Introduction To Mediation & Arbitration

Arbitration & Mediation: some thoughts A few words before I start My look at this subject largely stems from my personal experience as a Mediator, study of the subject and talks with many Mediators. In that sense, I am not objective. My reference books and published case studies are in my office in Amsterdam. I cannot speak for other Mediators, let alone NMI1. However, I will attempt to give an insight into my views on what makes mediation a preferable way to resolve a dispute (lawyers’ language), or handle a conflict (peoples’ language). From dependence to independence. A core objective in raising children is to prepare them for independence. Without this set of skills, no child would be able to start its own life. Let alone, start a family. Most parents understand this part of their mission, although to many it’s not the easiest part to prepare for the day their children leave home. Most children feel their urge to become independent getting stronger the older they get. As learning this set of skills takes time and practice, they usually go through a sometimes difficult period: puberty. Actually, puberty is all about openly expressing this urge – a completely natural need to be independent – but still uncertain as to ‘how’. Many children, on their way to become adult, feel the need to conquer their independence, and take on the identity of a kind of ‘freedom fighter’. They disagree and try to break with certain traditions and often display what the older generation will condemn as ‘bad manners’. This attitude often leads to conflicts with the ‘authorities’: parents. Determinism and the art of making decisions Babies and little children are unable to take care of themselves. They cannot make up their minds yet, so their parents help them by deciding what to do, what not, how to do things, and how not. Step by step, they teach their child to make decisions. Wise parents use the willingness of children to learn, to teach them how to do things. They involve them in doing small tasks in the house, and accept their child’s offer of assistance. The child moves from ‘other-determinism’ towards ‘self-determinism’, while maintaining the positive aspects of the first. Other-determinism2: the ability to follow another person’s decision or order (parents; authorities; manager; police), and take responsibility for this. Self-determinism: the ability to make and follow own decisions, including the decision to follow another person’s decision; accepting and taking responsibility for its consequences. An effective way to spoil a child is to forbid it to contribute: this blocks the road from dependency (other-determinism) to independency (self-determinism). When a child reaches the age, or better: level where development of self-determinism is nearing completion, she or he will most likely start looking for a life partner3.

1

NMI: the Dutch Mediation Institute - http://www.nmi-mediation.nl/; click on ‘English’ in the upper right corner. This website provides information about mediation in the Netherlands. Names and addresses of all Dutch registered Mediators can be found on this site. The ‘search a mediator’ section however has not been translated in English. 2 From the verb ‘to determine’: to choose, to decide. Determination means diligently following a self-chosen path. 3 Of course there are children who never reach this level, and only seem to look for a grown up, self-determined partner who treats them as … a child. But that’s another topic!

Growing up to become adult means the development of the art of making decisions is moving one more step ahead. Having found a life partner, and consequently, creating a family, or on a different level, running a company, means one needs to develop the skill to make decisions for others. Any decision automatically brings along responsibility for its consequences. On this level the term ‘pan-determinism’ is used: ‘pan’ meaning ‘overall’4. Pan-determinism: the ability to make a decision for a group; accepting and taking responsibilities for its consequences. While on a family level many do well on pan-determinism, not many are capable of this as a leader of a company, let alone a multinational, a nation, or let’s say, the United Nations. In these situations, pan-determinism means being responsible also for the actions of subordinates one doesn’t directly control. Anyone who is even slightly afraid of this, will find it very hard to confront. Dispute resolution Arbitration is making a decision about resolving a dispute after a careful examination of the needs and wants and what is at stake for both (or more) parties. It’s a binding decision: parties have to ‘obey’ the ruling of the Arbiter. In this sense, arbitration can be classified as a ‘pandetermined’ activity, which requires ‘self-determinism’ (the part where one decides to follow another person’s decision). The Arbiter enforces a dispute resolution, or simply put: peace. There are many cases where arbitration has produced satisfactory results. When researching these, one will find that the Arbiter’s decision satisfied most of the parties’ interests, and created peace. However, when the interests are too wide apart, too opposed, or the dispute is very complicated, the Arbiter’s decision will probably have no, or a very limited result. Here, the decision was felt as ‘other-determinism’. Parties felt treated like a child. There are cases where the dispute only intensified as a result of the Arbiter’s decision. Or where childlike behaviour of one Party led to simply refusal of accepting the decision. In Arbitration the contribution of the parties is limited to providing information, and communicating their interests and what’s at stake for them. Their self-determinism is limited to saying ‘yes’ to this method of dispute resolution, and deciding what information to provide. Mediation is using parties’ selfpdetermination qualities to restore peace and harmony by restoring the communication line (dialogue) between them, so life and progress of them and all concerned are once again enabled. The Mediator may address the pan-determination of parties, by pointing at the consequences of no resolution. It doesn’t matter if parties are company Directors, a married couple, neighbours, supplier-client, governmental authority-citizen or manager-employee. The Mediator stimulates parties to take responsibility for their own problem, and the solution thereof. But central to Mediation is the willingness of parties to actively work on and contribute to the resolution of their dispute. A brief comparison of Arbitration and Mediation results The Mediator and the Arbiter have pan-determination skills in common. Both must be able to be ‘above the conflict’, by taking no sides and refrain from emotional involvement.

