Gini Nelson\’s Engaging Conflicts

August 31, 2006

Web 2.0 For The Rest Of Us — Wikis and Podcasts and Blogs, Oh My!

Filed under: Business,Wikis and Podcasts and Blogs, Oh My! — Gini @ 12:22 pm

While internet penetration has now reached 73% for all American adults according to a PEW Research Center study, many attorneys and mediators do not know much about wikis and podcasts and blogs! What are they? What do they mean for American, and global, life? What do they mean for one’s practice, and business? What is “Web 2.0” and why does it matter? Check back Monday for the start of my new series — Wikis and Podcasts and Blogs, Oh My!

Advertisements

August 24, 2006

Social Cooperation With the Law Is Foundational To the Power of the Law and Not the Other Way Around, By Guest David B. River

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 12:03 pm

Mediator David B. River responds to attorney mediator Rawle Andrews Jr., Esq. as they continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators.

Different Worldviews

I have really enjoyed the conversation with Rawle over the last few months, even though our back and forth posts don’t always seem to make much contact. I think this reflects that we are speaking from different views. Something Rawle said – “anarchy reigns in the absence of laws” – reminded me of my studies in nonviolent action. Specifically the writings of Gene Sharp in his discussion of power:

    One can see power as self-perpetuating, durable, not easily or quickly controlled or destroyed. Or political power can be viewed as fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue. The Politics of Nonviolent Action: Part I, 1973, p. 8.

I sense from Rawle’s posts that he sees the law as a powerful force that keeps order. I, on the other hand, tend to see the law as one outcome of social order and cooperation – it reflects our broad social agreement and relies on social cooperation to function. In other words, I see social cooperation with the law as foundational to the power of the law and not the other way around. Civil disobedience has shown that without cooperation, the law has no power.

The Law relies on the power of authority and sanction. It is functional when people respect and obey the law (authority) or see that the consequence of violating the law is more costly than obeying it (sanction). However, it can fail to deliver justice because people use many other sources of power. A few examples: the power of resources (time and money) allows people to “work around the law,” find loopholes, hire a superior lawyer, outspend their opponent, etc. The power of knowledge and expertise may give one party an unfair advantage over the other. The power of nuisance – simply willing to keep fighting – can cause an opponent to give up simply because it isn’t worth the fight. In many cases, knowing how to use the “’orderly’ resolution of disputes” provided by the courts gives people with abundant resources, knowledge and expertise an enormous advantage that has nothing to do with the intent of the law.

From this viewpoint, mediation is distinct and works with the fundamentals of social functioning – agreement and cooperation. Since it relies on voluntary participation, it must use an entirely different set of tools than authority or the threat of sanction, and therefore may be useful in places where the law does not hold sway or is actually a barrier to justice.

Skillful mediators draw people into a cooperative process not out of their authority or because they can force people into it, but because they respond to the real needs and interests of people in conflict and allow an honest negotiation based on a specific reality rather than broad legal precepts. Agreements reached may or may not have any relationship to a legal outcome in the minds of those parties involved in reaching an agreement.

So, here are the interesting questions to me: Does mediation pose a threat to the law? To justice? To social agreement? If Additional Dispute Resolution (ADR) techniques continue to grow, what will be the impact on our social understanding and functioning?

More on this next time.

Best wishes,

David

Rawle Andrews Jr., Esq. will respond next week.

August 23, 2006

Transformative Mediation and The Conflict Resolution Center

The fascinating exchange between David River and Rawle Andrews Jr. will continue shortly. In the meantime, I’ll start posts concerning transformative mediation, another “flavor” of mediation. The Conflict Resolution Center (CRC) is the Administrative Office for the Institute for the Study of Conflict Transformation (ISCT). Kristine Paranica, J.D., Director of the Conflict Resolution Center, serves as Administrative Director and Fellow of the ISCT. Kristine will also be a Guest Blogger, and will be interviewed in Engaging Conflicts Today this fall.

This is from the CRC’s website:
ABOUT THE CONFLICT RESOLUTION CENTER

Conflict Resolution Center homeNorth Dakota , the Peace Garden State, is home to a unique organization whose staff and volunteers offer support and training for those people committed to fostering understanding and peace. The Conflict Resolution Center, located on the campus of the University of North Dakota, is a non-profit community mediation and training organization. The CRC was established in 1988 by a group of UND faculty and staff in order to provide mediation services to the UND campus community. Since its inception, it has expanded its services to meet the growing conflict management needs of its clientele. It now also offers conflict management training/education, mediation training, and facilitation. The CRC is the only community mediation and training center in North Dakota, South Dakota, and Montana. Its mission statement: To transform the fundamental human experience of conflict by fostering greater understanding and peace.

