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Now More Than Ever – The Growing Need For Dispute Resolution

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Last week (October 16-20), lawyers and dispute resolution professionals around the country celebrated Conflict Resolution Week. In Massachusetts, the Massachusetts Bar Association, through its Dispute Resolution Section, presented five different events, one each day, each in a different part of the state and each with a different focus. Over 400 people attended these state-wide events, including judges, lawyers, mediators, arbitrators, college, high school, middle school and law school students, parents, teachers, coaches, special masters and interested members of the public. Governor Baker issued a proclamation recognizing October 19 as Dispute Resolution Day in the Commonwealth.

The types of dispute resolution (DR) processes that were focused upon included court-connected mediation, private mediation, collaborative law, youth (middle school and high school) peer mediation, direct conflict negotiations between nations and ethnic groups, designed claims programs like the Victim Compensation (9-11) Fund or the Boston One (Marathon Bombing) Fund and restorative justice.

There were some common threads and take-aways in these presentations and programs about ways to resolve disputes of all sizes and types:

  • The use of a wide and growing variety of DR processes is growing and people are inquiring about what their options are more than ever before. The days of defaulting to litigation right away are steadily in decline.
  • More and more, the programs noted, people are seeking ways to re-connect, rather than adversarial approaches that divide and separate people further.
  • There are many different ways to resolve conflicts, offered by courts, private DR professionals, community mediation programs and other internal programs for resolving disputes built into companies and organizations.
  • Many people, including judges, lawyers and business leaders, are now actively seeking more education and information about the different types and uses of DR that are available.
  • It was refreshing and inspiring to hear young people stand up in a public event at a law school and clearly and articulately describe how mediation works.
  • It was inspiring and energizing to hear that young people today are being trained in and embracing the use of peer mediation and restorative justice to productively address and resolve their conflicts.
  • It was an eye opener to see and hear that people from some of the most troubled and historical conflict zones – from Israel, Ireland, Kosovo and other places – are willing to travel to other cities in conflict and share some of the efforts they have made with others to resolve conflicts and restore relationships.

In the early 1980s, mediation was just being introduced as a new way of resolving disputes, in a way that kept the decision-making about the final solutions in the hands of the people in the dispute. Mediation is a voluntary, non-adversarial process in which a trained neutral mediator assists parties an in reaching a settlement agreement. It was hardly embraced back then and most people rejected it as something that would never work. Today, 40 years later, mediation is the most frequently used type of DR, far surpassing trials and arbitration.

In 1990, one lawyer in Minnesota walked away from litigation because of what he saw as how negatively it impacted clients, families and lawyers alike. He introduced a process called collaborative law and suggested it to a small group of judges and lawyers. Collaborative Law is a process in which layers and clients agree not to litigate. Instead, they replace the adversarial approach with a structured negotiation process in which parties and lawyers collaborate together by design to reach a good resolution of the dispute. Today, 25 years later, the use of collaborative law is growing steadily and is practiced in 24 nations around the world. Its international membership organization, the International Academy of Collaborative Professionals, has over 5000 members.

97% of the cases that are filed in courts today end up settling; less than 3% of these cases ever go to trial. The trial courts in Massachusetts welcome the use of DR at all levels. There are court-connected mediation programs in most state district courts. The federal courts in Massachusetts require the good faith consideration of dispute resolution alternatives at the outset of the litigation process, as an alternative to continuing litigation and/or going to trial for those cases for which DR would be appropriate, and provide mediators for that purpose.

In a society that is increasingly becoming more polarized, partisan and divided, Dispute Resolution is needed more than ever before. DR works efficiently and creatively to solve legal problems and maintain or restore healthy business, organizations and civic and family relationships. The trend toward more DR is refreshing and transformative, connecting and bringing people together rather than dividing and driving people apart. It is working to empower people, starting with our teenagers, to work together to resolve our own disputes, and restore normalcy and peace of mind where there was conflict.

Photo Credit Bill Damon

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