There was a time, not long ago, when those who found themselves in a dispute had two basic choices: They could either file a lawsuit/initiate some formal complaint process or they could just walk away from the conflict and try to move on. This essentially amounted to what professionals refer to as the typical default responses of most people – “fight or flight”.
Businesses began to promote the use of arbitration as an alternative to litigation in business disputes, but that was still a fight or flight option. For many people, the choice was either to let it go and move on or get embroiled in a lawsuit for many years and at a crippling cost. Just this week, I mediated a relatively basic case – a dispute about a parking space – that had been going on for five years! Fast forward to today.
Over the last month, four annual workshops, forums or symposiums were held by Massachusetts organizations that promote the use of dispute resolution alternatives (DRA) and help educate the public, lawyers, professional experts and neutral facilitators, coaches, mediators and ombudsmen about the value of these approaches. These programs were in addition to several other shorter training and education programs that these organizations offer throughout the year. These groups include the New England Association for Conflict Resolution (NE-ACR), the Massachusetts Collaborative Law Council (MCLC), the Massachusetts Bar Association’s Dispute Resolution Section (MBA DR Section) and the Massachusetts Council on Family Mediation (MCFM).
These events extended beyond the two best-known dispute resolution processes of mediation and arbitration, and included collaborative law, ombuds services, restorative justice, conciliation, structured negotiation and early neutral evaluation. Speakers provided useful information on how these processes work and when they can be used. They also stressed the vital need to first assess or triage each dispute before choosing a course of action and to have the flexibility and openness to design hybrid processes that are more responsive and tailored to the type of conflicts and the specific situation that each kind of dispute presents. We sometimes refer to these as dispute resolution alternatives (DRA).
I don’t have all their statistics on membership of these groups, but here are two indications of growth of the field of dispute resolution alternatives. (1) The newest of these groups – the MBA DR Section – is in its second year and already has over 500 members. The MCLC began in 1999 and has since trained nearly 1000 lawyers, experts and facilitators in the process of Collaborative Law. The growth of these statewide organizations, as well as other national and international groups and the expansion or trainings, workshops and law school courses on these subjects reflect the rising trend in the use of these approaches to resolving disputes.
In the early 1980s, mediation began to be used and discussed more as another option, one that was not only an alternative to lawsuits and litigation but also an alternative to fight or flight. Mediation, and the other non-adversarial approaches referred to above that developed after it, are different in four significant ways:
- They are processes in which the parties have more control over both the process and the decision making as to the outcome;
- They are non-adversarial in nature and call for more of a collaboration of professionals and clients;
- They are flexible, creative and agile processes that are not limited by rigid court or arbitration procedures and can be tailored to the situation, resulting in solution options that are more responsive to the interests and needs of the parties;
- They are more time and cost-effective than either litigation or arbitration and avoid much of the collateral damage – draining of resources, emotions and energies.
Today, people in disputes have a third option that is not fight or flight. Stephen Covey refers to this option as the “3rd Alternative” in his book, The Third Alternative. Covey devotes a chapter to using this third way in the law to resolve conflicts. Buddhists might refer to this option as the “Middle Way”. More and more people, as well as lawyers and conflict resolution advocates and mediators, are seeking and finding dispute resolution options that are better suited for their type of dispute and their circumstances than either suing or walking away.
There is a growing need for DRA today and more clients are seeking them. There is a growing number of lawyers and DRA professionals trained in these processes, expanding the field and ready to help people resolve disputes more efficiently and avoiding a potentially damaging adversarial process. It’s time to connect the need for DRA with those lawyers and professionals who approach resolving disputes this way.
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