MEDIATION AND DISPUTE RESOLUTION

Kenneth Mentor, J.D., Ph.D.
Department of Sociology and Criminology
University of North Carolina Wilmington

This is a draft of a submission included in the
Encyclopedia of Criminology, edited by Richard A. Wright

Most 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 assistance.

Each 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.

Unresolved 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.

LITIGATION, POWER, AND ADR

While 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.

As 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.

As 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.

While 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 key strengths.

Alternative 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.

ADR 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 disputants.

ADR 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.

MEDIATION

ADR 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.

While 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 acceptable agreement.

Communication 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.

The 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.

The 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 dispute.

CONCLUSION

Although 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.

The 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.

SUGGESTED READING

"Bush, R., and Folger, J., The Promise of Mediation.  San Francisco, CA: Jossey Bass, 1994.

"Carpenter, Susan L. and W.J.D. Kennedy. Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements. San Francisco, CA: Jossey Bass, 1988.

"Fisher, Roger, William Ury and Bruce Patton. Getting To Yes: Negotiating Agreement Without Giving In. 2d ed. New York: Penguin Books, 1991.

"Folberg, Jay and Alison Taylor. Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation. San Francisco, CA: Jossey Bass, 1984.

"Goldberg, Stephen B., Frank E. A. Sander, and Nancy Rogers. Dispute Resolution: Negotiation, Mediation, and Other Processes. 2d ed. Boston: Little, Brown, 1992.

"Moore, Christopher W. The Mediation Process: Practical Strategies for Resolving Conflicts. 2d ed. San Francisco, CA: Jossey Bass, 1996.

"Ury, William, J. Brett and S. Goldberg. Getting Disputes Resolved. San Francisco, CA: Jossey Bass, 1989.