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Alternative Dispute Resolution
Alternative Dispute Resolution
Litigation is expensive, leads to bad feelings, especially when people have to continue to deal with each other, i.e. in the work place, neighbours, members of the same organisation.
Alternative dispute resolution, although seemingly ad hoc is actually quite structured. The parties are to talk, in turn, and reach their own settlement.
For those of you thinking to set up this venture in your business or neighbourhood I will give you the basic structure which you can morph to your own needs.
Selecting the Arbitrator
This is the most important and difficult part of Alternative Dispute Resolution. (ADR) The Arbitrator can not take sides, can not supply the answers. The parties must talk through and come to their own conclusions.
Most attorneys make very bad arbitrators. They get the 'legal' gist, and come to a 'judgement' and that is the exact wrong thing to do. The Arbitrator is NOT to judge, not to provide answers. The Arbitrator is to encourage the parties to make their own resolution.
The best people are those almost ignorable 'nice' men and women who don't intellectually threaten the parties. The ones who have developed the ability not to react to an incident in any but the most pacific and diplomatic manner.
Before you begin setting up your ADR you must find a few persons who can perform as required.
During a training session you must find those who can listen and can create a conducive atmosphere where the parties can be calmed and slowly work out their own problem.
There is a problem in the office. One worker claims the other is sabotaging her work. Whether it is true or not, there has got to be a resolution where the first feels protected and the other ceases to do whatever it is that has provoked the complaint.
This is not a primary school, hence both persons, being adults, must feel that they are being treated as adults, that they are being heard, and that their concerns are being dealt with.
Attacking the 'saboteur' is not helpful. All one wants is that at the end of the ADR both parties can work together amicably.
The Arbitrator must be one who allows the possibility that the first is inventing, misreading, as well as the possibility that the second is deliberately performing acts which harm the first.
But this must be done without judgement without sides being taken.
How it is Done
The parties are invited to the ADR and should be discouraged from bringing anyone, especially a lawyer. This will always lead to 'right' and 'wrong' 'innocent' and 'guilty'. The proceedings should be as informal as possible, and done in a quiet comfortable room, where there is no distractions.
All cell phones are to be off, and a particular time set for the hearing, usually an hour.
It begins with the Arbitrator making both feel comfortable, and then explaining that the proceedings go in this fashion;
One person talks. No one else talks. Notes can be taken. The person is given a set time to talk, say ten minutes. At the end of ten minutes the first person is to stop. The Second person is then to talk for ten minutes. No interruptions.
The Arbitrator then tries to define the problem; as in the example above;
"One says that her work is being sabotaged by Two. Is that correct, One?"
One replies Yes.
The Arbitrator continues: "Two says that he is not sabotaging One's work, he is doing his work. Is that correct, Two?"
Two replies Yes.
(This provides that the Arbitrator understands the nature of the complaint and has
been able to define it.)
The Arbitrator then lists the 'proof' One has supplied, gains her agreement. Then lists the explanation of Two, gains his agreement.
The Arbitrator then lays out the evidence taken so far, and offers to One the explanation of Two for her Opinion. One may dismiss, dispute, agree, whatever. The Arbitrator then turns to Two to see if he can understand how his actions can be read as sabotage.
Once the parties are at the same place, then the Arbitrator can ask One what Two can do to avoid appearing to sabotage her work. She then gives her ideas. The Arbitrator then gains Two's take on it.
The result is that One and Two work out the problem, the Arbitrator merely the facilitator, not the judge and jury.
What to Expect
Many people like to get emotional, hostile, shout, cry, have a dramatic moment. The Arbitrator is to truncate this. Often asking the person if they'd like to wash their face or would like to postpone this until they feel better is enough to get them back into a more businesslike mode.
Often the person, as Two in the above case, really is sabotaging One, but thinks he's getting 'over' by not being castigated but invited to cease his behaviour to make One feel better.
Both parties must feel they have won.
If the Arbitrator feels s/he is losing control of the meeting, a time out must be called. Often leaving the room, letting the two shout it out 'behind the Arbitrator's back' is the most useful thing.
This private shouting match is often where the problem is resolved, the return of the Arbitrator is usually met by the parties presenting their resolution.
Alternative Dispute Resolution does work.
It avoids litigation, avoids disciplinary hearings, avoids punishment and reward. It does not abrogate legal rights, for if the agreement doesn't hold then another course might have to be taken. However, in most cases the dispute is resolved by the parties.