John Michael Haynes, Gretchen L. Haynes, And Larry Sun .

MEDIATION POSITIVE CONFLICTMANAGEMENTJOHN MICHAEL HAYNESGRETCHEN L. HAYNES LARRY SUN FONG

SUNY series in Transpersonal and Humanistic PsychologyRichard D. Mann, editor

Mediation

MediationPositive Conflict ManagementJohn Michael HaynesGretchen L. HaynesLarry Sun FongState University of New York Press

Published byState University of New York Press, Albany 2004 State University of New YorkAll rights reservedPrinted in the United States of AmericaNo part of this book may be used or reproduced in any manner whatsoeverwithout written permission. No part of this book may be stored in a retrieval systemor transmitted in any form or by any means including electronic, electrostatic,magnetic tape, mechanical, photocopying, recording, or otherwisewithout the prior permission in writing of the publisher.For information, address State University of New York Press,90 State Street, Suite 700, Albany, NY 12207Production by Michael HaggettMarketing by Michael CampochiaroLibrary of Congress Cataloging-in-Publication DataHaynes, John M.Mediation : positive conflict management / John Michael Haynes, Gretchen L. Haynes,Larry Sun Fong.p. cm. — (SUNY series in transpersonal and humanistic psychology)Includes bibliographical references and index.ISBN 0-7914-5951-9 (alk. paper) — ISBN 0-7914-5952-7 (pbk. : alk. paper)1. Conflict management. 2. Mediation. I. Haynes, Gretchen L., 1934– II. Fong, LarrySun, 1952– III. Title. IV. Series.HM1126.H39 2004303.6'9—dc22200404160410 9 8 7 6 5 4 3 2 1

Dedicated to John Michael Haynes1932–1999He shared his insights, his skills, his life.

ContentsForeword The Mediator Prepares: The Practice of TheoryRobert D. BenjaminixPrefacexv1Principles of Broad-Based Mediation Practice2The Business of Bagels: Mediating a Business Partnership DisputeJohn M. Haynes, Mediator233Sexual Harassment: Mediating an Employment IssueJohn M. Haynes, Mediator694Neighbors: Defending Their ChildrenLarry S. Fong, Mediator1075Working with Families: A Parent-Teen ConflictJohn M. Haynes, Mediator1296Adoption: The Chaos of ChoiceLarry S. Fong, Mediator1697Teacher-Parent Conflict: A Dispute Over the ClassroomJohn M. Haynes, Mediator2018Conclusion: Participation Feedback249Vienna Speech Support for Human and Social GrowthJohn M. Haynes1261Appendix Books, Articles, and Professional Activitiesby John M. Haynes271Brief Biography275Index277vii

ForewordThe Mediator PreparesThe Practice of TheoryROBERT D. BENJAMINFew who had the opportunity to observe John Haynes mediate disputes woulddeny his artistry. His elegant presence, accented by bow tie and the Britishaccent, and supported by subtle hand motions, were suggestive of a shamandrawing out evil spirits. For many people in the throes of conflict, his reassuringdemeanor elicited a calming effect. There was a well-developed sense of theaterabout John Haynes as he drew from the lead actors—the parties—their best performances. He knew how to reach behind a person’s defensive posturing and constructively release the closeted fears that held them in check. He would be thefirst to admit that he was playing a role, yet there was nothing disingenuous; thecompassion he displayed for people mired in disputes was authentic. His professional background and intellectual focus as a professor of social work concernedwith social policy and labor-management issues and before that as a politicalspeechwriter, prepared the way for the mediation work for which he wouldbecome known. That “calling” came about by chance in 1976 when friendsentangled in a divorce at the literal and proverbial courtroom door, requested hismoderating assistance. They apparently saw in him what many others would seein the years to follow, his innate ability to foster a balanced and thoughtfulatmosphere in which to negotiate a workable settlement.Haynes, and a small handful of others around the country, recognized theneed and value of mediation and was prepared to seize the opportunity to moldit into a functional and marketable form. With his characteristic discipline andix

