Douglas E. Noll
October, 1999
One of the modern trends in legal procedure is Alternative Dispute Resolution, which generally refers to some form of mediation or arbitration. Mediation and arbitration have been touted as less expensive, faster ways of resolving legal disputes. The label Alternative Dispute Resolution implies that the primary dispute resolution mechanism is litigation. Litigation is glorified as the great mano a mano battle of the late 20th century in films, books, and the media. In fact, lawsuits ought to be a sign of failure, not the first choice for resolving disputes. Hence, ADR's value for peacemaking has been greatly diminished. Most ADR is invoked only after a lawsuit has been filed, not before.
Consider the concept of Primary Dispute Resolution. As I see it, PDR is the first step in an important conflict. PDR recognizes the legitimacy of conflict. It acknowledges that parties have different stories to tell. PDR is also based on the premise that conflicting parties may have radically different perspectives. It requires no demands or threats, however. Its premise is based on the idea that people can agree how to manage their conflicts if they have an opportunity to exchange viewpoints and perspectives. Litigation forestalls this opportunity.
Engaging in PDR requires some patience. Here's how it might work. A client calls her lawyer with a problem concerning a roofing defect in her plant expansion. They discuss the problem, and the lawyer suggests PDR. The lawyer contacts the corporate counsel for the roof manufacturer. The conversation goes like this:
"My client would like a meeting with your principals to discuss problems she sees with her roof," the PDR lawyer says.
"We have no liability for the problem. The corrosion was caused by some environmental factor. Its not our responsibility," replies corporate counsel.
"I'm not saying it's your responsbility or my client's responsibility. I'm simply inviting a meeting so that both sides can share their stories and perceptions. Maybe we can resolve the problem, maybe not. At least we can jointly decide how we want to manage the conflict-through further discussions or through litigation."
"We've investigated the problem and have determined that the materials and installation were fine. My company simply does not have any liability for your client's roof."
"But the roof is corroded. If we have to determine fault, then maybe a jury will decide the issue. But that's not what I'm calling about. I think that the parties need to be in the same room and talk about this problem. Perhaps if they hear each other out, a common, collaborative solution can be found. I'm not promising anything, but am trying to avoid escalation of the problem. If I have to file suit, you'll have to retain California counsel. The case will take at least two years to resolve and the bitterness and expenses will far exceed the current scope of problem. I'm not making any demand or request other than to meet."
"OK, I understand. Let me talk to my management and get back to you."
Eventually, this lawyer convinced the corporate counsel to meet. Most lawyers would have given up and filed suit. The principals met for half a day with counsel present. The case resolved itself with discussions between the principals.
Most of my work today is as a third party peacemaker. My peacemaking assignments more and more involve pre-litigation problems where people need the help of a third person to provide productive and frank discussions. This role is quite different than mediation in that everyone is trying to understand the problem before deciding the best process to follow. Managing these conflicts goes far beyond the usual coercive, evaluative techniques common to mediation and judicial settlement conferences. As a peacemaker, I broaden the conflict issues rather than narrow them. All viewpoints are explored, all injustices are uncovered, and all interests are identified. Then we see what satisfactory solutions are possible. The point is that Primary Dispute Resolution works. Engaging in non-adversarial processes and discussions, even though emotions are high and anger is prevalent, makes more sense. Getting on the telephone and informing the other side that dissatisfaction exists, without making demands, or "naming, blaming, and claiming," minimizes defensive reactions. This is different than the usual lawyer demand letter. Once that nasty demand letter goes out, the drawbridges are pulled up, the arrows are sharpened, and the oil is put on the fire in anticipation of forced invasion. Constructive communication dies, and litigation becomes the primary tool for resolving conflict.
As I said, Primary Dispute Resolution requires some patience. Obviously, if a statute of limitations problem exists, it must be dealt with. But if a client comes to a lawyer on the eve of the expiration of the statute of limitations, the lawyer will have to question how serious the client has treated the conflict to begin with. Having patience is recognizing that most lawyers and clients, steeped in the belief that litigation is the only process for resolving disputes, will, upon hint of a problem, move into a defensive position, deny all liability, and stonewall.
The key strategy in Primary Dispute Resolution is to defuse this natural defensiveness by not making a demand, but by simply requesting a meeting to exchange views and perspectives. Initial rejection of the idea is common, but persistence and patience will almost always turn parties towards Primary Dispute Resolution. After all, no one wants a lawsuit. And when the sincerity of the request to simply examine each other's perspectives is recognized, the defensive barriers drop enough for the process to start.
I am not suggesting that all disputes can be resolved by Primary Dispute Resolution. I think that about 40 to 50 percent of important disputes have to be filed as lawsuits. These are cases where substantial and important legal rights are at stake, where parties simply will not acknowledge the existence of a dispute, or where the legal system is reasonably efficient at resolving the dispute. An example of the latter might be personal injury cases, where the insurance companies have based their actuarial losses on the predictability of the legal system for handling claims. Even with personal injury cases, I can see PDR as a process involving the injured party, the defendant, their counsel, and the claims adjuster assisted in appropriate cases by a peacemaker.
In the rest of the cases, Primary Dispute Resolution should be a cultural norm. We should consider litigation a sign of failure. The social cost should be high enough to motivate people to decide jointly how to manage their conflicts.
The Way of the Peacemaker: Engage in Primary Dispute Resolution
as the first choice of conflict management.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation of difficult and intractable conflicts throughout California. His firm, Douglas E. Noll and Associates is based in Central California. He may be reached through his website and email at doug@nollassociates.com
© 1999, Douglas E. Noll