GPSolo Magazine - January/February 2006
The Case for Collaborative Mediation
I believe that online dispute resolution (ODR) presents a great opportunity for the legal profession, lawyers, and their clients. As alternative dispute resolution (ADR), and more specifically mediation, was developing, many seasoned mediators became concerned that litigators would see mediation as just another hurdle to step over on the way to a trial date. For many, trial time was the time for cases to be settled. The fear was that lawyers would simply use mediation to get cases settled without ever embracing the value of, and a central premise of, mediation: truly resolving the conflict.
This phenomenon is understandable. Lawyers are trained, and most would say ethically bound, to advocate vigorously for their clients’ interests. This mind-set binds lawyers to a win-lose approach. Given legal training, custom, and habit, it’s a challenge to get lawyers to be conscious of their mind-set, let alone to shift their perspective to one conducive to healing the conflict and leaving everyone feeling good about the process.
ODR holds the potential to design a controlled process aligned with the principles of collaborative/transformative mediation. It may not be for everyone, or for every kind of case, but it has the potential to create a different kind of outcome, an outcome that reflects what most clients want, and more important, that seems to be what is wanted by the 60 to 70 percent of lawyers who describe themselves as “unhappy.”
The medium can be used to educate both lawyers and their clients about the resolution of conflict, while ensuring a process aimed at the real causes of conflict.The system determines much of the result. ODR is an opportunity to design from the ground up and provide both lawyers and clients with a different kind of experience.
Stewart Levine is the founder of ResolutionWorks, which offers consulting services designed to facilitate conflict resolution. He can be reached at firstname.lastname@example.org. For more information, see www.resolutionworks.org and www.resolutionarythinking.com.