The mediation intervention is by nature oriented towards the reinforcement and almost the saving of an endangered relationship. People entering a mediation process are
looking for a reasonable possibility to solve their problem without its consequences affecting their relationship so much as to bring to wider losses (roughly speaking, from emotional, to interpersonal, social, but also economic losses) or – worse – to a deterioration process irrationally enlarging the original issue. This concern is proper of a divorcing couple however wanting to share their parental responsibility as friendly as possible, but also for two companies wanting to limit the consequences of a business problem and maintain their commercial relationship in the future, or for a manager working to keep serene rapports on his/her workplace despite personal differences among employees. In sum, the relationship originally binding parties in conflict can be of different nature – more or less tight, more or less friendly, more or less institutional, more or less imposed from external constraints – but the intended purpose of mediation, in all these cases, is to recreate a reasonable framework for the interaction between the parties who are experiencing a problem in their relationship.
Understanding the nature of the parties’ relationship, thus, emerges as fundamental in order to specify the goal of the mediation process. Such relationship is to be interpreted as a constitutive factor – probably the most prominent one – of the context of mediation. Indeed, the context is constituted by a network of relationships within social reality165 which have a relevant influence on conflict history (Wehr 1979) as well as on the practice of mediation, on its methods and applications (Bercovitch 1992; Touval and Zartman 1985a and 1985b; Menkel-Meadow 1984). In the case of conflict resolution, the kernel of the context is represented by the parties’ relationship, which is however embedded in and surrounded by larger portions of social, cultural, juridical, political, economic… context, being in turn a weave of relationships.
The model proposed in Rigotti and Rocci (2006) turns out to be particularly fitting for the aim of understanding the factors constituting the parties’ relationship(s), which represent the surrounding (starting point and context) of the argumentative discussion taking place in mediation. This model can be profitably integrated into an ontological framework of mediation, as it proves to bring important advantages to the understanding of this practice.
First of all, Rigotti and Rocci’s model allows bridging the antecedents and the core process of mediation. Such a model, in fact, has been conceived of as a model of the context of communication. This means that the perspective of this model is internal to the problem of understanding and evaluating communicative events166; the model, in fact, aims at analyzing the contextual influences on communicative events. Therefore,
165 The term is assumed from Searle (1995).
166 More properly, the approach is explicitly situated in the tradition of research bound to the language sciences, which have shown the context to be “an essential factor in the processes of the production and interpretation of speech acts, but also is integral to the constitution of meaning itself” (Rigotti and Rocci 2006: 157).
such an approach is particularly suited for eliciting the connection between the parties’
relationship, i.e. the most relevant antecedent contextual factors, and the proper argumentative interaction occurring in mediation.
Furthermore, this model accounts for the institutionalised and formal aspects of the parties’ relationship as well as for their personal rapport, which both must be taken into account in conflict resolution initiatives. The significance of the parties’ personal relationship is highlighted in particular in studies concerning family mediation (Cigoli and Scabini 2004), while other approaches tend to bring to light the constitutive nature of the institutional context surrounding and shaping the parties’ roles (in terms of work roles, routines, hierarchy, and so on). The institutionalised context does also include the wider social and juridical context in which the conflict resolution intervention is embedded (Herrman, Hollett and Gale 2006). Both dimensions are interrelated and intertwined, though their relative weight may surely change depending on the type of mediation intervention. Significantly, in fact, in “hybrid” situations such as family businesses, the interplay between these two aspects is to be carefully considered by the mediator (Marinoni 2001; Canyamares I Sanahuja 2002).
Besides, the relationship between the parties, including all its complex interplay of juridical, social, and personal aspects, is anything but a static situation. On the opposite, it is a growing process which is significantly modified in the moment in which the disputants enter the mediation process. At this moment, in fact, they accept to assume the role of parties willing to find a solution to their conflict by means of mediation and thus the role of symmetric and equally empowered co-arguers (even if their professional relationship implies a different hierarchical status). Moreover, the very presence of the mediator changes the structure of the interaction. As it will more clearly appear in the argumentative analysis of some mediation cases in Chapter 6, the presence of a third interlocutor shows to have an extreme relevance in promoting dialogue between the disputants and in helping them set up their discussion in a reasonable fashion.
