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Jewish World Review August 23, 2010 / 13 Elul, 5770 Dispute Resolution By Alan Douglas
http://www.JewishWorldReview.com |
Disagreements are not much fun. When conflicts arise, you can attempt to avoid them, work directly with the other side to negotiate a settlement, pray for divine intervention, or bring in a third party. We all have to make basic decisions about dealing with conflicts. The police, courts, jails, schools, and our parents, are third parties that resolve conflicts. Although there are occasions when these entities produce a result where both parties are actually happy, it is rare. Today, the new, improved, economy size, cutting edge answer for dispute resolution is ADR - Alternative Dispute Resolution. It is the do-it-yourself, self-help, method of using third parties to resolve conflict. Before you fall in love with ADR please read this cautionary primer.
If you want to learn how to resolve disputes peacefully using ADR, there are two primary tools - mediation and arbitration. Arbitration is easy to understand. You and the other party go to another person or panel that you have mutually agreed upon and say, "We can't agree who is right, so you decide." The third party reviews all the evidence by chatting with each of you and your advisors, and makes a decision. Oh, I left out one very important item. Both sides agree beforehand that whatever the third party decides, they will be bound by it. The essence of arbitration is that if you can't work it out, someone else decides for you. The result may not be to your liking, but it gets done.
Going to court is a form of forced arbitration. There are other methods of throwing your problem into someone else's hands. Private organizations such as the American Arbitration Association are waiting with open arms to handle your problem, at a price. But you have to get BOTH of the warring parties to agree to arbitration, the arbitrator, and once the arbitrator decides, that's it. There is no turning back. What the arbitrator thinks is fair, is what you are stuck with.
Large companies, trade associations, and construction companies like to place arbitration clauses in contracts when you initially sign on with them. With a battalion of paralegals and advocates, they can avoid costly, time consuming litigation and risks by steering you into arbitration. Be very careful before you sign away your constitutional right to use the court system by agreeing to arbitration.
Mediation is more soothing and democratic. The disagreeable parties sit down to mediate with an objective third party, who tries to help them to reach a solution. Let the people prevail! Each side has an opportunity to have their own voice. Both folks get to walk in the other fella's shoes for a mile. Mediation is billed as being much more democratic and humanistic. Ah, but the catch is this: the goal of mediation is not to reach a just or fair conclusion, but simply have the parties agree. So the resulting settlement may be one where everyone settles for less. Logic and justice may suffer in order to reach closure. But closure, may be very important. Some of us can't afford to fight the good fight because of the economics. Or, we may not have the stomach for a protracted battle and what it does to or our families. As racecar driver Cale Yarbough warned when he explained why he avoids the cussing and yelling that most drivers engage in, "Don't ever wrestle with a pig. You'll both get dirty, but the pig will enjoy it." So rather than going thirteen rounds with someone who will divert and degrade your life (and those around you) there is mediation.
ADR can be terrific but not in all cases. It is popular with lawyers, judges, and insurance companies. America's judges have complained they are under paid, over worked and do not have enough staff thanks to Americans filing so many law suits. So the courts in federal, state and local jurisdictions love Alternative Dispute Resolution. It means less of a backlog for the judges. And it is a great opportunity for judges to move into private practice or earn retirement money specializing in ADR. Attorneys also love ADR, especially where it is limited to, or dominated by attorneys. Mandatory ADR in federal, state and city court systems is promoted as less expensive, less government, and an example of power to the people. Adding ADR as a required step before you can walk into a court room is a great way to increase the amount of billable hours for law firms. Deep pocket insurance companies benefit from mandatory mediation by either reaching a settlement in mediation that is below their targeted amount or delaying the proceedings to enhance their cash flow.
When you think about commercial transactions, analyze if you want to litigate, arbitrate, or mediate. And the same is true for your personal disputes and your love life. As you wade through life's thicket you will surely have disputes. No matter how quiet, quick, or slimy you are, sooner or later there are problems that burst into flame. When that happens, decide you must. Decide to try to work it out with them, resolve it with the help of the third party, or let the courts or an arbitrator rule on what should be done. Don't confuse these three options. Each requires more or less of you. You have to get a realistic image of yourself in the mirror and do an inventory of your fighting spirit. And then you must accept that each of the three options also is weighted not by principals, but based on stamina or financial support. The stronger and more irrational party is favored. How long can each side hold out? Right or wrong is usually only discussed some years later over drinks at a bar with old friends.
How much are you willing to sacrifice to do battle? What is the goal? Educator Jonathon Kozol said we should, "Pick battles big enough to matter, small enough to win." Backing down or making a strategic retreat from a useless battle, lets you live to fight another day. Making a last stand on top of quick sand isn't martyrdom, it's stupid. Groucho Marx stuck by his beliefs, sort of. He said, "Those are my principles and if you don't like them…well, I have others."
On more than a few occasions I have risked too much. A buyer at a retail chain once asked me if I was willing to risk my (and my family's business) rather than pay kickbacks. The president of a large company who was president of a national trade association threatened me if I printed a story. In both cases I proceeded, and was soundly trashed by each of them. Hollywood movies may tell stories of justice and noble martyrs, but real life is different. Be prepared to lose, and to suffer. Humorist and moviemaker Woody Allen observed, "It seemed the world was divided into good and bad people. The good ones slept better...while the bad ones seemed to enjoy the waking hours much more." Remember that other innocent people - your employees, your family, and your creditors may pay the price for your stubbornness or lofty principles. Honor can be expensive for the combatants, and destroy the neighborhood.
Know the difference between litigation, mediation, and arbitration. Apply that knowledge to conflicts to help decide which alternative makes the most sense and when you should fight. It comes down to this bit of advice. Don't confuse the importance of issues with the cost of the struggle.
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JWR contributor Alan Douglas, an author, media executive, speaker, and attorney, lives con brio- except when he is grumpy.
Jumped or Pushed?
© 2010 Alan Douglas
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