Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.

The turn of the 21st century will no doubt be remembered as an age of rapid and dramatic globalization. This coming together of numerous cultures in the marketplace and beyond presents benefits to all. But there are, undoubtedly, also barriers that can arise as a result of cultural differences.

One such complication relates to the resolution of disputes between parties of divergent backgrounds. In order to find workable and sustainable solutions to such disagreements, today’s mediators must employ culturally sensitive courses of action.

The Case for Cross-Cultural Frameworks

Until fairly recently, many mediators have worked in a sort of ethnocentric vacuum, crafting solutions that appeal to their own cultural experiences and sensibilities. For example, observers note that Western culture’s emphasis on finding resolutions that are agreeable to both parties involved in a conflict is not a universally shared objective. In other words, other cultures may view conflict as an honorable way to settle disputes – even, in some cases, violent conflict.

Obviously, that doesn’t mean mediators should seek out or foster conflict. Rather, they must be cognizant of each party’s background. Further, it is critical for cross-cultural mediators to recognize that a “perfect outcome” may be one that in their mind and their culture is not necessarily viewed as the most desirable.

Efforts must be made then to update the criteria as to what makes a good mediator, with an emphasis on abstract thinking and cultural adaptation. Without this re-evaluation, lasting solutions will likely be harder to achieve in the new global landscape.

Collectivism vs. Individualism

One of the biggest disconnects in cross-cultural conflict resolution can stem from an inherent value-based societal structure. Some cultures, for example, may place much value on the rights of the individual, a philosophy that positions personal needs and rights as society’s primary concern. Collectivism, on the other hand, places more value on the interests of the group and less on personal goals and preferences.

This clash of collectivism vs. individualism may be apparent in formal mediation, where a Western framework typically requires that all parties to the dispute be present. However, in collectivistic cultures the term “parties” might itself be up for debate. In such cultures, people who are not directly related to the dispute may be the ones present for the mediation, while the actual individual involved may not be.

In the West, this might be seen as a lack of investment by the individual in question. In other cultures, however, it is pressure from the group that brings about the most change.

Seeking a Palatable Outcome in the Global Age

In seeking resolutions, Western mediators may consider a signed agreement as the ultimate end goal. These agreements are seen as legal and binding documents. Some cultures place far less value on signed contracts, which they view simply as proof that a relationship exists.

Every culture has deep-rooted beliefs that stretch far back. In an increasingly global age, these dogmas can add to the complexity of conflict resolution and present hurdles to reaching a resolution. Instead of attempting to bring about change by imposing their own ideas of what are – or are not – appropriate solutions, forward-thinking mediators recognize and encourage culturally appropriate outcomes.

*BIO

Dean Vella writes about business and negotiation on behalf of University Alliance, a facilitator of online negotiation courses, and effective leadership.

This blog is supposed to be about how we resolve our disputes, so I won’t get into the gun control debate any further.  But I do need to say that we should all step back and remember what it means to live in a civilized society.  Our social contract says we have given up the right to use lethal force to resolve disputes in exchange for a judicial system whose decisions are final.  Yes, we can still use force and guns in self defense, and for recreational purposes, like hunting.  But those are not legitimate means of dispute resolution.  The idea behind civil litigation is that a judge or court resolves the dispute, rightly or wrongly, the parties put it behind them, and then they get on with the rest of their lives.  The idea behind mediation is that the parties discuss the dispute with the help of an impartial mediator, and find a resolution they can both live with, even if a court could not order it, and then do just that — live with it! 

Americans frequently get criticized for being overly litigious.  Why is that a bad thing?  Eighty to ninety percent of all civil cases are settled short of trial.  Even when litigation is not settled, the parties usually get a full and fair hearing.  I like to think that if Hamlet had lived in the U.S., he would have filed a lawsuit and avoided his existential crisis.  But the shooter in the mediation case has proved me wrong.  Like Hamlet, he chose to face the slings and arrows of outrageous fortune and, by opposing, end them — along with his own life. 

I have said it before and I’ll say it again. When it comes to contracts, it is all negotiable. Even when one party presents a printed form, it is not written in stone. With computers, forms can be redrafted and reprinted much more easily and quickly today than when I began practicing law. That’s a good thing. People need to consider what they really want or need when making big purchases or commitments of time and money. They should not be deterred by the prospect of having to redraft some written document. Even the terms of written contracts to resolve disputes (e.g., Agreements to Mediate or Arbitrate) are negotiable—until you sign on the dotted line. So be sure you read and understand what you are signing. If you don’t, get an attorney to look it over and explain the potential pitfalls and consequences before you sign. If a dispute arises concerning the meaning or effect of the terms of the contract after you sign it, the parties to the contract can get attorneys and litigate in court, or they can agree to resolve it through arbitration or mediation, out of court.

