Mediation and the Power of NDR.
There is tremendous activity at Commission level to bring a system of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) into an active and working structure to benefit us all. The means through which you and I settle our differences and disputes is a simple one and in this article I am trying to take the mystery away and look to our natural abilities and how we exercise these through mediation by highlighting the benefits of mediation and the quality of resolution that it can deliver. In my preparation I have read various expert practitioners comments which, despite the fact that oceans separate them, are in full agreement in tone – ADR works!
This, at a time when Ireland is poised to introduce a Mediation Bill, indicates to me how much demanding work is ahead in creating a positive, supportive and enlightening awareness for what I would suggest is a most Natura l Dispute Resolution (NDR) process.
One of the very first words we speak is a plain, simple and, impressively for such a young mind, a usually very determined – No!
As our life progresses in stages of growth, knowledge and experience the value of ‘no’ and its impact becomes quite effective and powerful – especially when ‘yes’ would have been the expected or preferred response.
What then follows is generally determined by the circumstances and context within which the negativity is expressed, to whom it is directed and what is our intention or preferred alternative. At a young age our parents would have referred to this as a tantrum, quickly resolved and more quickly forgotton and forgiven. As we age though and, debately, should, with continued constructive adult education and guidance, know better, our disagreements can be viewed by us as being more serious in nature and significance, we can allow them to fester and grow often seeking and needing support from family, friends, colleagues and, yes, again, despite our stature, our parents, not necessarily to resolve them but rather to actually prolong them.
This progression to third party intervention is for validation, assistance and degrees of support in determining what is it that we are demanding. Is it fair and realistic or is it perhaps a misunderstanding or misinterpretation of what was intended? Or, has it been stated with no good reason and solely as a human reaction under difficult circumstances that now seems difficult to remember in terms of reasonableness? One thing is certain, our view is determined by example and, importantly, our experiences. But,not just our own experiences but those of our family, friends and colleagues which we process and integrate into what becomes our value base and ethical standpoint.
When we are very young it is the normal expectation that our parents will separate the wrong from right and give us a set of life skills that we use and improve upon as we age, learn and engage in more responsible events and decisions. As we age and become more enquisitive as well as experienced it can prompt us to be significantly more challenging, open to debate and, interestingly, more inclined toward open exciting and positively intended confrontation.
As we progress and grow, as consumers we contract daily with providers that we pay for goods and services; as employees we contract with our employers to provide our work and skills in return for their payment; in business we contract with other third party businesses to build and improve our surroundings and lifestyles.
In all of these personal and commercial contractual engagements there are terms and conditions that apply, obligations and undertakings that are relied upon and an overarching prevailing expectation that trust and goodwill will bring these contracts to a successful and beneficial completion.
Of course, while commonly referred to as unnecessary and almost discourteous insertions intended really for other people, penalty clauses - increasingly with significant, detailed, specific and damaging consequences – are provided in the event that one party believes it is necessary to call a halt to proceedings. Arguably, we rely upon systems, rules and legal provisions to determine our rights and entitlements. Confrontation is much less the chosen option.
The thread for both action and response is therefore seen to be determined through personal experience, trusted relationships, ethic values and a conviction that it is right to stop and say no – but argued through the proper channels and especially the tried, tested and long established facilities of the courts. The recommendation for continued personal engagement would be therefore not to do so.
To Whom Now Do We Turn
The pattern throughout dispute would be similar in the majority of cases in that personal interaction and intervention occurs in increasing levels of ranking from e.g. a sub-contractor to a builder, through to the architect, to the client and, depending upon the progress or lack of it, up the ranking until someone, frustrated at the lack of any parties acceptance of responsibility, decides to seek legal advice. This is mirrored in cases of individuals and families in contention with the actions of nurses, carers, doctors, consultants and inevitably hospitals and nursing homes where the care for a loved one becomes a matter of intense division and entrenched and determined opposition.
Throughout the process the reality of life is that cost will, generally, intervene with varying levels of significance. When this point is reached a number of possibilities arise.
It may be the case that the cost of fighting what has become a matter of principal as opposed to a significant matter of financial loss brings the reality that other available options need to be explored.
I have had many consumers advise me that what was initially an issue of money had now progressed beyond that to that of principal and fairness.
Again, this prompted a suggestion for a review of options - alternatives - that could alter the approach to remedy.
The pattern I referred to above takes a toll on the quality of personal interaction upon which the contract was originally based. It has moved far away from the individuals involved and their level of engagement is frequently replaced, and determined, by legal advisors who, acting upon our direction and often despite their advice to the contrary, must say, definitively and robustly, no!
This is why mediation/ADR, I do believe, has the potential to revisit what was a positive personal interaction, provide better clarity and understanding of the issues and restore a level of trust that can be built upon to mutual current and possible future benefit.
Mediation is described within the proposed Mediation Bill for Ireland as:
‘A facilitative and confidential process in which a mediator assists parties to a dispute to attempt by themselves, on a voluntary basis, to reach mutually acceptable and voluntary agreement to resolve their dispute’.
