Effective Dispute Resolution Strategy – An Imperative (Part 4 of a 7-Part Series)

One book has influenced my thinking deeply.  It is Steven Covey’s classic “Seven Habits of Highly Effective People.”  In the opening pages of this book, Covey refers to Thomas Kuhn’s “The Structure of Scientific Revolutions,” in which Kuhn shows that the most significant breakthroughs in the field of scientific endeavors have been preceded by a break with old paradigms, that is, the traditional thought on the matter.  He called it a “paradigm shift,” a term that is now trite.  Steven Covey, in his classic “Seven Habits of Highly Effective People,” asserts that this can be applied to all aspects of life and needs not be limited to scientific endeavor.

The above serves as an appropriate bridge from my last post. For what I am inviting my readers to prepare for, and embrace, is a paradigm shift.  A shift from the paradigm of Mediation as simply an available dispute or conflict resolution method or process to a new paradigm wherein  Mediation and the mediatory mindset is a culture and lifestyle, of individuals, communities, and corporate organizations.

I am driven by the firm conviction that the principles of mediation best achieve their goal, when founded on the right mindset, i.e. a right inner mind attitude.  Time and time again, it has been shown that, against a wrong paradigm, two people can see the same thing and yet disagree, regardless of pertinent reason or logic.  In my experience, I have seen that it is in fact this differing paradigm that causes a “digging in,” where for this reason either party fails or refuses, or does not care to see what the other is seeing.  Therefore, in such cases, my consistently successful strategy has been to reconcile the paradigms to help parties close this mindset gap.  My favorite tool has been a calm, respectful, unambiguous (specific, definitive, clear) communication, and gentle, yet firm re-framing, as necessary.

A good proportion of commercial transactions and relationships are conducted through corporate organizations.  I believe that the time has come when companies should be able to celebrate minimum or no-down time for dispute resolutions as we have today with HSE policies which celebrate accident free or minimal down time from accidents.  This can be achieved by policies which make a mediation mindset part of the corporate culture in much the same way as safety-consciousness has become a lifestyle.

A possible starting point is in establishing and sustaining guidelines for inter-personal communication and relationships.  For example, Non-Violent Communication can be entrenched in corporate policy.  Employees are enjoined to be courteous and considerate in their verbal and written correspondences, both within and outside the organizations.  And yes, you guessed my next thought: etiquette and respect for the other person.  This, for example will undergird the policies around sexual harassment and other such behavior and communications.

Leaders will be encouraged to employ effective listening skills.  They will be encouraged to develop a passion for becoming bridge builders, team players.  Disciplinary process must be reviewed away from being mini-courts and tribunals, often imitating the adversarial models of dispute resolution.  Instead, they can be modelled more after conciliation and mediation.  The organization itself must be a listening organization.  Staff should be encouraged away from a culture that regards employees as rivals, fighting each other for promotions and rewards, in a pyramid structure.  A win-win mind set becomes a daily way of approaching transactions and the relevant negotiations.  Balanced agreements tend to be less prone to defaults.  Cost benefit analysis becomes an integral part of the process for addressing disputes and suits.

Members of the in-house legal team responsible for the organization’s disputes portfolio can be encouraged using incentives to promote and integrate the use of mediation and other ADR methods.  These incentives can be in the form of bonuses or targets attached to these members who obtain additional Mediation and other ADR training and/or who use those processes to resolve disputes.  Since organizations can track cost-savings and external legal expenses, ADR usage and ADR related cost-savings (direct and indirect costs) can also be tracked.  As a result of this tracking, cost-saving targets which are attached to bonuses can be set for the disputes portfolio legal team.

In Part 5 of these series, we will consider more specific elements of the Mediation or Mediatory culture and mindset, and its adoption as an effective corporate (and individual) conflict and dispute resolution strategy.

I am eager to know what you think.  Please share your comments in the section below.  Meanwhile, please subscribe so that you do not miss developments as this is advanced over the next few weeks.

 

17 Comments Add yours

  1. Sheila says:

    To reduce cost of litigation , am suggesting that big organisations should invte experienced Arbitrators/ mediators , to give an in house training to it’s legal department staff, on dispute resolution.

    1. Quite true! We have to rethink the strategy in the light of post pandemic realities. Any ideas?

  2. Anene Nwadukwe says:

    The moment Mediation is understood as a culture will entail the requisite paradigm shift in the minds of people to adopt a friendly approach to dispute resolution. It should be addressed separately from other ADR mechanisms like Arbitration which employs an adversarial attribute where the mindset of the parties tilt towards winning a dispute.
    Mediation apart from resolving disputes between individuals and corporate entities should be encouraged in resolving community disputes and the possibility of introducing same to resolve political disputes should be considered.
    Many thanks for your timely piece. I hope to see all the write ups culminate into a reference book for Meditation in Nigeria and beyond.

    1. I am glad about your comments on arbitration. It certainly does retain too much of the adversarial approach. Believe it or not, it was as adversarial in the past. My concern is that if we allow mediation to stay too long in the court connected environment, is could quickly develop adversarial attributes, in spite of whatever is intended by its developers and proponents.

