Dispute Resolution Principles for Ordinary People
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Every adult with a reasonably healthy mind has had a dispute with another person. Chances are good that a person is involved in a dispute while the person is reading this article. Trial lawyers dispute things professionally, but most people want to end disputes or avoid them in the first place. This article offers professional mediation tips that ordinary people can use to avoid or end disputes.
Most people think of the number two when they think about disputes (e.g., two opponents, two sides, and to outcomes). The idea of the number two limits dispute resolution possibilities to winning or losing. Some conflicts may only have “Alternative A” or “Alternative B,” but professional mediators are trained to look for ways to build “Alternative C” and “Alternative D” – that is to say that mediators seek win/win solutions instead of the simple win/lose conclusion. As you can imagine, if both sides of an argument can “win” what they want to achieve, both sides can be happy with the result.
The first key to finding win/win solutions is to redirect the disputing parties’ attention away from attacking each other. When disputing parties focus on each other, they set their feet to stand their ground in fixed positions – with each insisting that the other party surrender its position. If neither party caves into the other party’s demands, a judge or jury may give a ruling that neither party can control or predict.
The win/win approach to redirect parties away from attacking each other allows the parties to gang up on the problem that the disputing parties want to solve. This redirection emphasizes each party’s interest in solving the problem. The parties’ cooperation and collaboration also saves valuable time and energy that the parties would otherwise waste in their attacks against each other.
Professional mediators guide parties toward effective communication.. A mediator asks questions, listens to the parties’ answers carefully, and pays close attention to silent communication that the parties give through facial expressions, gestures, and posture. The mediator tries to reflect each party’s statements back to the party using the party’s own language to make sure that the mediator understands the party’s intentions. When parties revert back to personal attacks against each other, the mediator gently reminds them to return their focus to the problem and away from attacking each other. In the best cases, the parties become more attuned to each other and begin collaborating as problem-solving partners.
Many disputes result from incomplete information and misunderstandings. Collaborative problem-solving enables the parties to gain new information and more complete perspectives about the problem and its possible solutions. For example, an estate beneficiary may refuse to cooperate with the administrator if he believes that the will provides more generously for other beneficiaries, but he may become cooperative if he discovers that he was mistaken and that all of the beneficiaries will receive fair shares.
A mediator works to help each party understand the risk of losing, the probability of winning, and the costs of each potential outcome. The fertile ground for a negotiated solution lies in the space between each party’s best and worst possible outcomes. If a party understands that the best outcome is unlikely, the party may accept something less than an ideal solution. Likewise, if a party understands that the worst outcome is highly likely or extremely undesirable, that party may accept a settlement offer that is less painful than a complete loss.
Ordinary people can use win/win dispute resolution ideas to solve many kinds of conflicts. Sometimes, however, it is easier to settle a dispute with a mediator. A civil mediator can help people settle disputes even if the parties have not hired lawyers (although it is usually easier when the parties are guided by reputable lawyers). In some cases, parties can try to save time and litigation costs by pursuing mediation before filing lawsuits.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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