Between neutrality and effectiveness : or how mediators use argumentation to resolve conflicts

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Between Neutrality and Effectiveness:

or how mediators use argumentation to resolve conflicts

University of Amsterdam

Graduate School of Social Sciences

Master thesis Conflict resolution and Governance submitted by

Diyan Grigorov, 10223843, grigorov.diyan@gmail.com

Supervisor and first reader: Dr. David Laws

Second reader: Dr. Anne Loeber

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Abstract

This thesis analyses the use of argumentation in the context of mediation. It argues that some of the contemporary theoretical approaches to the study of mediation fail to provide adequate explanation of the real causes of conflict, and how problematic situations are managed in reality. The research illustrates that by applying theoretical insights from the pragma-dialectical theory of argumentation one can not only analyse the contrasting positions of the disputants, but one can also evaluate their validity. Drawing on the practical accounts of several professional mediators, the study demonstrates that practitioners use a large variety of argumentative strategies in order to maintain the quality of the mediation process, and help the parties find a mutually satisfactory agreement. To demonstrate how argumentation can be used to further the study of conflict resolution the research analyses a real mediation case.

Acknowledgments

I am very grateful to my supervisor Dr. David Laws for his patience and support. I would also like to thank Dr. Howard Bellman, Suzan Podziba, Dr. Mark Aakhus and Dr. Martien Kuitenbrouwer for sharing with me their practical insights about the role of communication in mediation. In addition, I would like to express my sincere gratitude to Dr. Anne Loeber for agreeing to be the second reader of my thesis.

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1 Introduction

There is no shortage of disputes. Howard Raiffa (1982, p. 7)

A brief glance at the history of human race would confirm that conflict has always played an important role in the formation and the development of the relationships between the members of different social groups, and different nations. Even though the word conflict has a strong negative connotation, this does not mean that the consequences of interpersonal disputes should always be seen as harmful or destructive. Just in contrary, sometimes engaging in conflict can be a meaningful way to indicate that there is a need for drastic revision of the existing order. Thus, in certain situations, conflict can be regarded as an unpleasant, but necessary prerequisite for achieving progress and stability (Lewicki, Saunders & Minton, 1997).

Unfortunately, it is not always the case that conflict serves constructive social functions. Intractable conflicts between different members of different groups frequently obstruct the process of obtaining consensus on issues of immense public importance; lead to polarization of the community; and create strong desires for retaliation or destruction (Schön & Rein, 1994; Rubin, Pruitt & Kim, 1994). Given the fact that intractable conflicts can have tremendous negative effect upon society, it is of vital importance to comprehend how public disputes can be managed effectively.

To achieve this goal the present research will examine how mediators use argumentation in the process of conflict resolution. Analysing what types of argumentative strategies practitioners employ in the context of mediation can provide valuable insights about the various ways in which conflict can be resolved. Even though argumentation plays important functional role in the process of conflict resolution, because it allows the parties to evaluate the merits of the available solutions, it seems that in the literature on mediation the argumentative aspects of the process of conflict resolution have remained largely unexamined. In fact, the majority of the researchers prefer to treat conflict as a result of the clash between disputants’ contrasting frames (Schön & Rein, 1994; Elliot, Gray & Lewicki, 2003; Putnam and Wondolleck, 2003), without realising that these frames are in fact argumentative structures designed to support a particular opinion. Hence the predominant

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view in the literature on mediation still posits that conflict is resolved when the parties, with the help of the practitioner, actively engage in the process of reframing their positions so that they can reach shared understanding, which in turn can lead to an agreement (Gray, 2003; Shmueli, Elliott and Kaufman, 2006).

Although reframing has been heralded as one of the main tools that mediators use to direct the parties towards a mutually beneficial agreement, it must be noted that this theoretical approach fails to provide comprehensive account of how mediators mange the process of conflict resolution in reality. Certainly, most of the recommendations given by the proponents of the framing approach (Lewicki, Gray & Elliott, 2003), that conflict interveners should listen carefully, encourage in joint fact finding and promote meaningful communicative exchange, are valuable. Yet, the main problem is that the framing theory treats the process of conflict resolution mainly in descriptive terms. Many important questions, such as How the contrasting frames of the parties undergo transformation during the mediation process?, and How the practitioner directs the process of conflict resolution without taking a position on the possible solutions?, seem to be neglected.

This research will attempt to address these questions, and many others, by examining the process of conflict resolution from an argumentative perspective. However, the main research question that this study will attempt to answer is what can argumentation theory reveal about mediators’ capacity to manage practical challenges? Providing more insights into the ways in which mediators overcome the various communicative obstacles that impede the process of conflict resolution can be very helpful not only for practitioners who seek to improve their skills, but also for researchers who wish to obtain better understanding of the role of argumentation in mediation.

To enhance the understanding of the dynamics of the mediation process, and to explain how practitioners use argumentation to help the parties reach an agreement, the study will employ theoretical insights from the theory of conflict resolution (Rubin, Pruitt & Kim, 1994; Susskind and Cruikshank, 1987), the pragma-dialectical theory of argumentation (Eemeren, 2010; Eemeren & Houtlosser, 2002), negotiation (Lax and Sebenius, 1986; Axelrod, 1977), linguistics (Levinson, 1992; Searl, 1969), the theory of framing in communication (Entman, 1993), and sociology ( Goffman, 1974; Stokes and Hewitt, 1976). Once the analysis has established what kind of factors influence the positions of the disputants, and how the social context in which mediation takes place shapes the verbal contributions of the parties and the mediator, the study will focus on the practical insights provided by four distinguished mediators from the United States, and the Netherlands. As

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will be demonstrated, linking the accounts of the practitioners with the theoretical postulates of the pragma-dialectical theory of argumentation can be very useful for identifying what communicative goals mediators pursue at the different stages of the mediation process, and what argumentative strategies they employ to overcome the various communicative challenges related to each phase.