It is thus worth illustrating the model of context emerging in Rigotti and Rocci’s research, and try to clarify its implications for the understanding of the mediation process.
On the basis of a semantic analysis of the term context,167 then specified to encompass the context of communication, context emerges as having “an ‘objective’ or
167 On the basis of the analysis, context emerges a covering a relational predicate (to be the context of) connecting the context (x) and the contextualized (y). A first observation concerns the nature of states of affairs of both x and y, which can belong to the same world or to different worlds. In particular, the contextualized can belong to the real world or to a possible one (ibid., p. 159). About the semantic content proper of the predicate, a relationship of mutual relevance has been identified between x and y, so that “the contextualized can be properly understood only if its context is known. In fact, the context gives the contextualized its meaning, in the sense that it allows us to assign the contextualized the actual function it has in relation to the immediately relevant surrounding totality” (ibid., p. 162).
constitutive dimension” (ibid., p. 166; see also Perret-Clermont 2006: 183). On the one hand, in fact, the performance of given communicative moves depends on the satisfaction of a series of contextual requirements. On the other hand, the context represents the target directly affected by the communicative move, as any communication is oriented towards a habit change (see Rigotti and Rocci 2001: 48), whose effects overflow the mere communicative dimension, permeating the social world, including the subjects involved in communication, and also the physical reality168. The authors propose a model focusing on the constitutive aspects of the context of communication, which is synthetically represented in the following figure:
Figure 14: The model of context (from Rigotti and Rocci 2006)
As it visually appears from a first glance at Figure 14, the notion of context includes two equally relevant dimensions: the institutional and the interpersonal dimensions. Starting with the former, it is possible to situate mediation and analogous practices. In fact, in Rigotti and Rocci’s terms, practices like mediation can be ascribed to the notion of interaction schemes which are defined as:
168 In terms of the speech act theory (Searle 1969), this corresponds to the perlocutionary effects of a speech act.
“…Culturally shared ‘recipes’ for interaction congruent with more or less broad classes of joint goals and involving scheme-roles presupposing generic requirements.
Deliberation, negotiation, advisory, problem-solving, adjudication, mediation, teaching are fairly broad interaction schemes; while more specific interaction schemes may correspond to proper ‘jobs’” (ibid., p. 173).
In fact, if we consider the activity of mediation as the intervention of a third neutral facilitator in a conflict, this can be understood as an interaction scheme.
Nowadays, as illustrated above, mediation has also become a proper job in the field of ADR practices – which does not exclude the presence of informal practices having the same communicative structure, in other words inhering to the same interaction scheme.
An interaction scheme like mediation can be implemented in a series of interaction fields169. An interaction field is defined as “that piece of social reality where the communicative interaction takes place”. As shown in Chapter 2, mediation has become a common interaction scheme in a number of interaction fields, from family mediation, to victim-offender mediation, and so on (see par. 2.5.). Albeit the fundamental features of the interaction scheme remain the same throughout its application possibilities, the interaction field contributes to the definition of the actual communication context:
“In order to obtain an actual context I need to map an interaction scheme onto an interaction field where real commitments are present. To do so the roles of the interaction scheme need to be made correspond to compatible roles in the interaction field. For instance, the interaction scheme of lecturing is mapped onto the interaction field of the University of Lugano to obtain the full context of my teaching” (ibid., p. 173).
