Dispute Settlement Counsel

Part III. Preserving Important Relationships February 7, 2009

How important is it to parties in a dispute to preserve relationships? There are many types of relationships that are central to a dispute: Between contractors and subcontractors, teachers and administrators, pastors and parishioners, doctors and patients, divorcing husbands and wives, family members of a family business, partners of a company, family members in a probate process, non-profit organizations and independent contractors they work with, builders and homeowners, to name some.

One of the factors that make a case a good candidate for using non-adversarial approaches to dispute resolution is the importance of preserving the business, organizational or family relationship and keeping it healthy. If the relationship must survive the dispute, if there will be ongoing dealings or contact between the disputing parties after the dispute is resolved, then ADR approaches like collaborative law, case evaluation and mediation have added value. Like it or not, adversarial positional processes like arbitration and litigation, at the very least, put a strain on relationships and often destroy them altogether. And when the parties go too deep into the litigation process before they turn to a mediator to assist in reaching a settlement, even if the mediation does result in a settlement, the relationships may have already been seriously damaged. The sooner the parties turn to an ADR process, the better the possibility of preserving these important and ongoing relationships.  

The health of relationships is also impacted by whether the dispute resolution process focuses primarily on the past and what happened in a zero-sum game, or the future and what options can be developed working collaboratively to solve problems. When the focus is on the wrongs that were done, the blame, the liability and the damage – all critical elements of many litigation processes — relationships take a beating. But when a process is collaborative, when the parties are working together in a respectful, productive and creative process to explore and develop options for moving forward, not only are relationships preserved, they are sometimes revived and re-energized.

Whether it is in churches, schools, colleges, hospitals, businesses, families, mission-based and social capitalist organizations or contractual relationships, the health of the relationships directly impacts the success of the entity, business or family. Is there any argument against choosing an approach that will preserve relationships?

Next week: Ability to design solutions tailored to the specific circumstances and situation