving your corporate image, mediation is certainly preferable. If you were a trade union or an environmental NGO concerned about the actions of a company in your area, wouldn’t you prefer to have a professional mediator bring everyone together to respond to your concerns than to wait a year or longer while an invisible agency (often in another part of the world) determines whether OECD guidelines have been violated and then writes a report?Adjudication in the absence of enforcement (and that is the situation in globally) won’t guarantee change. Mediation leading to voluntary agreements will almost always guarantee compliance with whatever has been worked out.
The Definition of Mediation as a Problem Solving Process
Mediation as problem-solving requires three things:
(1) a willingness on the part of all the relevant stakeholders to work together to resolve the problem or deal with the situation;
(2) the availability of a trusted “neutral” with sufficient knowledge and skill to manage difficult conversations; and
(3) an agreement on procedural ground rules (i.e., confidentiality, timetable, agenda, good faith effort, etc.). OECD and its NCPs are seriously considering emphasizing problem-solving mediation in the years ahead.
Read More on Professor Susskind’s Blog
Leave comment below and tell us how you approach mediation using these concepts?
Lawrence Susskind, Ford professor of Urban and Environmental Planning, The Massachusetts Institute of Technology; author of Built to Win; co-author of Breaking Robert’s Rules and Breaking the Impasse
Originally published in 2010.