Alternative Dispute Resolution methods are ways of resolving conflicts without using the legal system. They are an alternative to the legal system. Mediation, negotiation, and facilitation are some of the most common methods of alternative dispute resolution. They require an essential element to work, buy in. People need to be able to agree to use the process for a just resolution rather than their own designs or goals. There is no point in entering a negotiation if your only goal is to “win.” I think the same thing can be said for mediation. There are other elements that separate alternative dispute resolution from the legal system.
The legal system can use coercive force, punishments. You can be fined or jailed or both. In an extreme case you can even be put to death. Whether or not this actually helps the community or the people involved is often up for debate. Sending someone to jail or executing them does not somehow undo what has happened. The legal system (think the state) also has a monopoly on the use of violence. It is generally acceptable for the police to use violence at their own discretion. The debate around police violence is beyond the scope of this blog post. Let's take a closer look at some of the tools of Alternative Dispute Resolution.
Mediation. One or more persons acts as go betweens those in dispute. The role of the mediator is to facilitate dialogue between two or more parties in conflict. Initially, the parties will talk directly with the mediator and not necessarily each other. This can be subject to change depending on what the parties want to do. The idea is to keep the emotional temperature down and start a constructive dialogue. As things progress, the parties may choose to interact more and more with each other working toward acceptable resolutions. The mediator is not there to create a solution. The role of the mediator is to help the parties find and create their own solution. If acceptable solutions cannot be found, they may want to consider going to arbitration which is part of the legal system. An arbitration is legally binding. The parties must accept the decision of the arbitrator. Sometimes, this may be the best solution.
Negotiation. This can be thought of as two or more people trying to divide a pie. Most often, parties will talk directly to each other. A good example now is the unions for Auto Workers negotiating better pay and benefits for employees of GM, Ford and Stellantis. All sides have to consider what are their essentials and what can they live without. It's important in any negotiation to know as much as possible about the other side.The parties need to know about each other's motivations. This may or may not be an easy task. Negotiating involves doing homework long before sitting down with the other party or parties. Honest negotiations are more about finding acceptable solutions than winning.
Facilitation. Simply put, to make easy. facilitation is less about different parties in conflict and more about conflict within a group. The role of the facilitator is to keep a meeting on track and free from deleterious comments and actions. Depending on the group and circumstances, the facilitator may help with establishing ground rules for how the meeting will be conducted. The facilitator will also help keep a record of the meeting for the organization. The meeting is not about the facilitator. It should be about what the group can accomplish together. In a well facilitated meeting, the group may not even remember the facilitators name!
There are other methods that fall under the umbrella of Alternative Dispute Resolution in my mind such as restorative justice and Truth and Reconciliation. There are numerous other methods that fall under indigenous conflict resolution systems. The key to Alternative Dispute Resolution is buy-in. if people don't really want to participate or are just going through the motions these methods are much less likely to be successful.
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