In fact, while interaction schemes are virtual competences, interaction fields are pieces of social reality. Interaction schemes cannot be experienced but by seeing them at work in different interaction fields; mediation, thus, does not exist per se, but it is applied to specific conflicts arisen within as many interaction fields. In this relation, applying mediation to a business or to an international dispute is different because the social reality underlying the two institutions is different. This may also bring to slight changes in the actualisation of the interaction scheme, as seen, for instance, when describing victim-offender mediation or organisational mediation (see par. 2.5.). Indeed, the connection between interaction schemes and interaction field is so tight that they
169 According to Rigotti and Rocci (2006: 173): “The same interaction schemes can be found in different interaction fields: for instance we can find deliberation by a board of directors in a business and deliberation by a city council in public administration”. The notion of activity type corresponds to an interaction scheme applied to a precise interaction field, for instance mediation in business, parliamentary debate, and so on (see later).
have been considered together as giving rise to the so-called activity types. The notion of activity type has been presented in Levinson (1979/1992) and developed within the argumentative studies by van Eemeren and Houtlosser (2005; 2007). An activity type is
“a fuzzy category whose focal-members are goal-defined, socially constituted, bounded, events with constraints on participants, setting and so on, but above all on the kinds of allowable contributions” (Levinson 1979/1992: 69)170. Some examples of activity type given by Levinson, such as jural interrogation, or by van Eemeren and Houtlosser (2007: 172), such as the Dutch criminal trial, clearly show the merger of interaction scheme and interaction field within this notion. As the present investigation concentrates on mediation, Rigotti and Rocci’s account, which allows distinguishing these two components, has been chosen in order to have a clear picture of what depends on the interaction scheme in question, i.e. on mediation, and what depends on the interaction fields upon which it is mapped.
The implementation of interaction schemes within interaction fields generates a network of roles that are linked to each other through corresponding communicative flows (Rigotti and Rocci 2006: 172). Roles depend both on the interaction field and on the interaction scheme: for instance, in the process of mediation between an organisation manager and a group of employees, the respective working roles (manager-employee) are defined by the structure of the organization (the interaction field), while the roles of parties and mediator are derived from the interaction scheme. Communicative flows are repeated (stable) occurrences of communicative activities involving two or more roles which are required by the interaction scheme involving these roles. Teaching establishes a communicative flow binding the teacher and the pupil roles; in mediation, normally, there are communicative flows that precede the mediation intervention and that the mediator must be capable of discovering.
Distinguishing between different interaction fields is made possible because each interaction field is defined by “specific (hierarchically organized) shared goals” (ibid., p.
172), which define the interagents’ mutual commitments and relations. The ultimate goal is the raison d’être of the interaction field itself. Roughly speaking, goal of a business, for instance, is that of making profit for allowing the welfare of those working in it; goal of a hospital is providing medical assistance to patients; goal of the educational system is to educate people… and so on. The hierarchy of goals cannot be subverted without changing the nature itself of an institution-organisation: if the main goal of a certain hospital becomes that of making profit and that hospital, thus, decides to accept only those patients that allow the realisation of this goal, its very nature becomes questionable.
170 Van Eemeren and Houtlosser (2005; 2007) have brought to light the activity types’ feature of providing constraints on the arguers’ possible moves in real argumentative discussions.
Up to now, the dimension of context that has been illustrated refers to institutionalised relations between the interagents involved in communication, insofar it touches their roles within the respective interaction fields (organizations, institutions, etc.) and within various practices (as the role of mediator). It must not be neglected, however, that these roles may be implemented – and are implemented – by real human subjects, who do not constitute, as Rigotti and Rocci (2006: 174) underline, simple
“fillers” of their institutional roles. Human beings precede and overcome their roles, in that their have desires, interests, and goals, exceed what is expected by the institutionalised context where they operate. A conceptual instrument for understanding the relation between individual goals and goals imposed by the institutionalised dimension is constituted by agency theory (see par. 1.1.; a more detailed discussion will be proposed in par. 4.2.2.3).
As Rigotti and Rocci (ibid., pp. 174-175) observe, two “types of interpersonal solidarity” take place; the former concerns interpersonal relationships between the individuals (Muller and Perret-Clermont 1999), while the latter concerns the link of individuals to the community, i.e. their “cultural” identity. Both types of solidarity are to be taken into account in mediation. At the interpersonal level, the individuals’ stories, their representations of their relationship, their frames are to be taken into account. When a mediator enters a conflict, he/she has to be aware and respectful of these dynamics – think, for instance, about a family conflict, or to a conflict in a classroom. Moreover, the cultural context (ibid), concerning the communal identities of individuals, which creates myths, rites and models (Cantoni 2004; Cantoni and Di Blas 2006: 234-237) also influences the possible proceeding of mediation171.
