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11.3. Alternative Dispute Resolution
11.3.1. Skills, Strategies, and Techniques
On the spectrum between an agreement reached by the parties involved in a direct
negotiation, based on a full and mutual understanding, and a binding decision
rendered by a third party’s authority in a procedure of adjudication, there are many
ways of resolving disputes. These options and possibilities create “a menu” of ADR
(Alternative or Appropriate Dispute Resolution) mechanisms that were described in
Chapter 4. These middle-of-the-range options include negotiation (with or without a
facilitator) and mediation. The credibility and impartiality of the institutions that
intervene in these roles is most important. However the quality of the individuals
selected is also important.
Negotiators, facilitators and mediators must acquire the skills and learn the
techniques required by their roles. First and foremost they need communication skills
(active listening, talking clearly and precisely, and understanding and perception).
Some of the techniques associated with using these skills include reframing positions
as interests, using open questions, and separating the persons from the problem.
These same skills and techniques are basic requirements for mediators too. In
addition they should have the following desirable traits:
! ability to create trust among the parties
! ability to define the issues of the dispute
! patience, endurance, perseverance
! thoughtfulness, empathy, flexibility
! common sense, rational thinking
! likeable personality
! experience
! neutrality, impartiality
! problem-solving skills, creativity.
Among the techniques and strategies that may contribute to building consensus are:
! Strategies based on interest-based negotiation.
! The facilitative/passive strategy: the mediator acts as a facilitator of the process,
and does not evaluate or suggest solutions. Strategies and techniques of
facilitating and assisting the parties to understand their situation encourage the
parties to communicate, and help them to reach an agreement.
! The intervening/active strategy: the mediator evaluates the case and suggests
solutions and options.
! Use of experts and expertise in the disputed issues and seeking guidance for
resolution of the dispute, based on law, industry practice, etc.
! Mediators meet first with all parties in joint meetings, sometimes with each party
in private caucus, and assist the parties in understanding their own underlying
interests, and those of the opposing side.
! During mediation the focus is on the future, but it does not ignore the past,
which provides information about the issues and the causes of the conflict.
! Mediators elicit ideas from each side for possible resolution, and assist the
parties to develop a negotiated settlement, an agreement, which is usually put
into writing, and can be ratified by the court.
Some of the above traits are part of the personality of the individual, and would be
difficult to learn. However most of the skills can be learned through training and
practice, as can the useful strategies and techniques.
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