This research, therefore, can be seen as an attempt to unite two different approaches to the study of mediation – these of narrative research, and qualitative content analysis. While most of the studies in the literature on conflict resolution focus chiefly on the mediators’ stories (Kolb, 2001; Forester, 2009), research on argumentation focuses mainly on the analysis of transcripts from various mediation sessions (Jacobs & Aakhus, 2002; Greco Morasso, 2001). Each of these two methodological frameworks has its own advantages for they both analyse the process of mediation from different perspectives. But because in reality every case is different, and because the mediators constantly have to modify their strategies, what mediators say in their personal stories may not capture all aspects of a given technique, or explain why the strategy at hand has been used in a certain way. Likewise, sometimes in an argumentative reconstruction the analyst may under-examine or misinterpret some of the verbal contributions of the mediator, which also could lead to providing a distorted picture of what really has happen during the mediation. Even though one may say that combining narrative and qualitative research could create some methodological problems, this endeavour is justifiable given the fact that it can help understand how conflict can be managed effectively.

As for the structure of the thesis, the study begins by providing a critical overview of the framing approach to mediation. Analysing the theoretical postulates of this theory will help identify some of the main problems related to the current understanding of the causes of conflict (Chapter 2). Next, in order to explain how mediators use argumentation in the process of conflict resolution, the analysis will illustrate how the macro-context in which the mediation takes place influences the verbal behaviour of the disputants, and the mediator. In addition, will be explained, with the help of a concrete example, how one can use insights from the theory of argumentation to reconstruct end evaluate the frames of the conflicting parties (Chapter 3). To enhance the knowledge of how mediators use argumentation during the various phases of the mediation process, the discussion will focus on the personal accounts of four highly respected practitioners (Chapter 4). Finally, the study will analyse a real mediation case, and will demonstrate how mediators use various argumentative strategies to further the process of conflict resolution (Chapter 5).

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2. Framing in mediation: theoretical background and some critical remarks

One has to keep the eyes wide open to see things as they are. And yet again more widely to see things as other than they are. And yet again more widely to see things as better than they are.

Antonio Machado, (Song XXXVIII, 1988)

As the epigraph opening this chapter suggests, to enhance one’s own understanding of the nature of objective reality one first must extend his or her own vision about objective reality. However, the development of conscious awareness cannot take place unless one is willing to challenge some of the already established views about the various phenomena in the world. Since questioning the validity of what is already known is an effective way to gain new knowledge, this study will attempt to deepen the understanding of mediation by critically examining some of the most widely accepted assumptions regarding the process of conflict resolution. By looking at the theoretical postulates of the framing approach to mediation, which is considered to be one of the most sophisticated theoretical frameworks for studying conflict, this chapter will be demonstrate that framing analysis leaves unexamined many important aspects of the process of conflict resolution.

To illustrate that in the literature on framing, there are some major misconceptions about the process of conflict resolution, the discussion in this chapter will start by outlining the main theoretical assumption of the framing approach to mediation. Next, it will demonstrate how some of these theoretical assumptions not only create practical paradoxes but that they also misrepresent how mediators operate in reality. Three issues will be of special significance: the notion of meaning creation, frame transformation and frame categorization. Scrutinizing the main theoretical insights provided by the framing theory to mediation, is important because it can indicate which facets of the mediation process need further investigation and how the theory can be supplemented so that it gives a more adequate account of the nature of mediation.

The terms frame and framing have been used in different branches of science to denote various things. The concept of a “frame” was introduced by Bateson (1972), who used it to explain how the sender of some piece of information uses metalinguistic signals to help the receiver give a correct interpretation of the on-going interaction. According to Bateson (1972), the sender of the message can create a communicative frame by intentionally making some elements of the actual situation more salient than others, so that he or she can influence

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the way in which the recipient will: (1) interpret the actions of the sender; and (2) ascribe meaning to the on-going interaction. Bateson’s idea, that interlocutors can shape each other’s perceptions by the creation of distinctive frames, has resonated across different social science disciplines. In psychology, for example, frames are conceptualized as cognitive structures, or schemata, that guide the process of information assessment (Minsky 1975, Tversky and Kahneman, 1981). Similarly, in the literature on negotiation frames have been defined as cognitive representations that introduce biases (Neale and Bazerman, 1985). While some researchers in the area of social movements have defined frames as “ action-oriented sets of beliefs and meanings that inspire and legitimate the activities and campaigns of a social movement organization (Benford & Snow, 2006, p. 614), scholars on media have argued that frames are “themes” incorporated in the news that that allow the newsmakers to “maximize the probability of getting their intended or preferred meanings across ” (Pan and Kosicki, 1993, p. 59).

With regard to the conceptualization of frames in the literature on conflict resolution, they are normally seen as interpretative schemes with the help of which conflicting parties make sense and structure their interaction (Tannen & Wallat, 1987; Shmueli, Elliott & Kaufman, 2006). Gray (2003, p. 12) suggests that “a frame reflects our understanding of what is going on and how we see ourselves and others implicated in what is happening. When we frame a conflict we are developing interpretations about what the conflict is about, why it is occurring, the motivations of the parties involved, and how the conflict should be settled”. As for framing, which pertains to the actual act of creating and representing frames, Gray (2003, p. 12) states that “framing refers to the process of constructing and representing our interpretation of the world around us”. Hence for the proponents of the framing approach to mediation, participants’ frames are sincere manifestations of the various ways in which each party make sense of the conflict and the possible solutions.

According to the framing approach to mediation, conflicting parties can resolve their dispute by trying to change their individual frames. The process is known as reframing and essentially pertains to parties efforts to develop “a new way of interpreting or understanding the issues in the dispute” and evaluating the actions of the opposing side (Elliot, Gray & Lewicki, 2003). Through the process of reframing the conflicting parties can align their contrasting frames, which could give them the opportunity to “uproot intractability” and find a mutually satisfactory solution (Putnam and Wondolleck, 2003, p. 57).

Applying framing analysis to the process of mediation has certain advantages because it allows the mediator to quickly assess the positions of the different parties, their attitudes

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towards each other and the available solutions. Analysing the frames of the various parties can also give some insights about the different ways in which the parties try to influence the actions of their opponents, save face, promote a particular solution or mobilize the public. However, despites its functionality with regard to the process of conflict assessment, it seems that the theory of framing depicts the process of mediation in away that is empirically invalid and theoretically unsatisfactory. Why?

