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Mediation On-Line

A Newsletter from ADR Resources
December 1999
Volume 3, No. 3,
From: Ethesis@AOL.Com (Ethesis)


Stephen R. Marsh Picture


I begin teaching at Southern Methodist University's dispute resolution program next semester as adjunct faculty rather than as a visiting lecturer.  I'm excited about having classes of my own rather than teaching class periods for other professors from time to time. contains materials on the introductory arbitration class I am teaching and on the personal peacemaking class I hope to teach.

This issue includes my rough draft essay on cultural issues and mediation.  I expect that it will surprise some.

Interesting new Mediation & ADR web sites

A reminder.  If you receive this newsletter, and if you have a web site, please send me the url to look at. I'm actively adding personal mediator's sites at and value referrals and suggestions about good sites.  


Duquesne University in Pittsburgh, PA, has a dispute resolution program.  For more see the on-line version of this newsletter.  Also included are a course summary for an American Unversity program and FLRA guidelines. They were just too long to include in the newsletter (they would have quadrupled the size).


Cultural Influences on Mediation

In the early development of mediation there was a serious conflict between those who thought that mediators should evaluate the conflict and then guide the parties to an optimum resolution and those who felt that mediators should be agenda free and should facilitate the parties exchanges with the parties finding their own lasting resolutions.  The two camps are often called directive mediation (dm) and facilitative mediation (fm).

In most jurisdictions, the clash is over.  Where directive mediation has not been condemned and sidelined it has been targeted by ethics codes and disciplinary panels.  Facilitative mediation is routinely taught as the only real form of mediation -- in fact the message of one of the best selling mediation books, The Promise of Mediation, is routinely read as "facilitative mediation good -- directive mediation evil and contraproductive."  For myself, since I began mediation in the 1980s, I have always practiced facilitative mediation.  


It turns out that the facilitative mediation movement is as much an artifact of our low context culture as it is of any other value.  A low context culture puts a low value on social context and it values individual choice very highly.  A high context culture puts a high value on social context and values individual choice much less.  Low context cultures reject and question authority and social norms.  Such a rejection naturally applies to authority in a mediator as much as any other authority that is to be questioned and rejected to the extent it inteferes with individual self determination.  A low context culture also has serious social costs.

The other end of the spectrum is the high context culture where the social context is important and omnipresent. Relationships create a binding web in such a culture.  Ury's Getting to Peace is a call for a high context world culture in order to harness the peacemaking power of such cultures.  In such cultures history and authority are respected.  The summary is not "I was *only* following orders" but "I was following orders," it is not "you can't trust anyone over thirty" but "you can only trust people over thirty."

Many immigrant groups to the United States are high context.  In teaching mediation to such groups the facilitative mediators involved have discovered an inability of the members of many high context cultures to perceiving mediation as anything other than directive and authoritative.  In fact, even when reading verbatum from carefully constructed facilitative scripts in tightly controlled role-plays, participants and viewers from high context cultures perceived the process as authoritative and constantly comment on the skill and direction imposed by the mediator.  

This issue is not limited to teaching mediation to small groups of immigrants in the United States.  It applies to both entire nations and to every attempt to teach mediation skills to societies and people in transit.  From small projects (teaching mediation skills to immigrants in Israel) to huge ones (teach DR skills in the former SSRs) it is an issue that must be prepared for and adjusted to on a culture by culture basis to the extent that a directive mediation filter is culturally imposed by the participants perceptions.

The implications are interesting.

  1. True facilitation, where the parties are have complete control, may require the perception of directive mediation in some circumstances.
  2. Directive mediation can be provided without the mediator providing any evaluation or a mediator's agenda (cultural limits do not seem to force the mediator to either evaluate or provide an agenda).
  3. The strongest cultural issues in mediation are not the ones forcast by pundits or scholars, but rather appear to be ones that relate to context -- an issue our culture strongly evangelizes about (our culture strongly and continually attempts to export the cultural religion of low context and freedom of individual expression -- "I know, but it was what I wanted now.")

