An Introduction to Alternative Dispute Resolution (“ADR”) Processes, Mediator Styles and How ADR Can Preserve Resources.
Negotiation is a part of life. It occurs daily on multiple levels. You “negotiate” with yourself on whether to snooze the alarm for a few more minutes. You “negotiate” the household chores of the week with your children, partner or housemate. You “negotiate” traffic on the way to work. Once there, negotiations occur as you navigate everything from strategy to managing internal partners, subordinates and supervisors to dealings with customers, suppliers, vendors and service providers. As the number of distinct stakeholders and issues increase the actions you take and the conclusions you make multiply in magnitude and complexity. Amazingly (most of the time), this is managed with little disruption. That is until:
- Your husband acts unreasonably or exhibits destructive behavior; or
- You are involved in a car accident; or
- A respected employee reports sexually harassment; or
- You are at odds with an important business partner; or
- Any of an infinite number of scenarios arise that require increased energy to resolve.
So, you call the lawyer.
In many cases, disputing parties, who are not able to quickly resolve their issue(s) on their own, initiate legal process from administrative claims (i.e., EEOC complaints) to litigation. Prior to or during such proceedings, ADR processes can be employed to save time, money, resources and relationships. ADR encompasses a variety of non-judicial processes designed to resolve disputes that are not solved through direct negotiation. Since, at its core, it is non-judicial, ADR eliminates the dark cloud of outcome-uncertainty that looms over a party while waiting for a verdict or administrative decision. Further, an externally imposed “solution” reduces stakeholder self-determination and autonomy. ADR methods apply to a wide range of matters from internal family disputes to concerns of international significance. ADR provides parties with a flexible and collaborative approach to resolving disputes, which can be more efficient, durable, and creative than, for example, a jury’s verdict, all while supporting the court system by settling pending cases.
For businesses and individuals, ADR allows disputants to be heard in a safe forum where communications are inadmissible at trial. Collaborative problem-solving can be nourished by a well-designed ADR process. ADR techniques are used internally to help employees move on from some personal disagreement which has spilled into the workplace and has affected productivity. Disputes over employment contracts, claims of discrimination or harassment and the like usually do not arise overnight. Early intervention by an outside ADR professional or internal Ombudsperson can save time, money and valuable employees. Similarly, disagreements with customers, suppliers, and business partners may be resolved cost-effectively with less internal disruption using ADR as opposed to traditional legal process.
ADR methods vary widely in form and party autonomy. The differences in various dispute resolution processes are well illustrated when viewed along a continuum of the amount of independent control that a party has in the process as follows:
SPECTRUM OF ALL DISPUTE RESOLUTION PROCESSES
From Most Party Control over the Dispute Resolution Process
- Negotiation: Where parties work together to reach a settlement without the involvement of a third party. Not considered ADR.
- Collaborative Law: Where parties work together with their attorneys to reach a settlement without utilizing legal procedures.
- Mediation: A voluntary process where a neutral third party helps disputing parties come to an agreement. The mediator does not decide for the parties but helps them communicate and negotiate a resolution.
- Neutral Case Evaluation: Where the parties jointly select a neutral third party, submit documentation, analysis of law and argument to obtain a non-binding advisory opinion.
- Non-Binding Arbitration: Where the parties agree on one or more neutral third parties to hear evidence, receive argument and issue a non-binding decision.
(Mediation/Arbitration—where mediation tries to resolve issues and provides for the arbitration of those that remain
Arbitration/Mediation—where threshold issues are arbitrated leaving final resolution to mediation).
- Binding Arbitration: Where one of more neutral third parties make a binding decision about the dispute after hearing arguments and evidence from both sides.
- Trial: Where the resolution of the dispute is determined by Judge and/or Jury. Not considered ADR.
To Least Party Control over the Dispute Resolution Process
Of these, I suggest that mediation has much utility when applied to the workplace, business and tort related disputes. In mediation, a neutral third party assists two (2) or more stakeholders in resolving a dispute. It is a voluntary and confidential process, where the parties work jointly with a goal of identifying a mutually acceptable solution. The mediator is a facilitator who helps parties communicate, identify underlying interests, and investigate potential solutions. The mediator does not take sides or make decisions for the parties, but instead enables conversation and supports the parties find common ground. Mediation can be used employed in connection with a useful can be used to resolve a variety of disagreements, including family matters, workplace conflicts, and business disputes. Mediation prioritizes, among other things, competence, impartiality, confidentiality, voluntariness and self-determination. A well-designed “process” balances party needs with a goal of improving the relationship. A skilled mediator’s toolbox draws from research that has identified and examined different approaches and techniques used effectively by mediators in varied contexts.