Framing analysis provides a theoretically weak account of mediation because of some inherent contradictions in its main postulates, and certain limitations in its methodological apparatus. The first problematic aspect of the framing approach to mediation is that in this theory the frames of the different parties are seen as genuine manifestations of the ways in which the disputants make sense of the conflict. That the frames of the parties should not be taken at their face value is supported by the fact that mediation is a specific form of assisted negotiation (see Schön & Rein, 1994, p. 16-17). This means that mediation, normally, takes place when the conflicting parties have not managed to resolve the conflict on their own. As Susskind and Cruikshank (1987, p. 136) observe “assisted negotiation is the complement to unassisted negotiation” and it becomes necessary when the parties, due to some emotional, psychological or financial reasons, are “unable to sustain the collaborative aspects of unassisted negotiation”.

Because mediation is closely linked to negotiation, mediating parties often exhibit behavioural patterns that are very similar to these of negotiators. From a sociological perspective, one of the main characteristics of negotiation is the use of deceit for personal advantage (see Goffman, 1974, p. 457). Scholars in the area of international relationships also support the idea that “all negotiation naturally includes some deception” (Inkle, 1967, p. 206). And researchers on negotiation has demonstrated that bargaining parties often misrepresent their interests in order to resolve the practical predicaments imposed on them by the negotiator’s dilemma (see Lax and Sebenius, 1986, p. 39). To suggest that mediating parties like negotiators always use deception may seem as an exaggeration at first, but one should keep in mind that parties engage in mediation in order to advance their own interests. Even though the mediator can help the parties find a mutually satisfactory solution, at the end of the process the disputants still have to decide how to divide the “pie”. And this tension, between parties’ desire to reach an agreement and at the same time to maximize their individual outcomes, has significant influence on the behaviour of both sides. That gamesmanship and deceit play important roles in the process of mediation has been widely recognized. For example, Forester (2009, p. 7) reports that “any experienced mediator, like

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many experienced managers or planners or politicians, knows that very much more than meets the eye and ear matters in public conflicts. Any experienced mediator, (again like managers, or planners or politicians) knows that community residents will posture no less than developers, that organizers will play power politics no less than aspiring politicians or bankers, that “information” can rarely be taken by anyone at face value, that even heartfelt communications can often be strategic moves as much as sincere confessions”.

It should have become clear that, taking the frames of the disputants as sincere representations of their understandings of the conflict is highly problematic. This is so because by using frames parties can not only strategically misrepresent their views about the nature of the conflict, but they can also give a false account of the actions of their counterparts and intentionally reject solutions that do not serve their interests. But if the frames of the parties are not manifestations of their inner states then are they?

To provide an answer of this question one first must make a distinction between the various ways in which the term frame is used in sociology and communication. According to Goffman (1974, p. 11), a frame is a stable system of “principle of organization which govern events” and determines how participants use language. In communication theory, however, frames are seen as linguistic devices utilized to achieve of a particular communicative objective (Hallahan, 1999; Pan and Kosici, 1993). For example, Entman (1993, p. 55) posits that “to frame is to select some aspects of perceived reality and make them more salient in the communicating text ”. He also suggests that (1993, p. 52), “frames have at least four locations in the communication process: the communicator, the text, the receiver, and the culture” ” As for the primary aim of the process of framing, Entnam argues that “framing in all four locations includes similar functions: selection and highlighting, and use of the highlighted elements to construct an argument about problems and their causation, evaluation, and/or solution” (Entnam, 1993, p. 53). It is worth emphasizing that for Entman (1993) people use frames not to make sense of the reality, as the framing approach to mediation teaches, but to express argumentative positions that can be either confirmed or disconfirmed. Of course, one can ask “Do not people make sense of the objective world, and for that matter of their interactions, by advancing arguments?”. And the answer is “yes”, but there are significant differences between the ways in which people use argumentation to initiate an ontological inquiry and resolve a conflict situation.

In the first case, arguments are advanced to verify the extent to which a certain set of beliefs corresponds to the reality. The aim of epistemological investigation is to gain

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objective knowledge, or to put it in Aristotel’s own words (1993), “say of what is that it is”.1 In mediation, however, parties use argumentation to provide a particular definition of the situation and prescribe a course of action. Since the definition of the conflict determines what will count as a possible solution, and since different solutions meet the interests of the parties in different ways, it seems logical that in mediation disputants often try to define the conflict in a way that is most beneficial for them. In fact, Stone (1988) (quoted in Schön & Rein, 1994, p. 20) argues that in conflict situations “groups…portray issues deliberately in certain ways so as to win the allegiance of large number of people who agree (tacitly) to let the portrait speak for them. In this way the definition of interests is inextricably linked with the definition of issues”. The fact that in the context of mediation disputants’ try to present the on-going interaction in a certain way suggests that their frames should not be treated as having epistemological validity.

However, if even one accepts that the frames of the disputants indicate how the parties see the on-going conflict and ascribe true value to each of them, then, one is faced with an interesting practical paradox. How can the parties align, or reframe, their positions so that they can establish a shared interpretation that will allow them to reach an agreement? This predicament seems unresolvable given Schön and Rein’s view (1994, p. 24) that intractable social conflicts are “resistant to resolution by appeal to facts or reasoned argumentation because the parties’ conflicting frames determine what counts as a fact and what arguments are taken to be relevant and compelling”. Schön and Rein (1994, p. 57) further argue that the conflicting frames of the disputants create a “revativist trap” that obstructs the process of conflict resolution.

According to the proponents of the frame approach to mediation (Gray, 2003, Elliot et al., 2003), the disputants can get out of this relativist trap with the help of a third neutral party, which can demonstrate to them that there are different ways to interpret the conflict and each other’s actions. Hence in the literature in conflict resolution, it is suggested that one of the main tasks of the mediator is “framing the issues for the parties and helping the parties to reframe the issues in a way that encourages resolution” (see Gray, 2003, p. 32). However, some scholars argue that if the frames of the different parties have true epistemological value, and thus by definition being equally acceptable, there is no way in which the mediator can remain neutral and at the same time help the parties change their perspective with about t

1_{For a full account of the various theories of truth see Lynch, M (2011). Truth. In Sven Bernecker and Duncan} Pritchard “The Routledge Companion to Epistemology”. Routledge.

