A mediator is a peacemaker. He is called upon to assist disputants in agreeing with each other. He can't tell them what to do. Anyone can be a mediator. No degree or license is required. Many people mediate without realizing that they are engaged in mediation. Many are also ready to volunteer. And why not?. The Bible tells us that "Blessed are the peacemakers for they shall be called the children of God.." Shakespeare expressed a similar sentiment. But he simply said, "Blessed are the peacemakers on earth."

But a mediator's success rate can improve significantly if he knows how to mediate. Robert Rauschenberg, the internationally renowned artist, might have overstated the point when he included in a 1972 work of art the words: "They did not fully understand the technique. In a very short time they nearly wrecked the planet."

The publicist Tex McCrary succinctly summed up the duties of a mediator when he correctly observed that a mediator is a catalyst on a hot tin roof. William E. Simkin, longtime arbitrator and highly regarded director of the Federal Mediation and Conciliation Service, once - and perhaps more eloquently - described the personality of a mediator as one having "The patience of Job, the sincerity and bulldog characteristic of the English, the wit of the Irish, the physical endurance of a marathon runner, the broken-field dodging abilities of a halfback, the guile of a Machiavelli, the confidence-retaining characteristics of a mute, the hide of a rhinoceros, and the wisdom of Solomon."

In the best of all possible negotiations, with the highest degree of competency on both sides and no extraneous roadblocks to the negotiation of an agreement, the parties themselves should be capable of reaching an agreement without the help of a mediator. The companies and unions in the automobile industry regularly refuse mediation and they have a pretty good track record of direct negotiations.

But it is not an admission of failure for disputants at impasse to seek or accept the assistance of a mediator. Even the most experienced negotiator can benefit from the presence of a mediator in settlement of a dispute. As I pointed out in Chapter Three, negotiation is a game of strategy in which the best course of action for each player depends on what the other player or players do. The mediator can assist the parties in keeping on the path to a settlement.

There are no formal rules of mediation and no standard procedures although service providers such as the American Arbitration Association and CPR Institute for Dispute Resolution provide guidelines for mediators and disputants. Some mediators are more effective in hard fought but simply defined conflicts, usually over money. Schelling refers to these as distributive disputes.

Others are more proficient in negotiations with complex issues requiring careful thought. Schelling calls the latter efficiency disputes.

Regardless of the type of dispute, the mediator must enjoy the confidence of both sides. This is not an easy challenge to meet. In effect, he has to be the friend of enemies. The mediator will not offend either side if he merely acts as a messenger. But he has to be more active to make a significant contribution in getting the parties to agree with each other.

It is imperative for a mediator to avoid any action or inaction that might strengthen or weaken the bargaining position of either party. Nor should he allow any opinion he may have of how the dispute should be resolved to influence his conduct in settling the dispute. His efforts should reflect the likely outcome of the dispute if both sides were negotiating at peak efficiency.

Mediation: A Profession or an Avocation?

The same holds true for arbitration although an arbitrator's qualifications should parallel those of a judge. A select group of individuals, especially active in labor-management and commercial disputes have become professional arbitrators, devoting virtually all of their time to the resolution of disputes through arbitration.

Some years ago, a group of professional arbitrators formed an association called the Academy of Arbitrators. It seeks to protect, enhance and promote the profession and meets annually to discuss the critical issues the arbitrators are facing.

There are not as many individuals serving regularly as mediators. Nor is there a professional association of mediators comparable to the Academy of Arbitrators. There is, however, an overlap in the work and demand for mediators and arbitrators.

Since arbitrators as third party neutrals share the obligation of impartiality, they are sometimes asked to serve as mediators. They may also undertake to mediate during the course of arbitration.

But a good arbitrator is not necessarily a good mediator, and vices versa. The required skills are definitely not interchangeable.

Academics tend to make good arbitrators. They think clearly and adhere strictly to the rules. They are not always good as mediators. Instead of focusing on what both sides will accept, they tend to lean in the direction of what they think is right when they should be focusing on what will be acceptable to both sides.

The Mediator's Strength Is His Weakness

Since a mediator can take no action that binds the disputants, there is little or no harm he can do. His strength, derived in large part from the confidence of both sides, is his absence of strength: he cannot order the parties to settle on terms they oppose.

