15 November 2017

In Australia, as in the USA and UK, disputes between individuals and between and with businesses are traditionally ‘adjudicated’ in adversarial tribunals, where theoretically the winner takes all. In practice, however, the ‘winner’ may take nothing, especially after the full costs of the affray are taken into account.

Each side in such a gladiatorial battle probably believes they are totally in the right and therefore should win. There is no room for equivocation and each party must throw everything they can at the other. There is no place for subtlety and sometimes not even for truth, understanding, compromise or any of those other useful attributes.

There is a place for these in alternative dispute resolution models. The various forms of these have been developed to facilitate parties coming to an accommodation with each other in an empowered way.

In the ‘normal’ world, when someone is in dispute with another person, it is usual and understandable that they gather and refine all the arguments that will lead to them winning the battle, because a battle is usually what it becomes.

Humans have the capacity for empathy: the ability to place oneself in the position of someone else and thus gain an understanding of that person’s thoughts and feelings. If that empathy could be employed to avoid an all-out battle, both parties may come away unscathed, instead of one or both coming out of the fray injured emotionally and/or materially.

To achieve such an outcome, both sides need to trust a third person to set rules of engagement and to encourage everyone to adhere to them. While there must be room for the airing of grievances, there need not be retribution. It is usually enough for a person to see or hear that the perceived transgressor has truly heard the grievance and understands the impact of the perceived transgression.

Whether in any particular case there has been an actual transgression may be immaterial. Disputes often arise out of no more than perceptions.

Alternative dispute resolution, such as mediation, makes room for the airing of what each party believes about the past and present and then to move on to the creation of possible futures. In the end, it comes down to agreeing what those futures may look like and which of them are acceptable to both parties. Although neither party may gain what they imagined would be the outcome before they sat down with the mediator, both will hopefully gain something that is acceptable to them, including an end to the dispute, with everyone’s self-respect intact.

© 2017 Daan Spijer

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