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the nature of the conflict or its possible solutions. In fact, Bodtke and Jameson (1997) argue that it is unthinkable to assume that a conflict interaction between two individuals, folding contrasting frames, can the resolved merely by adding a third party which is supposed to shape their perceptions and at the same time remain neutral. Bodtke and Jameson (1997, p. 239) suggest that if each side in the dispute, including the mediator, uses frame to construct its own view of reality, then the “interaction can be conceived as a bidding war of sorts, as each party’s messages compete with the other’s to assert meaning”. The problem is that the framing approach to mediation does not provide complete answer to the question how exactly the mediator manages the tension between parties’ conflicting frame.

The idea that disputants use frames to prescribe meaning and structure their conflicting interaction, while talking, creates another problem, this time related to the micro-organization of the mediation process. As Bodtke and Jameson (1997) have noted, the belief that parties’ frames are epistemologically equal suggests that each side can enjoy complete freedom of conduct. But then the question is how do the participants decide that it is time to move from one mediation phase to another? Or to put it in Bodtke and Jameson’s own words (1997, p. 247), “who determines that it is time to move from issue clarification to option generation?”. The problem deserves special attention, because the different stages of the mediation process require different ways of interacting and thinking. However, because the framing approach to mediation fails to provide answer to the question how mediators deal with the predicaments imposed on them by the relativist trap, Bodtker and Jameson (1997, p. 238) conclude that the framing approach to mediation “still does not have a sound theoretical model to guide investigation of disputant influence”. It is precisely this lack of theoretical precision that should be considered as the second main limitation of the framing approach to mediation.

Indeed, it is perplexing how it is possible for the proponents of the frame theory to claim that the frames of the conflicting parties are actual representations of their inner states and then to suggest that “by listening closely for the parties’ underlying interests (their underlying needs), mediators attempt to reformulate and re-present to the parties an interpretation of the conflict that incorporates both (or all) parties’ interests (Gray, 2003, p. 32). The confusion comes from the fact that there is a mismatch between the problem and the suggested solution. If a party holds firmly certain beliefs about the nature of the problematic situation and its causes, translating these beliefs into interests should not change their position, unless there is a relationship between that what has been presented as beliefs, and the interests of the disputants. To deal with this contradiction, the proponents of the framing

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approach to mediation have to admit either that parties’ frames are not mere manifestations of their beliefs, and that frames are constructed to preserve certain interests, or that interest does not play a role in the process of reframing, and conflict resolution occurs because of some other factors. There seems to be no other way in which these apparent inconsistencies in the framing approach to mediation can be resolved.

Another compelling argument that the proponents of the framing theory should reconsider not only their basic assumptions, but also their methodology comes from a number of scholars, who apply framing theory in their own research. Putnam and Wondolleck (2003, p. 37), for example, argue that “the theoretical literature has largely focused on identifying frames that lead to conflict or case analysis of reframing. This literature is largely descriptive about the nature and dynamics of the mediation process”. But one can ask what is wrong with theorists’ efforts to identify what kind of frames parties use in mediation?

There is nothing inappropriate about trying to establish the number of the various frames used in mediation, except that this exercise generates considerable confusion. Framing researchers sharply disagree with each other about the total number of frames and their main characteristics. For instance, while Drake and Donohue (1996, p. 303) recognize four main types of frames: factual; interest; value; and relational, Shmueli, Elliott and Kaufman (2006, p. 211- 214) identify seven types of frames: identity; characterization; power; social control; conflict management; risk and information; loss and gain frames. Similarly, Gray (2003, p. 25- 30) argues that there seven major types of frames, but she adds eighteen sub-categories, which suggests that in total there are twenty five different types of frames. 2 This difference of opinion about how frames should be categorised and the actual plethora of frames generate another problem.

Because framing theorists cannot provide clear criteria for frame identification, they also fail to account how the various types of frames interact, during the process of framing, and how they undergo transformation during the process of reframing. It is reasonable to assume that if there are over twenty different types of frames, researchers should have identified a large number of strategies and techniques by which these frames can be modified. Yet, this is not the case. Except a number of studies in the field of social movements (see Benford and Snow, 2000; Brulle & Benford, 2012), to date, in the literature on framing there is no

2_{According to Gray (2003) the seven main groups of frames are: identity; characterization; conflict} management frames (including nine sub-categories, such as avoidance/passivity; struggle, sabotage, violence, etc.); whole story frames; social conflict frames; power frames (again containing nine sub-categories, such as authority/positional; resources; sympathy/vulnerability, etc.) and gain versus loss frames.

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comprehensive account how frames become subject of contestation and transformation. Clearly, it is not enough to state that there is a certain amount of frames without devoting some effort to illustrate how mediators can help parties modified these frames in a constructive way. And this is the third main limitation of the framing approach to mediation that deserves special attention.

Since it would be inappropriate to give a critical account of the framing approach of mediation without articulating what the possible explanations for its apparent weaknesses are, at this juncture the analysis needs to examine the theory of framing in a historical perspective. A brief look at the literature on framing will indicate that the overemphasis on parties’ capacities to co-create meaning and shape each other’s understandings about the nature of the conflict thorough the use of frames, can be attributed mainly to the influence of the interactioninst theory of human interaction (see Stokes and Hewitt, 1976, Gonos, 1977). According to this theoretical paradigm, social order is the product of joint action: “situations are defined [when] people mutually align their conduct, identities are created or transformed and objects and events are given meaning as they become incorporated in on-going interaction” (Stokes and Hewitt, 1976, p. 840). Since the nature of everything in the world is dependent on the way in which people perceive it, interactionists argue that: (1) conflict occurs when the participants assign different meanings to their joint actions; and (2) that problematic situations can be resolved only when people reach share understanding through the process of aligning their contrasting interpretations.

The theoretical insights of the interactinist theory to human interaction have become popular in the literature on conflict through the work of Tannen and Wallat (1987, p. 211), who after analysing the use of language in pediatric interaction, conclude that conflict occurs because people use different frames to make sense of their interaction, and because individuals often fail to recognize that “each frame entails ways of behaviour that potentially conflict with the demands of the other frames”.3

Even though this interpretation of the possible causes of conflict seems very problematic, Tannen and Wallat’s (1987) ideas have been indiscriminately accepted by a number of scholars on mediation (Drake and Donohue, 1996; Gray, 2003; Shmueli, Elliott & Kaufman, 2006) and negotiation (Putnam and Holmer, 1992; Dewulf, Gray, Putnam & Lewicki, 2009).

