The roots of alternative dispute resolution in North America
primarily lie as an alternate to the common law court system.
ADR is generally classified into at least three subtypes:
- In negotiation, participation is
voluntary and there is no third party who either facilitates
the resolution process or imposes a resolution.
- In mediation, participation is
voluntary (in that even though a court may mandate the
process itself, the parties are not required to reach a
resolution), and there is a third party, a mediator, who
facilitates the resolution process but does not impose a
resolution on the parties.
- In arbitration, participation is
ordinarily voluntary, and there is a third party who both
facilitates the resolution process and imposes a resolution.
(Note:facilitation concerns itself with all the tasks
needed to run a productive and impartial meeting. Facilitation
serves the needs of the group in its decision making. It does
not lead the group nor does it try to distract or entertain.
Regardless of the differences, 3 core concepts are the same for mediation and arbitration
- The service provider is neutral (s/he does
not take sides in the disagreement).
- The process is confidential.
- You and the other side determine the outcomes.
As ADR has increasingly become professionalized three
philosophies have emerged
Facilitative Mediation: Facilitative mediation is
based on the belief that, with neutral assistance, people can
work through and resolve their own conflicts. In a facilitative
mediation, the mediator will take an active role in controlling
the "process." Process means things like setting the
ground rules for how the problem will be solved. The mediator
asks questions to identify the interests of the parties and the
real issues in the disagreement. The mediator helps the parties
explore solutions that benefit both parties (sometimes called
"win/win" solutions). In a facilitative mediation,
the mediator does not offer an opinion on the strengths and
weaknesses of the parties' cases. The mediator does not suggest
solutions.
Evaluative Mediation: Evaluative mediation is based
on the belief that mediators with expertise in the issues in
conflict can help the parties to:
- Assess the strengths and weaknesses of their
legal or other positions and
- Work to achieve settlements. In evaluative
mediation, the mediator controls the process and suggests
solutions for resolving the conflict. Individual meetings
between the mediator and one party at a time
(called "caucuses") are a major component of
evaluative mediation. The focus of an evaluative
mediation is primarily upon settlement. The mediators
will make their best efforts to get the parties to
compromise, if necessary, to achieve a result.
Transformative Mediation: Transformative mediation
is based on the belief that conflict tends to make parties
feel weak and self-absorbed. Transformative mediators try to
change the nature of the parties' conflict interaction by:
- Helping them appreciate each others
viewpoints ("recognition") and
- Strengthening their ability to handle
conflict in a productive manner ("empowerment").
The mediator will intervene in the conversation between
the parties in order to call attention to moments of
recognition and empowerment. Ground rules for the
mediation are set only if the parties set them. The
mediator does not direct the parties to topics or
issues. Instead, the mediator follows the parties’
conversation and assist them to talk about what they
think is important. The transformative mediator does
not offer an opinion on the strengths or weaknesses of
the parties’ cases. The mediator does not suggest
solutions.
- Key aspects of the transformative framework
include:
- Perspective taking
- Decision making
- Analytical Problem Solving
- Dialogue
- Collaborative Learning
- Constructive Conflict
When Efficiency Trumps Effectiveness
An improper selection of an appropriate mediation methodology or an
appropriately skilled mediator leads to efficient but ineffective
solutions that are unsustainable and cause uninteneded negative
consequences. The appropriate approach when dealing with people is
effectiveness before efficiency.
Application of the iCapBiz Solution to ADR
The Path-ligner™ software, the Path-lign Process™
and iCapBiz provides the means to effectively then efficiently
"understand" different perspectives; analyze pertinent
information; dialogue, negotiate and collaborate. The participants
than can "design" high quality initiatives, plans and
agreements that have dramatically high ownership (vs. compliance).
Low error, sustainable, aligned "implementation" (execution)
naturally results from the design. Then just take the output and
"learn and improve" for similar situations. The results
are truly transformational for the organization and the service provider.
I want to know more about how iCapBiz
can apply to my business!
