By Zachary Ulrich
Have you ever had someone in your life with whom you just couldn’t seem to get along? A family member, perhaps? Maybe a colleague? A customer, supplier, or client? All of us have had seemingly “conflict-laden” relationships, and those relationships can be the sources of some of our most painful stress. Sometimes these conflict-laden relationships can escalate into legal battles – for instance, when spouses seek divorce or when business partners decide to part ways.
While both mediation and arbitration are processes designed to help people move past conflicts such as these, it’s important for us as ADR practitioners to remember that the ways by which these two processes deal with conflict have fundamentally different psychological consequences on our clients. In order to explore this distinction, it is helpful to first review how conflicts tend to develop.
Conflict Comes in Scripts
Many conflicts in our everyday and professional lives are caused by the “scripts” we develop with those around us. It’s inevitable that as we deal with other people, we begin to form judgments and perceptions about who they are and their intentions toward us. This is especially true when there are emotional attachments involved in the relationship, or when we have repetitively gone through the “scripts” of conflict interaction with a person over a long period of time. “He says ‘x,’ then I say ‘y,’” and then the process repeats the next time a disagreement occurs.
In extreme form, these conflict scripts can become habitual – literally as strong as any other habit. Sometimes, when conflicts between individuals have persisted over many years or over multiple generations, these conflict scripts become part of how people see themselves and others. A modern-day example is the Israeli-Palestinian crisis, where multiple generations of people on both sides have in many ways become so used to the “script” of the conflict that many now derive their identity almost solely in relation to the fight. “I am Palestinian,” or, “I am not Israeli”… instead of, “I am a banker,” or, “I am a father.”
Perhaps even more unfortunate than the progressive nature of conflict is the fact that many of the judgments we make about others tend to be wrong. Many studies have shown that the impressions we form about others are often incorrect – either because of generalizations when they aren’t warranted, or because of misattributions about why others behave the way they do. Moreover, the process of stopping to consider the accuracy of our judgments is not a natural one, and many people never learn to question their assumptions.
And only rarely are issues themselves the sole source of legal disputes. Yes, often there are intractable differences of opinion or motivation that force parties into conflict, but more often than not the underlying source of conflict includes a relational dysfunction; a lack of trust; a sense of loss or abandonment; ego; a relative callousness by one or more parties; or, a combination thereof. Understanding how conflict scripts evolve is important for both neutrals and counsel, because these dynamics play out in significantly different ways depending upon the ADR method we choose.
Conflict Processes in Arbitration
Even though arbitration was designed as a means of avoiding court, the psychological consequences of arbitration in many ways play out similarly to that of trial. In both situations parties are generally discouraged from communicating outside of hearings, and within hearings parties do not communicate directly with one another. Instead, attorneys are expected to conduct all communication, and all communication is bound by local codes of evidence and procedure (in the case of court) or by local and organizational laws and rules (in the case of arbitration). There is no room for parties to spend time discussing their positions with one-another, let alone any chance for parties to re-examine the assumptions or “scripts” they may have developed over time.
Another fundamental characteristic of arbitration is that the focus of both parties and counsel naturally lies on maximizing the individual interests of both sides, rather than on finding common ground for resolution.
Taken in light of our discussion on conflict scripts above, that’s akin to the Palestinians and Israelis side-stepping attempts at agreement in favor of focusing solely on convincing an arbitrator who should get the West Bank, who should get the Golan Heights, etc. Neither party is likely to have full buy-in to the eventual deal, and so both parties are likely going to walk-away with an element of disappointment.
But, at least, they’ll walk away. Many parties seek arbitration for the same reason they seek court – to have a final determination. To move on, regardless of the outcome. And of course arbitration has many known benefits, for instance parties’ ability to tailor discovery proceedings and hearing formats, to avoid local court systems, and to choose respected topic experts as neutrals. It’s not that there aren’t myriad uses for arbitration today, but those uses don’t come without psychological ramifications.
Conflict Processes in Mediation
Of course, in mediation the conflict profile is quite different. Parties don’t have rules or codes guiding how they express themselves, and the focus lies in finding resolution both parties can agree with. Moreover, the parties are free to communicate – even to argue, or at least to openly disagree. And open disagreement can be a very healthy thing. It means the parties still care about trying to align their views of the conflict, even if one or all sides are convinced they are “correct.” It means parties haven’t conceded that resolution is impossible only to have a neutral “chop up Jerusalem.” As long as parties are still talking, there’s still a chance of finding common ground.
And as I discussed above, often the assumptions parties have made about their conflict or about other parties’ actions contain at least shades of misperception. It’s only human. In fact I observe clients articulate unfounded assumptions in mediation all the time, and I consider that a good thing. It means that parties are expressing the reasoning behind their decisions, which allows me as a mediator to interact with those assumptions. Unlike in arbitration, as a neutral in mediation I am free to guide and facilitate new ways of thinking, and to allow parties to generate new conclusions about their situation. Often, this sort of “creative destruction” of underlying assumptions allows clients to let go of their conflict scripts and to begin focusing on moving forward. It’s a beautiful process that allows understanding to replace enmity, and that allows working relationships to move forward past whatever agreement is reached.
All this is not to say that all conflicts should be mediated – far from it. Many conflicts are never going to settle without the intervention of a judge or arbitrator. But for the rest – for the conflicts where there’s still hope to address the old “scripts” that may have brought parties to the table in the first place – mediation or one of its derivatives (med-arb, or mediation with a mediator’s agreement) should be considered. At the end of the day, mediation and arbitration are processes meant to bring closure, albeit by vastly different means. True “closure” can take time and healing – the ability for parties to move on, to regroup, and to re-shape their identities beyond the conflict itself. Especially when conflicts go beyond simple dollar figures and include relationships. Conflicts are inherently psychologically impactful events, which means that the processes we choose to handle them are going to create lasting psychological change in our clients. As ADR professionals our goal is to help clients move forward in the best way possible, and we should consider the lasting psychological effects our ADR processes might create before attempting to do so.