It is unwise for a mediator to make recommendations. He should hesitate even if both sides ask him to make recommendations. In most cases, his recommendations are more likely to please one side instead of both of the disputants. Once a mediator is openly committed to one side's position, he is likely to lose the confidence of the other side. In such circumstances, it will be difficult for him to continue to mediate.

Is it more important for a mediator or arbitrator to know how to mediate or arbitrate than it is for him to know the industry in which he is being asked to serve? The bankruptcy courts recommend as a key qualification that mediators possess knowledge of bankruptcy law. The Internal Revenue Service places greater emphasis on their skills as a mediator.

It is more important that mediators know how to mediate than to know the industry in which they are serving. Obviously, knowing the industry can be a plus. But mediators can usually acquire the information they need to know faster than they can learn to mediate.

Disputants rarely think about third party assistance unless and until they reach an impasse in their talks i.e. that point in the negotiations when the parties have made what they expressly or implicitly claim is their last, best offer and are still far apart on a settlement. Having asserted that they have nothing more to offer, they become understandably reluctant to propose mediation. If they have really made their final proposal, what is there to mediate?

But if they have merely claimed to have made their final offer, they need some way to get off the hook. For them to propose mediation would be self-defeating. They can be helped if a respected third party proposes mediation. In labor-management negotiations over the renewal of collective bargaining agreements, the Federal or State Mediation Agencies are required by law to offer their services at least 30 days before the expiration of the agreements. Their intervention relieves negotiators of the burden of proposing mediation after having said that they are at the end of the line on giving.

It is easier for the parties to accept mediation if proposed by a top public official or an eminent third party. They need only indicate that they are participating solely out of respect for the person proposing mediation. Such a response can help get mediation underway without impairing the integrity of their alleged "final" proposal.

It is not as difficult for disputants who have reached an impasse to propose arbitration. They can avoid implying that they might have more to give simply by saying that they are willing to have an arbitrator pass judgment on its fairness.

Sometimes a negotiator really means that he has made his final offer. The entrance of a mediator may then be troublesome for him. But the mediator may actually help him find a way out of the impasse. Regardless, a wise rule for negotiators is never to say never.

The pledge of the CPR Dispute Resolution Institute, a private service provider with a distinguished roster of members, commits signers to consider ADR as an alternative to litigation. It is a useful device which helps avoid the appearance of weakness by a disputant who wishes to invoke mediation. If disputants informally indicate that they are not opposed to mediation but are reluctant to request that a mediator be appointed, a third party may solve the dilemma by proposing mediation and even suggesting who the mediator might be.

In disputes affecting the public, a government official may propose mediation - as President Johnson did in the 1964 railroad strike, Mayor Robert Wagner in the 114-day newspaper strike in New York City in 1963, and President Clinton in the months-long baseball strike in 1995. Cardinal O'Connor proposed mediation in a 1987 dispute between broadcast engineers and technicians and the NBC network, and it worked.

Participating in the Selection of Third Party Neutrals

Perhaps the greatest advantage of mediation or arbitration over litigation is the opportunity they provide the disputants to participate in the selection of the mediator and arbitrator to hear their dispute.

In litigation, the judge is selected in accordance with the court's system. In mediation and arbitration, both sides must agree either on the individual who is to be the mediator or arbitrator or on a method of selection.

The usual practice is for the parties to ask a qualified service-provider to submit a list of names. They can then strike the name of any person they question until they find a person both sides agree to accept. They can also ask for a second and even a third list or agree that the service-provider or a distinguished person make the choice.

Just as it is now permissible for lawyers to advertise, mediators and arbitrators can also hold themselves out as qualified practitioners in their particular field. But it is inadvisable for them to propose themselves in any particular dispute. They can, of course, have someone speak in their behalf.

Neutrals: Full or Part time Professionals

In times past, mediators and arbitrators in labor management disputes rarely agreed to serve as negotiators only for one side or the other. Lawyers tended to restrict themselves to representing either labor or management. As the relationship of labor and management has become less ideological and more pragmatic, lawyers now turn up representing companies in one case and unions in another.

In the beginning of my career, I served mainly in as an arbitrator or mediator. Later, in specific cases, I represented one side or the other. But I imposed on myself a firm rule: Having started in any relationship as a mediator or arbitrator, I would never move from serving as a neutral to either side in that relationship or vice versa.