The CRC is the Administrative Office for the Institute for the Study of Conflict Transformation (www.transformativemediation.org ). The ISCT is a national think-tank supported by a consortium of universities including the University of North Dakota, Hofstra Law School, Temple University, and James Madison University. Kristine Paranica, Director, serves as Administrative Director and Fellow; member James Antes, Ph.D., serves as Fellow; and member Daniel Bjerknes serves as an Associate of the Institute. The Institute provides the premier resources for the theory and practice of Transformative Mediation in the world.

August 15, 2006

The People Must have Law and Order, By Guest Rawle Andrews Jr., Esq.

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 12:40 pm

Mediator David B. River and attorney mediator Rawle Andrews Jr., Esq. continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators. This is Rawle’s latest post; David will respond next week.

In a perfect world, there is no conflict so there is no need for laws to establish the rules by which we conduct our business and personal affairs. We need look no further than current events in the Middle East to recognize that we are not perfect, and we do not live in a perfect world. Despite this constant state of imperfection, however, our world is governed by laws, rules and regulations, whether we personally agree with certain of these laws or not. There is no other explanation for sovereign states to yield in the midst of an emotionally-charged war, or for Jimmy to return something that Sara loves, other than that the failure to yield has consequences.

Although humankind has tried for centuries to create a perfect body of law (e.g., Hammurabi’s Code, etc.), there is little argument today, particularly in the Western world, that the Law cannot solve every problem. If it did, we would have stopped enacting laws after the Constitution and the Bill of Rights were adopted and disbanded all legislative bodies. The converse has been true since before the establishment of our Republic, and for good reason. As we evolve, our laws must evolve to meet the issues of our time.

The reason I submit that the Law is the end game simply is because anarchy reigns in the absence of laws. Our world cannot function humanely without laws; but we do know our world can and has persevered for ages without Mediation, and will do so tomorrow if the Law so commands. For example, if the legislature(s) of this great land decided tomorrow that the Mediation experiment was a failure, would state borders cease to exist? No. Would anarchy reign supreme? No. Would the economy come to a screeching halt? No. Would real estate prices fall flat? No. Would people stop getting married and divorced? No. Would Jimmy be obligated to replace Sara’s belonging after he broke it? No. But, on the other hand, think of the adverse impact on any of the foregoing situations if we repealed all the laws, and abolished the judicial system: World War; nuclear holocaust; unstable currencies; and a survival of the fittest mindset.

The Law provides a forum, rules of engagement and a systemic process for the “orderly” resolution of disputes, whether we want to be present for the verdict or not. Nothing more; nothing less. Nobody says you have to like the result; you might not even understand the result – – but we all know where to obtain the answer. Under the Law, the fastest, strongest, richest or loudest is not guaranteed victory and does not always win the argument, even when these proponents have every conceivable advantage to get the word out. In my humble opinion, we “want” Mediation because it is sometimes easier to ingest the result from this type of glassware than when taken by hand or by water hose. In the absence of the glass, however, if we are thirsty we are going to drink because we “need” the Law.

Best wishes,

Rawle

August 12, 2006

20 Concepts and Recommendations for Utilizing the Internet: Another 5 Technical Recommendations (#4)

Filed under: Business,Wikis and Podcasts and Blogs, Oh My! — Gini @ 6:42 am

Jim Melamed’s innovative and entrepreneurial work at and through Mediate.com supports conflict specialists working to establish and maintain their niches, increasingly necessary for business success. His articles include 20 Concepts & Recommendations for Utilizing the Internet, Integrating The Internet Into Your Mediation Practice, and Mediating on the Internet: Today and Tomorrow (two parts).

Here’s the concluding part of 20 Concepts & Recommendations for Utilizing the Internet:

This article reviews 20 concepts and recommendations to assist you to most capably utilize the Internet in support of your Mediation practice.

10 Technical Recommendations

Recommendation #6. Get Detailed Statistics on your Web Site Performance and be able to understand your statistics.

Recommendation #7. Get Your Site Linked on other sites. This, along with meta tag key words, is the best way to rise in the search engines!

Recommendation #8. Be sure that your Meta Tags are Capable so that you are found by search engines, look good in the search engine reports and look good when people do get to your site.

Recommendation #9. Send out a Periodic Email Newsletter. This is the best way to remind referral sources that you exist and get them to your site.

Recommendation #10. Get Your URL Out There! You should have your web site on cards, stationary, directory listings, voice-mail, on articles and elsewhere.

For more information on the Internet in Mediation, see www.mediate.com/ODR

The next issue of the Engaging Conflicts Today newsletter features an interview with Jim that continues the discussion started with this posts. You can sign up for the newsletter by clicking on the “sign up” link in the upper right corner at the top of the blog site.

Biography: Jim Melamed, J.D., founded The Oregon Mediation Center, Inc. in Eugene, OR in 1983 and has been offering mediation services ever since. He is an adjunct Professor of Mediation at Pepperdine Law School, mediates organizational and legal matters in Oregon, Washington and California, and has assisted in the resolution of over 2,000 disputes. He also is the co-founder and CEO of Mediate.com (1996 to present), the most visited conflict resolution web site in the world; former Executive Director of the Academy of Family Mediators (1987-93, now merged into ACR); former Chair of the Oregon Dispute Resolution Commission; founding President and first Executive Director of the Oregon Mediation Association; and in 2003, he received the 2003 Oregon Mediation Association Award of Excellence.

August 11, 2006

20 Concepts and Recommendations for Utilizing the Internet: 5 Technical Recommendations (#3)

Filed under: Business,Wikis and Podcasts and Blogs, Oh My! — Gini @ 6:41 am

Jim Melamed’s innovative and entrepreneurial work at and through Mediate.com supports conflict specialists working to establish and maintain their niches, increasingly necessary for business success. His articles include 20 Concepts & Recommendations for Utilizing the Internet, Integrating The Internet Into Your Mediation Practice, and Mediating on the Internet: Today and Tomorrow (two parts).

Here’s the third part of 20 Concepts & Recommendations for Utilizing the Internet; the final part will post tomorrow:

This article reviews 20 concepts and recommendations to assist you to most capably utilize the Internet in support of your Mediation practice.

10 Technical Recommendations

Recommendation #1. Know your email software inside and out and utilize your email features to make your messages effective. A bit of bold or splash of color is wise to emphasize key information.

Recommendation #2. Use Nicknames and Your Address Book. This will help ensure that you get the address right and allows you to strategically group communications.

Recommendation #3. Use Your Mail Box System as an electronic filing system. Dump that file cabinet! With electronic filing, you can use your email search capacity to find important documents. Get in the habit of sending emails to yourself, often with attachments, with strategic subject lines that allow for easy filing and retrieval.

Recommendation #4. Use Email Stationary (Forms) to expedite individual and group mailing and to ensure quality and consistency of message.

Recommendation #5. Establish a Dynamic Web Site that you can easily change on an ongoing basis without additional cost.

For more information on the Internet in Mediation, see www.mediate.com/ODR

The next issue of the Engaging Conflicts Today newsletter features an interview with Jim that continues the discussion started with this post, and continues with tomorrow’s. You can sign up for the newsletter by clicking on the “sign up” link in the upper right corner at the top of the blog site.

Biography: Jim Melamed, J.D., founded The Oregon Mediation Center, Inc. in Eugene, OR in 1983 and has been offering mediation services ever since. He is an adjunct Professor of Mediation at Pepperdine Law School, mediates organizational and legal matters in Oregon, Washington and California, and has assisted in the resolution of over 2,000 disputes. He also is the co-founder and CEO of Mediate.com (1996 to present), the most visited conflict resolution web site in the world; former Executive Director of the Academy of Family Mediators (1987-93, now merged into ACR); former Chair of the Oregon Dispute Resolution Commission; founding President and first Executive Director of the Oregon Mediation Association; and in 2003, he received the 2003 Oregon Mediation Association Award of Excellence.

August 10, 2006

20 Concepts and Recommendations for Utilizing the Internet: Another 5 Concepts (#2)

Filed under: Business,Wikis and Podcasts and Blogs, Oh My! — Gini @ 6:41 am

Jim Melamed’s innovative and entrepreneurial work at and through Mediate.com supports conflict specialists working to establish and maintain their niches, increasingly necessary for business success. His articles include 20 Concepts & Recommendations for Utilizing the Internet, Integrating The Internet Into Your Mediation Practice, and Mediating on the Internet: Today and Tomorrow (two parts).

Here’s part two of 20 Concepts & Recommendations for Utilizing the Internet; the remaining two parts will follow throughout the week:

This article reviews 20 concepts and recommendations to assist you to most capably utilize the Internet in support of your Mediation practice.

First, 10 General Concepts to keep in mind.

Concept #6
Your Web Site Will Help You Close Deals. Web sites are increasingly how mediators are considered and compared. People will often be looking at your web site as they talk to you on the phone.

Concept #7
Dynamic Web Sites are Forgiving! You do not need to “get it perfect” before going public with a Dynamic Web Site. You can easily change your information on an ongoing basis. Fresh is good! Performance anxiety on the web is a thing of the past.

Concept #8
Clients Like the Internet. Using the Internet is convenient, affordable, empowering and has participants often at their edited “best.” In any event, there is a clear record of dialogue and this promotes responsiveness and accountability. It is an additional, valuable communication channel.

Concept #9
Providing Value on the Web is Rewarded. You will drive traffic to your web site with valuable content and this supports your occasional email newsletter to remind referral sources of your quality professional work.

Concept #10
You can Manage Your Internet Practice From Anywhere , including Hawaii.

For more information on the Internet in Mediation, see www.mediate.com/ODR

The next issue of the Engaging Conflicts Today newsletter features an interview with Jim that continues the discussion started with these posts. You can sign up for the newsletter by clicking on the “sign up” link in the upper right corner at the top of the blog site.

Biography: Jim Melamed, J.D., founded The Oregon Mediation Center, Inc. in Eugene, OR in 1983 and has been offering mediation services ever since. He is an adjunct Professor of Mediation at Pepperdine Law School, mediates organizational and legal matters in Oregon, Washington and California, and has assisted in the resolution of over 2,000 disputes. He also is the co-founder and CEO of Mediate.com (1996 to present), the most visited conflict resolution web site in the world; former Executive Director of the Academy of Family Mediators (1987-93, now merged into ACR); former Chair of the Oregon Dispute Resolution Commission; founding President and first Executive Director of the Oregon Mediation Association; and in 2003, he received the 2003 Oregon Mediation Association Award of Excellence.

August 9, 2006

20 Concepts and Recommendations for Utilizing the Internet: 5 Concepts (#1)

Filed under: Business,Wikis and Podcasts and Blogs, Oh My! — Gini @ 6:40 am

Jim Melamed’s innovative and entrepreneurial work at and through Mediate.com supports conflict specialists working to establish and maintain their niches, increasingly necessary for business success. His articles include 20 Concepts & Recommendations for Utilizing the Internet, Integrating The Internet Into Your Mediation Practice, and Mediating on the Internet: Today and Tomorrow (two parts).

I’ll reprint 20 Concepts & Recommendations for Utilizing the Internet here, to coincide with the start of a new, 10-part series of posts on blogging. Today is the first part; the remaining three will follow throughout the week:

This article reviews 20 concepts and recommendations to assist you to most capably utilize the Internet in support of your Mediation practice.

First, 10 General Concepts to keep in mind.

Concept #1:
You benefit from a Full Time Electronic Office. This is a gift to clients and referral sources and as necessary as a business card. A web site allows you to communicate effectively 365/7/24 and even when you are on vacation.

Concept #2
Use Memorable Web and Email Addresses. You want a memorable URL, one that is as short as possible and can easily be remembered and spelled. Matching email and web addresses are the way to go (for example jsmith@mediate.com and http://www.mediate.com/jsmith).

Concept #3
The Internet is Affordable. The cost of a quality web site as a landing spot for all marketing is very reasonable. You can market to email addresses for life for free. A quality web site also allows you to enhance all other advertising and to reduce the cost of other advertising.

Concept #4
The Internet is Convenient. Most people now prefer to receive their information digitally. This allows them to print or forward the information. There is no more need for the 3-panel color brochure. Visitors will print out your web pages if they have interest.

Concept #5
Include All of Your Information in a Boundless & Beautiful Web Site. By having all of your business information on the web, you lessen your own and staff labor and cost. Your clients and referral sources can also access all of your information instantly.

For more information on the Internet in Mediation, see www.mediate.com/ODR

The next issue of the Engaging Conflicts Today newsletter features an interview with Jim that continues the discussion started with this post, and continued with tomorrow’s. You can sign up for the newsletter by clicking on the “sign up” link in the upper right corner at the top of the blog site.

Biography: Jim Melamed, J.D., founded The Oregon Mediation Center, Inc. in Eugene, OR in 1983 and has been offering mediation services ever since. He is an adjunct Professor of Mediation at Pepperdine Law School, mediates organizational and legal matters in Oregon, Washington and California, and has assisted in the resolution of over 2,000 disputes. He also is the co-founder and CEO of Mediate.com (1996 to present), the most visited conflict resolution web site in the world; former Executive Director of the Academy of Family Mediators (1987-93, now merged into ACR); former Chair of the Oregon Dispute Resolution Commission; founding President and first Executive Director of the Oregon Mediation Association; and in 2003, he received the 2003 Oregon Mediation Association Award of Excellence.

August 8, 2006

Non-legal Perspectives In Mediation Can Address Some Conflicts That the Law Is Powerless To Impact, By Guest David B. River

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 1:22 pm

Guest David B. River responds today, as he and Rawle Andrews Jr., Esq. continue their conversation about ethics and professional development in mediation. He and Rawle are guest blogging on alternating weeks during this discussion.

“Actions and inactions have consequences. Every decision we make, to act or to refrain from acting, has legal consequences, whether known or unknown to us at the time.” In addition to legal consequences, every decision we make has interpersonal consequences, social consequences, biological consequences, moral consequences – the list can go on. Why do I bring this up? I challenge Rawle to see that “the law is the ice cream of human existence” only to lawyers.

I mean, really, the law has some serious limitations when it comes to social interactions. How useful is the law when lovers fight? Would they look to the law to see their way through their disagreement? Or how about a family fighting over mom’s estate? Does the law help Tommy see that he is only angry because Joe got more attention growing up? Will a legal judgment really help those siblings ‘keep the peace’?

The law doesn’t simply and easily translate to people’s specific situations. It doesn’t easily address displaced conflict (arguing about the wrong thing), misattributed conflict (arguing with the wrong people), or false conflict (based on misperception). It has a difficult time answering moral and value questions, and when it does, that means little to people whose values differ. It tends to be biased towards those who can afford it, and it appears to do a poor job of leaving those people who litigate with the experience of justice.

The law is a very useful thing to turn to when people are willing to defer to authority, are looking for a standard, or – if “kicking and screaming” – we must rely on the sanction power of authority to keep the peace (and hope that it will). It solves some problems, creates others, and leaves others unaddressed – like anything.

I don’t see the Law as the “endgame.” What a strange proposition! The law addresses conflict between people. Why? For the law? No. The endgame is resolution for the human beings involved in the conflict, and the impact of that resolution on society in general.

I am not, in any way, diminishing the importance of the law. I am advocating for people to understand that the approaches to conflict resolution being brought about from non-legal perspectives are extremely valuable in their own right, and have very distinct aspects from legal dispute resolution with their own benefits and dangers. They can address certain conflicts that the law is powerless to impact. To lose those perspectives in a legal viewpoint, or view them as some subset of law, would be a great loss indeed.

Best Wishes,

David

August 3, 2006

Just Keep ‘Em Talking, by Guest Rawle Andrews Jr., Esq.

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:14 am

Mediator David B. River and attorney mediator Rawle Andrews Jr., Esq. continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators. This is Part Two of Rawle’s latest post; the first part posted yesterday.

Just as there are subsets to ADR, there also are subsets to Meditation itself. When the parties are predisposed to mediation, good people like David River are available and should be utilized to participate in facilitative mediation. The parties know they have a problem, recognize, in some instances, that their relationships are interdependent and they just want the problem to go away so they can get on with life. In facilitative mediation, the Mediator provides a neutral forum for the parties to discuss their desires and frustrations in the hopes that open lines of communication will produce a “legally enforceable” compromise (e.g., a settlement agreement). If the parties are mature and motivated, this can be a wonderfully successful means to resolve conflict. There also is a safe harbor for mediators in facilitative mediation because legal consequences are not driving the resolution; all participants understand that if we cannot solve the problem today, costly and time-consuming litigation is inevitable.

Unfortunately, we do not live in a perfect world, and sometimes the parties are so entrenched that a little “adult supervision” is required to fashion a binding peace accord. When these latter parties are forced or otherwise come “kicking and screaming” into mediation, it is unlikely that facilitative mediation will be successful because the parties would rather be elsewhere. In these instances, directive mediation can and should be utilized in trying to resolve the dispute. Under directive mediation, the Mediator explores the range and likelihood of possible legal outcomes with the parties in trying to reach a settlement. If the mediator is an attorney or Judge, free and open discussion on legal rights and responsibilities become part of the dialogue. In other words, “I understand, Mr. Williams, that you really want to keep the house, but unfortunately your name is not on the deed, etc.”

