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MEDIATION TISSUES for ISSUES If you look in the shorter English dictionary, you will find no reference to "dispute" as a noun, but it is described as an "argumentative contention". In the thesaurus there is. It is variously described as an "argument, disagreement, quarrel or difference of opinion". An "issue", in the dictionary, is ascribed with various meanings, but the one we are here concerned with is the legal meaning where it is defined as a "point or matter in contention". In the Encarta dictionary, one of the meanings is a "legal matter in a dispute between two parties." Despite these minor differences in the meanings of the two words, it is clear that the principal characteristics of both words are the same; there is an issue or a dispute where there is a matter being argued or in contention. It matters not which word we use except that, perhaps, the word "issue" bears a rather gentler and objective meaning than the word dispute does. Is this perspective perhaps a better way of approaching these matters? This short article is designed to look at (a) the way issues expand into war and (b) how they are dealt with and I am here dealing with the issues that so often arise in the world of construction and commerce. Let us first deal with how they are dealt with. Usually, it is with a heavy hand, leaving one, if not both parties with severe financial bruises if not heart attacks. Prior to the emergence of what we now call ADR, if negotiation did not work, it was, if either party felt that strongly about the subject matter, off to the court for a third party determination. This process was and still is a time consuming business and very expensive. In the Court's verdict, one party invariably comes out as the "winner"; yet as we are now all aware, if we have given the matter any thought at all, there is rarely a true "winner" of an argument in which each side's contentions are genuinely held -as is usually the case. Nothing is so certain in life that a party, let alone a third party such as a Judge or an Arbitrator/ Adjudicator can be assured that one contention is more correct than the other is, whether it be a matter of law or fact. The succeeding party in a third party determination may be a "winner" in the sense that he has won the toss of the coin, (for litigation is little more than this) but, that does not necessarily mean that his contention was correct. And has he really "won" other than within the narrow confines of an academic legal determination? The same weakness applies in all third party determination of a dispute such as Arbitration or Adjudication. The system fails because nothing is ever so black or white such that an out and out winner can properly exist. The least harmful, painful, and costly way, of disposing of an issue is to have it gently and quickly wiped away, not determined, by the parties themselves. This can be done through negotiation, sometimes with the assistance of a third party Mediator to bring objectivity and wisdom to their negotiations. The third party is the agent of the parties. He is there to assist in providing a connecting link between them. He is, if you like the medium for bringing about a settlement. Bearing in mind that we are in the middle of Lent, it may be appropriate to recall that the greatest example of such a medium, in Christian terms, is Jesus Christ as the mediator between God and man. It is a great misfortune therefore that, like Arbitration, Mediation has been, or is in serious danger of being raised to yet another form of legal dogma. This is another hi-jack by the blinkered legal and other professionals who not infrequently have their own sorry interests in mind rather than those of their clients. Instead of concentrating on the rebuilding of relationships between the parties, so that they can discuss the resolution of the problem sensibly and objectively, the parties become more and more divided by formalities. These are introduced by the lawyers and expert agents which they bring in to buttress their position; by legal pre-Mediation agreements; pre-Mediation meetings; concentration on legal rights and the concentration on other structured formalities - all totally irrelevant and divisive, making the job much more difficult than it is. The issue becomes a conflict spiral generally following a pattern such as this: 1
What lawyer/mediators and others do not seem to grasp, is that in facilitative Mediation, when we mediate, we are not looking at or seeking to establish or prove the legal rights of each party. The 'legal aspects' of any issue is only one aspect, and a small one at that. We are more concerned that the real 'interests' of each party are met, something quite different. It's not what is "wanted" or the "establishment of rights" that counts; it is the needs of the parties themselves that are paramount. There is, for example, more to life than establishing a right to win back some damages to which one thinks one might be entitled. And the way we Mediators get the parties to think of their real interests is to get them to think carefully about their whole position - not just their rights. Is it worth risking a heart attack to insist on a court hearing to obtain something more than is needed? What are the other options? Do they really want to spend the next three years of their lives worrying themselves and their wives and families, about which way the coin will fall? And if they do win, will the other party be able to pay or meet the judgement - and what is going to be the effect on his life? (or does not that matter) And the cost, the cost… No, the most effective way of dissipating, or wiping away, the issue is that provided by the parties themselves. What we, the mediators should do is ensure that the tissues required in their negotiations are strong enough to overcome the emotional anger and other obstacles that prevent a settlement. We assist them to negotiate. First, we rebuild the relationship between them so that at least they will hear directly the other parties' perception; and understand where they are coming from so that the problem(s) can be identified and objectively discussed resulting in a joint solution. To do that they will need to appreciate each others' 1. Principal concerns. What really matters to them and what the consequences are to them of any particular aspect. What would they do in the other parties' position? And the parties must have in the forefront of their minds that this is their joint problem, to which, with the mediator's assistance if necessary, they have to find a practical solution to - unless they want to play the legal bingo game. I have entitled this article "Tissues for Issues", since it is vital that the issue, dispute or problem, call it what you want, is wiped away before it spirals as set out above. We all know, almost an inevitability, how often a disputant can get wound up and ill if the issue is not resolved at an early stage. The process of going to a third party for a resolution, even in the smallest of cases is a huge strain and so often causes ill health. Have you ever been a witness in a High Court Action? I have. It is not funny; it I so much easier to be an advocate or a Judge. Many 'expert' friends of mine have given up agreeing to appear as an expert simply because they do not want the strain of being pounded by the opposing Counsel, and sometimes the Judge at court hearings. There is little compassion around in the Courts these days. It is the mental strain that is so often worse than the physical one. No, the issue needs to be wiped away as soon as it arises, before it gestates. And using the Negotiation/Mediation tissue is the surest and only way of achieving this. Roderick O'Driscoll 1 I am indebted to Sue Banwell-Moore, an experienced and expert Mediation Course Tutor for Workplace Mediation, whose course I was privileged to assist in recently, for these thoughts on how disputes can spiral. |
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