In any event, it is wise to remember that courts are not in the business of creating or negotiating contracts for you. That is your job, with or without the help of an attorney or mediator. Courts either enforce agreements or decide that they are not enforceable. The time to negotiate is before the hammer falls. When a large amount of time, money, valuable property or assets are at stake, it is best to seek out an experienced attorney or mediator to help you.

I question whether this woman’s legal counsel was truly effective.  Preparation is as important prior to entering into settlement negotiations as it is prior to trial.  If these litigants truly had released their claims in prior documents, this should have been discovered and discussed before or during the mediation.  However, the courts’ decisions in this case, upholding the mediated settlement agreement, are not unusual.  Courts do not exist to extricate people from their own neglect, mistakes or lack of preparation.  This is why it is often just as necessary to have an attorney represent parties in mediation as it is in litigation.  Even so, mediation will usually result in a faster and more economical resolution of the dispute.  Satisfaction with the result depends on the partipants’ and the mediator’s preparation.  There is nothing extraordinary about that. 

Near the end of my presentation, one of the group members asked whether I recommended that all of their business agreements contain an aribtration or mediation clause. Again, I think my answer surprised them. I told them that I did not recommend inserting an arbitration or mediation clause into every business contract without considering the costs of those proceedings, the nature and goals of their business, and the types of disputes likely to arise. I also explained that such clauses do not have to be agreed to before any dispute arises. Arbitration and mediation agreements can, and frequently are, entered into after a dispute arises. Of course, even if you do have a mediation or arbitration agreement in your contract, you can waive the right to enforce it by mutual consent or conduct inconsistent with enforcement.

The beauty of any agreement to arbitrate or mediate is that you are being proactive in addressing your dispute. Too many people leave dispute resolution to their attorneys or the courts, leaving the details to lawyers. Mediation and arbitration are much more hands on for the real parties. By tailoring the procedure to your dispute, you increase your chances of an acceptable, timely and economical resolution. There may be times when you want to set a public precedent or change existing law, which requires litigation in court and maybe an appeal. In other situations, you may be more concerned about confidentiality or putting the dispute behind you as soon as possible. Whatever your goal may be, it is always better to have options and to think about them before making a choice.

It is important to remember that, when entering into any kind of contract, you are making law. That is an awesome responsibility. Exercise it wisely.

Everyone says you should never negotiate with terrorists.  But everyone does it when there is no other feasible or reasonable alternative.  The argument against such negotiation is that it will only encourage more terrorism.  But history does not support this theory.  No more Israeli soldiers have been captured, nor has there been any attempt to do so since Shalit’s release.  The more time that goes by, the harder it will be to blame any such incident on this negotiation.  The fact is that when terrorists negotiate, they may still be terrorists, but they are not engaging in terrorism while they do so. 

In a civil society, we never negotiate or mediate with parties whose members or representatives have killed members of the opposing party’s group.  And usually there is a deadline for the parties to negotiate a settlement or else a resolution will be imposed on them by some outside entity, like a court.  In the Middle East today, there is no such Sword of Damocles, so there is no motive for either side to negotiate or change positions.  Nonetheless, negotiations do go on.  Small issues constantly need to be resolved, regarding water, electricity, transportation and tourism.  Name-calling (terrorists, occupiers) never achieves anything.  Who knows.  One day, maybe the small negotiations will turn toward larger issues?

What does this have to do with dispute resolution? I have written about conflict in sports before, (at least twice). It can be a good model for how we should handle conflict in the workplace and society in general. During the off season, we saw the controversy about Ryan Braun’s positive blood test for steroids. It was finally resolved through arbitration. Agree with the decision or not, it has the benefits of finality and closure. And it showed the importance of having some kind of relatively quick decision making procedure to resolve the dispute.

Conflict can be constructive. Even if we don’t get everything we want or hope for, engaging in a civilized discussion or game with your opponent ultimately puts the dispute behind you and lets you get on with your life. If we don’t win today’s game, there are 161 more to go. And then there is next season. In the meantime, enjoy the game and the opportunity for growth that civilized conflict provides. Baseball is one of the most civilized sports. No slap shots, slam dunks, sacks or kicks. Just some base hits and the opportunity to make it “home.” So enjoy the game and play ball!

Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.