AND DISPUTE RESOLUTION
Mentor, J.D., Ph.D.
Department of Sociology and Criminology
University of North Carolina Wilmington
is a draft of a submission included in the
Encyclopedia of Criminology, edited by Richard A. Wright
people work through a variety of interpersonal conflicts or
disputes on a daily basis. The majority of these disputes
are quickly resolved through a conflict resolution process
that is so routine that we do not recognize the situation as
a conflict. In other cases interpersonal conflict can be so
serious that friendships and relationships are threatened.
More serious conflicts typically include many issues and
parties and may be difficult to resolve without outside
of us approaches conflict in different ways, often depending
on the situation in which conflict occurs. We also choose
our responses to conflict based on our individual dispute
resolution skills. In many cases we choose the path of least
resistance, especially if we are uncertain of our ability to
productively respond to conflict. This tendency may cause us
to avoid conflict if an easy solution is not apparent.
conflict can result in stress, violence, litigation, and a
variety of activities intended to prevail. Since these
activities can be very destructive, it is in our best
interest to develop efficient procedures that allow the
parties to resolve differences peacefully. Ideally, these
dispute resolution processes will allow the parties to
satisfy their interests in ways that reduce suffering while
efficiently relying of positive resources. In effect,
conflict provides an opportunity to communicate, to learn
how the other parties define the problem, and work toward a
resolution that will, in addition to addressing the issues,
lead to lowered levels of stress and other emotional
responses to conflict.
POWER, AND ADR
many people are good at resolving simple conflicts, other
disputes cannot be resolved without the help of outside
parties. Each conflict situation offers many options for
resolution. In addition to processes that rely on
interpersonal skills, our legal system has designed a number
of methods for resolving or minimizing conflict. The choices
we make when faced with conflict can result in very
different results, both in terms of substance and process.
we know, litigation is often chosen when conflict reaches a
level where interpersonal skills fail to lead to a
successful resolution. Unfortunately, the decision to
litigate often results in a process that is mechanical and
contentious. Litigation-based processes often ignore the
feelings of disputants. Although the parties reach a
decision that is defined as a resolution, unresolved issues
often lead disputants to report that they are not satisfied
with the results or the process. Access to litigation, and
in many ways justice, are not equal. Many disputants are not
able to take their disputes to court. As a result,
litigation fails to address many of the most common
disputes. In addition to litigation, or in the absence of
other means of dispute processing, aggressive responses to
conflict may be chosen. Aggressive responses to conflict are
dangerous, ineffective, and in most cases unlawful. An
aggressive response to conflict also demonstrates disrespect
for self and others.
in these examples, many responses to conflict involve the
use of power, either personal power or reliance on state
power, that can be called upon to support an individual's
belief that he or she is "right." Mediation and
other alternatives to litigation offer a solution to
litigation and other power-based responses to conflict.
Litigation and other power-based forms of conflict processing
often results in a winner-take-all way of thinking. Failing to
realize that a cost free win is extremely unusual, disputants
may begin the litigation process with the expectation of a
clear and convincing victory. As we know, even if one party
prevails on every point, the case will be extremely expensive
in terms of money, relationships, and the emotional, personal
and business life of each party.
litigation remains an option for many parties and disputes,
there are many alternatives that seek to minimize power,
respect feelings, and resolve disputes in ways that leave
parties with positive feelings about the process and result.
Alternatives to litigation are referred to as Alternative
Dispute Resolution, or ADR, and include a range of
processes. ADR processes can be very informal. In many cases
the process is limited to the disputants and the
requirements of record keeping and other protocols are
relaxed in comparison to courtroom processes. At other times
the dispute is more complex and may include a multiple stage
process, with many disputants and a group of mediators. In
other situations the ADR process is strictly controlled and
may closely resemble courtroom-based efforts to resolve
conflict. The flexibility of these processes is one of the
dispute resolution processes typically include a neutral
third-party whose role varies according to the process
selected. An information sharing process, in which disputants
work out the details of their dispute and work toward an
agreement, is typical of most ADR processes. In mediation, a
trained third-party neutral works to help the parties
communicate in ways that lead to resolution. The mediator
generally does not have the authority to make decisions that
would end the dispute. In arbitration, the neutral third-party
is empowered with decision-making authority. Other ADR
processes include fact-finding, ombudspersons, private
tribunals, mini-trials, conciliation, and other processes that
include a mixture of techniques.
works best if it is chosen early in the life of a
dispute - before parties have committed to hard and fast
positions. That is the point in time when a neutral, objective
and impartial third party may assist the parties in achieving
results which can be imaginative, inventive, and not
necessarily based on a monetary settlement. In contrast to
litigation, which typically relies on processes that can seem
very mechanical and dehumanizing, ADR has the capacity to
search for, and adopt, results that meet the parties'
underlying interests and overall objectives. Since disputes
often include multiple parties and interests, value can be
attached to feelings, actions, and other things that are
difficult to quantify but have value that is unique to the
processes are often endorsed by the courts and are connected
to court-based dispute resolution processes. The court may
transfer their decision-making power or the ADR process may be
used to narrow the range of issues to be addressed by the
court. ADR processes can also be independent of the courts.