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One should note that Tannen and Wallat (1987) theoretical account is actually based on forced reading of Goffman’s (1974, 1981) ideas. This is because Tannen and Wallat (1987) incorrectly assume that different events, or situations, in the course of particular interaction constitute different frames. For a full account of the differences between a situation and a frame see Gonos, G (1977). “Situation” versus “Frame”: the “interactionist” and the “structuralist” analyses of everyday life. American Sociological Review 42: 854 – 867.

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With regard to the methodological limitation of the framing approach to mediation, one can say that framing theorist cannot explain how frames undergo transformation in conflict resolution because framing have not been studied in a dialogical context. Indeed, most of the literature on framing focuses either on the effects of framing (Tversky and Kahneman, 1981; Neale and Bazerman, 1985, Thompson, 2006) or the construction and use of framing in media (Pan and Kosici, 1993), public relations (Hallahan, 1999) or social movements (Snow & Benford, 1988; Benford & Snow, 2000). Even though the processes of framing and reframing are phenomenon of verbal character, at present, no successful attempts have been made to study the activities of frame creation and frame transformation in the context of mediation, by making use of many of the valuable insights that discourse analysis, conversation analysis, and argumentation analysis provide. This, of course, does not mean that mediation has not been studied from an argumentative perspective (Eemeren et al. 1993; Jacobs & Aakhus, 2002), but only suggests that the relationship between the process of framing, and the use of language in mediation has not been examined thoroughly. As will be demonstrated later in this thesis, analysing the process of framing by looking more closely at the verbal contributions of the disputants can be very useful for understanding how conflict is resolved in reality. But before that it seems appropriate to reiterate the most important findings presented in this chapter.

The main conclusion that can be drawn from the present discussion is that the framing approach to mediation does not provide clear explanation how problematic situations are created and resolved. The idea that conflict steams from discrepancies in parties’ interpretations frames was rejected on ground that mediation is a specific type of assisted negotiation and, like in negotiation, many of the verbal contributions of the disputants can serve certain strategic functions. In addition, it was demonstrated that there are inherent contradictions in the framing theory that create unresolvable practical paradoxes: there is no way in which the conflicting frames of the disputants can be reconciled, if the frames of the opposing parties are seen as equally valid. The analysis also indicated that in the framing approach to mediation important questions such as “How frames undergo transformation?” and “How the mediator influence the process of conflict resolution?” have been neglected due to lack of appropriate analytical apparatus.

Despite these serious limitations, one should not assume that the framing approach to mediation is useless, or that the analysis of the various types of conflicting frames should be abandoned. Framing theory can make significant contributions to the study of conflict resolution provided that some of its theoretical postulates are revised, and its methodological

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apparatus is improved by adding insights from other theories on communication such as pragmatics, discourse analysis, and argumentation theory. The next chapter of this thesis will demonstrate how argumentation theory can be used to enhance the understanding of conflict resolution, and enrich the theory of framing.

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3. The process of mediation seen from as argumentative perspective

After all, most of what happens in negotiation is the assertion of arguments by one side,

and the response with other arguments by the other side.

Axelrod (1977, p. 729)

The assumption that argumentation plays an important role not only in the process of negotiation, but also in mediation, is supported by the fact that mediation is a special form of assisted negotiation. Like in negotiation, disputants in mediation try to find a resolution of the conflict of interests by searching for a mutually satisfactory solution. Since conflict is believed to be caused by “perceived divergence of interests, or belief that parties’ current aspirations cannot be achieved simultaneously” (Rubin, Pruitt & Kim, 1994, p. 5), one way in which disputants can resolve their conflict of interests is by obtaining better understanding about the possible consequences that a particular course of action entails.

However, because conflict often arises around complex social issues and because parties have limited knowledge about the interests of their counterpart, disputants frequently are unable to determine what would be the best possible solution. In this relation Axelrod (1977) observes that parties cannot resolve their conflict unless they engage in a process of discovering and developing their common interest. The development of shared interests, as Axelrod (1977, p. 728) notices, starts by “seeking the causal links between the alternatives and utility”. This means that in order to settle their conflict, parties first must examine how their contrasting, yet compatible, interests can be reconciled by the implementation of certain course of action. Argumentation serves important instrumental functions in the process of conflict resolution because gives the parties the opportunity to protect their individual interests and at the same time to develop their common interests by examining the advantages and the disadvantages of all available solutions.

This chapter will attempt to enhance the understanding of the use of argumentation in mediation. More precisely, by focusing on the various argumentative aspects of the mediation process, the discussion in this chapter will demonstrate how certain insights from the theory of argumentation can be used to analyse the strategic use of language in the context of conflict resolution. To achieve these different but complementary goals, the study

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will begin by providing an argumentative characterisation of the process of mediation. Apart from explaining how the macro-context of the mediation process influences the argumentative moves of the parties and the practitioners, the analysis will also introduce a number of pragma-dialectical theoretical concepts, such as argumentative activity type,

strategic manoeuvring and critical discussion. Analysing the process of mediation through

the prism of the pragma-dialectical theory of argumentation will help understand not only how parties try to harmonize their contrasting interests, but also how mediators meet the paradoxical requirement to stay neutral. and at the same time to guide the process of conflict resolution.

In the theory pragma-dialectical theory of argumentation (Eemeren, 2010, Morasso, 2011), the conflict that has been created by the contrasting interests of the parties is analysed as a disagreement pertaining to a difference of opinion. It should be noted, however, that in pragma-dialectics a distinction is made between reasons (or motives) for holding a particular belief and reasons (or grounds) for making an argument (see Eemeren, Grootendorst, Jackson & Jacobs, 1993). This is because people, normally, have well defined goals that are related to their beliefs, but they also have different, even contrasting, understandings of how these goals are to be achieved in a particular context (see O’Keefe, 1988). Hence Eemeren et al. (1993, p. 12) states that, normally, “what people argue over is not so much” related to their actual position, but what they have presented as actual positions. What people have to present their views in certain ways can be explained with the fact that there are many external factors, such as social position, personal commitments that one wants to meet, or organizational policy that one wants to follow, that influence the communicative moves of the speakers. Hence the pragma-dialectical theory of argumentation studies how people resolve their difference of opinion, not by focusing on the cognitive appraisal of the disputants, but on the explicit and implicit speech acts that the parties perform in order to resolve their difference of opinion.