This essay does not examine the implications or social structures implied by high and low context nor does it propose moral or ethical codes to deal with the intersection of high and low context cultures vis a vis mediation.

However, it is important to realize that many decisions of of ethics and morality that have been made regarding mediation are merely impositions of cultural bias on a process that transcends cultural imperatives.

For more on Ethics and the Role of a Mediator, see

For print resources on high and low context cultures, contact and subscribe to their newsletter.  I have.

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit

Back issues at

If for some reason you wish to be removed from my periodical mailings please let me know. If I'm sending anyone extra copies or sending it to anyone who shouldn't be getting it, please let me know. This e-mail mailing list is supposed to be limited only people who would be interested and who have subscribed.  Thanks for your patience and help.

Post Script (the "extra" material for the on-line version).

Subj: Recent Developments in Dispute Resolution
Date: 11/15/1999 9:29:50 PM Central Standard Time
From: (Scott R Perry)
To: (Multiple recipients of list)


Recent Developments in Dispute Resolution November 16,1999

Willamette Law Online - Willamette University College of Law


CASES: (excerpt -- visit their web page for more)

Arbitration: Agreement Void as Against Public Policy

Strawn v. AFC Enterprises, Inc., __ F.Supp.2d __ (S.D. Tex. 11/4/99)

As a condition of employment, Strawn signed an arbitration agreement. After being injured a work in a slip and fall accident, she brought suit in federal district court. The defendant moved to stay or dismiss the claim and to compel arbitration. Because the employer had "opted out" of providing employees coverage under the Texas Workers' Compensation Act and failed to provide its employees with adequate benefits, the court denied the motion. The court stated that "where employers offer minimal benefits and unilaterally impose an arbitral forum on their injured employees, such forum is sufficiently dissimilar to a judicial forum as to undermine Texas public policy with respect to the Workers' Compensation system. Consequently, the [arbitration] agreement is void as against public policy."

An e-mail about another DR program:

Subj: Re: an addition........
Date: 11/15/1999 10:32:42 PM Central Standard Time
To: Ethesis

Duquesne University - located in downtown Pittsburgh, PA. The program is under the Graduate Center for Social and Public Policy. The course work consists of 4 elective courses, 6 required courses and an internship or thesis for the certificate. The courses are "Introduction to Conflict Analysis and Resolution, Research Methods, Theories of Conflict and Conflict Resolution, Organization Theory, Methods of Resolving Conflicts, Foundations of Conflict Resolution and Values, Ethics and Policy" and the internship. Father William Headley teaches quite a few of the courses. He has associates at George Mason and would be more than happy to fill you in on the program. His e-mail address is He has been involved with peace studies and conflict resolution around the world. He has written many articles and publications. I had been certified through the Cleveland Mediation Center and the Peace Education Foundation but the course work I took at Duquesne gave me a much deeper understanding of the directive approach as well as the transformative approach. It's a great program. Let me know if you'd like any further information.......

Office of Continuing Education


You've been tasked with developing an ADR program for your agency or division. You're trying to develop an ADR Program for EEO complaints in your agency. Or, you've got the basics of an ADR program, but every step of the way has been a struggle and you'd really like some hands on guidance and coaching to implement your program.

You work on the front lines; conflict management is a growing need in the workplace. Our non-credit certificate is designed for ADR specialists in federal agencies, human resource professionals, EEO officers, team leaders, supervisors, managers, CEOs, procurement officers, or contract specialists whose work involves managing the conflicts inherent in today's work environment. You will greatly improve your personal conflict resolution skills and be guided in your work at your agency.

Lectures, role-play, guest speakers, guided group projects, and building problem-solving skills are all part of the process to combine theory with practical, hands-on experience. Guided group work consists of two specialties - an advanced skill component and a substantive area concentration. Advanced skills specialties include simulated practice with mediation and facilitation, which is coached by experts in the field. Substantive area specialties allow you to create a strategic plan for a dispute resolution program, or build and improve your program where ever you are in its design and implementation. You will be coached and directed by experts in federal government ADR program design.