"Community mediation" programs have been created to address
neighborhood and other local disputes. School based mediation
programs are evident in the development of campus mediation
centers and peer mediation programs. ADR processes are used in
the workplace, where ombudpersons, arbitrators, and mediators
are active in the resolution of employment related
disputes. ADR processes are also used to resolve
environmental and property disputes. ADR processes are also
used in efforts to resolve disputes between organizations,
corporations, and nations.
includes a range of processes, each sharing similar
procedures, philosophy, and advantages. Mediation is one of
the best known, and best understood of these processes. In
mediation, the disputing parties engage a third-party to
assist them in coming to a mutual resolution. "Ownership" of
the dispute remains with the disputants and the third-party
remains neutral. The mediator's goal is to help the parties
work together to resolve "their" dispute.
the mediator is neutral with respect to outcome, he or she
controls the mediation process. A primary goal of the process
is the enable the disputants to communicate in a way that will
lead to mutual understanding of the issues and interests that
underlie positions that have been expressed by the disputants.
The mediator helps the disputants discover and evaluate a
range of settlement options, eventually leading to a mutually
is the centerpiece of any mediation. The disputing parties
each have the opportunity to tell their stories and
be heard by the opposing party. Since poor communication
skills, and the escalation of conflict that may result from
ineffective communication, may be at the root of the dispute,
the mediator works to encourage an open and respectful
exchange of ideas. Throughout the early stages of this
communication process disputants typically take "positions."
These positions may be firmly held and in direct opposition to
the positions expressed by the other party. The parties have
expressed these positions because they see them as a means to
achieve certain goals or to satisfy unexpressed "interests."
The mediator assists the parties in a communication process
that is intended to expose these underlying interests. If the
parties listen carefully they may learn that the other party's
perceptions are very different from their own. In addition to
disclosure, the parties will begin to understand why these
positions have been expressed and will hopefully begin to
develop respect for (not necessarily agreement with) the other
party's feeling and interpretations. In many cases the process
of moving from "positions" to "interests" lead the parties to
realize that their goals are not as divergent as they assumed
during the early stages of conflict.
mediator assists the parties in reaching agreement by using
and encouraging active listening techniques. The mediator also
asks directive and clarifying questions in an effort to expose
all relevant issues. Throughout the process the mediator works
to validate the parties' points of view, acknowledging the
disputant's right to own his or her feelings and have these
feelings be expressed and clarified in an effort to reach a
shared understanding of all issues. A key advantage of the
communication process is that the process often leads to the
identification of common interests. Once these interests are
identified the mediator helps the disputant's develop and
evaluate alternative solutions to the dispute.
primary goal of mediation is for all parties to identify a
solution they can live with and trust. This goal is reached
through a process that encourages an honest discussion of past
issues and a shared move toward a future-focused orientation
in which the parties solve problems in ways that protect
feelings and relationships. Mediation and other forms of ADR
also have important secondary goals. In many cases disputants
benefit from improved communication and an enhanced
understanding and respect for the other person's point of
view. Mediation also offers an opportunity to be heard, and
perhaps to express anger and other emotions in a positive
environment. Mediation also presents an opportunity to openly
examine the strengths and weaknesses of the positions that
disputants cling to as the preferred "solution" to their
mediation and other ADR processes may provide an effective
alternative to litigation, it would not be accurate to
suggest that these processes are always preferable or that
litigation could, or should, be replaced by ADR. It may be
best to think about these processes as adding to, or
extending, the range of tools available in our efforts to
resolve difficult disputes. Some have expressed concerns
about the privatization of disputes, including disputes that
may best be addressed through legislation and other
processes that lead to change. Others have raised concerns
about the effectiveness of informal and neutral processes in
situations where judicial processes have the potential to
"balance the scales" in an effort to prevent a powerful
party from imposing solutions. Concerns have also been
raised about training, education, and licensing of mediators
and others involved with various ADR processes. Finally,
some have expressed concerns about a "one size fits all"
application of ADR to disputes where alternate means of
dispute processing might be more appropriate.
benefits of ADR include savings of time and money, the
potential to protect ongoing relationships, increased
satisfaction with the process and solution, and greater
control over the dispute resolution process. The process is
confidential, flexible, creates an opportunity to end a
dispute without a "loser," and empowers parties to work
together to resolve future disputes. These
processes provide a fair and flexible alternative process that
can be used to efficiently resolve disputes. When chosen
correctly, and used by skilled professionals, mediation and
other forms of ADR have proven to be very powerful tools in
the effort to peacefully resolve disputes.
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