Dispute resolution is a process. The beginning phase — bringing everyone together under conditions conducive to settlement — is called convening. Convening can be as simple as a few phone calls, where those involved already know what they want and are properly prepared for it. Or it can be as complex as holding a long series of community meetings to build support for the idea of conflict resolution. It might even include training participants in basic dispute resolution, if they otherwise lack the skills to effectively participate.
The person who initiates contact seeking mediation is called the sponsor. He, she, or it may be involved as a disputant, or may simply have an interest in resolution of the dispute. The sponsor sometimes subsidizes the cost of the dispute resolution process, though it is far more common for the disputants to divide the fee equally amongst themselves, thus strengthening the disputants’ belief that the neutral favors no one in particular. If there is a subsidy, it must be made clear that paying the bill does not grant control over either the process or the outcome.
The Five P’s of Convening
- Promise: Opening participants’ eyes to the benefits of conflict resolution and obtaining a commitment to move forward.
- Process: Helping those who’ve chosen to move forward choose the right ADR process, given their resources, needs, characters, and the history of the dispute.
- Provider(s): Deciding who will conduct the process, and if needed how he or she will be chosen.
- Participants: Selecting the right people to be at the table.
- Production: The nuts and bolts of providing a service – the paperwork. It’s best not to think of these as chronological steps; at times they will meld together.
Some of these elements may be eliminated or truncated if the disputants or their agents are experienced consumers of consensus-building processes who know exactly what they want and why they want it. Even so, a good convener has a practical knowledge of ADR, and will try to steer disputants away from unworkable choices.
Part of the convener’s role is to engender willing and optimistic involvement in the upcoming conflict resolution efforts. While some forms of resolution are mandated by court rule or contract, the majority of alternative dispute resolution is voluntary, and settlement is under the disputants’ control. For disputants to choose ADR, they must see its promise – its’ potential to reduce or eliminate conflict via an advantageous process. The convener must foster the optimistic choice of ADR by making a beneficial outcome believable.
The convener’s advantage here is that mediation works. As an example, Brett and Goldberg’s study of grievance mediation in coal-mining labor disputes showed that eighty-nine percent of mediated disputes settled before mandatory arbitration. In the process, the parties saved an average of three months and nearly $100,000. Multiple studies confirm this finding — ADR saves time and money compared to litigation. In addition, ADR leaves the outcome in the disputants’ hands (sometimes called self-determination), the process is generally confidential, the neutral may be chosen for his or her expertise, and the process can be tailored to fit the situation. Each of these factors can serve as a powerful incentive to use ADR, making them building blocks of the willing optimism the convener must foster.
Another building block of the necessary hopefulness is inclusion – making sure that all of the disputants’ concerns are on the table and consulting all in pre-resolution planning. “What is the conflict about?” and “What issues need to be addressed?” are core questions. The answers may seem obvious, but especially in a multi-party dispute, inclusion is a key to success. Often, different people have different characterizations of the dispute, or “frames.” These affect what they think is important, and why.
Failing to include everyone’s concerns can cause suspicion about both sponsors’ and conveners’ motives, diminish disputants’ optimistic willingness to participate by making them feel disenfranchised, raise concerns about the balance of power, and drastically undermine the fundamental perception of neutrality.
Another way to build willing optimism is through the quality of the neutral, either as disputants decide whether to participate or after the resolution process begins. (Because disputants are generally free to leave the resolution process at any time, optimistic willingness is not simply a precondition to the resolution process. It is an ongoing need.
The convener is often the preselected neutral. The convening process is an opportunity to build rapport and credibility with the disputants, by listening closely, questioning carefully, and demonstrating understanding and competence.
Another responsibility of the convener is to help the parties choose and/or design the appropriate dispute-resolution process. Though “dispute resolution” is often spoken of as a monolithic phenomenon, in fact it is a continuum of processes, each varying in several dimensions: self-determination, cost, confidentiality, potential to disrupt relationships, time to completion, and finality. The variability of ADR is behind Harvard Professor E. A. Sander’s advice to “fit the forum to the fuss” – carefully choose the process based on the character of the conflict.
A chart comparing various ADR techniques along the various dimensions is available here. Part of the convener’s role is to help disputants select the right ADR method. This task is about the dispute, but as Professor Timothy Hedeen points out, the characteristics of the disputants matter too. If Bill and Dan can’t stand each other, it may unwise to use a process in which they must constantly interact face to face. Caucus techniques could be preferable. But if Samantha and Joe are parents or partners it might make sense to encourage direct contact – because they must learn to work together. If a disputant has low stamina, multiple short sessions will be necessary.
Each situation is unique, and the convener must ask patient questions of every disputant to uncover the relevant facts. Some suggested convening questions can be found here.
Of course, participants may come to the convener with constraints, either self-imposed, contractual, or judicial, seeking a particular form of ADR – mediation, arbitration, and so on. Such pre-dispute selection may not persist. Slaikeu and Hasson suggest using convening clauses, in which the commitment is not to only to use ADR processes but first to participate with a neutral or convener in choosing them.
Even individual ADR processes like mediation and arbitration are not monolithic, If we treat them as if they are, we ignore their greatest benefits: self-determination and flexibility – the ability to create s method we believe will help us resolve our conflicts while meeting other needs as well.
