ADR in Business
Alternative Dispute Resolution (ADR) functions as an alternate avenue for conflict resolution outside the court system and presents a logical approach to business negotiations. ADR skills have been found to be particularly effective for both human resources and business managers. The Australian Disputes Centre is exposed to a wide range of commercial conflicts each day and works to facilitate the resolution of these disputes through mediation and other ADR processes, as well as offering ADR skills training.
In comparison to litigation, ADR offers a more solution-based approach to conflict resolution. It is unfortunate, yet inevitable that disputes are so prevalent within the modern commercial and regulatory landscape. Mediation and arbitration are particularly useful within industries that regularly come across significant, yet small-scale disputes such as workplace issues. Town Planning is another example where land disputes, environmental concerns and development objections raise conflicts that often respond positively to ADR.
Although not applicable to all cases, ADR offers a positive approach, where the ultimate goal is to identify a solution in which all parties are satisfied. In my opinion, an understanding of alternative dispute resolution mechanisms is an invaluable skill in government and business to circumvent unnecessary escalation of disputes. Typically, the faster and more positively disputes are resolved, the better human and financial returns for all involved. This is the goal of business leaders and the independent, not-for-profit, Australian Disputes Centre.
Unpacking the Mediation Process
At a first glance, the mediation process appeared as an informal and unstructured “quick-fix” to reach a compromise in legal disputes where the rigidity of the court procedure is unable to provide a tangible (or affordable) resolution. However, a day of role-playing and brainstorming around the alternative avenues of resolving conflict offered by the mediation process swiftly dissolved this simplistic interpretation. Instead, I was exposed to the dynamic nature of the mediation process that effectively enables mediators to accommodate the concerns of conflicting parties within a cooperative and relaxed environment in order to facilitate a mutually beneficial solution.
The Australian Disputes Centre offers an intense five-day training course. After just one day I gained valuable insight into how the conflicting positions of both parties can be managed by a mediator so that the ‘win-lose’ doctrine of judicial remedies is discarded in favour of a mutually beneficial (‘win-win’) outcome. This, I discovered is achieved by encouraging the parties to shift away from bargaining based on the incompatible positions of the parties, to negotiating based on the identification of their respective interests. I was particularly interested to learn how the objectification of the relevant problems helps parties to abandon their personal insecurities and consequently pave the way toward more efficient negotiations by establishing a harmonious understanding of the issues involved.
After identifying the matters to be discussed and more deeply exploring the core issue of the mediation, a willingness to develop possible resolutions is next on the agenda. My initial belief was that the mediator acts as the judge does in a court procedure, I discovered instead that in this step it is necessary for the mediator to take the ‘back-seat’ while the parties brainstorm and develop possible options. This limited involvement of the neutral mediator becomes an effective mechanism of emboldening the parties to take ownership of the mediation process and personalise the possible solutions. The mediation process subsequently concludes with the evaluation of these options and if successful, a determination of the final agreement.
The mediation process is comparatively shorter than the traditional legal procedure in the court environment, and I now realise that its rapidity and informality does not diminish its effectiveness as a valuable tool of alternative dispute resolution. The flexible structure of the mediation process allows parties to adopt a collaborative approach to resolving conflict away from the adversarial and stringent nature of litigation in the courtroom and toward consensus in a collaborative environment. I was surprised by the ability of mediation to assist in resolving a wide-range of conflicts. I realise that the mediation process can be a highly successful way of managing conflict in both commercial and social environments, developing the ability of parties to identify and address the psychological and social motives of conflict and litigation. As such, I am a strong believer that the mediation process should be positioned more centrally in business and in our justice system.
1Matthew Coffey is a Commerce student at University of Sydney and Gersande Lockhart a Law student at University of New South Wales.
*Copy supplied by Australian Disputes Centre