This presents the possibility to and potential for both sides to engage and interact, likely after a lengthy period of complete and legaly counseled separation, together, and revist and discuss the breakdown within that agreement they previously, together, happily put into action.
It is, of course, a great personal achievement, on each of their parts, that they have agreed to do so. So, does this not highlight and better reflect the reality of the growth in experience that I refer to earlier in our lifetime learning? They have been locked into third party documented detail of what is their disagreement and have lost a significant degree of personal engagement and life-learned maturity through third party encouraged distance. Is it not therefore the most realistic and natural of steps to be advised of the benefits of mediation at this stage?
Now, I am not niaevely suggesting that all parties to all disputes will even wish to consider the mediation process but I do believe that the choice must be offered but also, importantly, encouraged and outlned in positive terms.This is where we come to the serious nub of the problem. In the United States, there is a reflected difficulty emerging with regard to legal advice and understanding for the parties of what place mediation really holds in their particular dispute.
Mark Baer, in the Huffington Post on May of 2013, questioned how ‘… those involved in the legal system have created confusion in the marketplace regarding the concept of mediation itself. If those involved in the legal system don't know what mediation is supposed to be, how can we expect the general public to grasp the concept?’
It becomes clear how engagement with the public could feed into and facilitate a wider level of appreciation within the commercial sector as to the benefits of mediation. However, it will be the means through which the very specific distinction of how mediation is a confidential and personal facilitation that will be key. Why? Because for one thing this is not a situation where the mediator will offer a possible solution or steer a preferred solution of one party for support from the other. This is not a friend’s input but the assistance of an experienced individual completely disconnected and unknown to the parties who will allow them to privately outline their position, without interruption, in a private space – and help them find their solution to their problem.
The Alternative in ADR
Public perception of the term ‘alternative’ requires some consideration at this point.
If we look to the World English Dictionary it presents the following definitions:
· A possible or remaining course or choice:
There was no alternative but to attempt mediation.
· Employing or following nontraditional or unconventional
ideas, methods, etc.; existing outside the establishment:
An alternative to going through the established and trusted legal
and court procedure.
· Denoting a lifestyle, culture, art form, etc, regarded by its adherents as preferable to that of contemporary society because it is less conventional, materialistic, or institutionalised, and, often, more in harmony with nature.
This would be the closest definition that would resemble that of....definition of Mediation in that it refers to a ‘process’ that is less institutionalised and formal and through which the goal is a restoration of harmony between the parties by the parties.
[‘A facilitative and confidential process in which a mediator assists parties to a dispute to attempt by themselves, on a voluntary basis, to reach mutually acceptable and voluntary agreement to resolve their dispute’]
Perception of the term ‘alternative’ can act as a barrier to initial consideration, never mind actual acceptance of mediation, as it may be being mistakenly and poorly outlined as being a poor and substandard substitute to the real and established route of legal action through the court system.
What is suggested throughout my specific, but acknowledged to be necessarily limited, research here is that there is a growth in the number of consumers who are so advised and with the additional context that it can be agreed to accept and agree to mediate as a delaying measure. Regrettably this is advanced through the absence of unbiased advice for consideration of the reality that mediation could hold real value and realistic potential for resolution of the dispute.
Alternative Dispute Resolution (ADR)
Mediation, when an explanation of its meaning or function is requested, is almost immediately described simply as a system for alternative dispute resolution. You would have to determine for yourself which structure is most offended by this most basic of interpretation Alternative Dispute Resolution (ADR) in general or Mediation in particular.
Confidentiality is omitted and the enormous value of the voluntary commitment from both parties is too. However, what is entirely ignored is the relevance of Mediation in context. By this I mean that the well reasoned explanation of how ‘One goes to court for an interpretation of the law’ rings loud and true here. Mediation facilitates the just resolution of the issue with mutual consent. In terms of value, equitable resolution and healing that is, simply, immeasurable.
Mediation has existed for thousands of years, originally in China and then later in the USA and across the globe. Its origin lies in the manner for resolving personal disputes privately by means of valuing compromise and respecting the fact that the parties acknowledged this to be important.
This is precisely the point. It restores our consideration to the point where we question our position of declared loss and, in context, whether or not a personal element has affected the volatility of our refusal to settle the matter under dispute. We come to consider or reconsider the true cause of our dispute and the potential – or otherwise – for recognition of their being another element to the issue that could provide for mutual reconciliation, agreement or acknowledged difference in part or in whole.
It particularly and often, essentially, provides for the opportunity simply to be fact to face with the individual refusing to settle and also to settle and clarify, in plain language, precisely what is their reason not to do so.
My experience has shown me how, on many occasions, it was the third party heavily, albeit naturally, legalistic engagement that had closed out all personal interfacing and that had actually acted to exasperate those concerned, escalate the level and intensity of determined opposition and prolong the dispute and its attending and growing costs.
The key to mediation is that the process assists and requires us to restore and utilise the very capable powers of reasoning and fairness that we have acquired and improved through our life. It restores our person-to-person capabilities and consideration for agreement that is natural dispute resolution or, if you prefer, NDR - the Natural Resolution of our Disputes.
Essentially, it moves us beyond no and gets us, at least, to possibly.