Resources for Keeping the Peace
The Art of Alternative Dispute Resolution
by Daniel Robin
How can you live in peace and still live in the world? In our litigious society, success can be defined as not having to sue anybody.
Conflicts are inevitable, and often act as a mirror of our own lives and attitudes. Using the appropriate tool to address an issue helps us keep differences from escalating into problems. The methods described here are to help you understand your options so you can make informed choices.
Negotiation
Direct negotiations happen all the time. As a form of alternative dispute resolution (ADR), win-win negotiation involves listening to the interests of the other party in order to make proposals or suggestions they are likely to accept. (Adversarial negotiation is where each party gets whatever they can, even and especially if it’s at the other party’s expense. )
In situations that have become difficult or emotional, the presence of a “third-party neutral” can help facilitate and ensure a healthy dialogue so that participants focus on what caused the dispute and how it might be resolved, rather than on the assignment of fault and blame. Here the facilitator is less involved than in other forms of ADR, such as mediation or arbitration.
Direct negotiation is inappropriate when there are power differences that could result in the weaker party “losing” without fair consideration of the merits of their case.
Mediation
Mediation is a more structured process in which the mediator assists the participants to reach a negotiated settlement of their differences. Participant get together to talk and exchange ideas, feelings, experiences, and information on the issue, then try to come to new understandings in order to reach agreements that will satisfy everyone’s interests.
The key role and responsibility of the mediator is to generate and organize options and alternatives, and in many cases, to assist in designing an implementation plan.
The mediator will use various techniques such as active listening, enforcing agreed-upon ground rules, asking for clarification, restatement of concerns of goals, and so on; however, the mediator does not have the authority to render a decision. In cases not strictly about money, or when there’s an ongoing relationship, mediation offers a positive alternative to the court system.
Arbitration
Arbitration is where parties agree to allow a third-party to resolve the matter after a “hearing” in which each side presents evidence and arguments. Here the third party acts as a judge and imposes a decision. The focus is on rights and then wants; whereas mediation is attuned to needs and interests.
In “binding” arbitration, the decision cannot be appealed (except in cases of fraud, corruption or a defective process). In voluntary or non-binding arbitration, the decision is like a recommended remedy — indicating how a judge might decide on the case.
Arbitration is more adversarial than mediation, though it does allow the parties to select the decision-maker(s), set ground rules, and pick the time and place. Beware the tendency to “split the baby” in trying to give something to all parties. When the discovery period isn’t sufficient to obtain information to support the case, or if a jury trial is preferable, arbitration isn’t appropriate.
As every situation involves a unique set of personalities and circumstances, you might want to consult with a trained professional. When selecting a third-party neutral, rather than a particular credential or degree, look for experience and references that relate to your particular situation.
Resources
We are fortunate to have several outstanding resources to assist with resolving most disputes. Here’s a sampling:
Conflict Resolution Centers (CRC) throughout America help individuals handle many types of community disputes, including neighbors, landlord/tenant, housemates, families, workplaces, etc., and offers a sliding fee scale. CRC in Santa Cruz County, CA also staffs a Small Claims Court Mediation Program. Check the phone book for the number of the community CRC in your area.