In the context of mediation, parties normally have different views about the possible solutions of the conflict, how these solutions should be evaluated, and how they should be implemented. The value of mediation is that allows the parties to resolve these differences of opinion on their own, by engaging in a reasonable critical discussion in which they can advance arguments and counterarguments to justify or reject a given solution. Even though it seems that in mediation, like in any other social activities, the primary function of argumentation is to convince a reasonable critic of the acceptability of a particular standpoint

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(see van Eemeren, Grootendorst, Snoeck Henkemans 2002, p. xii), it must be noted that in the context of mediation, argumentation is used is a specific way.

To understand how the critical discussion in mediation differs from the argumentative discourses in other communicative practices, it is first necessary to analyse how the macro-context, in which the process of conflict resolution takes place, influences the argumentative moves of the participants. According to the extended pragma-dialectical theory of argumentation (van Eemeren & Houtlosser, 2005; van Eemeren, 2010), the social conventions of the communicative domain, in which an argumentative discussion occurs, shapes not only the process of the argumentative interaction, but also indicate what argumentative means are permissible for resolving the difference of opinion on the merits. 4 Since in different macro-contexts argumentation is instrumental for the achievement of various objectives, in the view of van Eemeren and Houtlosser (2005), in a single communicative domain one can discern a number of communicative practices that have emerged in order to meet the institutional needs characteristic for the particular domain. For example, in the political domain the need for resolving international conflicts has lead to the emergence of international mediation, whereas in the interpersonal domain the need to solve private conflicts has lead to the emergence of family mediation. In the extended pragma-dialectical theory of argumentation, these communicative practices are known as

communicative activity types. When argumentation plays essential role in the fulfilment of

the institutional purpose of a given activity type, then one can describe and analyse the particular communicative practice as an argumentative activity type (van Eemeren & Houtlosser 2005). 5

Argumentative activity types, as described in the pragma-dialectical theory of

argumentation (van Eemeren & Houtlosser 2005; van Eemeren, 2010), refer to conventionalized argumentative practices that aim at achieving certain institutional objectives, in compliance with the norms and rules specific for the communicative domain in which they occur. Communicative activity types accomplish their institutional purposes through the implementation of particular “genres” of communicative activity that serve the needs of a given communicative domain (van Eemeren, 2010). Although communicative

4

In the pragma-dialectical theory of argumentation a number of communicative domains have been identified, such as legal, political, diplomatic, commercial, interpersonal and others. For a full account of the various domains of human communication and the related activity types see Eemeren (2010, p. 143).

5_{The pragma-dialectical term argumentative activity type is very similar to Levinson’s (1992) notion of} “activity types”. In both cases, the context in which the interaction takes place is used to determine what count as allowable contribution to the discussion and “what kind of inferences will be made from what is said” (see Levinson, 1992, p. 97).

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activity types, that use the same genre of communicative activity have common institutional point, every single communicative types also has its own goal that is related to the main institutional purpose that the communicative type that is meant to fulfil (van Eemeren, 2010). To understand what the relationship is between the notion of communicative genre and activity type, one may consider the nature of mediation and how it is used in different domains of communication.

Seen from a pragma-dialectical perspective (see Eemeren, 2010, p. 148), mediation is a specific communicative genre that includes a number of argumentative activity types used in the political, commercial and interpersonal domains of human communication. Concrete examples of argumentative activity types that make use of the genre of mediation are international mediation, public policy mediation, labour mediation, and family mediation. Broadly speaking, the institutional goals of these different activity types are directly related to the overall institutional point of the genre of mediation, which is to resolve a conflict by finding a mutually satisfactory solution. But one should notice that because each of these activity types takes place in different institutional settings, guided by different social norms, the disputants have to use argumentative strategies that are permissible only for the accomplish of the institutional point of the particular communicative practice.

For example, while in the context of divorce mediation, parties may use certain rhetorical strategies such as an appeal to emotions, or an appeal to pity to support their own positions, in the context of international mediation it is unlikely, though not impossible, that the disputants will rely on these very strategies to build up their case. This is because international mediation is a strictly institutionalized argumentative activity type, having explicitly stated conventions, which typically favour the exchange of reasonable arguments and disapproves of the expression of personal emotions.

As one can see, in the various activity types making use of the genre of mediation, the conflicting parties can use argumentation differently. To account for the large variety of ways in which the argumentative exchanges between the parties can develop, the pragma-dialectical theory of argumentation employs two other closely related theoretical concepts, these of strategic manoeuvring and ideal model of critical discussion.

The notion of strategic manoeuvring is based on the observation (Eemeren and Houtlosser,

2002; Eemeren, 2010) that when people argue they not only try to maintain certain standards of reasonableness, by providing sound logical arguments, but they also use certain rhetorical strategies to resolve the difference of opinion in their own favour. Or to put it in Eemeren’s (2010, p. 40) own words:

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Strategic manoeuvring refers to the continual efforts made in all argumentative moves that are carried out in argumentation discourse to keep the balance between reasonableness and effectiveness. In principle, people engaged in argumentative discourse always have to reconcile their pursuit to maintain reasonableness and their pursuit to achieve effectiveness: because of this argumentative predicament they always have to maneuver strategically.

The process of strategic manoeuvring in an argumentative discussion has three distinct aspects, each of which is associated with a number of different choices (see Eemeren and Houtlosser, 2002; Eemeren, 2010). The first aspect of strategic manoeuvring is called topical

selection and it is related to the various types of arguments that the speaker can use to defend

his or her standpoint or attack the standpoint of the opponent. To achieve these different dialectical objectives the arguer may choose to use a number of arguments based on “causal” argumentation, “symptomatic” argumentation and “comparison” argumentation. What kind of arguments the speaker will employ during the argumentative exchange depends to a large extent on the specifics of the case and the argumentative skills of the arguer.

The second aspect of strategic manoeuvring is known as adaptation to the audience

demand. This component deals with the various ways in which the speaker tries to adopt his

or her line of reasoning to the expectations and the preferences of the audience so that the public more readily accepts the propositions of the arguer. For example, a speaker who wants to change the status quo may initially phase a given problem is a way that is consistent with the views and values of the audience, but then he or she may slowly begin to demonstrate, by providing arguments and counter-arguments, that the current situation must be changed because is actually disadvantageous for the audience.

