Aligning Interests – An Overview Of The Relational Approach To Conflict Resolution
“Negotiation is empathy. It's almost trite to say that if you can't put yourself in the seat of the other person you're speaking with, you're not going to do well. It's not about being a bully, not about making offers people can't refuse.” – Marc Randolph
Here Comes Trouble
Conflict is unavoidable. Irrespective of the context of the relationship, be it personal, professional, consumer-based, individual vs state, country to country or otherwise, there will always be the wrinkles of differing viewpoints, competing interests, recklessness, incompetence, and malice.
The mechanisms we use to navigate conflict are as wide in scope and variety as the nature of conflict itself, and there is certainly a spectrum as to their effectiveness at bringing about meaningful resolution.
Litigation is one such mechanism. It is the process of settling disputes through the intervention of a court of law. The Court, sitting as the sanctioned interpreter of the law, draws a line in the sand for every dispute, making final determination of which Party’s position is favourable, and which ought to be rejected. There is then, at the end of this process, for each issue or conflict, a clear ‘winner’ and a clear ‘loser’.
Litigation for all its decisiveness however is costly, energy and time consuming, and imposes a certain degree of unpredictability prior to any final determinations. Furthermore, nobody likes to lose. It’s painful for the psyche and in many instances, the wallet.
When Attorneys are engaged to help diffuse or resolve conflict, there are depending on the circumstances a series of alternative means that are always worth exploring and, in many instances, more preferrable a tool than the courtroom.
Alternative Dispute Resolution
When we speak about ‘Alternative Dispute Resolution’ or ‘ADR’, we refer to any method of settling conflict without litigation. Of the several existing forms and contexts, the most popular for this jurisdiction are negotiation, mediation, restorative justice, and arbitration. The goal of each is the same: to enable disputing parties to reach consensus without traditional court proceedings. The advantages common to these alternatives include expedience, confidentiality, and flexibility.
To give an overview of each:
Negotiation
Negotiation is typically the first stop on the path to conflict settlement. It is the attempt by Parties (or their Attorneys if necessary) to reach consensus by expressing their respective positions and proposing compromises. It’s a bedrock component of virtually every means of alternative dispute resolution. The Parties enjoy the advantage of controlling the process and determining their own solution. It is flexible and informal.
Mediation
Mediation is also an informal process of negotiation save that the discussions between the Parties are facilitated during a roundtable by a neutral third party called a Mediator. The goal of the Mediator is to resolve or at least reduce the extent of a dispute. Mediation is so essential that it is a built-in element of civil litigation in the supreme court of this jurisdiction. Part 74.1 of the Supreme Court Civil Procedure Rules establishes an automatic referral to mediation for all litigants in order to:
improve the pace of litigation;
promote early and fair resolution of disputes;
reduce the cost of litigation to the parties and the court system;
improve access to justice;
improve user satisfaction with dispute resolution in the justice system; and
maintain the quality of litigation outcomes
Litigation proceedings in this context only proceed where mediation fails or is forgone for a rationale satisfactory to the Court.
Restorative Justice
Restorative Justice is a practice that was introduced in this country in 2012 as an alternative to criminal litigation for minor offences. Like mediation, litigants in the criminal arena are referred to restorative justice centres to explore a more informal and meaningful attempt at resolution and reconciliation. It is a process in which all the Parties (persons with a stake in the occurrence or outcome of a particular offence) meet to collectively address it.
The process involves three categories of Parties: the offender, the victim(s) and the community (place the offence is committed). Restorative Justice focuses on the accountability of an offender by giving both the victim and the community the opportunity to voice the impact of the offending act, and then helping the offender reintegrate into the community. This is achieved through the use of “Restorative Justice Conferences” “Family Group/Community Conferences” and “Healing and Talking Circle Circles” where the offender meets with the victim and members of the affected community so everyone can give their account and meet at the common ground of resolution and settlement.
Arbitration
Arbitration is the form of ADR on this list that most resembles litigation, in that it is the most formal and involves a tribunal/individual determining the justice of the matter, albeit with relaxed rules of discovery and evidence. It is governed on the local scene by the Arbitration Act of 2017. Arbitration tends to be utilized for disputes concerning:
Commercial agreements;
Construction contracts;
Telecommunications contracts; and
Intellectual property agreements;
Parties using this method can jointly select their ruling tribunal/judge (the Arbitrator), choose the timing of any hearings, and control/limit costs. However, while more flexible than traditional court proceedings, arbitration can still be costly and ultimately require a court’s intervention in any event, as it is common for parties to challenge the findings of an Arbitrator by pleading to the Court.
The Benefits of The Relational Approach
As Attorneys we recognise that these alternative mechanisms, in particular negotiation, mediation, and restorative justice, are really only as effective as the resolve of the Parties to seek compromise. In other words, they will not be helpful without a good faith effort by everyone involved. Rather than working out ‘winners’ or losers’ as is the purpose of litigation, Parties utilizing these methods should be keen to get their interests and goals aligned. These alternative methods of settling disputes do their best work when the Parties have the mindset of ‘problem and solution’, rather than ‘me vs. you’.
Minister of Justice Mr. Delroy Chuck, in his contribution to the Sectoral Debate for the 2022-2023 period in the House of Representatives, highlighted the access citizens have to the restorative justice centres and victim services division offices that have been established in every parish, and lauded the positive impact of ADR methods like restorative justice. He stated: “Where the parties have been referred to restorative justice facilitators, the success rate is in excess of 90 per cent,”. The emotional benefits, he posited, are incalculable.
Mediation, which he characterized as a “win-win” situation could be similarly effective but is still underutilized. The Minister cited the results of partnerships with the Dispute Resolution Foundation (DRF) under a pilot project for the period of December 1, 2021 to May 31, 2022 which saw a success rate of 82 per cent for the litigants involved (success being settlement without further litigation).
The Minister stressed that if 50% of the cases referred to mediation overall (per the Civil procedure Rules) were settled, it would benefit everyone, easing a strained judicial system. He proposed that persons consider litigation even prior to commencing a litigation. This is a worthwhile consideration. While the Court has the power to refer Parties to litigation, litigants need not wait for referral to make use of the process. The Dispute Resolution Foundation caters to mediation requests, and there are several established independent Mediators in the field one can access.
There is a latent benefit to ADR besides the ones outlined above: it is the long-term preservation of relationship. Jamaica is a small country in a shrinking world. Our inter-connectedness makes longstanding disputes unappealing and even anti-strategic. The earnest good-faith usage of these ADR methods affords users the chance to preserve relationships in a way that hardened litigation may not. This is particularly useful in the corporate space.
Attorneys who are engaged to assist in handling disputes often encounter litigants whose potential positive outcomes are hampered by their own ego, ignorance or sense of offence. However, these ADR methods require genuine collaborative effort from all the Parties involved in order to be truly effective, so Attorneys-at-Law must be trusted to guide client-perspective on the negotiables vs non-negotiables.
At Ramsay & Partners, our vision statement is that ‘We are relational, not transactional’. Despite a robust litigation department, we are ardent supporters of ADR methods that limit the financial and mental costs to our clients and preserve as best as possible their personal and business relationships.
Are you contemplating litigation? Book a free consultation with us. We’ll help you explore your options.