Conflict Resolution

Floating Questions for the Beach

Hanging around my notebook are musings and questions waiting for an iron to get hot enough to strike.  Well, the iron hasn’t and it being August we might as well just lay them down there, unconnected but I hope not worthless.

1.  The corporate people say that new ideas are hot and stale ones are not.  Is it true that ADR is still as worthwhile as it ever was as a corporate practice, it’s just no longer “cutting edge” and so it’s hard to find a champion for it?

2.  The course, they say, goes like this:  Advocacy, then adoption, then success, then off-support.  So today’s rooster becomes tomorrow’s feather-duster, by virtue of delivering what he promised.  Is that the case with ADR?

3.  Companies “get it” internally.  Most companies of any size have a front-loaded employment dispute management system, and have learned that it’s cheaper to acknowledge and address employee problems early than to chase after them late.  Why has this learning not migrated to relationships with critical partners outside the company?

4.  Can you be a champion of an idea that is already familiar?

5.  Successfully mediating a conclusion to a case at the end of the litigation-prep process is not a success.

6.  Why is business-to-business ADR pushed most enthusiastically by vendors, rather than those who would benefit from it?

7.  A hostage negotiation shared a mantra: “Respect the other party; trust the process.  Not the other way around.”  How often I have seen disputes where neither respect nor trust was evident — for anybody.

8.  “Civil discourse.”  The concept seems to hinge on a willingness to listen and discuss views other than your own.  But in many corners — both in public and in private discourse — there seems often to be no reason to assume that the other person’s view is worth anything other than to refute.  And we didn’t invent this phenomenon — as long ago as 1650 Oliver Cromwell urged the Synod of the Church of Scotland, “in the bowels of Christ, think it possible you may be mistaken.”  Arguers don’t; problem-solvers do.

7.  Perhaps the best environment for civility is not a bilateral disagreement over whether A or B gets the money, but rather a multilateral disagreement over whether A’s river that irrigates B’s land can also be used to provide C with electricity without compromising the recreation that D needs for a living, knowing that if they can’t agree E will come in and regulate the whole thing.

8.  We don’t need an open mike or a “town meeting.”  We need people to consider other’s views on the (admittedly wildly improbable) possibility that their own may be… able to be improved.

1 Comment
  1. Great questions, Peter. I’ve been struggling with my own corollaries to your questions. When mediation was novel, the mediator was the grand master who magically moved the warring parties from the rights-based first hour (a joint session in which their lawyers pounded their chests) to interest-based negotiations that not only resolved their dispute, it sometimes left the parties in a position to resume their commercial relationship. It does seem to me that the process has been so deconstructed, routinized and generally hijacked by litigators that it no longer holds the promise it once did. In fact, in California, we are seeing far fewer cases settling at mediation.

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