6 Key Factors to Dispute Management

How to Manage Disputes

If you’re a lawyer, arbitrator, mediator, or even just an everyday person, you’ve had to manage disputes and conflict in your life. It might’ve been something as simple as figuring out whose turn it was to play on the Xbox between your young children or something as complex as negotiating a settlement from a Fortune 500 Company after one of their products hurt your client or their property.

Learning how to manage disputes is important not only for people in business but also your own personal life. Thankfully, the following six factors apply to both professional and personal disputes and can be applied to either.

6 Key Factors to Dispute Management

1. Emotions

It is critical for a mediator to understand and control their own emotions. Many conflict settings are fraught with human emotion due to the nature of the conflicts at hand. Some conflicts are more emotional than others and even the most sophisticated of business people sometimes show raw emotion when engaged in conflict. If a mediator has not come to terms with their own emotions (analyzing, assessing, comparing and experimenting), they 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 and only 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 linchpins to your success as a mediator. If you cannot cope with others’ emotions while also 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 a visible, unwavering neutrality. This is the essence that gives the participants the courage to be honest and forthright with their views and emotion — that is, they trust that the mediator has no hidden agenda, no favoritism, and no foregone conclusion or outcome.

As a mediator, I always give the parties my permission to “bust” me if either thinks I am favoring 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 they have 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.

3. Trust Your Instincts

Perhaps you’ve heard the adage: “Who you are speaks so loudly that I cannot hear what you’re saying.” Certainly you’re familiar with the United States Supreme Court’s definition of pornography: the justices couldn’t specifically define it but said they “knew 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… You analyze all of the evidence, listen authentically to the parties, use all the appropriate mediation techniques and nonetheless, something is still not right.  In that situation, it is more often than not your instincts telling you that some measure of intrinsic truth is hidden, unseen, and/or 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. Lastly, try to find out the truth. Here are some tips to finding 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 complexity of human nature. A good mediator has to be strong, courageous, relentless in terms of exploring every avenue to settlement.

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

But, if you manage to be strong and courageous, 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, and their emotions may be relative. However, I have found that the intrinsic truth of the matter is not relative. The truth is the truth and it cannot be explained away.

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 even how many techniques you use, the case won’t settle that day because one or both parties is not ready. Both may even tell you just the opposite (ie. they’re ready to settle or they don’t want the expense of trial) but let your instincts be your guide here.

Some conflict has a long life while others are over almost before they begin. Some fall into the middle ground time frame. All conflicts have one thing in common: each has its own “shelf life” or time frame within which it must exist be it minutes, days, weeks, months, or years. Understanding and accepting this 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 and take everything one step at a time.