Process and Outcomes


One of the panels I attended at the ABA Section on Dispute Resolution spring conference turned into something of a psychology experiment. The presenters asked the participants to sit around a series of circular tables, and assigned each table a role to play as groups interested in a proposed canal project for a hypothetical harbor. My table was assigned to play several environmental groups opposed to the project for differing reasons, another table represented shipping company owners concerned about the cost, another represented union interests favorable to the project, and another represented government representatives sponsoring the project. We were asked to discuss among ourselves our concerns about the process that was supposed to take into account all of these different views in the design of the proposed project.

What happened was that instead of focusing on how to design and manage the process for addressing all of these competing interests, most of the participants tended to focus on how to achieve their substantive goals. The shipping interests talked about diverting their cargoes to another port; we environmentalists argued among ourselves about our reasons for opposing the project and also threatened a lawsuit to stop it; the government interests figured they had the power to push the project through despite the opposing interests. Even after some prodding by the panelists, we found it difficult to talk about designing a process that would allow all of the competing interests to be heard and perhaps accommodated. Instead we distrusted the process and talked mostly about how to either win or opt out.

In the post mortem, the panelists reminded us that we were a group of dispute resolution professionals. And that this was only a simulation, in which we were arbitrarily assigned various roles, and were only pretending to favor them. Nevertheless, we became heavily invested in our assigned positions, distrustful of other parties, and distrustful of the process itself.

I often find that parties entering mediation show little interest in discussing procedural issues, with the exception that they frequently express a desire to retreat to a separate room and have no interaction whatsoever with the opposing side. Even when parties are willing to be guided by the mediator as to how to structure the process, they are a lot less interested in the process than in the result they are trying to achieve. And they are often eager to walk out if it does not appear to be heading toward the result they favor. The exercise I participated in shows how much resistance has to be overcome to induce parties even to discuss and participate in a process that tries to allow every voice to be heard and every legitimate interest to be accommodated.

It’s somewhat disconcerting to realize that even conflict resolution experts need to be reminded to focus on the process before worrying about the result. But when we are asked to take the point of view of parties, it’s only natural to be concerned about your client’s goals more than how you arrive at those goals. Still, parties understand that process is important. I was reminded at another panel that research demonstrates that when people feel they have had a chance to tell their stories, and even more importantly, when they feel they have been heard; when participants are treated with respect; and when they have confidence in the neutral, they are more likely to be satisfied with the result, even it does not achieve all their goals. Those should be the values served by any dispute resolution process, including litigation as well as alternatives to litigation.



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Joe Markowitz
Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association.

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