Dispute Management ADR

Dispute Management Process

Conflict Resolution is premised upon an assertive, empathetic, yet  realistic construct.  A competent “mediator” helps the parties actually embrace their conflict by using innovative, proven techniques for resolution.

The competent mediator is trained to enable the parties to essentially build a bridge through the conflict, forging a “way through” to an acceptable, palatable result.  There is a method to the madness of conflict resolution, and corresponding magic and  reward. 

“Conflict occurs when two opposing parties have interests
or goals that appear to be incompatible.”

Richard Hughes

“It is a good and fair settlement when neither party
likes the outcome, but agree to it.”

Unknown

I do not own (nor do I pretend to own) a corner in the market for truth.  Nonetheless, here is the “truth” according to Fritz:

You cannot assist others with their conflict if you do not practice what you preach!

1) Emotions

 It is critical for a mediator to understand, if not control, her own emotions.  Many conflict settings are fraught with human emotion.  Even the most sophisticated of business people show raw emotion when engaged in conflict, large or small.  If a mediator has not come to terms with her own emotions, i.e., analyzing, assessing, comparing and experimenting, she will find it nearly impossible to withstand the emotional content inherent in many mediations. I have seen grown men cry.  I have seen grown women cry.  I, too, have cried…but privately,  after the mediation is completed. There are standardized tests and questionnaires available on the market that enable one to assess her approach (or avoidance) to conflict.  Knowing where you stand in regard to others’ emotions, both positive and negative, is one of the lynchpins to your success as a mediator. If you cannot cope with others’ emotions while  maintaining  your sense of self and neutrality, it follows that you cannot be an effective mediator.

2) Neutrality

At the very heart and soul of a competent mediator is her visible, unwavering neutrality.  This is the essence that gives the participants the courage to be honest and forthright with their views and emotion: they trust that the mediator has no hidden agenda, no favoritism, no foregone conclusion or outcome.

As a mediator, I always give the parties my “permission”, [not that they need it, really], to “bust” me if either thinks I am favoring —  or conversely —  disfavoring, one or  the other.  If I am going to be committed to the underlying neutrality of the mediation process, I must walk my talk.  I also need to know how I’m coming across to the participants.  If I am doing or saying anything that is adversely affecting the process, one or both parties needs to feel he has the ability and the right to tell me about it.  The irony is that in all of the years that I have used this statement in mediations, not once has anyone indicated that I was not being impartial.  The reality, of course, is that no mediator is perfectly impartial all the time.  I wonder…

3) Trust Your Instincts — 

I hope you remember the adage, “Who you are speaks so loudly that I cannot hear what you’re saying”.  Or certainly you’re familiar with the United States Supreme Court’s “definition” of pornography: the justices could not specifically define it but said they “…[k]new when they saw it”.

These concepts speak to something elemental about mediators in general, and the mediation process in particular.  Mediators (and great communicators) need to learn to trust and follow their instincts. The truth is that sometimes the objective facts in a case do not “add up”.  You know what I mean.  One analyzes all of the evidence, listens authentically to the parties, uses all the appropriate mediation techniques and nonetheless, something is still not right, or out of place, or out of sync.  In that situation, it is more often than not your instincts telling you that some measure of intrinsic truth is hidden, unseen, not obvious.  Sometimes that “intrinsic truth” is the barrier to settlement, or preventing an honest discussion of an important issue.  What do you do in that event?

First and foremost, do not ignore your instincts. Second, pay attention to your instincts.  Third,remind yourself to trust your instincts.  Then…flesh out the truth.  Ask questions.  Indicate your frustration, in terms of coming to terms with the important issue.  Ask the parties for their assistance.  Say, “This is your mediation, not mine.  What do you suggest we do?”  Then say nothing until after someone else initiates a discussion. The more you pay attention to and learn to trust your instincts, the better they will serve you as a mediator, as a good communicator.

4) Be Relentless — 

The process of mediation, or engaging in other structured communication with integrity, is tough.  If you’re doing a great job of it, you’ll find it tiring, frustrating, boring, exhilarating, maddening, humorous and an incredible foray into the conundrum of human nature.  And, as a result, it’s tough. A good mediator has to be strong and courageous and relentless in terms of exploring every avenue to settlement.

It takes a certain amount of strength and courage to withstand hours and hours of personal involvement in someone else’s conflict.  It takes a certain amount of strength and courage  to cut to the chase in a caucus with a party, regardless of his discomfort.  It takes a certain amount of strength and courage to continually function as a reality check for both sides, refusing to let them sidestep personal responsibility.

The reward is awesome.

5) The Truth is not Relative — 

I’ll never forget a discussion I had once, years ago, with a young woman who was the defendant in an action filed by my client, the plaintiff.  On the morning of the day set for  trial, the judge ordered us out into the hallway of the courthouse to engage in a discussion with an eye toward settling the case, if possible. The young woman proceeded to regale me with her tales about the events leading up to the incident, all of which were not only unsupported by uncontested facts but also defied imagination.  I remember looking at her at one point and I said something like, “Come on, you know that’s not the truth”.  To which she retorted, “Well, the truth is relative…you know that. The truth is relative”.

I have to say that in my years as a mediator I have discovered that people’s positions may be relative, their perceptions may be relative, their emotions may be relative.  But I have found, more often than not, that the intrinsic truth of the matter is not relative.  The truth is not relative, not even a little.. The truth is the truth and it cannot be explained away.  Period.

6) Conflict has a Life All Its Own —

Sometimes a case is impossible to settle that day because one or both of the parties is not ready to give up his emotional investment in the conflict.  In that case, no matter what you as the mediator do, or how you do it, or how many techniques you use, the case won’t settle that day because one or both is not ready.  Both may even tell you just the opposite, i.e., they’re ready to settle, they don’t want the expense of trial, etc. etc., but let your instincts be your guide here.  Some conflict has a long life: others are over almost before they begin.  Some fall into the middle ground time frame.  But they all have one thing in common: each has its own “shelf life” or time frame within which it must exist. Understanding and accepting this rather esoteric concept has aided me immeasurably in my career as a mediator, as an attorney, and as a mother.  I agree that it’s oxymoronic: conflict — it is what it is.  Relax.

Linda Fritz, Esq., Principal of ConflictResolution.com,  in the role of sole or panelist arbitrator, has conducted more than 600 arbitration cases. Additionally, Ms. Fritz has mediated in excess of 1,000 real estate, business, mass tort claims and other disputes involving complex issues and multi-party proceedings.

The purpose of our company is to assist you in your quest to understand the nature of conflict. Please contact us with your request.

All rights reserved. ConflictResolution.com Copyright © 1998-2019