Classes are held on Saturdays from 9:00 a.m. to 4:00 p.m. To suit the needs of working professionals, the course is held on two consecutive Saturdays leaving the third Saturday free.



# Explore the theoretical bases of conflict
# Learn conflict styles of individuals
# Understand conflict styles of groups
# Develop mastery of conflict analysis
# Experience types of conflict resolution
# Explore theory and dynamics of power


# Help your organization improve interpersonal communication and problem solving
# Explore and examine the ethical issues related to neutral intervention
# Learn negotiation skills for everyday use
# Practice the process steps of negotiation
# Assist others in resolving their disputes
# Learn when and how to assist individuals in a dispute
# Master the skills of basic mediation
# Practice moving past impasse
# Accomplish win/win
# Learn the roles of Ombuds, Facilitator and Mediator


# Manage competition within the group
# Master the basics of consensus building
# Build stakeholders
# Learn how to guide a group and handle the disputes and differences that inevitably occur


# Understand conflict management in legal disputes
# Distinguish among the spectrum of conflict resolution processes such as arbitration, mediation, conciliation, and settlement conference
# Develop effective in-house strategies to resolve conflicts before they become claims
# Design effective problem-solving systems
# Use mediation for EEO disputes in the workplace
# Acquire skills for managing disputes with outside contractors
# Learn techniques for preventing disputes in the workplace
# Build proactive problem-solving strategies

You will earn notice from your peers, your subordinates, and your supervisor for your improved team-building skills. At the end of this 102-hour program, you will have acquired the tools and resources to manage workplace conflict formally and informally.


To enter our program, simply fill out the enclosed registration form. Tuition for this course is $3,200, covering 102 hours of instruction. Tuition is payable in advance or you may take advantage of our deferred payment plan. Registration will be processed on a first-come, first-served basis. Your registration will be confirmed upon receipt of a completed registration form and payment of tuition. Continuing Education Units (CEUs) are awarded to students who successfully complete the requirements of this certificate program. A total of 10.2 CEUs is awarded for this certificate.

Visit our Web site:


Cancellation of your registration is not automatic. Notification of cancellation must be made in writing. Written cancellations received by the Continuing Education Advising Center within five working days of the beginning of the program will be refunded 100% of the tuition less a processing fee of $75. Cancellations made in writing after the first class meeting but before the second meeting will be refunded at 75% of tuition less at $75 processing fee. No refunds will be made after the second class meeting. Qualified substitutions may be made before the first class.

The university may cancel or postpone the program because of insufficient enrollment or other unforeseen circumstances. In this case, the university will refund tuition, but cannot be held responsible for any other related expenses incurred by the student. American University reserves the right to change without notice curricula, faculty, class-meeting dates, tuition, fees, policies, and rules. If curriculum changes take place after you commence the program, we will make every effort to implement the changes in your best interest.

Executive Summary of FLRA GC Guidance to RDs on Developing a Labor Relations
(202) 482-6600 FAX(202) 482-6608
September 24, 1999


TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: Guidance on Developing a Labor Relations Strategic Plan

See also: Executive Summary; Press Release

This Guidance Memorandum discusses the concept of developing a labor relations strategic plan designed to help labor and management successfully deal with each other in the workplace. It serves as guidance to the Regional Directors in informing union officials and agency representatives about effective approaches to fulfilling their responsibilities under the Federal Service Labor-Management Relations Statute (Statute). This Guidance also furthers the Office of General Counsel's Facilitation, Intervention, Training and Education Policy, which was recently incorporated into the General Counsel's Regulations [n1] as part of the Alternative Dispute Resolution (ADR) Services provided by the Office of General Counsel.

I am making this Guidance available to the public to assist union officials and management representatives in developing effective labor relations strategies. This Guidance is a continuation of my Office's commitment to provide the participants in the Federal Service Labor-Management Relations Program with my views on significant topics. [n2] This Guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three-member Authority.