Any convening process is largely about asking questions aimed at understanding the dispute and the disputants. What are their needs, expectations and limits? What barriers to resolution do they face? Here is a list of convening questions. Not all need be asked of each disputant, and no doubt you can think of others.
Perhaps the most important part of convening, where the disputants have not already chosen one, is selection of the provider(s). For example, if the goal of the process is to provide a reality check to an unrealistic and stubborn litigant, a forceful and respected lawyer or retired judge will be ideal. (Stipanowich et al. report that lawyers frequently ask neutrals to address their own clients’ lack of realism. In other contexts, such as “deal mediation,” a positive and creative facilitator skilled at finding mutually beneficial options is needed. In still others, a mutual friend or industry expert is the right guide to resolution. Knowing as much as possible about the neutral and his or her usual way of doing things is important, because any process issues not determined before or during the convening stage will be a matter for his or her discretion.
It may seem odd to focus on the question of who should participate, since it may seem obvious – each disputant, his or her lawyer, if any, and insurance representatives. And so it usually is, for a straightforward automobile accident. But when there are many affected people (called “stakeholders”), it becomes dizzying. Imagine a project to revitalize your downtown – there would be dozens of stakeholders: The developer, businessmen, lenders, homeless people, nearby homeowners, concerned environmentalists, possibly local Indian tribes, and so on – all with something to say and a right to be heard.
There is tension between the desire for inclusion and the need to keep the group small enough to be effective, communicative, and able to act swiftly and decisively. The optimum group has between 8 and 20 participants. Where the number of stakeholders is too large to fit within this important constraint, the stakeholders with similar interests can appoint joint representatives. Or perhaps the convener can separate various parts of the process into subcommittees, excluding those who are not interested from each part. Corder/Thompson & Associates very practically suggest including those with the funding, those who must implement the solution daily, those with the legal authority to approve or disapprove the project, those who can block the project, and those most directly affected by it. Failing to include an important stakeholder is likely to lead to continued conflict.
This is the administrative portion of convening. It includes obtaining signatures on contracts, billing and collection, scheduling, providing appropriate and comfortable surroundings, arranging accommodations for disabled disputants, and communicating with all participants.
Because of the need to demonstrate neutrality and meet disputants’ expectations of fairness, all contracts, billing and other communications must be clear and straightforward. Billing policies should be clearly addressed before any session, and carefully adhered to. Any billing or contract issues should be discussed with the responsible neutral before action is taken.
Accommodation issues should be addressed proactively, without the need for disputants to raise the issues. Whenever possible, correspondence should be copied to all participants. One such piece of correspondence is the procedural ground rules. The rules boil down to simple politeness: being civil, being prepared, speaking in turn, using the time to work toward settlement, not being judgmental about others’ suggestions, not blaming or attacking, focusing on what might work instead of on what hasn’t worked, listening to others, and so on. But in a high stress, high emotion task like conflict resolution, reminders are important.
The convener should send a form that each party signs agreeing to comply with the rules. Getting parties to agree to these ground rules may seem unnecessary. But it has an important purpose. Parties can be held accountable for their prior agreement, creating increased social pressure to behave. Further, simply making the statement that you will do something increases the likelihood of compliance. Human beings have a need for internal consistency. Information or actions inconsistent with our committed beliefs causes us anxiety. This is known as “cognitive dissonance.” We will work to eliminate the dissonance – often by complying with our prior agreements.
Finally, the importance of an appropriate, comfortable environment cannot be overstated. Studies have shown that positive feelings increase joint gains, decrease the use of hardball tactics, lower demands, increase concessions and promote creativity. To the extent pleasant surroundings increase these feelings, they literally increase the chance of settlement.
Done right, convening means the right people, using the right process, in the right surroundings, adhering to the right ground-rules, had the best chance of resolving their dispute.
30 Crucial Convening Questions
- Under what conditions would you participate? (if resistance is met). You are an important part of the solution, and you will benefit.
- What are your goals/expectations for this ADR process?
- What do you hope to achieve? What do you expect the process to look like?
- Tell me about the dispute. What’s the history of it?
- What are you looking for in a neutral?
- Are there any cross-cultural or language issues?
- Any need for reasonable accommodation? Explain.
- What’s your (or your client’s) part in the conflict? What are others’ parts?
- Name all of the parties in the conflict (get contact information)
- Insurers involved? Policy limits? Adjuster names?
- Important creditors/lienholders whose presence is needed?
- Stage of discovery
- Any impediment to a lengthy session, if needed?
- Any difficulty having everyone in the same room?
- Are there strong emotions impeding resolution? Explain
- Have any/all of the others discussed ADR? What did they say>
- Are there any people who ought to contributing to our process but aren’t?
- Do we need expert help?
- Is this matter being litigated? [if yes, details)
- Are there time constraints on the process?
- Are there relationships it is important for you to preserve? Explain.
- Is there a special need for immediate finality?
- What information do you need before you could settle? How and when could you obtain it?
- What other thing do you need before you could settle? How and when could you obtain it?
- Who are the real decision-makers here?
- What, in your opinion, is preventing resolution?
- What offers have been made or rejected?
- Any limits on resources that can be devoted to the dispute?
- Any need to accommodate a disability?
- Anything else I need to know?