In mediations we often hear the parties justify their positions using legal words and terms of law. They may have had lawyers advise them or not. They may have studied-up on their own. Or they may have simply absorbed our legal-adversarial culture watching lawyer dramas on television. Wherever they got them, they’ll use the words that sound a lot like legal claims or defenses.

Even if they don’t use the word, they’re talking about Justice.

I tell my mediation clients they can do better than Justice.

(more…)

I’ve described how the mediator is “something in the middle” that changes the way people in conflict interact. What does that actually look like? How does that work in the mediation of your dispute? What does it feel like?

Well, to be honest, at times it doesn’t feel very good. It’s not always pretty. It may not be pleasant and it can be unsettling. Sometimes it’s just plain uncomfortable.

If it makes you feel any better, just think that it’s not any easier for the other guy, either.

But seriously: does it have to be this way? Why am I doing that? (more…)

For people to reach their solutions, something needs to be different. And Now for Something Completely Different. One of the biggest differences you can make in a dispute is simply to get a mediator involved.

Having a someone else there definitely makes things different. Having a third person there who’s not invested in the dispute and who doesn’t have a dog in the fight or a stake in the result can sometimes make all the difference in the world.

Just the fact that somebody else is there is sometimes all it takes. Sometimes it takes more. (more…)

People come to me with their disputes usually when they’re at wit’s end.

They’ve been trying to fix it themselves, and whatever it is they were doing isn’t working. If it ever worked before, it isn’t working anymore now.

They know the definition of crazy: doing the same thing and expecting a different result. They know things need to be different to reach a different result. They get that. If they want a different result, something’s got to change.

And they know the solution. They already know exactly what it’s going to take. Something needs to change, and that something is the other person. (more…)

For those who thought that conflict resolution was for a few iconoclastic individuals, take note.

Economic turmoil, technological advances are gathering to create A Perfect Storm that “will force lawyers to change their attitude and perspective.”  Gone are the days of blank-check litigation.  ““Resolvers” will replace “litigators.”

Who’s saying these things?  The authors are in-house legal counsel for twelve multinational corporations.

Lawyers: ride out the storm by providing a new service for your clients. Get a new dispute resolution tool for your lawyer’s toolkit to go with your litigation hammer. Your clients are moving beyond litigation and beyond the courthouse – can you keep up with them?

Here’s an issue that can keep mediators talking into the wee hours: when to use joint meetings, and when to use private meetings?

Some people hold the preconceived notion that their approach – private or joint – is always better, all the time, for all people and in all cases. (more…)

A bar association group with which I’m involved was called the “Dispute Resolution Section” for a time.  It recently renamed itself the “Alternative Dispute Resolution Section,” as it had been called when it began years ago.  ADR Section becomes DR Section becomes ADR Section again.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?