Shifting the Dispute Resolution Paradigm

Our judicial system is clogged with unresolved litigation, communities are in open conflict and labour disputes are increasingly becoming a zero sum game. In the past we tended to let our personal and employment relationships work until they failed, then we responded with bargaining based upon position rather than principle.

As we approach the millennium, Canadians are increasingly becoming disillusioned with the fundamental failure of our traditional mediation institutions to meet the basic needs that spawned them in the first place. We find ourselves searching for a newer, more innovative and better way to resolve our interpersonal disputes, conflicts and misunderstandings. Fortunately, indications are that a major paradigm shift is underway. This new perspective is gradually shifting the focus of dispute resolution from winning at all costs towards creative means for achieving win/win solutions to ever increasingly challenging and complex problems. Alternative dispute resolution (ADR) mediation, workplace restoration and conflict management are emerging as credible alternatives to litigation.

Benefits of Mediation

By the time a lawsuit is filed, the parties have often reached the point where they no longer want to deal “upclose and personal.” Unfortunately, dealing with the relationship is needed more than anything else. Alternative means of resolving these types of disputes can save time and money, while concurrently and perhaps most importantly preserve valuable personal, family, community and business relationships.

Mediation has effectively demonstrated over time that it can be a practical and expeditious process for resolving disputes, however there is much confusion about the ADR process. True mediation does not determine right or wrong. When correctly applied, it is a voluntary choice that promotes mutual understanding and other dispute resolution options, such as litigation, are not precluded. Mediation in its true sense then is more reflective of problem solving and counseling than the more formal legalistic grievance resolution mechanisms often associated with how disputes are resolved.

Perhaps most importantly, mediation helps maintain the integrity of the relationship and the parties involved by promoting a deeper understanding of the underlying issues and facilitating creative solutions.

It is difficult to advance a credible argument that the ‘status quo’ continues to be the most efficient and effective means to resolve our disagreements, however old paradigm habits, attitudes and beliefs resist change.

Styles of Mediation

Mediation is often perceived as a “soft stage” before the “real hard bargaining” begins. Much of what passes for mediation continues to be compromised by the ‘old position centered bargaining paradigm’ in which there is a perceived ‘winner and loser.’ Increasingly, many rights and privileges have become formal entitlements through legislation and the parties are choosing to have a neutral third party provide an educated estimate of the probable settlement that could be expected if mediation is not successful. However, the emerging entitlement approach deals with a limited range of problems and issues and litigation outcomes are not always predictable.

Centering the Mediation on Principles

The Principle Centered Mediation approach advances that centering the resolution process on principles will significantly contribute towards a satisfactory resolution of the rights, interests, obligations and entitlements of the involved parties. This we believe is the fundamental strength of the dispute resolution paradigm shift from negotiating from an adversarial position to a facilitated problem solving principle centered approach.

The Four Principles

Four principles resonate most strongly with the new alternative dispute resolution paradigm.

The 4 “P’s” of Principle Centered Mediation

  1. Respect for the participants involved in the dispute.
  2. Respect for the underlying cultural values and beliefs of the involved parties.
  3. Respect for the complexity of the problem under dispute.
  4. Respect for the facilitation and mediation process.

In our increasingly diverse society, acknowledging and respecting differences is essential for engendering a balanced perspective of the issues, which in turn facilitates a clearer identification of the problems to be resolved. Fragmented rather than holistic decisions result unless all of the problems related to the dispute are clearly identified. Principle centered mediation advances that the mediation is successful as a direct result of the dispute being reframed into a co-operative search for a “framework solution” that has the propensity to meet the current and future needs of all parties involved in or directly effected by the dispute.

A growing number of ADR practitioners and theorists are attempting to define the dispute resolution and facilitation process. As a contribution to this growing field the authors offer a process for facilitating a successful mediation that we have developed and apply in our Community of Practice.

Facilitating the Mediation:

The 2 “Fs”, the “A” & the “M” of Principle Centered Mediation

  • Focus the Mediation on Principles, Interests and Entitlements
  • Facilitate the resolution of People, Content and Process related barriers to reaching a solution.
  • Assist in developing Objective Measures to evaluate realistic options and desired outcomes.
  • Mediate a Problem Solution Framework.

The 3 “W’s” and “H”of Principle Centered Mediation

  • Ask What and What Else to identify interests, rights, privileges and entitlements.
  • Ask Who and Who Else to identify people’s issues from content and process issues.
  • Ask Why and Why Else to identify measures for success.
  • Ask How and How Else to identify creative options for solutions.
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