Early dispute resolution and the critical role of acceptance

The ABA House of Delegates unanimously adopted Resolution 500 recently, which promotes the use of early dispute resolution (EDR) through mediation, negotiation, and ombuds. Knowledge that settling disputes (sooner rather than later) is better than going to trial is not new information, yet most matters are settled far into the litigation process. How can clients, employees, colleagues, and family members be encouraged to meaningfully participate in early dispute resolution? Through a solution-oriented mindset.

Arguably, it is control that fuels enduring hostilities. Parties seek control over money, businesses, resources, children, other parties, and even the narrative. Lawyers, through argument and evidence, endeavor to control the outcome. Mediators move participants from this adversarial stance to one of cooperation. The common thread in this shift of mind is premised on notions contrary to control; indeed, it is acceptance. Below are seven concepts of acceptance that together create a solution-oriented mindset. Perhaps if we can approach disputes with notions of acceptance - rather than assertions of control - we can successfully implement Resolution 500 by resolving disputes earlier rather than later.

1. Accept that conflict is an inevitable, normal part of life

When parties arrive in mediation, mediators ease the participants' anxiety by normalizing conflict. Reassuring the participants that conflict exists and that its resolution is not a linear path makes it feel manageable. Normalizing conflict neither invites disagreement nor exasperates discord; rather, it means that conflict is not something to be feared or avoided. Working through discord can be an opportunity.

2. Accept that people are who they are, and every person's perspective is different

Mediators hold space for all participants, their personalities and negotiation styles, and their perspectives. By recognizing and respecting these differences, mediators prepare for the mediation and fashion their approach. A mediator creates this same unspoken acceptance (of others and their perspectives) in all participants. This acceptance depersonalizes disputes. It creates empathy within yourself and fosters an atmosphere of mutual respect by recognizing every person's autonomy of being and of thought. Acceptance of others and their perspectives embraces diversity. You do not need to approve or condone another person's opinion or behavior to reach a resolution. You do not even have to personally like them. The key is listening actively to what the other person is saying and showing you while being open to questioning (and letting go of) any assumptions or conclusions you may have reached about them. Jonathan D. Glater, "Study Finds Settling Is Better than Going to Trial," New York Times, August 7, 2008. 1 2 of 3

3. Accept that you are not as self-aware as you believe, and that your position is not as solid as you think

Cognitive bias affects people's ability to meaningfully engage in negotiations. Parties habitually overestimate their case and underestimate that of their opponent. Accepting that you may not be as self-aware as you believe, and your case may not be as solid as you think, allows the flexibility of thought needed for a solution-oriented mindset. This softening of cognitive bias can be prompted externally through objective criteria (e.g., expert reports or market rates) or internally (e.g., a revised risk analysis). Mediators explore parties' BATNAs and conduct reality checks with this in mind.

4. Accept that you will not change the other party's mind

A mediator facilitates a dialogue that invites participants to see things differently. Mediation creates a safe space for the evolution of perspective. A party may change its mind or revise its opinion, but it will not be achieved through your insistence. It is an autonomous decision. It is because one genuinely sees things differently or has a desire to do so. Change will never be achieved through insistence, but as a natural consequence of effective and respectful communication. Mediation offers people a non-judgmental space to change their mind or "save face" when ego or negotiation tactics have backed a party into a corner.

5. Accept that understanding is necessary to create a solution-oriented mindset

To unpack a dispute, it is necessary to understand what is going on, how the parties arrived in dispute, what motivates the parties, how they would like the situation to unfold, and what their needs are. Understanding can only be achieved through constructive dialogue and active listening. It is the gathering of information; it bears no judgment. It is devoid of assumptions or preconceived notions. Only after the parties have achieved a goal of understanding will they be able to develop and evaluate solutions savory to both parties.

6. Accept that the notion of fairness is an illusory goal

"It's not fair" is a common theme for parties in dispute. However, fairness is an illusory goal; it assumes that every individual measures and sees fairness in the same way. Moreover, debating fairness will keep the parties in a conflict trap. The goal in conflict resolution should be to arrive at an agreement that is the best one you can make given the situation, your interests, and your alternatives. The same is true for the other party.

7. Accept that your time here is limited

The equalizing factor in our diverse lives is time. Each of us are given twenty-four hours in a day. The inequality in this universal truth is that we are not given an equal number of days. When you accept that your time here is limited, the question becomes how you want to fill your allotted days.

Mediation is premised upon self-determination. It is the realistic examination by the parties of their alternatives and determining if they are better off resolving the matter now or continuing the fight, further eroding their allotment of days. Notwithstanding this sobering thought, this does not mean rushing to a resolution. Settlements that are rushed or not well-thought-out lead to regret, rumination, and create future problems. Think about the measure of time but arrive at a resolution on terms that will enable all parties to solidly move on.