Alternative Dispute Resolution -- Mediation and Collaborative Practice

“Litigation . . .merely continues conflict and offends nature; it does not heal.” 
Confucius

“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties driven asunder.”
M.K. Gandhi

“Discourage litigation. Persuade neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses, and a waste of time. As a peacemaker, the lawyer has a superior opportunity of becoming a good person.”
Abraham Lincoln

The wise ones among us have long known that litigation is counterproductive. Most people who have participated in the adversarial litigation process know that it is slow, inefficient, expensive, and painful. We need only look around the world, our communities, and our own families to know that we need to think about and resolve conflict differently. Divorce, probate, elder care issues, business and labor disputes, and many others can all be addressed with positive and mutual results through various forms of alternative dispute resolution.

Mediation and collaborative practice are two common methods of alternative dispute resolution. In mediation, a third party helps disputing parties reach a mutual resolution. The decision-making authority rests with the participants and allows them to define and clarify their own issues and explore possible solutions and agreements. Collaborative practice, a relatively new process more common in family law, is becoming more widely used in the civil area. Collaborative lawyers and their clients enter into a contractual commitment to negotiate a mutual settlement without going to court, to engage in open communication and full disclosure, and to create shared solutions that take into account the highest priorities of both parties.

Mediators (and collaborative attorneys) talk about win-win solutions, understanding that an agreement that does not work for both parties is not the best solution. It is the job of mediators and collaborative attorneys to elicit information and ideas from disputing or negotiating parties that will help reach a solution for all concerned. Sometimes, options for settlement really are limited to the division of something (money, time, or something else), and our role is limited to determining each party’s piece of the pie. But the results of such a compromise are usually somewhat unsatisfying and the process is somewhat similar to litigation.

That’s not the way mediators who use the understanding or facilitative model like to work. We prefer to spend our time expanding the pie that is to be divided, by asking questions and exploring ideas in order to increase the options available to the parties, and by seeking to help each party understand what is important to the other party. This understanding-based mediation fosters mutual respect between the parties and assists them in making informed choices together, and durable, positive agreements that address the most important goals and interests of both parties.