Perspectives on Conflict Resolution
By Roy N Martin, Attorney
The title of this article is also the title of the column I’ve volunteered to write for the Journal. For several years I’ve been saying I was going to publish an article outlining the types of mediation and the potential each brings for resolving conflict more effectively than when the evaluative model that most consider the norm is utilized reflexively. Different cases call for different approaches. That article will likely be next up, but as part of a larger project – a monthly column on conflict resolution itself.
The legal community has shifted enormously in the nearly 20 years since December 1996 when I was first sworn in. Back then, mediation had taken root but was still a delicate sapling. While books like Getting to Yes by Ury, Fisher and Patton – the seminal popular work on interest-based negotiation – had been out for a long time, the breadth and richness of the field of conflict resolution was just beginning to take shape. Today, many reading this article will be familiar with other conflict resolution modalities. Non-Violent Communication: A Language of Life by Marshall Rosenberg, first published in 2000, taught brilliantly about the part of our nature that leads us into conflict and how we can move through such conflicts to deeper levels of understanding. Just down the road in Seattle, John Gottman, a professor emeritus at the University of Washington, heads the Gottman Institute which has been using scientific method to study conflict since the 1970s. In his laboratory he can determine with high degrees of accuracy (averaging 91 percent across three studies) which couples will remain married years down the road after observing them for short periods (in fact, in one study for as little as five minutes) and he uses this knowledge to teach workshops on resolving conflict in marriage. In 1999, he published The Seven Principles of Making Marriage Work. My personal favorite is not quite as well known to the general public, though it’s familiar to mental health professionals. Getting the Love You Want was written by Harville Hendrix, a marriage therapist who developed deep insight into not just what causes conflict but also how to help people move beyond the underlying issues that cause conflict to recur. His work has deeply influenced my approach to both mediation and collaborative law.
In 2000, when I was first trained to practice collaboratively, I had a talented law partner who was a skilled and eager litigator. She was young and progressive and yet, when I returned from that first collaborative training, all fired up, she laughed and asked if I wanted to become a social worker. Today, such a reaction would be far less likely. In fact, she’s now going through her own divorce and has turned to the collaborative approach to assist her family in resolving differences in the least damaging and best way possible.
Back then, collaborative law was seen by many divorce litigators as competition and something to be feared while collaborative attorneys saw themselves as revolutionaries storming the citadels of conventional law. Today, most of us have come to see these forms of practice not as competitors but rather complimentary in resolving the great breadth of clients and cases that come our way. Today many law schools offer training in interest-based negotiation and, if not mediation itself, at least advocacy in the mediation context. Many grade school children learn mediation, and though there’s a pretty steep learning curve for adults, many kids actually become quite good at facilitating the resolution of conflict. Studies have shown that children trained in such techniques feel stronger than their non-trained peers in the face of conflict and are substantially less likely to succumb to bullying.
That’s an important principle to understand. Being a good mediator or collaborative attorney doesn’t equate with being weak. In fact, well trained professionals are more likely to feel grounded in the face of conflict because they understand what they’re up against and know how to navigate the terrain gracefully. An attorney familiar with conflict resolution theory and practice comes to understand that it’s more effective to address underlying needs than to take hard positions and battle to grudging compromise. What opens is a rich potential in one’s practice – and in one’s life – for finding mutually agreeable resolutions that satisfy the needs of all parties. One also comes to appreciate that a win-lose result (even one in which one’s client gets the long end of the stick) is far less appealing in practice to most clients than a win-win approach in which everyone’s needs are satisfied. This is particularly true when the parties are likely to have to deal with each other in the future – so most obviously in family law, but also in probate, between neighbors, between businesses that might benefit from entering future contracts, between entities in the community that value their reputations and members of the public, and even in the criminal context. For example, Victim-Offender Mediation (VOMP) is employed to help victims of crime recover emotionally and obtain restitution while offenders see first-hand the impact of their actions, and when all goes well, take responsibility, learn, grow and reform.
This may sound like Pollyanna. If so, it illustrates that, as far as we’ve come since 1996, there’s still a long way to go. This stuff works. Our culture is violent in ways both overt and subtle. Overt violence is obvious. However, it’s not obvious that when we speak judgmentally of others, or talk behind their backs, or roll our eyes to show disdain, or even think negative thoughts (about ourselves or others) we’re engaged in subtle forms of violence. These small acts can add up, eventually, to overt violence. Even when they don’t, they contribute to a culture of violence. Much of what takes place in litigation is essentially violence transferred from the overt realm into the subtle. It’s better than what came before, blood feuds and “an eye for an eye” types of justice, but today we have the knowledge and wisdom to do better. The richness of the many options for resolving conflict without violence are not yet widely understood or embraced. However, I see this not as a cause for despair but rather an opportunity to unlock a vast potential for positive change. I also see it as something that is changing over time. My small efforts are just a tiny part of a movement that is taking place all over the world. Over 22,000 collaborative attorneys have been trained worldwide and there are now collaborative law communities in the United States, Canada, Europe and Australia – including our lovely little Bellingham collaborative community. At the 2014 IACP (International Association of Collaborative Professionals) annual conference which was held just up the road in Vancouver, there were in attendance, for the very first time, more professionals from outside the United States than there were Americans.
In the field of law, not every case is well suited to conflict resolution and, barring some transformation of human nature itself (or at least the outer, egoic face of it), this will remain so into the indefinite future. When a corporation takes advantage of ordinary people, I’m alright with some scorched earth litigation. In that realm, financial losses may deter better than anything else. Sometimes, for some people and organizations, the threat of being held accountable by the law is necessary to prevent antisocial behavior. At the same time, there are many cases that could benefit right now from a broader understanding of what remain, for now, less conventional options.
In the articles to come, I hope to share some of the forms of conflict resolution that go beyond what’s typically employed. It is my goal to honestly assess the strengths and weaknesses of each approach (as none is a panacea suitable to all clients, cases or conflicts) as well as when they might be employed effectively to obtain the best possible results. I additionally plan to write on some of the ways in which practitioners of conflict resolution can partner with litigation attorneys as they attempt to obtain the best possible outcomes for their clients. I see roles for settlement consultants, negotiation specialists, mediation consultants and attorneys – brought in for particular aspects or portions of cases.
If you have thoughts or questions around conflict resolution, I’ll do my best to address them with honesty and openness. Though I’m by no means the world’s authority on this rich and varied field, I’ve been doing it for a while, studied with some amazing people, and am plugged in to a rich network of practitioners nationwide and worldwide who, together, carry tremendous knowledge and wisdom. So feel free to send inquiries my way and I’ll either call, send an e-mail, or write about it in a future article.
Finally, the name of this article – which is also the name of the column – is meant not only to distinguish conflict resolution as a way forward separate from litigation but also to give a sense of the satisfaction that can result from handling cases this way. Rather than clients who walk away feeling like winners, losers or more likely grudging, exhausted veterans of battles over limited resources, imagine clients fully satisfied with the results of the case, grateful to you, thanking you for your efforts, writing positive reviews online and willingly paying their bills. Imagine bar complaints as something very rare and uncommon. All of this occurs when ADR options are employed effectively.
Roy N Martin, Attorney
119 N Commercial St #910
Bellingham, WA 98225