171 According to Cantoni (2004), myths, rites and models shape the deep identity of each organisation, conceived of as an interaction field (a business, an institution, and so on); in other words, these narratives define the organizational culture. It is possible to reinterpret these categories and specify their implications for mediators who enter specific interaction fields where a conflict has arisen.
Myths may be about the origin (archaeological myths), the goal or mission (teleological myths), and the present situation of the interaction field. Archaeological myths are oriented towards the past, and answer the need for identifying the “historical origin” of a certain institution. A family business, for instance, may be very well aware of how, at a certain point in time, the grandfather had a business idea and founded a small enterprise… Nations also have foundational myths; if we think, for instance, about the Pact signed by the three original Swiss Cantons in 1291, we identify its relevance to the national identity. Teleological myths are oriented towards the goal that a certain interaction field pursues, and specify the “added value” of its presence in the social reality. Situational myths concern the positioning of one interaction field with regard to the surrounding social reality: these narratives concern, for instance, the positioning of a firm within the market, its relation with competitors, and so on. A mediator who enters an interaction field must be aware of the myths the people involved in the conflict are concerned with. Sometimes, as Cantoni and Di Blas (2006: 234) notice, conflicts may arise from a difference in interpreting the myths themselves – as it may happen, for instance, in mergers and acquisitions, where organisations with different myths have to combine.
Rites concern the usual and unsaid ways of behaving within a certain interaction field. It is typical of interpersonal communication that people, more or less consciously, transmit messages about how one is expected to behave within a certain interaction field. This is often deduced from the behaviour itself
As it can be deduced from these examples, the culture of a certain interaction field is not to be exclusively conceived of as the more crucial and traditional identity of the individual, namely the one pertaining to the community where the individual is grown up: his/her hometown (sometimes his/her nation), his/her religion, his/her linguistic community… Indeed, there are forms of cultural identity that concern different levels of the individuals, as they are involved in more than one interaction field: in a certain sense, an employee “belongs” to the “organisational culture” of the firm where he/she works, but this kind of tie does not comprehensively describe his/her culture, which will be also complemented by other (normally more important) elements. One could imagine culture as a cradle that welcomes the individual into the world, and accompanies him or her into life; various communities position themselves like as many
“strata” progressively enlarging the original cradle172. The family is normally very close
of others: for instance, if in a certain firm everyone arrives five minutes late in the morning and this behaviour is never sanctioned, one might be led to think that this is the norm. Or, if in a certain office people are used to going out together for lunch, a newcomer will infer that there is a certain level of friendly ties between his/her colleagues. Interpersonal conflicts may arise that concern these dynamics at various levels: for instance, a newcomer (be her a secretary or even the responsible for a certain division) who is not aware of rites can have a negative impact on the “community” of her colleagues even if she confirms to all written rules. It is well-known that, for instance, where formal rules about smoking indoor at work are not present, informal rules develop on the basis of the workers’
preferences. If someone new enters a context where these rules have been established for a long time and tries to change them, he may be at the origin of serious conflicts.
Finally, models are persons who “incarnate” (part of) the culture of a certain interaction field. A grandfather who devoted his whole life to the development of the family business may be a model for his children and grandchildren; analogously, a particularly efficient advisor in a bank, a waiter who is very good at communicating with clients in a restaurant… and so on, may be indicated to the other colleagues as developing the “best practices” to be followed. Such a process is quite natural and may produce positive outcomes based on emulation; nonetheless, sometimes it may also be at the origin of competition and conflict.
172 Of course, I do not claim to thoroughly discuss the meaning of culture and its implications here. It its however worth recalling the conceptual approach I rely on in this work, namely the Tartu school of
172 Of course, I do not claim to thoroughly discuss the meaning of culture and its implications here. It its however worth recalling the conceptual approach I rely on in this work, namely the Tartu school of