Innovative Conflict Resolution

It seems that everywhere I go these days I’m hearing people talk about “the conversation.”  Even if you haven’t heard the term, you’re knee-deep in it.  Postmodern thought, empowered by the rise of blogs and social media networks like Facebook, LinkedIn and Twitter, have changed the way we think about nearly everything, from religion to politics to business.  Those who are clued in now understand that the flow of information is no longer one-way; it is, in a very real sense, a conversation.

Marketers can hope to influence the conversation, but they can no longer control it.  A lone blogger can exert nearly as much influence, without having spent millions to develop a marketing strategy.  The same is true for politicians.  Those who have been traditionally controllers of information are beginning to understand this, and it’s driving them crazy.  Why?  Because conversation is, in essence, conflict.  While the old guard of Information Imperialists were used to being in conflict with the competition, very few have really adjusted to being in conflict with the general public.

There is a lot of talk these days about how to use Social Media in promoting whatever it is you are wanting to promote, and businesses are popping up all over to help you catch the latest wave.  However, how many really understand the conflict-based nature of the conversation?

The essence of conflict is our differences.  Using our political system as an example, we all understand that emphasizing the differences between parties has been the foundation of most political campaigns.  However, in both the current and the prior Administration, we can see the difficulties when the conversation shifts: The conflict is no longer primarily between parties (although they keep trying to frame it in this way, which isn’t working) but between the Administration and the Public.

To succeed, a politician – and any one else who hopes to influence society – must understand and be able to embrace – not defeat – that essential conflict, for to end the conflict would be to end the conversation.

We need to change the way we look at conflict. Traditionally, the goal has always been to resolve conflict (it’s even in the title of my blog).  Certainly, there will always be those negative conflicts which need resolution. However, there is such a thing as positive conflict; this is the “conversation.”  In a culture in which the goal has changes from homogenity to diversity, conversational conflicts will be pushed to the forefront instead of being ignored or squelched.

To succeed in our current environment, we need to become comfortable with the concept of conflict.  We should understand what drives conflict and how it works. We need to see conflict not as a barrier, but as a tool.  And as I said in a prior post, we need to be able to see conflict as being potentially positive, and even fun.  Even more than that, I think those who will succeed will be those who learn how to invite people into the conversation, into the conflict.

Because of my background resolving litigated insurance claims, my experience with mediators was that they were almost exclusively attorneys, and often ex-judges to boot.  In fact, I was somewhat taken aback when I first learned that a particular mediator was not, in fact, an attorney.  I was assured, however, that “he was still a good mediator.”  While I am not an attorney, my 20+ years experience as an advocate, working closely with attorneys on a daily basis, did influence my thinking considerably, even to the point where I would not have considered myself qualified to act as a mediator.  (This, obviously, has changed!)

My perspective today has changed significantly, as I have learned more about mediation theory and have met many fine mediators who do not have law degrees.  I also understand now that mediation can be – and I think should be – so much more than what I typically experienced.

Asking the question, “Should mediators be attorneys?” is not meant to imply that attorneys can not make fine mediators.  I know a great many fine attorney-mediators, people I greatly respect. I also know many for whom I have very little respect.  Perhaps the question can be rephrased, “Is being an attorney irrelevant to being a mediator,” to which my answer would be an emphatic “yes.”  Unfortunately, in some states it has been legislated that a mediator must in fact be an attorney to appear on a court-approved list, which greatly limits the opportunities for non-attorney mediators.  The public, I believe, suffers for this.

An article on the Mediate.com website states:

The rationale for requiring a law degree and legal experience rests on two assumptions. First it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented.

The article goes on to point out that “mediation is not a natural extension of the practice of law.”  In fact, the two roles are often not compatible at all.  Most attorneys are  advocates; that is, it is their job to act solely in the interest of their clients.  They are by training and habit inclined to take sides and focus on legal issues that support their case. While a good attorney will be able to see both sides of any dispute,  being immersed in one side of a dispute often hinders their ability to be objective.

A mediator, on the other hand, is committed to being impartial: he is not to take sides, and is not to make judgments that will impact his impartiality.  It is often difficult for an attorney, who is used to specializing in either plaintiff or defense cases, to lose his or her habit of advocacy.   Consequently, many attorney/mediators continue to lean either to one side or the other – either plaintiff or defendant.  When choosing mediators, attorneys will look for those with the appropriate experience, not only to understand the case, but who would tend to take the appropriate position and subsequently put greater pressure on the other side.

As the above-referenced article also points out, attorneys also tend to focus on the facts and the legal issues involved; that’s what attorneys do.  A mediator, however, is not necessarily focused on getting a resolution that he/she thinks is the right one, but is rather focused on getting the parties to come to an agreement with which they are both satisfied, and optimally, one which is considered “win-win.”  Mediation is ideally a collaborative process, not one in which parties are pressured to make a deal.

I don’t know how many times I have heard mediators (who are/were attorneys or judges in past lives) remark that if both sides are unhappy with a settlement, then it was probably fair (this is said to encourage the grumbling parties as they leave the mediation).  What this tells me is that the mediator looked at the mediation as a “zero-sum” situation, where the only “fair” result is that neither party gets what they want.  The parties were probably never given an opportunity to explore creative, potentially win-win options, and were put in positions where the best they could do was lose half-way.

Again, many attorneys are both willing and able to embrace the significant paradigm shift from advocate to neutral.  However, the attorney skill-set is not the ideal skill-set for a mediator. While nothing should preclude an attorney from becoming a mediator, there is also no reason why it should be necessary for a mediator to also be an attorney.