If we were to look at why conflicts develop between individuals or even companies, it is likely due simply because of differing opinions between the parties. Those differing opinions can be due to the disputing party’s frame of reference to a situation as compared to their intentional effort to challenge the other party. Everyone has their own values, needs, experiences and cultures, which creates the frame of reference by which we view things.
It is these differences which must be explored in order to reach a resolution in many disputes. Mediation – or the non-adversarial style of dispute resolution- is oftentimes the best way to allow the parties to explore those differences and permit the parties to reach a meaningful resolution of their conflict.
Recognizing that parties enter into conflicts this way – essentially because they feel that they are “right” and the other person is “wrong” – is a key to approaching how the dispute can be resolved. Once a mediator understands that the conflict is based on the differences of the parties’ frame of reference, the mediator can seek to intervene to help both sides find a mutual solution to the dispute. In other words, a good mediator can use the parties differing frames of reference to find an answer to the problem.
Disputes can also be very emotional for the parties involved and all parties handle their emotions differently. Therefore, how the parties communicate is commonly a significant element in the potential success of the mediation. The emotion of the parties must be tested by the mediator involved in the matter. Some parties avoid confrontation while others seek it. Some parties respond better to a sympathetic tone rather than to an aggressive one. A good mediator should be able to hopefully gauge whether the parties should talk together or separately and even whether the lawyers should talk directly or only through the mediator.
At the end of the day, even if the dispute involves money, as long as people are making the decisions they will be impacted by their own set of values and opinions as well as their own unique set of emotions. All of this must be considered by a good mediator to help the parties find accord to reach a resolution of their dispute. Sometimes simply the recognition that the parties themselves can ultimately control the outcome of their dispute may be the strongest motivator for parties to seek resolution by mediation rather then to risk a decision by an arbitrator, judge or jury.
For almost thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business. experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation.