It seems strange that when we think of a dispute we immediately think of a courthouse, a judge (perhaps even in a wig), and the painful process of litigation.
Yet we all know that resolving conflict isn’t confined to the court house.
When we argue with friends or family, our first instinct isn’t to sue, but to find a way to resolve the issue. And most importantly, to find a way to talk to one another.
As one of the oldest methods of dealing with conflict, mediation can be found in some form in almost every culture. From restorative justice projects in New Zealand, to gacaca courts in Rwanda. From community mediation as far as India, to ‘circle conferencing’ practices in the Brazilian Amazon, the core of mediation is familiar to most.
So why is it viewed as such a radical new method in the business world?
Perhaps it is a matter of culture…
Teaching children about dispute resolution
In some countries, mediation culture is widespread in society, and fostered from a young age. In many German high schools, students are trained to resolve conflict among their peers as an extra-curricular activity.
The function of these students - usually referred to as “Streitschlichter”, or conflict resolvers - can be really important. The aim is to get students to speak to one another in a supported and neutral environment, which can be really effective in encouraging both sides to acknowledge the circumstances of the other.
In Italy, a highly innovative project by a judge in Florence has gone even further. Justice Breggia, who created the project, 'The Ingenious judge – An awareness-raising itinerary to legality and justice’, based on her book ‘Il Giudice alla Rovescia‘, aims to teach children about the purpose of rules and the functioning of the justice system at primary school level
Teaching children about resolving conflict is not only an invaluable skill for those who may become lawyers, but it’s also a life skill that could strengthen human interaction as a whole. Most forms of alternative dispute resolution (ADR), occurring within a legal framework, include elements of psychology and soft skills which make them effective. Including these skills in the education system could lead to a shift in how we view and approach disputes as a society. It reinforces prevention strategies and a less, or non-adversarial culture. Rather, it promotes one focused on conciliation and communication.
Moving away from adjudicative processes
In the commercial sector, at least outside of the US, mediation has arguably had a slow start.
However, more countries have introduced mediation laws, with others following suit. This brings mediation to the fore as a viable option for resolving commercial disputes.
As a less formal process that requires both parties to work and agree on a solution together, there will inevitably be cases where this proves near impossible.
For example, instances where the dispute has escalated to a point where a dialogue is almost unworkable, but ultimately relies on the willingness of the parties to give mediation a shot. There is also a huge reliance on the mediator who has a crucial role in building a trust between him or herself and both parties, as well as managing the process effectively.
But is there a need for change in dispute resolution culture in the commercial sector?
Many would argue yes. But they may be divided in terms of how.
As parties look for greater efficiency, more options, and often greater control of their disputes, the legal sector must adapt to meet its clients’ needs.
In international disputes, domestic courts have long fallen out of favour, and commercial courts have proven expensive and time consuming. This makes ADR more attractive.
And one of the biggest reasons international arbitration is a thriving business is that it is an adjudicative process. Once an award has been issued, this is final, and may be enforced through the New York Convention.
Some fear that processes such as mediation may not be able to offer the same kind of finality and security.
However, there have been efforts underway across the globe to further regulate and strengthen the mediation framework. For example, the recent Mediation Bill passed in Singapore. And last year, the 47th Session of United Nations Commission on International Trade Law (UNCITRAL) called upon its Working Group II to create an instrument for the enforcement of international commercial settlement agreements resulting from conciliation/mediation.
It seems that cultural change is not only affected by what we teach, but also by creating an appropriate legal framework.