Mediation: An Ideal ADR Strategy and Policy (Part 3 of a 7-part series)

We have established that conflicts are inevitable. It is therefore expedient to have a plan, a strategy for resolving them in a way that minimizes disruptions, that saves costs, both of money and of time, especially in the latter case, executive time.  It also preserves relationships and reputation, both personal and corporate.  Such a plan and strategy are no longer optional or even, perhaps, just a plus.  They are an essential element in an organisation’s corporate toolkit.  It is not only necessary and commendable; in reality, it impacts the “bottom-line,” thus guaranteeing increasing sustainable value to the organisation.

Apart from limited negotiation, i.e. attempts at “amicable resolution” of disputes, the typical destination of resolution efforts is litigation or arbitration.  Even the “Fair Hearing”/”Due Process” platforms tend to be more like mini courts or tribunals.  Hence, these internal fora tend to bring with them the same side effects, as those external courts and arbitration tribunals; all of them being adversarial methods of dispute resolution, as opposed to mediation which is a consensual and conciliatory resolution method.  In both cases, enemies are made, and underlying interests are ignored, or not given enough recognition, and reputation of company and individual staff are damaged, even if only minimally.  The executive and other time spent, attorney and court costs soon either add to costs or chip away any savings, making a negative impact on the “bottom-line.”  A little pre- and post-resolution audit will easily prove this.

My proposition therefore is that many more companies should embrace and adopt mediation and related conciliatory methods of managing and resolving their disputes, both internal and external.  I am fully persuaded that companies and individuals will derive greater benefits when they have incorporated mediation into their dispute resolution culture and mindset.

Important tools for incorporating this culture and mindset include: i) establishing a coherent policy and procedure for the management of internal and external conflicts; ii) a proper administrative policy for contracts and external relations, particularly but not limited to recognition of mutuality and the adoption of a “win-win” mindset; iii) clear guidelines, values, and boundaries for inter-personal communications, relationships and interactions in-house: and iv) guidelines, values, and boundaries, for external communications, relationships and interaction.  The foregoing is not by any means an exhaustive list.  But, in all cases, great emphasis would be placed on appropriate (and inappropriate) language and behaviour, self-respect, respect for others, and a recognition of diversity while upholding mutuality as a fundamental corporate ethic.

Did I say culture? Yes, indeed! Let me illustrate thus.  In certain ethnic groups and societies, marriage laws and practices do not admit of the possibility of divorce, except in the most extreme of circumstances.  In such societies, there is limited provision for considering or discussing issues such as grounds for divorce, prenuptial agreements.  Even arrangements for custody, in the event of spousal demise, is preset.  The couple marrying does so knowing that whatever problems present must be resolved.

Put differently, the practice of mediation and conciliation is inherent in the marriage institution, as a culture and ethic.  It is not just a dispute resolution process; it is a management of the entire arrangement from the beginning to the end; it is a lifestyle.  The entire institution recognizes and is built around it.

This is like the way that, today, companies and organisations think not only of having a robust HSE policy but of maintaining an HSE culture.  “Think Safety first, always!”  In the same way, it is my proposition that Mediation, or a mediatory mindset, must become the norm and culture of the corporate organisation, and not just be a matter of policy and procedure.

Watch out for Part 4 of these series where we will consider the elements of the Mediation or Mediatory culture and mindset, and its adoption as an effective corporate (and individual) conflict and dispute resolution strategy.

I understand that some of these views are rather daring; and, they may either be novel or may appear impracticable, or both.  I am eager to see or hear what you think.  Especially, are there some examples elsewhere we may benefit from?  Please share your thoughts and views with us in the comments section below.  Also, please subscribe so that you don’t miss developments as this is advanced over the next few weeks.

Mediator Yemi

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