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:
• It is positional, not interest-based
• It is competitive, not cooperative or collaborative
• It involves exchange of money representing payment
for legally recognizable damages
• Settlement of the case is the highest goal
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:
• It is interest-based
• It is collaborative
• It involves creative problem-solving
• It acknowledges and deals with injustices
• The mutual satisfaction of all interests is the
highest goal
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.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation
of difficult and intractable conflicts throughout California. His firm,
Douglas E. Noll and Associates is based in Central California. He may
be reached through his website
and email at doug@nollassociates.com