A Mediator's Dilemma: Acknowledging or Disregarding Stance Displays

As the parties responsible for managing the interaction, mediators must continually monitor participants' talk and behavior and decide when and how to respond. Routinely, the disputing parties make evident not only their positions and issues but also their stance, including affect and point of view, toward what is going on (Ochs 1993; Englebretson 2007). Mediators may acknowledge or empathize with the disputants' stance displays, but doing so risks violating mediator impartiality and may sidetrack progress toward an agreement. Analyzing such moments makes evident the contingencies that mediators face and their methods for managing them.

In several instances that arose during an approximately two‐minute segment of a real‐life mediation session, one participant spoke in ways that indicated noticeable frustration and even moral indignation (See Appendix C to the Special Section for a transcript. A videotaped excerpt from the mediation session may be downloaded from http://www.pon.harvard.edu/publications/negotiation‐journal). At first, the mediator responded without acknowledging the affective stance, instead attempting to move participants toward agreement. The participant persisted, overriding the mediator to take longer turns at talk that more clearly marked his stance. The mediator then called for individual caucuses. In a private caucus, this participant again displayed enhanced affect, and this time, the mediator empathized.

As this excerpt begins (fifty‐seven minutes into the mediation), Chuck (the mediator) has just asked Frank (the landlord and plaintiff) to respond to Ann's (the tenant and defendant) request for “some time” to repay the considerable back rent she owes. Frank turns to Ann and begins to formulate (put into words) (Drew 2003) his understanding of what she wants.

Extract 1:

Speakers continually negotiate who will speak next and when a turn will end. Here, those issues interconnect with the substantive negotiation. Frank pauses after the word “time” (line 8). Syntactically, the utterance could be complete at this point. However, with the continuing intonation (indicated on the transcript by a comma), Frank marks his utterance as not yet complete. In this way, the pause could serve as a prompt for Ann to complete the utterance for him, and that, in fact, is what she begins to do, with a statement about why she needs time. She stops this as Frank overlaps her to provide his own completion to the utterance. Frank's version makes Ann's request seem less reasonable — it implies “without paying rent.” His intonation indicates continuation — that the utterance is not yet complete — again providing space for her to continue what is, after all, her proposal, collaboratively constructed.

A pause follows in which neither party speaks (line 11). The mediator steps in, saying “Okay.” Previous research has shown that a free‐standing “okay” routinely shows readiness to move on to next matters (Beach 1993). Here, it begins Chuck's attempt to get Ann to specify a time frame, supported by Chuck's turning his gaze toward Ann. In attempting to move on, Chuck does not acknowledge the critical stance Frank showed toward Ann's proposal. He also does not pick up on Ann's incomplete prior formulation of why she wants time (“to be able to”). Instead, he implicitly legitimizes Ann's general position, at least for discussion purposes, by seeking specific details that are presumably relevant to Frank's interests and might be included in an agreement. In other words, it does not matter why she wants time; what matters is “for how long.” Here, the mediator has bypassed the opportunity to respond to a disputant's displayed stance.

Extract 2:

In answer to the preceding question, Ann first names a minimum time frame (“a couple of weeks”), then immediately substitutes a second, longer time frame (“at least a month”). She adds an account (Buttny 1993; Antaki 1994) explaining why she wants this additional time (line 18). No one picks up on this, however. Twice now she has attempted to explain why — to narrate her plans and circumstances. Neither attempt has gotten the floor. Chuck speaks in overlap with this account, acknowledging the proposed time frame with “Okay” and proposing a next action (line 19). He uses an indefinite formulation, “these things,” which suggests there are multiple issues to consider. He then turns to ask Frank an if–then question (which forwards “a month” as her proposal — the second, longer time frame she gave), calling on Frank to say what he would want in exchange for this to be acceptable (lines 20–21).

After a pause, Frank addresses Ann, stating clearly and slowly what he wants (lines 23–24). He strongly marks the word “r:↑ent” with a stretch on the initial sound, sharply raised pitch, and emphasis on the final sound — it carries emotional weight and conveys a tone of righteous indignation. Although he addresses Ann directly, she does not respond. Chuck speaks in overlap, again using “okay” to show readiness to move on. Following a pause, Chuck picks up on the substantive framing of “rent” to state an amount (which is the current monthly rent) with continuing intonation, suggesting that this is part, but not all, of the deal. Chuck continues to gaze at Frank, and his continuing intonation suggests that he is providing space for Frank to say more. Once again, Chuck has bypassed an opportunity to acknowledge Frank's stance or feelings, instead focusing on the substance of what is being proposed.

Over the next twenty lines or so (see full transcript in Appendix C), Frank talks directly to Ann about his daughter, his family, and his own financial needs. We pick up analysis again where he ends this extended turn at talk by complaining (line 51) that he cannot provide financial support for his daughter.

Extract 3:

Chuck continues gazing at Frank, and nods his head slowly, acknowledging Frank's position (line 52). Ann makes a quiet, nonlinguistic sound that seems to show minimal understanding but no empathy or any kind of negotiative response. Another long silence follows (line 54). Chuck steps in, beginning with a “so” that suggests putting forward a conclusion, formulation, or upshot of what has preceded. His wording —“the question is”— projects that what is to follow will capture a central problem or decision to be made. He has not empathized with, or otherwise acknowledged, the affective dimensions of Frank's prior turn.