xRobert D. Benjaminenergy, mediation became the topic of his doctoral dissertation and his first book,Divorce Mediation, in 1981. Like many artists and scientists who have forged different trails before him, he did not set out to discover a new paradigm of managing disputes, but was ready to be a midwife of sorts to the changes that wereoccurring in our culture and recognize the need for a shift. The timing was rightand he capitalized on one of those rare opportunities to ride the natural energyof that force.Without risk of overstatement, Haynes’s work can be compared with that ofJackson Pollock, the now recognized brilliant abstract artist of the mid-twentiethcentury. Pollock’s seemingly haphazard drip paintings were initially castigated andthe artist dismissed with the abrupt moniker of “Jack the Dripper.” But Pollockpersisted and countered that, “[m]y rhythms are concerned with nature.” Mostcompellingly, some fifty years later, scientific analysis by some physicists have concluded that “Pollock’s drip paintings are full of nature’s fractals—irregular geometric patterns that turn up in clouds, waves, lightning, coastlines, trees and eventhe human body.” Pollock, of course, had no inkling that he was engaging fractalpatterns that would foreshadow quantum chaos theory (Richard P. Taylor, TheOregonian, “Science and Spontaneity,” Richard L. Hill, p. B1, March 7, 2001).Similarly, Haynes’s method taps into and moderates the natural rhythm of conflict. And he, too, without knowing a lot about the whys and the wherefores, offersa pure form of practice that anticipates the formulation of important theory in thefield of conflict management. While he was not subjected to ridicule, it is too easily forgotten that when Haynes began to formally practice and teach mediation inthe mid-1970s, the field was seen as little more than a passing fad.John Haynes was not a theorist. While he did describe techniques and suggested strategies in his many books, his work did not delve into abstract theory.He was, however, the epitome of an intuitive practitioner; he did what he did by“tacit knowing,” sensing how and when to intervene as opposed to acting by roteprescription. Ironically, he may have contributed more to theory than many theorists. Few practitioners display the natural ability to offer a model of practicefrom which good theory can be effectively extrapolated. Just as artists studyhuman models to grasp human form, musculature and expression, mediation theorists should study Haynes’s approach. His style reveals one of the most welldeveloped and purest sampling of mediation practice and principles to be found.He combined a highly developed intuitive sense with a clear analytical structure,wrapped in a passionate commitment to the belief that people in conflict must berespected and given every opportunity to make their own decisions. With thestrong moral groundings of his Quaker background, he lived his beliefs throughhis work by resisting the ever-present temptations to pass judgment or renderopinion. He maintained an unwavering focus on the process of managing disputes and the process was the expression of his values. How he practiced facilitating other peoples’ negotiations as a mediator was pure enough that it requiredno extraneous adornment. His style did not require preambles about the value ofcollaboration, inquiries into peoples’ motivations, or the presumption of setting

Forewordxirules for communication. His empathy for people trying to make sense of difficult situations was self evident in his demeanor and bearing.John masterfully harnessed and constructively redirected the energy of theconflict. Without suppressing or avoiding the conflict, he shaped the direction ofthe discussion. He could not demand respect or impose his authority because hedid not work for a court, judge, or any other organization. He derived his considerable power directly from the parties. His most powerful technique was theuse of his own vulnerability. He never assumed he could or should attempt topersuade, cajole, or otherwise convince anyone of anything; therein was thesource of his power and effectiveness.Formulating a theory of mediation is problematic from the outset. As one ofmany modes of conflict management, mediation may not require or benefit froma distinct theory of practice. Unlike traditional professions that are eachgrounded in distinct theoretical systems that provide a clarified vision of thefield, mediation cannot as easily remain a separate discipline. Whereas theoriesof jurisprudence inform legal practice, and theories of human behavior focus avariety of therapeutic modalities, mediation practice requires the integration ofthe knowledge bases and theories from multiple disciplines. The emphasis is lesson new or different knowledge and more on the systemic, reconfiguration ofwhat is already known. Mediation practice requires a thorough grounding in conflict theory, communications theory, learning theory, systems theory, politicaltheory, legal theory, as well as principles of social psychology, biology, economics,history, anthropology, philosophy, and theology. As such, mediation is a uniquelymodern profession that demands a departure from the traditional thinkingframes that hold the established professions in place.For most professional practitioners, abstract theory is an afterthought. Nocriticism is intended; the realities and requirements of daily practice leave littletime for reflection. In some ways that is useful; too much theory without grounding in practical experience can be constraining and unnecessarily press a practitioner to fit into a set form of practice without due deliberation. On the otherhand, without some theoretical buoy, a practitioner might feel adrift. In theresulting void, personal beliefs, convictions or ideologies are often confused withtheory or the practitioner latches on to a passing theory because it seems to makesense or is politically expedient. For instance, many want to believe that peopleare basically good at heart and are thus drawn to describing themselves as collaborative mediators. Others who are more skeptical are attracted to theories thatreflect that view and support a more harsh or competitive approach to practice.Often, like newborn ducklings imprinted to follow and act like the first live figure they see, be it duck or dog, mediators appear to carry the approach and theory, such as it may be, of their first training experience and trainer.Most novice practitioners have a jumble of techniques and skills to manageconflict that have been gathered and influenced by a variety of scattered sourcesin addition to their mediation training. Just some of those are: their conventional wisdom about what does or does not work; political necessity and the