Gini Nelson\’s Engaging Conflicts

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.

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