Mediation and the conflict resolution process

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The conflict resolution process may informally only need to address two parties exploring the facts, issues, feeling around those issues, and interests. More formal conflict resolution processes may involve mediation, arbitration, or litigation associated with dispute resolution. Alternative dispute resolution techniques are introduced, with an emphasis placed on mediation. Mediation is a rapidly growing alternative for those looking for assistance on addressing issues. When the parties want some help, want closure sooner, want to expend less resources, and want to be part of the decision-making process instead of having a decision imposed by a third party, mediation may be the answer.

 

Informal conflict resolution process

 

Many disputes between parties are associated with miscommunication. Given miscommunication positions may become entrenched and the parties may even demonize the other party and the other party’s perspective. When this is the situation the parties may need some assistance from a neutral person or a person in authority (the boss). This neutral can meet with the parties separately and/or together to ask question and attempt to uncover the root of the problem. Key areas to explore are

  1. What are the facts?
  2. What are the issues?
  3. What are the feelings associated with each issue?
  4. What are the interests associated with each issue?

 

Exploring these four questions

 

Facts

Exploring the facts can be an interesting action. Each party may have a vastly different perception of the facts. Our perspective based on our background, experiences, moods, location, and other elements can skew the perceptions of the facts from the perspective of each participant. This is why listening actively during an exploration of the facts is central to dispute resolution.

Issues

As the facts are uncovered, issues are clarified. The issues may be the same for both, they may be partially the same, but also different from each other. The key here is to identify the issues to explore all of the issues important to the discussion. Keep in mind that one party may not feel an issue is as important as the other party. Part of the mediation process is to work with the parties to ensure all issues are addressed.

Feelings

Some issues may have limited emotional involvement and others may have strong emotion behind them. Understanding the issues and the emotion behind the issues it may be possible to structure which issues might want to be addressed by the parties first. Sometimes addressing the major issue(s) first may allow for quicker resolution of the other issues. Other times starting with the issues that are smaller and easier to address first may set a framework to work towards resolution of the major more complex issues. Either way it is important for the parties to agree on an approach.

Interests

Behind every position is at least one interest. Exploring interests can lead to solutions. As issues are addressed and interests are explored, it may be possible for the parties to come up with an alternative that may work for them. In the best situations they both come off better. As a minimum with a successful informal mediation each party can live with the resolution going forward.

Giving the parties an opportunity to be heard with a neutral party helping ensure balance can make a significant difference allowing the parties to remain engaged in the process without degrading to negative perspectives.

 

Alternative Dispute Resolution

 

Alternative Dispute Resolution (ADR) typically is thought of as mediation, arbitration, or litigation. Each has its own role to play

Mediation

Mediation involves a third-party neutral working with the parties in the dispute to help them to work towards resolving their concerns. The neutral third-party mediator works with the parties to discover the same facts, issues, feeling, and interests discovered above. Mediation may be facilitative, transformative, or evaluative mediation. In facilitative mediation the mediator works with the parties to address a particular issue. In transformative mediation, the mediator works to transform relationships. Resolving a particular issue is secondary. This technique is often used in family law. Evaluative mediation is often applied by retired judges or attorneys to provide the parties with an expert opinion of what may happen should the issue proceed to court. The parties decide whether to agree or not in the end. Mediation is generally confidential.

Arbitration

Arbitration involves an expert that hears what both parties’ side of the case and then renders a decision on the case. The rendering of a decision is generally explained in the ensuing documentation associated with the case. Those belonging to the American Arbitration Association need to follow their rules. Different rules may apply to construction, consumer, employment, labor, international, and other areas. Many arbitrations are final. That is, they may not be appealed in binding arbitration. The arbitrator is an expert in the field. Arbitrations are generally confidential.

Litigation

Litigation is what many readers can relate to given courtroom drama on various visual formats. Although these venues may be more exciting than true courtroom drama, the overall concept is as presented with a trier of fact (judge or jury), a court room, evidence being presented, examination and cross examination of witnesses and all of the trappings of the legal system. In the end a decision is generally found as guilty or not guilty. The case can be appealed. Litigation is generally public in nature. Since the results are generally made public one or more parties may prefer mediation or arbitration where the results may be kept out of the public venue.

 

Further analysis of mediation

 

Mediation is rapidly growing field. Mediators may have an expertise in a given area given their background and understanding. For example, a business valuer trained and experienced in mediation may be able to read reports, interact with expert witnesses, and ask questions to allow the attorneys and the ultimate client to understand the expert’s strengths and weaknesses. This may allow the ultimate clients to explore a better risk assessment and work towards resolution of this factual issue. Having an experienced, trained mediator that can understand particular experts, and apply the skills associated with mediation allows for the opportunity to have timely closure on issues acceptable to the parties. One of the real advantages of mediation over arbitration and litigation is that the parties make the decision. In arbitration and litigation some other party is the decision maker.

Volunteer mediators are now addressing issues related to housing court, small claims court, harassment court, in public housing disputes. in neighborhood disputes, restorative justice issues, and in other venues. Many find this process to be extremely helpful in allowing both sides to be able to hear and digest the other party’s perspective in a setting that works for all involved.

About the author

Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at mg@mikegreg.com and at (651) 633-5311. Mike has written 12 books (and co-authored two others) including his latest book, The Collaboration Effect: Overcoming Your Conflicts, and The Servant Manager, Business Valuations and the IRS, and Peaceful Resolutions that you may find helpful. [Michael Gregory, ASA, CVA, NSA, MBA, Qualified Mediator with the Minnesota Supreme Court]