Archive for February, 2009

The “Alternative” in ADR

Thursday, February 26th, 2009

A bar association group with which I’m involved was called the “Dispute Resolution Section” for a time.  It recently renamed itself the “Alternative Dispute Resolution Section,” as it had been called when it began years ago.  ADR Section becomes DR Section becomes ADR Section again.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?

Real People, Real Disagreements (cont’d.)

Friday, February 6th, 2009

Awhile back I asked people in a survey about how they describe what’s happening when they’re in real disagreements. For those of you reading this because you took it, thank you so much!

If you haven’t taken it, I’ll leave it up for awhile. Here’s the link:

The results are in the post below. But first, why a survey? Why ask people how they think about their disagreements?

Because lawyers talk funny. Everyone knows that. But lawyer-talk is part of the popular culture through TV and literature, so we sort of understand them.

Dispute resolution professionals talk even funnier. And the general public doesn’t have much exposure to these people. They sound just plain weird. As Steve Martin once said about the French, “it’s like they have a different word for everything!”

I did this survey to reground myself in the language of real people, as they really are, when they are in the middle of real disputes.

I really, really need to understand and to speak the language of real people in a way that is real to them when I’m marketing my services. I’m not there to see how my words are working and how people react to them. I can’t see it when they read my website and wince. I need the kind of information this survey provides to be able to describe what I do, how I do it, and when I might be able to help.

So – to the heart of it – what did we learn? Keep reading or click here

Real People, Real Disagreements

Thursday, February 5th, 2009

Here are the results of a survey I took of real people talking about their real disagreements.

I asked you to think back on a serious event, which you would have called a Disagreement (50.0%), Conflict (48.2%), or Difference of Opinion (48.2%), Strained Relationship (41.1%), Confrontation (39.3%), Issue (37.5) or Dispute (33.9%). What was happening with you during that time is you felt Frustrated (80.7%), Annoyed (50.9%), Angry (42.1%), Unhappy (42.1%), Upset (40.4%), and Unfairly treated (38.6%).

What you wanted to have happen was A solution (54.4%), A resolution (49.1%), An agreement (47.4%), Resolution (47.40%), A sustainable solution (45.6%) and To be understood (45.6%). What you didn’t want is Money (3.5%), To cause the other grief (1.8%), A public statement (1.8%), Attorneys’ fees (1.8%), Recompense (0.0%), To ignore it (0.0%), or To sue (0.0%).

What you wanted from an outside person were Suggestions (59.3%), Solutions (53.7%), Assistance (53.7%), Advice (51.9%), Support (51.9%), and Recommendations (51.9%). You didn’t want the outside person to sue the other person (1.9%), To avenge you (1.9%), to threaten the other person (0.0%), to cause the other person pain (0.0%), to cause the other person expense (0.0%).

Considering how you felt at those times, you felt better about these ideas: Being understood (4.34 out of 5), Resolution (4.31), Being heard (4.29), Results (4.24), Solution (4.24), Agreement (4.23), Being acknowledged (4.20), Thank you (4.18), Productive (4.11), Result (4.10), and Cooperation (4.08). You felt worse about these ideas: Adversarial (1.76 out of 5), Leave it (1.76), Drop it (1.68), Ultimatum (1.67), Patronize (1.46), Give up (1.45), and Lawsuit (1.38).

Facing that kind of situation now you’d be more likely to involve a Mediator (3.83 out of 5), Mentor (3.74), Conflict Resolution Specialist (3.72), Dispute Resolution Professional (3.58), or Facilitator (3.53). You’d be least inclined to involve an Attorney (2.56 out of 5), Therapist (2.47), Referee (2.41), Pacifier (2.36), Judge (2.35), or Umpire (2.05).

The contexts of the situations you were thinking about were Workplace/workgroup (61.2%), Family matters (34.7%), Professional Services (26.5%), Neighborhood/Community (22.4%), Real Estate/Property (22.4%).

Demographics. 78% of you were 40+ years of age, mostly female (52.1%). You often work with other people (77.1%), are homeowners (66.7%), are parents (54.2%), are employees (50%) or are employed by someone else (43.8%).

What do you think? Surprised? There were certainly parts that surprised me – so I’m really glad I had your help. Thanks again!