Last month was a busy one spent working on three very diverse projects in different parts of the world. On reflection it is interesting that all three projects in part involved the same issue: how to get those in conflict to engage in the resolution of their own conflicts rather than avoiding it or giving it to someone else to resolve.
This is one of the enduring mysteries in my nineteen years of working in this field. If ADR processes are so beneficial to disputants, why don’t they voluntarily use them in greater numbers?
The first project where this issue was raised involved a trip to Kigali, Rwanda, where CEDR has been retained as consultants to draft a National ADR Policy for the country, as well as help create a strategy and business plan for the Kigali international Arbitration Centre (KIAC). This visit involved the CEDR team meeting stakeholders involved in ADR in Rwanda to make our policy recommendations. Like many similar projects I have worked on (Bosnia and Herzegovina, Macedonia, Pakistan, Egypt, Lebanon, Jamaica) one of the key issues is how to get disputants who have been socialised into using the court system to resolve their disputes, to refer cases to ADR. All jurisdictions in my experience struggle to get cases into ADR, even though the benefits in terms of costs, time and preserving relationships should be clear. There are a myriad of well-trodden reasons given to why this is the case but what is interesting to me is that avoiding getting involved in conflict situations appears to be part of our human psyche. It is easier to avoid them or let someone else deal with them, in this case lawyers and courts.
This impression was reiterated the following week when working on a pilot training programme in Tbilisi, Georgia. Here we were working with experienced Company Directors, to give them the skills to assist them in resolving conflict which arise within the boardroom itself. This new course was designed by CEDR as part of a project in conjunction with the IFC / World Bank.
I should not have been surprised that conflict avoidance would raise its head again: In a global survey of 191 directors, conducted by CEDR and the IFC in 2013, 37.8% of respondents rated conflict avoidance as a difficult or very difficult issue to resolve in boardroom conflict. During the individual and group coaching session of the course the experienced company directors’ strong aversion to engage in conflict was reinforced. A common theme in many of these sessions was that the conflict discussed had been ignored by one or both parties which had caused it to escalate. Even when I suggested engaging in the conflict discussion during the coaching session there seemed to be an inherent resistance from some participants. It would seem that conflict avoidance is prevalent even when participants are aware that it’s there and it’s the very subject of discussion!
European Intellectual Property, Alicante
And finally, the conflict avoidance monster was lurking one week later in Alicante, Spain when I delivered a demonstration mediation at a conference on the mediation of Intellectual Property (IP) disputes. The Office for Harmonisation in the Internal Market (OHIM) is a European agency responsible for the registration of trademark and designs across the EU. As part of their tribunal system for resolving disputes over intellectual property rights, they have developed a mediation service offered by internal CEDR-trained mediators.
This first OHIM conference on mediation in IP disputes was extremely well organised, well attended and stimulated much debate. However, to-date there have only been a limited number of mediations through the service. This was reflected by many of the conference speakers. Once again, although mediation made sense, it wasn’t being chosen by the parties in IP disputes.
What to do?
These three experiences this month have led me to articulate more clearly what has been bubbling away in my mind for many years now. Focussing on our internal condition as human beings and not external factors such as lawyers blocking the use of ADR, what is it about being human (neurologically, psychologically, sociologically, etc.) that makes us avoid engaging in the resolution of our own conflicts? And secondly what tools do we need to break through this aversion?
In my view, the time has come for a cross-cultural empirical study that explores these issues and helps our field develop techniques to resolve this dilemma, as it is holding back the optimisation of ADR, negatively impacting those involved in disputes and conflict.