  3. Adeola Ajayi says:

    Effective communication of the results of Mediation and ADR dispute resolution methods will go a long way to establish the culture in corporate organisations.

    1. My thoughts, indeed! Thank you for responding. I would like to see it go from the corporate setting into the society at large.

  4. Chinyere Onyemenam says:

    Thank you, sir, for this article. This paradigm shift is crucial. I am of the opinion that it will result in growth in organisations that adopt the mind set and culture change. But how will they know if they are not taught? Mediation and its benefits need to be introduced formally to organisations in training along with all other trainings aimed at developing corporate brand, culture and efficient performance. Mediators must live out the skills as their own culture, be change agents, life practitioners (hope this phrase makes sense) and not just wear the toga for formal dispute resolution. And I think there’s no time better than now.

    1. You are quite right. This is going to the thrust of carrying forward the Mediating message. Thanks for coming on board.

  5. Chima U says:

    This is a lot of sense making. For this paradigm shift, the mindset for mediation should be a fabric of the organisational culture that is championed by the top management of corporations who fully understand the cost implications and losses the business may suffer due to lengthy court processes. I believe with a mindset of mediation for dispute resolutions; agreements will be drafted in ways that reduce possible conflicts that may arise in future.

    1. Thank you, Chima. I am hoping that many more persons will catch this vision. I look forward to continuing the dialogue with you as this development progresses. Again, thank you.

  6. Adetokunbo Ewumi says:

    Greetings Sir,
    I believe this is for the legal minds. However, I picked up a few things that is very useful for my ministry and business such as Right attitude, Relationship and listening skills. Welldone sir. Best regards

    1. Thank you for your comments. While it would appear targeted at legal minds, the thrust is to all persons. The culture of mediation which encompasses Non violent communication, respectful interactions and etiquette in word and action, extends to all persons and disciplines. Please follow us in this thread of discussions as we develop this theme and I would be interested in the perspectives that you may be able to share with us from a non-legal perspective. Again, thank you. (Don’t forget to subscribe/follow, so that we can keep you abreast of this conversation and others in future.)

  7. Arc 'Deji Solanke, Mediator/Mediation Advisor says:

    I consider this your Part-4 writeup on Effective Dispute Resolution Strategy as another effort at ‘unboxing mediation’ from the hitherto traditional/cultural modus operandi, with customary laid down conflict settlement approach.
    By extension, if this well articulated Part-4 is properly sold out to corporate bodies/organisations, as to the inherent gains, to wit: 1. Cost Savings Measures; 2. Mutual Workplace Respect & Partnership; 3. Peaceful Working Relationship; 4. Etc. it would give mediation/advocacy, a preference over other ADR channels in existence before it.
    A corridor for patronizing both mediation & mediation advocacy without any fear of ill consequences, would have been opened, as parties will genuinely & confidently introduce mediation clauses into their contract agreements as the acceptable medium of settling conflicts due to its’ cost & time saving components, including a WIN WIN outcome to all parties.
    Bravo to this novel thinking; addressing mediation & mediation advocacy practitioners, to prepare and make the best use of this apparent and emerging revolutionary approach to conflict resolution!

  8. Thank you, Deji. This is certainly the intent of the write-up. I am advocating adoption of Mediation, beyond resolution of disputes – and for these, it will always be the optimal process where applicable – to becoming a culture, a lifestyle, a basis for the choices we make in our relationships. And this will be so, whether we are talking of personal, business, commercial, or religious relationships. Please watch out for the next two posts in the series. (Trust you subscribed to follow, so that you do not miss them.) Once again, thank you.

  9. Yinka Kolade says:

    Well said on the need for Mediation to be a culture rather than just a process. To achieve this though there must be an acceptance of the good and positive that mediation can achieve and the willingness to try it. Most work place Bosses are not willing to try or accept mediation because they think it will take away thier power as dealing with issues will now become more cooprative . Rather than showing might. Also as we know change has to come from the top. However most of those who have been exposed to mediation are middle level and junior staff. If this can penetrate to the top echelon we will begin to see it gaining more acceptance and becoming a culture.

  10. Aisida Yetunde Omolola says:

    Mediation as a culture to be adopted by all classes of people. It should be a mechanism introduced to resolving community issues/ disputes Am also of the opinion that it should be effectively communicated to all and sundry, beyond the present level of acceptance, as an alternative dispute resolution strategy.

  11. I constantly experience mediation from a quasi architect arbitrator angle.

    The greatest problem is the challenge created by one’s client/employer, from the following illustration:

    i). The client/employer is King, and the King can do no wrong
    ii). The client employed you the architect and pays your fees, therefore you must be on my side when there’s a dispute with the contractor
    iii). I often see the situation from the point of view of a referee in a boxing match, where the referee cannot afford to be partial, besides the whole world is watching, and you cannot fail to caution / discipline the boxer that’s hitting below the belt

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