Various studies and developments indicate that dispute resolution through the courts will be more frequently combined with, or replaced by, other methods of conflict resolution. Many of these methods have the signature of mediation, but also deviate from it.
Sometimes in key areas. Increasingly, methods of dispute resolution in the ADR(Alternative Dispute Resolution) spectrum will be tailored specifically to the case at hand. In the spectrum of methods of conflict resolution, the line runs from full influence on process and outcome (when parties enter into consultation together) to no influence at all on process and outcome (in court proceedings).
In a mediation, parties themselves negotiate under the guidance of a neutral and impartial mediator (the mediator) in a transparent process. Conflicting parties have full control over this process and they are free to end the mediation at any time.
Lawsuits
Depending on the case, a method can be chosen. At present, however, a solution via the courts is still chosen far too often. That is a process that is very time-consuming, relatively expensive and in which the judge only decides on the case at hand, predominantly on legal grounds. All other aspects (including fiscal and practical) and other conflicts remain unresolved.
Another annoying aspect is that court proceedings are public. In many cases, another method, such as mediation or collaborative practice, for conflict resolution is better: faster, customized, cheaper, everything is discussed, the relationship is guarded as much as possible, parties themselves keep full influence on the process. In a mediation the parties talk to each other, in a court procedure the lawyers talk to the judge
With 1.6 million lawsuits versus 50,000 mediations, there is still much to be gained for the business community in the Netherlands by better weighing the method by which they resolve a conflict. To a large extent, businesses, lawyers and judges now agree on this.
These include disputes between shareholders, management, supervisory directors, associates, cooperation partners and within entrepreneurial families. This is evident from a study (conducted by ZAM - ACB and the Montaigne Centrum voor Rechtspraak (UU), published Nov. 30, 2018) on the opportunities and obstacles for business mediation in the Netherlands. But the number of lawsuits in inheritance matters has also exploded in recent years. And there too, better dispute resolution methods are available.
An important message for entrepreneurial Holland: if you take the wrong route to resolving a conflict, even the best preparation is counterproductive.
Authority based on knowledge, experience and proper conflict analysis
In order to be effective, a mediator must be proactive and take control. In this he is on the one hand more vulnerable and on the other hand freer than a judge, who can lean more heavily on the input of lawyers and experts, but is also more tied to fixed procedures. For the mediator to be able to do that and gain the trust of his clients, it is necessary that he has authority based on substantive knowledge and extensive experience.
The fact that a mediator speaks the language of the environment in which the conflict plays out could also benefit this. The mediator who has a clear substantive input goes further than is considered desirable in a facilitative mediation. He enters the negotiating domain of the parties. There is then a trade-off between informed decision-making and the parties' perception of the mediator as a neutral process facilitator. This often has an impeding effect.
It is important that the mediator quickly arrives at a correct conflict analysis: what exactly is at stake, what kind of information is needed, what type of solutions are possible? The more substantive knowledge and experience, the better a mediator can make this assessment. It requires the ability to look at the situation from a broad perspective, with multiple perspectives. In more complex situations, this does demand a lot from a mediator. In a multidisciplinary team, there is considerably more knowledge and experience in the conflict area. A team actually always makes a better informed decision.
Collaborative Practice
The Association of Collaborative Professionals (VvCP) celebrated its tenth anniversary last year. The Collaborative Practice method was developed in the US in 1990. Currently, thousands of lawyers, coaches and financial professionals around the world use this method.
In a standard Collaborative, a team is formed by the party facilitators, a coach and a financial expert. The team signs off with the participants to work together to achieve the best solution for the clients. All team members withdraw if the goal is not achieved (the disqualification clause). As a result, clients have absolute assurance that the team is solely and completely focused on achieving the best solution for all participants as quickly as possible; with no loophole (of litigation).
The focus of the team, the multidisciplinary cooperation and the familiar environment to which all team members are fully committed, everything is aimed at achieving the best possible result as quickly as possible.
Collaborative method in the ADR spectrum
The method can therefore play an important role in conflicts in many (legal) areas. Especially where the situation or solution is complex or where distrust is high, there are multiple parties with divergent interests or where the stakes are high, a Collaborative can offer an excellent solution.
One characteristic of conflicts is that they always involve three aspects: emotional, legal and financial/fiscal. This is certainly also the case in divorce and business and estate conflicts. For good solutions, it is therefore important to pay the necessary attention to these three aspects. In a Collaborative, as much as possible these three aspects are dealt with at (the negotiation) table. With this expertise at the table, all solution approaches can also be discussed directly at the table. All team members work in the interest of all participants so that smart solutions can be built quickly.
So the market needs speed, firm direction and a businesslike and integral approach to conflicts by experienced and substantively expert mediators, in a method within the ADR spectrum. A broad view from multiple perspectives can be very helpful for proper conflict analysis and handling and for setting up the right team. The Collaborative method provides excellent solutions for this purpose.
