Mediation as a Dispute Resolution Mechanism

It is reassuring to realise that the vast majority of mediations arrive at a mutually acceptable outcome. For a business, any Human Resources distraction inevitably impacts on the bottom line, so there are compelling reasons to end disputes quickly, and cost-effectively. Mediation can fulfil both requirements, as it is far less expensive than litigation, less adversarial, is solution-focused, and much quicker to bring a disagreement between parties to a conclusion.

So what is mediation? What in fact, is the definition of a disagreement? To answer both questions, let me take you on a short journey!

Everyone is familiar with the historical reality of the “duel”. The events that culminated with individuals challenging one another to a duel, generally followed the same pattern. A person felt slighted by someone, either real or perceived. The “injured” party demanded satisfaction, resulting in a “pistols at dawn” duel the following morning.

As the sun rose on a sleepless night, the party throwing down the challenge arrived with a pair of duelling pistols in a case – duelling pistols were always bought in pairs, because you cannot have a duel with yourself! Each of the duellists had a friend with them, called a “second”, to ensure matters were conducted fairly, and to help them prepare for their ordeal.

When all was ready, both protagonists stood back to back, marched ten paces away from each other, turned and fired. It was considered cowardly to duck. Honour demanded you had to stand and take the shot fired at you, while also returning fire. When both pistols had been fired, although death was rare, one or both parties were usually injured.

The seconds held a brief discussion, and would then utter the immortal words “honour has been satisfied”. The pistols were cleaned and returned to their case ready for the next duel, the wounded were taken away to be patched up, and everyone walked away wondering if there was a better way to resolve their differences, without losing face.

Humans are funny creatures – no other species of animal invests so much effort and energy in self-destruction through stubbornness!

To my mind, mediation would have been an ideal dispute resolution mechanism in the example I have just highlighted. To the duellists, the dispute was irrelevant, in that no effort was made to resolve it, but every effort was made to extract retribution from the other – even at the risk of death.

I think that the duel is a useful metaphor for demonstrating how disputes can get out of hand, out of control, and out of order. Relatively minor issues can escalate, and then the unspoken reality of “pride” dominates all future thought processes. It is a brave individual indeed who, convinced of his own sense of right, will put her hand up and suggest mediation.

It takes effort to remain angry – and it is a lot easier to continue a row than to be courageous and try and resolve it. The greatest of all love stories “Romeo and Juliet” revolved around two families who had indulged in a bitter row for generations – so long in fact, that nobody knew what started it. However, both families knew who started it – it was the other family, not them!

Mediation is very much a new concept to the workplace – an acknowledgement that there is a better way to resolve our problems, other than the traditional routes of confrontation. And this is the nub of mediation – it isn’t about damage limitation or box ticking. It isn’t about discovering a right and a wrong. It is simply about acknowledging an individuals’ right to be an individual, to disagree, to make a mistake, to become emotional, to be human.

Traditional methods of resolving disputes lie almost exclusively in strength. Consider the following statement; “I am bigger than you, so therefore if you wrong me I will hurt you.” This analogy can be taken all the way to a courtroom setting, especially if you replace the word “bigger” with the word “richer”, or perhaps “more stubborn”, or indeed “hurt more”?

Undoubtedly superior strength will not resolve a dispute – but it may certainly end it, at least for a while. Inevitably the underlying issues will come to the surface again, in another guise, or even with other personalities, but the unresolved problems have not gone away.

To take this hypothesis further, the inevitable reaction of parties embroiled in a dispute is to rush to a negative judgment of the other party. This is a very human reaction – we feel threatened so we demonise our aggressor. However, what we fail to notice is that this reaction is entirely subjective, even if we do get affirmation from others.

And now we get to the central tenet of practically every dispute. Communication! If communication is poor, or misunderstood, rows can develop. The old saying “there are two sides to every story”, is as true today as it ever was. But I would venture an update to the old saying – “there are three sides to every story, your side, the other persons’ side, and the truth – somewhere in between”.

The longer I have worked in mediation, the more convinced I have become that the root causes of most disputes are frequently caused by poor communication, or mis-communication. As people we don’t always listen to what is being said, but we certainly hear what we want to hear. That may sound very simplistic, and perhaps it is, but the deeper you delve into an issue, the more side-issues you discover, and somewhere in the middle of it all, is the root cause of the problem. A Doctor doesn’t treat a illness, he treats the underlying cause of the illness – mediation attempts to do the same thing.

When both parties to mediation get to a stage that they can honestly accept the other party is a human, they begin the process of healing. The hurt or dispute might not be resolved to the satisfaction of both parties, but for the first time in a while, the “enemy” is suddenly a person, with feelings, emotions and fears.

Having got the parties to this stage, all manner of opportunities present themselves. Resolving the dispute is possible, but repairing and strengthening a relationship between two warring factions becomes ever more probable. For those immersed in misery, the chance to step out into the daylight and return to normality, explains why four out of five mediations are successful. The reason? Deep down inside nobody likes a row – not if you are in the middle of it. Disputes between other people might be entertaining, but they certainly are not for the people involved and for those who care about them. For those at the centre of disputes, they are destructive and time thieves.

The over-riding objective of any mediation is to reach a resolution, or at least, arrive at an accommodation or an agreement. By opting for mediation, the parties are demonstrating that they are at least open to the possibility of arriving at their own solution. Whether the parties sincerely believe this to be the case is an entirely separate matter, but the Mediator must take their attendance as a positive sign, and a practical manifestation of both parties willingness to resolve things. The Mediator has to believe that this is possible – Mediators have to be optimistic and positive, as a direct foil to the negativity, hurt, anguish and anxiety being felt by both parties to the dispute. A successful mediation will deliver the end of a row, and hopefully return happiness to two people who had misplaced it.

Of course Mediation might not work in every situation. It can, but only if the parties are honest, forthcoming, and most importantly of all, willing, to move to a solution. Not everybody can take this leap, or, might not be ready just now to take this leap.

To conclude, is opting for mediation a sign of strength or weakness? If I am in a strong position, why would I attend mediation? Quite apart from the legal and financial advantages of selecting mediation over formal litigation or other proceedings, on a human level, isn’t it great to become part of the solution instead of continuing to be part of the problem?

Irrespective of how you feel about the issue at hand, and no matter how unfair or wrong it may be, you cannot abdicate the fact that you are part of the problem. Sit down, talk it out, realise you are not entirely blameless, learn from the experience, and move on. If every business owner was to embrace the possibilities of mediation, then the duelling pistols can forever remain in their case!

            Tom Martin

26th April, 2018.