Chuck begins to restate Frank's position (“you're sa‐”) but stops as Frank makes sounds in overlap then begins to speak. Frank's hypothetical question (lines 56–58) starts a different action than what Chuck projected. Chuck attempts to move them toward formulating proposals; Frank's action maintains focus on his personal dilemma. It reinforces his earlier point about the role of “family” in helping each other. Frank continues to gaze directly at Ann, disattending Chuck: he is addressing this directly to her. Another long silence follows (line 59). Chuck now turns to Ann, nonverbally marking her as the addressee and the one to speak next. She sighs but does not speak (line 60). She makes no offers, provides no way forward. Another pause follows. They seem to be stuck.

Extract 4:

Chuck starts to speak (line 62), beginning with the conjunction “so” that projects a conclusion or formulation. There is a subtle wording shift: in line 55, he referred to “the[emphasis added] question,” now he labels this “a[emphasis added] question,” suggesting it is not central to the negotiation. The phrase “right there” locates the question spatiotemporally, clearly marking what Frank has just said. Chuck has not finished his utterance, but he stops as Frank speaks in overlap, addressing Ann directly. Frank states his objection in another way, making what she is proposing seem unfair and morally unreasonable (lines 64–67). Ann responds by restating her position.

In the excerpts shown above, several opportunities arose for the mediator to acknowledge the feelings or perspectives of one or both of the parties. Chuck bypassed these opportunities, instead pursuing content issues in a way that might have moved the parties toward an agreement. Frank, in effect, rebels against this trajectory by talking over Chuck and speaking more about his stance. Chuck stops, giving Frank space to do this.Almost immediately after the previous moment, Chuck calls for individual caucuses, beginning with Frank.

Extract 5:

Now in private caucus, Frank raises an objection to what is being proposed that is rooted in perceptions of fairness (lines 2–5). His marked affect is evident in the extreme way he formulates what is being proposed (some ↑more months), the extra breath on “shehh,” and the emphatic gesture that accompanies his talk (line 6). Once again bypassing an opportunity to acknowledge stance or empathize, Chuck initiates a topic shift toward crafting an offer (line 7).

Frank overlaps him to keep talking, however, and Chuck stops. Frank adds more talk that states what this “unfair” proposal would do positively for Ann (lines 8–9). His downward intonation and the syntax make this utterance possibly complete. Chuck acknowledges Frank with “right,” which implies he already understands this position (Heritage and Raymond 2005). Frank adds more to his utterance, completing it again with a phrase that verbalizes negative consequences for himself (line 11). After twice saying “so,” projecting a summary or next move in the process, Chuck stops and directly acknowledges Frank's stance, recasting it as an interest with a reason provided (lines 12–15). Frank confirms this acknowledgment (line 17).

Beginning in line 19, Chuck poses a question to Frank. By acknowledging the participant's perspective, the mediator has cleared the way for them to move on to problem‐solving talk. And yet, the course is now a bit different: instead of directly speaking to amount of money or length of time Ann will stay in the apartment, Chuck gets Frank to talk about his goals.

Mediators need to manage talk so that progress continues either toward a resolution or toward an agreement that no resolution is possible. Mediators also need to manage talk so that participants can express their perspectives and feelings and know that they are being heard and understood. Relentless pursuit of the former to the neglect of the latter risks alienating participants; undue focus on the latter can derail progress and undermine perceptions of impartiality. These dilemmas are evident in the structure and behavioral details of the interaction itself.

In the mediation that I have excerpted here, when Frank formulates Ann's request in a critical way, when he emphasizes key words (such as “family”), when his gestures embody frustration, and when he speaks at length of his own financial obligations as a father, he gives the mediator opportunities to acknowledge his perspective and feelings. When Chuck bypasses these opportunities, instead picking up on components of a possible deal, we can see his emphasis on moving toward an agreement. The moments of overlap and even interruption (extracts 3 and 4, lines 56–63; extract 5, line 8) show Frank's in‐the‐moment recognition that he is not being heard and his insistence on being heard. When Frank keeps talking, Chuck drops out, letting him continue.

A number of silences occur when no speaker, clearly, is designated to go next. Each time, Chuck must decide whether to say something or wait for one of the disputants to do so. Ann, too, contributes integrally to the unfolding interaction: by saying little and not engaging in bargaining, she leaves it to Chuck to move things along and, at times, to speak for her. Chuck is in a delicate position. If he aligns too quickly, too often, or too closely with Frank's perspectives, he risks being seen as partial and losing Ann. They have been speaking for nearly an hour, and given the pace of district court mediations, Chuck's actions may reflect sensitivity to time. After all, marked participant affect such as frustration may result from weariness as well as from not feeling heard. Whatever the causes or motivations, participants display their understandings of what is going on moment to moment through word choice, voice, gesture, timing, and turn taking. In these ways, social actors jointly create reality.

Editors' note: The following analysis is based on a videotaped real‐life mediation session held in 2009 in a small claims court. The participants include Chuck, the mediator; Frank, a landlord, who has filed the suit; and Ann, his tenant, who is several months behind on her rent payments. We suggest that readers consider viewing the video clip and reading the transcript prior to reading the analysis. To view the clip discussed below, visit http://www.pon.harvard.edu/publications/negotiation‐journal. A list of transcription symbols appear as Appendix A to this special section on page 171. Edited versions of the videotaped mediation are available for purchase through the Program on Negotiation at Harvard Law School Clearinghouse at http://www.pon.org/catalog/index.php.