The third aspect of strategic manoeuvring is called presentational devices and involves choices related to the presentation and the phrasing of the various argumentative moves. Strategic manoeuvring with the available presentational devices refers to the various ways in which speakers use language to make their argumentative moves rhetorically effective. For example, J.F. Kennedy’s famous phrase “Let us never negotiate out of fear. But let us never fear to negotiate” semantically is, more or less, equivalent to “I believe that we should never negotiate because we feel threatened and I also think that we should never feel threatened to negotiate”. However, the stylistic merits of the two sentences are dramatically different. The rhetorical figure of chiasmus, upon which Kennedy’s phrase is structured, not only

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contributes to the clarity, dynamic and the internal balance of the message, but it also allows the speaker to create a two-sided argument by which he can emphasize that one action is more desirable than the other. In this case, the conjunction but indicates that for the speaker engaging in negotiations is the preferable course of action (see Corbett & Connors, 1999). It should be emphasized that the three different aspect of strategic manoeuvring are always used together and because of that the reconstruction of any particular argument must account not only for the propositional content of the argument, but also for the social context in which the argument has been advanced, and for the way in which it has been phrased. Shortly it will be demonstrated how the notion of strategic manoeuvring can be applied to the study of framing. But before that a few words have to be said about the ideal model of

critical discussion.

According to the pragma-dialectical theory of argumentation (Eemeren and Grootendorst,

1984; Eemeren and Houtlosser, 2002; van Eemeren, 2010), in order to reconstruct adequately and critically evaluate how disputants have used arguments to resolve their difference of opinion, one must be able to examine the argumentative moves of the each party. The ideal model of critical discussion represents an analytical tool that has been created especially for the achievement of this task. The model is based on a set of normative standards of reasonableness, that indicate what verbal contributions parties must make if they were to resolve their difference of opinion of the merits. The basis assumption behind the model is that in reality there cannot be an ideal argumentative discussion in which all parties are equal and in which all parties use only logically valid argument. However, by creating a theoretical model of an ideal critical discussion one can identity whether or not the parties, that have been engaged in real argumentative discussion, had observed certain norm of behaviour and logical standards of reasonableness. 6

In this sense, the ideal model of critical discussion differs from the notion of argumentative activity type. This is because argumentative activity types are empirical phenomena having certain characteristics, and norms that determine how argumentation should be used in reality, whereas the ideal model of critical discussion is normative grid for analysing the validity of the various argumentative moves. By using the ideal model of critical discussion, one can also identify: (1) how disagreement is create; (2) what procedures and norms parties use to settle their difference of opinion; (3) what arguments parties employ

6_{It is interesting to note that Schön & Rein (see 1994, p. 50) have noticed that Habermas’ idealized model of} emancipatory discourse (see Habermas, 1984) can be used to analyse the process of frame reflection. Yet because Schön & Rein (1999) have seen the model as “impossibly remote from actual practice” they have not made a full use of it.

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to defend their own positions, and (4) whether the final outcome of the discussion is an agreement or acknowledgement that (for the time being) no agreement is possible. In fact, in the ideal model, each of these four analytical steps is considered to be a specific phase in the ideal argumentative situation, which has four stages: the confrontation stage, the opening stage, the argumentative stage, and the concluding stage (Eemeren and Grootendorst, 1984; Eemeren et al. 1993).

Hence the various ways in which parties express their disagreement are analysed as part of the confrontation stage. The discussion related to the establishment of the procedural norms for resolving the dispute is seen as a part of the opening stage. The actual exchange of arguments and contra-arguments is analysed as part of the argumentative stage. And the final announcement pertaining to the outcomes of the discussion is seen as an element of the

concluding stage. It should be noted that when a real argumentative discussion is analysed

the strategic manoeuvring of the parties is analysed in relation to the various dialectical and rhetorical goals that parties pursue at each of these four stages.

In order to apply the theoretical insight provided by the ideal model of critical discussion to the study of actual argumentative exchange, such as public mediation or family mediation, the analyst first must establish how the four stages of the ideal model of critical discussion are empirically manifested in the argumentative practice under examination. That means that the researcher must identify the initial situation from which the disagreement has developed, the types of parties involved (individuals, groups or organizations), the social settings, and the contrasting positions related to the issue under consideration.

Next, the starting points, or the implicit and explicit social rules that guide the argumentative exchange have to be identified. After that, the analyst must establish what

argumentative means the parties can use in the particular activity type. For example, in all

activity types making use of the genre of mediation, parties can advance their arguments in various ways, but, normally, argumentation is incorporated in speech acts such as offers, conditional-offers, and conditional promises.

Finally, the analyst must specify what the outcomes are of the argumentative discussion in the given activity type. In the context of public mediation, the outcomes of the discussion are directly related to the various ways in which the available alternatives meet the interests of the parties. If both parties agree that a given solution is mutually beneficial then the final outcome will be an agreement. Conversely, if such a solution is unavailable, then the final outcome would continue to be a disagreement of interests, or a recognition that no agreement

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can be obtained at the moment. But how all these theoretical insights can be use to further the study of framing, and conflict resolution in particular?

To answer this question one first must recall what the main theoretical, and methodological limitations are of the framing approach to mediation. As mentioned, one of major flows in this theory is that the process of mediation is seen not as a stable social activity that is guided by certain explicit, and implicit norms, but as a specific type of personal encounter, during which identities, rules and meanings are constantly negotiated, and altered. This incorrect assumption, and the believe that all frames are equally valid, have created unsolvable practical paradox: How is one to evaluate the frames of the conflicting parties when each frame has its own true validity, and when each frame determines what counts as a fact? Interestingly enough, the proponents of the framing approach to mediation have ignored the problem of framing evaluation, and the equally important question of how frame alignment is obtained in reality, and instead they have focused on the identification of frames categories. Methodologically speaking, the attempt to provide a characterization of the main frame categories has not been of any use either because researches still cannot answer the question how frames undergo transformation during the process of conflict resolution?