The Labor Relations Strategic Planning process described in this Guidance can produce beneficial results for labor and management. Strategic labor relations plans can help parties achieve short-term goals, such as dealing with stalled contract negotiations, significant backlogs of grievances and individual collective bargaining disputes. Strategic labor relations plans can also yield long-term improvements in parties' relationships, such as developing better communication practices, improving trust levels and increasing the use of collaborative processes like interest-based bargaining and pre-decisional involvement.

This Guidance is divided into four parts:

(1) What is a labor relations strategic plan and why is it necessary?

(2) Assessing your current labor relations strategy: what is it and is it successful?

(3) How do labor and management develop a strategy to meet their goals?

(4) Approaches to implementing a successful labor relations strategic plan.

The Guidance also includes two appendices, which set forth agendas for an internal strategy development program and a joint strategy development program.



See also: Memorandum (; Press Release (

This Executive Summary of the General Counsel of the Federal Labor Relations Authority's Guidance Memorandum to Regional Directors discusses what a labor relations strategic plan is and how to develop one. Regional Directors frequently provide Alternative Dispute Resolution (ADR) services pursuant to section 2423.2 of the Regulations of the Federal Labor Relations Authority and the General Counsel of the Federal Labor Relations Authority. This memorandum serves as guidance to the Regional Directors in assisting the parties in understanding the value of a labor relations strategic plan and in preparing a plan for their own use. It is also intended to assist parties in improving their relationships and avoiding litigation. I am making this Guidance Memorandum available to the public to assist union officials and agency representatives in working together to develop productive labor-management relationships, to avoid unfair labor practices, and to obtain a clearer understanding of how to plan a successful approach to labor-management relations.

This Guidance is divided into four parts. Part 1 - What Is a Labor Relations Strategic Plan and Why Is It Necessary? - describes what a labor relations strategic plan is and its value to the parties. Part 2 - How Do Labor and Management Assess Their Current Strategies, and How Successful Are Those Strategies for Them? - explains the concepts of a collaboration strategy and a compliance strategy. It provides a list of questions to use in determining which strategy is currently being used by an organization. It also explains how the philosophy of managing an organization has an effect on its approach to labor relations. Part 3 - How Do Labor and Management Develop a Strategic Plan to Meet Their Goals? - describes the steps in a process which can be used to develop an individual or joint labor relations strategic plan. Part 4 - How Do Labor and Management Develop Approaches to Implementing a Successful Labor Relations Strategic Plan? - describes the need for a clear approach on how to implement a strategic plan. This part describes the kinds of questions which must be answered to successfully implement a plan.

Attached to the Guidance are two appendices. The first appendix is an agenda for an individual labor relations strategic plan development program for the use of either labor or management in developing their own internal plans. The second appendix is an agenda for a joint labor relations strategic plan development program. This program is for the use of both labor and management in developing a joint plan.


Q. # 1: What is a labor relations strategic plan?

A labor relations strategic plan is an effort to identify the goals in labor relations desired by labor or management, individually or jointly; to determine the strategy needed to reach those goals; and to develop the actions that are necessary to carry out that strategy.

Q. # 2: Why is a labor relations strategic plan necessary?

A labor relations strategic plan is necessary to change the conduct of labor relations from being reactive to being pro-active. Developing a strategic plan allows the parties to move away from simply reacting to each other, towards an approach where they have a clear understanding of the best way to operate effectively to accomplish the mission of the agency and achieve their labor relations goals.

Q. # 3: Who should have a labor relations strategic plan? Labor and management that have problem relationships should have a plan to start them moving in a positive direction. Partnerships that are struggling should develop a plan to gain some momentum and move forward. Relationships which are working well should have a plan to carry on their success through changes in leadership on either or both sides. The Guidance sets forth a series of questions which can be useful in deciding on whether to develop a labor relations strategic plan.


Q. # 1: What are labor relations strategies?

A labor relations strategy is the basic approach to how a union or management conducts labor relations. There are two basic strategies for conducting labor relations in the federal sector: collaboration and compliance. Each of these strategies, as well as a combination of these strategies, can be a viable approach to a successful labor relations program. A strategic plan helps to focus on the effective use of a strategy.

