10 May 2018

Disagreement is a common and normal human experience. There are many ways of dealing with it and these may lead to resolution, or they may not. Resolving a conflict is usually aided by involving a third party, one not personally involved.

As a society, we have set up facilities and facilitators to help those who are in disagreement with each other deal with their conflict. Society has also proscribed some forms of conflict resolution, such as resort to violence.

For a long time, at least in jurisdictions based on the English system, the most common method of sorting out the issues between conflicting parties has been the use of courts of law. The process entails a form of ritualised gladiatorial combat. However, the conflicting parties rarely engage in the combat personally – they engage expert gladiators in the form of lawyers to do battle for them.

Unlike in physical battles, those actually doing the sparring rarely sustain injuries – those on whose behalf the fight is conducted often end up bloodied, no matter which side ‘wins’. Those doing the fighting – the lawyers – are subject to and invoke strict rules that allow them to walk away without a scratch.

In the court process, the people on whose behalf the fighting is done are commonly bewildered at the procedure and often even at the outcome. They can feel frustrated at how their narratives are presented by the lawyers on both sides and they can be traumatised by the questions thrown at them during cross-examination by their opponent’s lawyer. The parties are rarely given the opportunity to ‘really’ tell their stories as they see them and may be prevented from airing certain aspects of their grievances.

Even if a dispute has not progressed to a court hearing, disputing parties can feel removed from and confused by the way their respective lawyers deal with the matter. The contents of letters sent back and forth may seem to have little relevance to the issues as the parties see them. The lawyers necessarily couch everything in language that promotes their respective clients’ cases. Those whose dispute it is can feel that everything has been taken out of their hands and be left feeling disenfranchised.

How much better it would be if the disputing parties could sit down and sort out their differences by dealing with the ‘real’ issues as they see them and coming to a solution that both can live with. The concept of winning or losing could become irrelevant. In the growing field of alternative dispute resolution (ADR) this has been made a reality. One area of ADR is mediation.

In the mediation model I use, I act as a facilitator to allow the parties to voice the issues as each sees them – which often includes their grievances – and then to explore those issues fully together. This helps to define and refine the issues. There may be agreement on some issues and not on others. Where one person sees an issue that the other doesn’t regard as one, it still gives an opportunity for exploration and understanding. It is common to hear one of the parties say, “I had no idea …”.

In subsequent confidential one-on-one discussions with each party, I am able to help them dig deeper into their grievances and start them considering ways of moving forward. This part of the process also helps each side consider the position of the other.

If someone asks me to take and offer of settlement to the other party, I will refuse, instead encouraging them to bring it up when we again all meet together. This assists in empowering the parties and having them ‘own’ the process.

The rest of the mediation is taken up with those involved sitting together again to explore possible solutions. Everyone is free to propose whatever they wish – the whole mediation is governed by confidentiality and nothing that is said can later be used against the one who said it. Offers can be made and explored, and withdrawn.

Eighty percent of mediations end in the parties coming to an agreement they can live with. They have been in control of the outcome and the cost of the mediation is a fraction of the cost of mounting or defending a court battle, with the cost of the mediation set in advance and split equally between the parties.

In this form of mediation the parties have truly been collaborators in the process.

© 2018 Daan Spijer

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