4

Pan is a Greek word. In Greek philosophy ‘panta rhei’ means, ‘everything flows’, or: ‘all is in motion’.

Both methods of dispute resolution depend largely on the willingness of parties. In both cases, these forms of dispute resolution fails when the willingness drops. Also, both Arbiter and Mediator have to be aware of a notorious trap. Conflicting parties manifest an alternating ‘dictator’ vs. ‘victim’ attitude – the ‘conflict game’. If you try too hard to ‘save’ them, you may be regarded by parties as an unwelcome ‘saviour’ who spoils their ‘game’. Acting as such (“Listen. I tell you how to handle your conflict. This is what you must do.”) may very well result in parties turning against their ‘saviour’. Both in arbitration and mediation there are numerous cases where this phenomenon has led to failure5. However, there are many differences between Arbitration and Mediation where the level of determinism and other aspects are concerned: Arbitration Parties are partly self-determined Parties don’t need listen to each other Parties do not discuss possible solutions Parties do not negotiate about the solution The Arbiter resolves the dispute The Arbiter serves as authority (dominant) Parties may feel treated like non-adults The Arbiter’s decision is often public Parties lose face, as they have displayed inability to solve their own problem Parties have to work with another’s decision Parties remain (opposing) parties The core of the dispute may remain unaddressed After Arbitration, there is a binding decision signed by the Arbiter Parties have no pride in the Arbiter’s decision

Mediation Parties are fully self-determined Parties must listen to each other Parties discuss possible solutions Parties negotiate about their solutions Parties resolve their dispute The Mediator serves as facilitator (servant) Parties experience being treated as adults Mediation is a discrete activity Parties save face, as they have displayed responsibility to solve their problem Parties work with their own decision Parties become participants, collaborators The core of the dispute may be addressed After Mediation, there is a Mediation signed by parties and Mediator Usually, parties take pride in the solution, as It is their own

In closing … The situation and the character of parties, as well as the local culture, traditions and legislature may very well be other determining factors to decide whether arbitration or mediation is a recommended tool to handle conflict. In many traditional environments, the elderly (or elderly family members) are considered to be the wisest, and their judgments and decisions are usually accepted and followed by the conflicting parties. Besides further research, i.m.h.o. in Vietnam controlled experimentation should take place to find out which method would be best suitable in what case. I prefer Mediation, as it addresses the parties’ self-determinism, uses their own problem-solving skills, gives them full responsibility for the execution of the solution, and enables them to save face. Ho Chi Minh City, July 24, 2008 Loek Hopstaken, NMI Mediator 5

see also dr. Eric Berne’s nearly 40 year old but still highly useful and classic study, popularized in his book ‘Games People Play’, and publications on Transactional Analysis.