As an attorney mediator, I can make such a statement without concern about violating some rule or regulation because I have a license to practice law. Without that “license” to drive the mediation, I would be walking a tight rope constantly in search of boundaries (known and unknown) for what I cannot do or say as a mediator. Question: if the goal is to keep the parties together long enough to get them talking about a resolution, do I really have time to sit at the table and wonder whether I, as Mediator, am coloring outside the lines in my own actions? I humbly submit that the facilitator cannot facilitate if he or she is a part of the problem. For me, three years and a written exam eliminated this movable obstruction from the equation.

Consequently, my bottom line remains unaltered at this point: whether mediators who are not attorneys can effectively serve the needs of adverse parties, when authorized to do so by law, depends largely on the who the parties are and what they are fighting about at the time. The more pronounced the question of fault, the more likely that an attorney-mediator is necessary to legitimize the process.

Best wishes,

Rawle

This concludes Rawle’s post this week. David B. River will respond next week.

August 2, 2006

Upholding the Law is the End Game, by Guest Rawle Andrews Jr., Esq.

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 2:13 pm

Mediator David B. River and attorney mediator Rawle Andrews Jr., Esq. continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators. Rawle’s latest post is in two parts; the second part will post tomorrow.

David River is to be commended for his passionate appeal to make Mediation an End, rather than an alternative Means to an End. In fact, until I read David’s post (“Mediation is not a subset of Law”), my initial sense was that a primary disconnect between mediators and attorney mediators over dispute resolution theory was a function of form over substance (i.e., same goal with different approaches to reach the finish line). Further review, however, reveals that the disconnect lies, at least in one mediator’s opinion, within the declaration that Mediation, an art form to be sure, is Art in and of itself. Although it is easy to appreciate one’s passion for a career, it might be a stretch to say that the “cup or cone” argument is more important than the ice cream itself. To me, Law is the ice cream of our human existence.

Actions and inactions have consequences. Every decision we make, to act or to refrain from acting, has legal consequences, whether known or unknown to us at the time. Once we commit to a course of action (or inaction), and that decision is communicated to the outside world, we run the risk that some other person or entity will be offended. If the offended party expresses dissatisfaction or outrage, because they believe their rights have been infringed, we have a Conflict. The ultimate question is how best to resolve the conflict. As I indicated in my original post (“The Polar Extremes of Law and Justice”), it all depends on the parties’ motivations.

Regardless of whether the parties are out of control when they decide to “fix the problem”, there are three (3) mechanisms to handle the dispute. Perhaps the most obvious, if not illogical, means to resolve a dispute is (1) Street Justice. This is an emotion-driven response to a problem based on actual or perceived events that might serve as a guide to future conduct. Unfortunately, violence begets violence, so it is unlikely that street justice will solve the problem. Another obvious dispute resolution mechanism is (2) Litigation (e.g., “I will sue you all the way to the Supreme Court”). Two or more adversaries submit their dispute to a Judge or Jury; conduct extensive fact-finding activities; file motions; and either go to trial or settle. A major problem with litigation, however, is that it makes a private dispute very public. Consequently, posturing and brinkmanship are a given; and not always for the better. Whether it truly is necessary to “go all the way” largely depends on taste. Given the large number of lawsuits that settle before trial (80% or better according to some statistics), however, it is likely that some of these battles might never have been waged if there had been a greater exercise of accountability, common sense and empathy when the impasse arose. A final conflict avoidance mechanism is (3) alternative dispute resolution (“ADR”). As David correctly observes, Mediation is not a subset of Law. Mediation actually is a subset of ADR, which is itself a subset of “how” to resolve a legal conflict.

So, where does that leave us? Unless and until we accept, that Law is the end game it will be difficult to get our arms around the debate. Does conflict resolution always require the intervention of lawyers and Judges? Of course it does not. However, ours is a system of laws (i.e., the Constitution, statutes, ordinances and regulations, etc.). The public has a loose definition and understanding of these laws, but many times they are ill equipped to digest and apply these laws to human discourse. All we can hope is that the people will not take their lay interpretation of the law into their own hands, or resort to physical violence when the talking stops.

Best wishes,

Rawle

Part Two of Rawle’s post continues tomorrow. David will respond next week.

Blog at WordPress.com.