Dispute Resolution Need Not be Disempowering

I attended a graduate seminar a few years ago at Columbia in designing conflict management/dispute resolution systems. I was pleased that system design would be based on information gathered from its beneficiaries in field research and focus groups, and I reckoned that systems wherein the beneficiaries played the greatest role in informing them would be most successful. Then, the instructor, a highly regarded expert with the federal government, announced that our clients knew only what they “wanted” and that it was up to us to tell them what they “needed”.

This really rubbed me the wrong way. Sure, I expected to be able to add value to the process, but I didn’t expect to impose my views on the clients under the color of authority as an “expert”. Where I come from, “want” and “need” are almost synonymous. We might say things like “the lawn wants mowing”, “that bast**d wants killing”, “nothing else is wanted”, “waste not-want not” and such like. We might use “need” in much the same way.

Each of us, unless we are infants or otherwise incompetent, is the best judge of what we want or need. It is arrogant to suggest that one knows the needs of another better than that person. As an expert, I might suggest that some needs might take precedence over others, that some cannot be fulfilled under the circumstances, or that expressed needs are themselves in conflict; however, I ought not to privilege my own assessment of an individual’s needs over theirs.

This de-legitimization of the avowed needs of clients happens often in conflict management and dispute resolution. Courts, by their nature as coercive instruments, disempower the litigants before them and impose official “justice” on their circumstances. And what passes for mediation much of the time is little more than a preview of what the court might do, ie the mediator looks for a resolution that reflects the likely outcomes in court. Even facilitators and more creative mediators tend to impose their own values into negotiations. I continue to hope that there is a place for collaborative and creative conflict management and dispute resolution processes that are empowering and transforming and a real alternative to both coercion and the tyranny of the expert.

The rub is to find a way to connect disputants with people who are skilled in transformative and empowering mediation. Pastors might be good candidates for training. Marriage counselors and divorce mediators trained in such methods could prove effective. Lawyers, in principle, might be trainable, but for the most part lawyers are selected for combativeness, arrogance, and narrowness of perspective. Moreover, they are part of the coercive court system and used to imposing legal categories on clients’ concerns.

Perhaps, the real issue is how to establish transformative and empowering mediation as an occupation that attracts paying clients and provides the mediator with a decent living. The services of such mediators might be attractive since: (a) disputants could avoid legal fees and the high costs of making cases in court; (b) disputants who value certain relationships (disputes with important customers or vendors) might resolve their disputes while preserving and strengthening those relationships; (c) disputants could maintain privacy as no public record of the proceedings would be maintained; (d) the process would serve as a model for the disputants in future interactions and improve communications between them; and (e) disputants could resolve issues based on their own notions of justice and fairness without regard to the state.

A big problem is that the coercive system trumps collaboration in several ways: (a) all parties have to agree to the process and it will be undermined if any of them goes to court; (b) the coercive system and competitive negotiation are all that many people know; (c) if it is necessary to have a negotiated outcome memorialized in a court order (eg a divorce settlement) the outcome may be sabotaged by the lawyers who become involved; and (d) the disputants’ constituencies may undermine the process and urge coercion. Of course, a major benefit of transformative mediation is that the disputants may learn from the process even if the dispute is not resolved.

I reckon that the most likely place for such mediation to take hold is in business where disputants have ongoing relationships and where players are motivated to avoid irrationally escalating disputes. For example, in a long term construction environment, lots of different players have to collaborate over a long period of time, and lots of disputes will arise. If these can be mediated in ways that acknowledge the needs and goals of the parties and model ongoing collaboration, this adds value.