New Zealand Law Society - Changing the way we argue: Part 3 – Arguments-as-war and mediation

Changing the way we argue: Part 3 – Arguments-as-war and mediation

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The current adversarial dispute resolution paradigm has significantly constrained the way that mediation has developed. Let’s look at some examples.

The traditional one day, late stage mediation

Research by Grant Morris of Victoria University indicates that 94% of all commercial mediations in New Zealand are conducted using the traditional one-day mediation model (Commercial Mediation in New Zealand Project Report).

The traditional one-day mediation frequently occurs too late in the life of a dispute. Parties often arrive at mediation as a precursor or adjunct to litigation, which looms in the background and indirectly influences the mediation process.

For example, by the time the parties mediate they are often too focused on their legal rights and are increasingly polarised. By focusing on rights-based arguments and the adversarial legal process (pleadings, discovery, briefs of evidence, etc) little or no time is given to identifying and exploring underlying needs and interests.

This model is within the comfort zone of most lawyers. Lawyers are familiar with adversarial tactics, the dissection of the other parties’ legal and factual positions, and the limited negotiation tactics needed to achieve settlement.

Concepts such as creative outcomes, empathetic listening, synergies, win-win outcomes, etc are terms that, while bandied about in mediation, are not often part of the process. They make for good soundbites but little else.

The adversarial approach coupled with the late timing of mediation means the parties are bullied into settlement: by the process they experience leading up to mediation, on the day, and by the cost and uncertainty of a trial just around the corner. This is not a collaborative environment in which negotiations on the interests and needs of the parties can take place.

As a result, mediations tend to approximate what the parties consider is likely to happen in court and the fruitfulness of any subsequent enforcement action. At best, a late stage mediation settles the dispute, but usually does not repair or improve the relationship between the parties. That alone is a significant lost opportunity.

Lawyers as mediators

The “over lawyering” of mediation is considered by some to be a major issue in dispute resolution today (eg, Tony Willis’ comments in “Overlawyering of ADR a major issue”, page 27, LawTalk 853, 24 October 2014.)

A large number of mediators are legally trained (particularly in the area of commercial mediation). The ranks include retired judges who have moved from the bench into the arbitration and mediation space.

The dispute resolution institutions have a significant number of members with legal training, and a disproportionate number of those members sit on the committees whose decisions propel the future direction of dispute resolution. This is an issue because most lawyers struggle to get past their training, which exalts critical analysis, deductive reasoning and the Socratic method. They risk developing a narrow theory of dispute resolution based upon precedent and process.

Lawyers, by default, tend to make dispute resolution an adversarial process. It should not be. Evidence for this is found in the development of dispute resolution itself. Most of the important advances have come through the collaborative efforts of individuals who came to dispute resolution through different avenues. Cross-disciplinary work involving law, economics, psychology, organisational behaviour, and sociology have been invaluable. For dispute resolution to flourish, we need to capitalise on the differences in the various fields and maintain productive working relationships in order to share resources, capability and understanding. Dispute resolution is not owned by those who are legally trained.

The role of emotions and feelings

This is an area that is not well addressed by the adversarial model or the one day mediation. Nobody with experience in dispute resolution would deny that emotions and feelings play a significant role, but very little has been done to examine that role. There is little helpful advice for those who engage in dispute resolution regarding the role of emotions. For example, advising the parties to “get over themselves” and to stay objective does not work. We need to develop a better understanding of the ways that emotions and feelings (and in particular, shame, anger, hope and fear) affect the parties in dispute and influence their reactions to challenges. We need to develop mechanisms for recognising and working with these complex issues.

The above examples are, I accept, an over-simplification of what occurs in the market. There is great work being done in the areas of early facilitation, collaborative and transformative mediation. There are legally-trained mediators who have successfully disconnected from the argument-as-war metaphor and have embraced all the complexity of the human condition and our relationship with conflict. However, the research of Grant Morris indicates we have a long road of change ahead of us.

Auckland barrister Paul Sills specialises in commercial and civil litigation. He is also an experienced mediator. This is the third in a series of articles on managing our approach to conflict. Read Part One and Part Two, Part Four.

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