However, if one applies some of the theoretical insights from the pragma-dialectical theory of argumentation to the study of framing, then one can not only resolve all these problems, but one can also obtain better understanding of how conflict is resolved in reality. This is because in the theory of argumentation the verbal contributions of the parties, unlike in framing theory, are seen not as manifestations of their inner states, but as means designed to resolve difference of opinion. As noted, there are natural constrains that compel language users to adopt certain position and present them in a particular way. By examining the relation between the communicative goals of the parties and the context in which the interaction occurs, the pragma-dialectical theory of argumentation can establish how each party has tried to manoeuvre strategically in order to support or defend a particular position. Moreover, by using the ideal model of critical discussion and its logical norms, one can critically evaluate the positions of all disputants by applying the relevant critical questions to the various argumentative schemes that have been used.

One possible explanation, why the framing theory has not succeeded in providing an adequate account of the process of conflict resolution, has to do with the fact that in this theory the disputants’ frames are treated as stories (Schön & Rein, 1994, Elliot, Gray and Lewicki, 2003). Such a treatment is problematic because it prevents the mediator from

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understanding what the main assumptions of the conflicting parties are. Since conflict occurs when the parties believe that their conflicting interests cannot be reconciled (Rubin et al., 1994), then one can safely assert that the first step towards conflict resolution is to understand how these beliefs have been created and whether they are valid or not. However, knowing the “stories” of the parties provides insufficient insights into the thinking patterns of the disputants. In fact, Gallie (1964, p, 46) argues that: “to follow a human being’s traits of thought and action – especially through a sequence of varied and unpredictable incidents – is something very different from following their rationale ” [ emphasised in the original, D.G].

It is worth mentioning that, Schön and Rein (1994) have also recognized that in order to enhance the study of conflict resolution one must understand what logical standards parties use to construct their individual frames. Or stated in Schön and Rein's words (1994, p. 36), “frame - critical analysis” should explain how “the frame sponsor’s policy story executes the normative leap from facts to recommendations” and whether such a normative leap is valid or not. But because of the relativist trap created by the theoretical postulates of the framing approach to mediation, Schön and Rein (1994) have not managed to provide clear criteria for frame evaluation. Nevertheless, as the following section of this chapter will demonstrate, evaluating frames is a easy task, if one is equipped with the necessary analytical tool and relevant linguistic knowledge.

3.1 Applying argumentative analysis to the study of frames

To understand how argumentation theory can be used for frame evaluation one may consider to evaluate one of the many frames that Schön and Rein (1994, p. 30) have analysed to support their view that “ those who construct the social reality of a situation through one frame can always ignore or reinterpret the ‘facts’ that holders of a second frame present as decisive counterevidence to the first”. A good candidate for critical evaluation is Justice William Douglas’s opinion on the constitutionality of the Federal Urban Renewal Program in the District of Columbia (see Schön and Rein, 1994, p. 24). The example goes like this:

The experts concluded that if the community were to be healthy, if it were not to revert again to blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were unsanitary of unsightly. It was important to

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redesign the whole area so as to eliminate the conditions that cause slums – the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only palliative. The entire area needed redesigning so that balanced, integrated plan could be developed for the region including, not only new homes, but also schools, churches, parks, streets, and shopping centres. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented.

In order to provide an argumentative reconstruction of this passage the first thing that one must do is to identify the main standpoint that has been put forwards. It is interesting to note that, in this case Justice William Douglas does not express his position directly, but presents it as a part of the experts’ account. 7 However, because this passage is taken from the official opinion of Justice William Douglas on the case, one can assume that he also holds the view that “the area must be planned as a whole”. This standpoint is supported by two different but related arguments and by a number of sub-arguments. The first main argument of the speakers is that “a piecemeal approach would be only palliative”, and the second one is that “there is a need for integrative plan that includes the building of homes, schools, churches, etc.”. Taken together these two arguments form a coordinative argumentation. In this type of argumentation, the two arguments are linked together so that the second argument comes in support of the first argument. The use of coordinative argumentation, normally, indicates that the speaker realises that his or her initial argument does not provide enough evidence for the plausibility of the standpoint. However, in this case, the first argument of the speaker is also supported by a number of additional sub-arguments that are subordinate to each other. This type of

7_{It is difficult to tell whether Justice William Douglas has used to opening sentence “The experts concluded} that…” as a means for advancing an argument from expert opinion, or as a linguistic device to disassociate himself from the expressed opinion. Given the history of the case, it seems that the speaker has indeed supported the implementation of the plan, but perhaps in order to meet the requirement for impartiality, Justice William Douglas had preferred to make clear that what he is about to say is simply a reflection of what somebody else’s conclusions.

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argumentation is known as subordinate argumentation: each individual argument provides some support to the argument that has been previously expressed. It should be noted, that the first argument of the speaker is supported by the unexpressed premise that “a piecemeal approach includes only the removing of individual buildings”, which in turn is supported by an explicit argument stating that “removing individual buildings will no eliminate the conditions that cause slums”. This argument is backed up by another subordinate argument that states that “slums are caused by overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreation areas the lack of light and air, the presence of outmoded street patterns”.

With regard to the second main argument of Justice William Douglas, here again the speaker makes use of coordinative argumentation in which the first sub-argument “such a plan will stop the cycle of decay” is supported by the second sub-argument that “such plan will prevent the birth of new slums”. Since the speaker not only tries to attack the possible counter-arguments of his opponents (by advancing his first argument), but he also tries to defend his own standpoint (by giving a second argument), the entire passage can be reconstructed as an example of coordinative compound argumentation. 8

Figure 1. Argumentative Reconstruction of William Douglas’ opinion.

1. The area must to be planed as a whole ↑

1.1.a . A piecemeal approach would be only palliative. + 1.1.b There is a need for integrative plan that

includes the building of homes, schools ,

churches, etc. ↑

1.1.b.1. Such plan + 1.1.b.2. Such plan will stop will prevent the cycle the birth of of decay. new slums. ↑

(1.1.a. 1. A piecemeal approach includes only the removing of individual buildings).

8_{For full account of analysing complex argumentation see A. F. Snoeck Henkemans (1997). Analysing}

complex argumentation: the reconstruction of multiple and coordinatively compound argumentation in a

Between neutrality and effectiveness : or how mediators use argumentation to resolve conflicts