At the time I represented the National Football League in negotiations with the Players Association, John Kiernan, the top sportswriter of The New York Times, mistakenly assumed that I was serving as a mediator and criticized me for favoring my clients. I had no difficulty straightening him out even though my actual role spoiled his story.

There was one apparent exception to my self-imposed restriction that was actually consistent with my rule against becoming an advocate in any situation in which I had served in a neutral capacity. I mention the circumstances of this apparent exception for the light it sheds on the variety of services a mediator can perform.

I became a mediator in New York's newspaper industry in 1963 and remained until 1978 in that capacity during a myriad of newspaper disputes. In August of that year, the pressmen's union struck The New York Times, The New York Daily News and The New York Post after the newspapers had unilaterally posted conditions reducing the number of men assigned to run each printing press.

The members of the 10 unions representing the various units of employees of the newspapers followed their time-honored practice of observing the pressmen's picket line. This brought the newspapers to a screeching halt.

I had not been invited by the parties to mediate the dispute and was not involved in the dispute.

But as the strike lingered on, George E. McDonald, president of the mailers union and the Allied Printing Trades Council, the umbrella organization of the City's newspaper unions, suggested that I mediate his union's open contract with the publishers in the hope that I might become involved in mediating the pressmen's strike. I told him I could not act as mediator in either dispute unless I was asked to do so by both sides.

I observed, however, that Rupert Murdoch, the publisher of The Post, whom The Times and The Daily News had appointed as their official spokesman, was repeatedly telling the members of the non-striking unions that they were being "ripped off" by the pressmen since they were supporting a union with demands in excess of their own goals and aspirations. I suggested that the Allied Printing Trades Council ask me to advise the unions on whether the pressmen were exploiting them. In effect, I would be acting as an impartial fact-finder in the conflict that Murdoch had promoted between and among the unions.

McDonald thought well of the idea, the Council duly voted to ask me to serve in that capacity and I agreed, since I would not be representing the unions but simply advising them on whether they were being taken advantage of by the pressmen's union. I also said that I would serve without compensation.

As I was serving as the unions' advisor, Murdoch withdrew from the negotiations, charging that I was conspiring with The Times and The News to put the The Post out of business. The federal mediator joined Murdoch's exit but the pressmen and The Times and The News remained in the negotiations and I assumed the role of mediator.

Shortly after he withdrew, Murdoch signed a "me-too" agreement with the unions, an agreement to accept whatever terms The Times and The News eventually negotiated. By signing the agreement, Murdoch was able to publish The Post while his competitors were on strike. He doubled The Post's daily circulation and started up a Sunday edition which the Post desperately needed but had not been able to launch in the fierce competitive market it faced. Although the strike lasted quite a few days after Murdoch signed the me-too agreement, it wasn't long enough for him to establish the Sunday edition as a viable publication and he was forced to fold the Sunday paper shortly after the other papers resumed publication.

A quote from Robert Browning's "The Lost Leader" was anonymously circulated among the remaining members of management and unions as well as the media. It read, "Just for a handful of silver he left us/Just for a riband to stick in his coat."

Former President Jimmy Carter, who has achieved some notable successes as an international mediator, has sometimes been criticized for appearing overly friendly with dictators and scoundrels on one side or the other of a dispute he is trying to mediate. But civility is an essential component of mediation in any field.

Kenneth W. Stein, a Middle East Fellow of the Carter Center who has observed Carter in negotiations on many occasions, said that the former President "purposely" divorced himself from any judgments about the person on the other side of the table. "He suspends what he might feel about that person as a person, or about the ideology that person articulates, or about that person's immediate past history. Most people say, "How can you talk to these people who are dictators, who are brutal, who violate human rights - all those things that you don't like?' He has accepted in his mind that he has to divorce himself from what he thinks of the person in order to get the negotiations moving forward."

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¹ The Alliance is a consortium of institutions concerned with promoting conflict resolution. Its members include the Industrial Relations Research Association, National Academy of Arbitrators, National Bar Association, Federal Mediation and Conciliation Service, ABA Labor and Employment Law Section, Society of Federal Labor Relations Professionals, Society of Professionals in Dispute Resolution, Cornell University, Georgia State University, University of Illinois, Massachusetts Institute of Technology, University of Missouri Law School, Ohio State University, School of Law Pepperdine University, School of Law University of California at Los Angeles, and the Willamette School of Law.