This month, we will look at two different mediation processes: distributive and integrative mediation and compare them to peacemaking processes. Knowing the difference between the processes can help you select the right mediator and process for your case or conflict.
Distributive mediation is by far the most common type of mediation of litigated disputes and is most often used in automobile accidents, slip and falls, and malpractice lawsuits. The mediator is often a retired judge or experienced trial lawyer.
Heavy emphasis is placed on valuing the case. In other words, what is the settlement value of the case in light of what local juries are awarding in court? Distributive mediation is efficient when only money is changing hands. In all other cases, it is not efficient, leaves people dissatisfied, and can often end in impasse.
Distributive mediation is typified by the following characteristics:
Integrative mediation is used in relationship disputes or when the parties are highly escalated in their conflict.
Relationship disputes include, among others, partnership disputes, family business conflicts, shareholder disputes, employment disputes, and divorce and custody conflicts. The mediator is usually an attorney or other professional specifically trained and experienced in interested-based processes.
Unlike distributive mediation, in which the parties exchange offers and counter-offers of money, integrative mediation defines the specific interests of the parties, develops multiple proposals for satisfying all interests, and fosters a collaborative negotiation of a final agreement.
Integrative mediation is efficient when issues in addition to money are in play. Integrative mediation is not as efficient when only money is changing hands. You should be careful, however, not to assume that money is all that is at stake in every conflict. Oftentimes, people have serious non-economic conflict goals that are transmuted in a demand for money. This is because money is easier to talk about than relationship goals or identity goals.
Integrative mediation is typified by the following characteristics:
Peacemaking uses integrative mediation techniques, but also looks for opportunities to meet the higher needs of the parties. These needs may be for reconciliation, restoration of relationships, or even an amicable parting of ways. Peacemaking seeks inner healing from the conflict, inner peace, and a sense of shalom right relations between people.
Many times people think they do not want peace when in fact they do. They confuse getting even or getting justice as the means to their inner peace. Because difficult conflicts are challenging, people lose their hope for inner peace. The peacemaking process rekindles and nourishes this basic hope.
Peacemaking always looks for the opportunity for harmony even in the most intractable and hostile conflicts. Amazingly, the process is consistently successful. In a recent assignment involving an intellectual property dispute, the mediation started out extremely hostile. Both sides were angry and felt betrayed by the other. Harsh words were exchanged, and emotions ran high. Ten hours later, a mutually satisfying agreement was reached through collaborative problem-solving.
A few days later, I received a letter from one of the parties, who wrote:
After we left the office, M. was waiting in the parking lot and asked to go to dinner, which we did. Thanks again.
Parties who had not spoken to each other in years reconciled their business relationship and their friendship. This is a common experience in peacemaking.
In summary, think about whether you wish a distributive, integrative, or peacemaking process to occur in your mediation. Generally speaking, starting with the higher level of process is best because it can always incorporate lower processes. For example, if you have a serious partnership dispute, start with peacemaking because it can use integrative and distribute processes. If you start with distributive mediation, the opportunity for higher outcomes will probably be missed.
Noll is an attorney, law professor and a member of the conflict management firm Maloney-Noll, whose Web site is www.manageconflict.com. He can be reached at email@example.com.