Q. # 2: What is a compliance strategy?

A compliance strategy relies on the enforcement of rights and obligations created by statute and by contract. This is the predominant strategy used in the federal sector, as well as in the private sector. The effectiveness of this strategy depends on the ability and skill to force the other party to do what the law or the parties' contract requires it to do.

Q. # 3: What are the advantages of a compliance strategy?

There are several advantages of a compliance strategy:

a.. This strategy is known to many parties since it has been in use for over 20 years. Although parties may not be thoroughly familiar with all aspects of each of the processes, they know what the processes are and are generally familiar with how they operate.

b.. There are clearly defined winners and losers. Compliance is beneficial to the party with greater staying power and with greater skill in the process. Having greater staying power and greater skill can equate to winning more frequently and thereby being more successful.

c.. There is no need to trust the other party. The normal arms-length interaction which characterizes adversarial relationships does not rely on the parties' commitment or mutual trust. The parties don't have to get along to be adversarial. The parties simply use the various legal processes to adjudicate their rights, without relying on an effective relationship.

d.. Compliance may be quicker than other approaches. If a party has made a decision which it believes is within its legal rights, it does not have to spend time dealing with the other party. It simply does what it thinks is right and moves forward. Of course, if the party violates the law in taking this approach, the unfair labor practice process may slow down the implementation.

Q. # 4: What are the disadvantages of a compliance strategy?

There are several disadvantages of a compliance strategy:

a.. Litigation can be costly, both in terms of financial and other resources.

b.. Adversarial relations can result in continual escalation of warfare between the parties. Winning may become more important than the underlyingissue. What otherwise may be trivial issues become significant to the parties and matters of principle that end up being litigated.

c.. To be successful, a party must have a high degree of knowledge of the law and skill at advocating its position. Lack of a high degree of knowledge and skill is a serious disadvantage to a party using a compliance strategy.

d.. A compliance approach does not improve the relationship between the parties. It can lead to irreparable damage to the ability of parties to communicate effectively concerning issues of mutual concern.

Q. # 5: What is a collaboration strategy?

A collaboration strategy relies on the use of an interest-based approach to solving problems that otherwise would be resolved through the enforcement processes provided by the Statute. It relies on both parties acknowledging that each brings value to the table. It requires a high degree of trust and commitment.

Q. # 6: What are the advantages of a collaboration strategy?

The advantages of a collaboration strategy are the following:

a.. A significant advantage is that labor and management use interest-based problem solving as the basic method of resolving disputes. In an interest-based approach, the parties attack the problem and not each other.

b.. A well-crafted collaborative solution improves the quality of the decision-making, as well as reduces subsequent problems arising from the actual implementation.

c.. Collaboration also tends to increase the level of trust between the parties, which can lead to increased communication, which in turn results in better understanding of each side's concerns and better resolution of disputes.

Q. # 7: What are the disadvantages of a collaboration strategy?

The disadvantages of a collaboration strategy are the following:

a.. It may have a negative effect on the respective constituencies of labor and management. Union members may perceive a collaborative union leadership as being "in bed" with management and only looking out for the leadership's personal interests and not the interests of the employees. Likewise, management may lose the support of lower-level management who may believe that upper management has "sold out" to the union.

b.. Collaboration can also take longer to bring about change because using an interest-based approach sometimes takes longer than traditional bargaining.

c.. Collaboration uses a new set of skills which are different from those required to be effective in a compliance environment. These new skills require changes in individuals' attitudes and approaches in how to deal with others.

Q. # 8: Is collaboration co-management?

No. Collaboration does not involve co-management of the agency by the union.

Co-management involves joint decision-making, which is inconsistent with the role of the union as representative of employees. If co-management resulted in making the union a part of management, the employees would essentially have two sets of management, instead of a representative. They would lose the union's ability to represent their interests when they clashed with the interests of management.

