Bar News - October 15, 2014
Alternative Dispute Resolution: Mediation Before Conflict: When to Engage Parties Early
By: Melinda S. Gehris and Carol L. Hess
Experienced mediators know how to assist parties in conflict to create options for settlement that the participants may not have discovered on their own. However, when a conflict has festered long-term or been part of protracted litigation, it may be too late for parties to be flexible and creative enough to consider a resolution that expands the possible positive outcomes.
Most successful mediations occur before the dispute becomes intractable. Even better is engaging in dispute resolution before the conflict or dispute arises.
Any formalized relationship has the potential for conflict as the relationship matures or no longer functions. As lawyers counsel clients, they can help identify possible conflicts and work toward resolving them before litigation becomes the only option.
There are a number of situations in which early mediation benefits the parties. Small businesses, for example, often depend on relationships with suppliers, distributors, customers, and even competitors. When those relationships break down, fixing them quickly and moving forward together may be more important than winning in court.
In many businesses, some work groups function better than others. Experienced neutrals can help businesses by meeting with employees, assisting them in developing skills for conducting difficult conversations, and creating shared expectations for how to work together effectively. Sometimes people working closely together benefit from understanding the different conflict styles and communication strategies of their co-workers, so they can be more tolerant of differences. That tolerance allows employees to see interactions not as personal attacks, but as intrinsic personality styles.
Business succession planning also benefits from face-to-face meetings with a trained facilitator. Structured conversations often result in a smoother, more productive transition. Where the terms of the transition are handled at armsí length, the needs of the business and the individuals involved can get lost. Certainly individual interests require representation, and a review by financial advisers and legal counsel is likely wise. However, the framework of a plan can often best be worked out directly by the individuals who will be most impacted by the changes and who may have the deepest knowledge of what is best for them and the company as a whole.
In personal relationships, the potential loss through conflict is even greater. Some life transitions have inherent potential for conflict. Consider a family with a shared summer home, historically a place for happy gatherings. The next generation of siblings or cousins may live in different parts of the country, have different circumstances in their own families, or simply have no interest in hanging on to the property.
Many families wait until after the parents die to consider how to manage the summer home, because of the stress associated with contemplating the inevitable change in the family dynamics. Imagine if that family gathered together before feelings get hurt, side conversations occur, misunderstandings happen. Instead the family members could work together to manage the transfer of the property in a way that honors their parents and creates a shared agreement, rather than one involving petitions to quiet title or to partition real estate.
Another family transition that benefits from early facilitated conversation is the decision about how to care for an elderly parent or a disabled child. Some families are able to discuss the issues involved in these difficult situations, but even the most cohesive and loving families fear the discussions will result in disharmony and eliminating options rather than creating opportunity to think creatively about the problem. A mediator can assist family members in considering options and talking more comfortably about appropriate care and financing for it.
The benefits of mediation are well understood in the divorce arena. Where parents divorce when the children are young, both the parents and the children can outgrow the agreements made. A mediator can work with parents who have trouble relating to each other and assist them in navigating changing lives and needs. By using the mediation process to initiate change in visitation and parental responsibility before people become entrenched in a position, parents gain opportunity to hear from their children, where appropriate, and consider solutions that have worked in other families before becoming angry and frustrated.
Many interpersonal and business conflicts can be solved by sitting down to talk about them early, with a neutral, trained facilitator. The skills of someone trained to assist parties in listening carefully, hearing fully, understanding needs and preferences, and working to resolve problems enhance these conversations. They allow people to be sure that the needs of other parties are met without sacrificing too much and usually lead to a better and more sustainable resolution.
Melinda S. Gehris and Carol L. Hess are attorneys and principals at Hess Gehris Solutions of Bow. Gehris is a member of the NH Bar Association Dispute Resolution Committee.
|Melinda S. Gehris
|Carol L. Hess