Mediator styles vary greatly due to difference in training, experience, personality and subject matter expertise. Most skilled mediators employ a variety of techniques dictated by the context of the dispute. The most Common Mediator Approaches have been described as:
- Evaluative: An evaluative mediator provides a more active role in the process by offering opinions and feedback on the strengths and weaknesses of each party’s case. The mediator may also offer suggestions for settlement options and provide an evaluation of the potential outcome if the case goes to trial. Here, typically, the parties are separated for all or most of the mediation; and
- Facilitative: A facilitative mediator helps the parties to communicate and negotiate with each other by asking open-ended questions, encouraging active listening, and identifying common interests. The mediator’s role is to facilitate the process and help the parties to reach their own agreement. Private caucuses in the facilitative model are kept to a minimum, and the parties first agree on process boundaries. I suggest that a pragmatic style employing all techniques on the Evaluative-Facilitative spectrum as appropriate based on the context and issues raised is essential.
The “Getting to Yes” Methodology and Developing Your “BATNA”
A skilled mediator, among other things, can “read the room”, helps a party assess risk and understand their own risk tolerance to formulate their BATNA (the “Best Alternative to a Negotiated Agreement”). The concept of BATNA has been popularized by the highly influential Getting to Yes (originally published in 1981). In Getting to Yes, Roger Fisher, William Ury and Bruce Patton (2nd edition) recognize the shortcomings of traditional positional bargaining (“haggling” with small incremental concessions) and proposed a different orientation that has wide application. The Getting to Yes method:
- “separate[s] the people from the problem”;
- “focus[es] on interests not positions”;
- looks to “invent options for mutual gain”; and
- “insist[s] on using objective criteria”.
In short, the Getting to Yes process recognizes the power of emotion in decision making and seeks to minimize its influence. It distinguishes between “positions” (demands) and “interests” (the motivations). It encourages joint problem solving with a goal of finding “win/win” solutions.
Finally, by insisting on using “objective criteria”, disputing parties independent of each sides’ “best case” have a polestar.
As defined in Getting to Yes, BATNA is “the standard against which any negotiated agreement should be measured”. Fisher/Ury/Patton distinguish between “bottom line” and BATNA noting that a “bottom line is inflexible and “limits your ability to benefit from what you learn during negotiation.” The BATNA seeks to identify alternatives to reaching a negotiated agreement and, thus, empowers a party to say “no” if they feel that a different forum will result in a better result. To effectively negotiate, you must understand your BATNA.
The “Riskin Grid”
In “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (Harvard Negotiation Law Review Spring 1996), Leonard Riskin examined mediator styles in relation to the “problem” defined as narrow as a one-time litigated dispute or broad (a public policy issue) or somewhere in between (such as a business dispute but the parties have an interest in an on-going relationship). The “Riskin Grid” creates four (4) sectors (“narrow evaluative”, narrow facilitative”, “broad evaluative” and “broad facilitative) and is used by mediators to identify and refine styles, and by parties to find a suitable third party and to design the mediation process.
Role of Mediator
NARROW < I. Litigation II. Business III. Personal/Professional/Relational IV. Community > BROAD
The “Grid” suggests that as context goes from narrow to broad an effective mediator can and should employ a variety of techniques. In practice this advice has shown merit as my experience mediating employment, commercial and personal injury litigated matters (“narrow” disputes”) has shown that mere evaluative techniques do not always get the job done and does not always result in a just result. Sometimes non-economic interests must be met to reach agreement. For example (and often), a person who claims injury requires the liberation that comes by having their “day in court.” While mediation is in no manner a judicial proceeding, it offers individuals the opportunity to be heard. When the person who is the decision-maker for the defense listens and responds such that the Plaintiff feels heard, negotiations moving forward have a shared experience of respect and a strong foundation upon which to craft an acceptable result.
ADR has application in all aspects of human interaction. For litigated civil disputes, ADR offers the opportunity for those involved to play a role in the resolution of their disagreements with less uncertainty and costs as compared to trial. By employing trained professionals with subject matter expertise, smaller issues can be resolved before they explode and become a significant operational disruption. ADR processes result in the preservation of scarce resources, retention of talent, and improvement of internal systems.