Q. # 9: Why is the term "collaboration" used instead of "partnership"?

The term "collaboration" instead of "partnership" is used to define this strategy because Executive Order 12871 does not define what a partnership is, nor does it explain what is expected of the parties in such a relationship. A partnership relationship under the Executive Order may use a collaborative approach to labor relations, some combination of both collaboration and compliance, or may simply be some form of compliance. Collaboration is a way of dealing with each other which may or may not include an actual partnership agreement or relationship. It is a strategy which relies on greater involvement in management decision-making by employees through their exclusive representative but retains ultimate decision-making authority in management, as is the case in most partnership arrangements.


Q. # 1: Who should develop the strategic plan?

For a labor relations strategic plan to be effective, it must be developed by a cross-section of the people who will be affected by it. It should not be a paper exercise, nor should all constituents participate in its development. A labor relations strategic plan cannot be carried out effectively if it is the sole creation of the labor relations staff of an agency or of the president of a union. To be effective, it must be developed by people who are responsible for achievement of the goals of the agency or union. They must buy in to the strategy and understand its advantages and disadvantages. The most effective process for the development of a strategy is to use a team approach. This approach is also the most effective at developing the buy-in needed to make the strategy work.

Individual strategy development teams generally should consist of at least 10 and no more than 20 members. Joint strategy teams consisting of union and management generally should have 20 - 30 members. The head of the organization and the president of the union are essential participants. The remainder of the participants should be leaders of their respective organizations.

Q. # 2: How do you develop an individual labor relations strategic plan?

There are six segments to the development of an individual plan: (1) a presentation and discussion of what a labor relations strategy is and the reasons for having one; (2) an assessment of the current labor relations strategy being used; (3) an analysis of the current state of the relationship between labor and management; (4) an assessment of whether the current strategy is helping the organization attain its goals; (5) a decision on the best strategy for the organization; and (6) the development of a labor relations strategic plan. Each of these segments is a building block towards the development of the plan itself. The Guidance outlines these steps and what is achieved by following them. Appendix A of the Guidance is an agenda for an internal labor relations strategic plan development program.

Q. # 3: How do you develop a joint labor relations strategic plan?

Many of the segments of this program are similar to the internal strategy development program. The purpose of a joint program is to provide labor and management an opportunity to develop a plan on how to conduct labor relations more effectively. If the parties are in partnership, the plan's purpose is to make the partnership more effective. If the parties are not in partnership, the plan seeks to improve how they conduct labor relations and provide opportunities to move in the direction of a more collaborative relationship.

Appendix B of the Guidance is an agenda for a joint labor relations strategic plan development program.


Approaches to Implementing a Successful Labor Relations Strategic Plan

Q. # 1: How do you implement a collaboration strategy?

Changing the current approach to how labor relations is conducted is, in many respects, a cultural change for an organization. For an agency or union that has not been collaborative in the past to become more collaborative requires a significant change in the way each side thinks about the other. Many of the attitudes and myths associated with labor relations die hard for some people.

For those attitudes and myths to change requires leadership and training. Leaders from both organizations must send a clear message that there is a new approach to labor relations, what that approach is and that they firmly support it. Joint training is needed to inform management and union constituencies as to the reasons and value of the change. Training should also be done internally within each organization so the issues related to such a change can be fully explored.

Additionally, training must be provided to develop the skills necessary for working in a collaborative environment. Processes must also be developed which further a collaborative environment, such as pre-decisional involvement and ADR.

The Guidance outlines the steps for the implementation of a successful collaboration strategy.

Q. # 2: How do you implement a compliance strategy?

For an organization to be successful with a compliance approach, it must also change its attitude and approach to the conduct of labor relations. It requires a greater grasp of the law and more thorough understanding of the statutory processes. It requires an emphasis on being current on the state of the law and knowledgeable about various approaches to the settlement of disputes. The parties' collective bargaining agreement must be current and clearly reflect the needs of the parties. Developing an approach to doing litigation risk analysis is an important process to develop to determine the effects of litigation.

The Guidance outlines the steps for the implementation of a successful compliance strategy.


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