(This is the text of The Lionel J. McGowan Annual Memorial Lecture delivered to the Annual Conference of The ADR Institute of Canda, Halifax (1995).

 

I want to begin by reflecting upon the world in which we now live, as it is now.

I am seeking perspective on where we are and how we got here; I am searching for meaning and for context in trying to understand why the world of dispute resolution is in such a mess -- at least, the orthodox or conventional world of dispute resolution -- and what members of this Institute, in particular, can do to ameliorate this condition.

This is what I see.

Today our world is - dramatically - a much different place from the world as it has existed in recent history and, indeed, within the living memory of most of you, here. It is incredibly different from what it was even 30 or 35 years ago.

That fundamental difference can be understood in terms of a single word that has become very prominent in our vocabulary: complexity. Complexity is the stuff of which our modern world is made; it is, also, the necessary consequence of the Information Age in which we are now living.

We are not going to be able to change this new reality: indeed, I believe things are going to become even more complex. Metaphorically, our eggs have been scrambled and there is no way for us to unscramble them.

Let's consider what has happened. Until three or four decades ago, the range of options and choices which each of us exercised in the living of our daily lives was quite limited. Options use to come in black or white -- or perhaps a little grey, here and there.

Think, for example -- if you are old enough to have a memory of your own -- of the range of makes and options in automobiles in, say, the 1950's. I know that when I was growing up in Toronto, I could easily identify by make, model and year, at sight, 98% of all cars on the road.

Today it is the other way around: I don't have the slightest idea of these things for 98% of the cars on the road. Today, all our choices and options -- everything in our lives -- seem to come in 31 different colours, just like the ice cream flavours at Baskin and Robbins.

Today, we live in a world of overwhelming variety, differences and diversity -- not only in cars, but also in people, in ideas, in interests, opinions, perspectives, etc. Variety, it is said, is the spice of life, and we are living in a highly seasoned reality.

Further, there has been a tremendous increase and advancement in intellectual and economic substance and activity.

Since the end of the Second World War, there has been an enormous increase both in population and in the percentage of that population who have the opportunity to participate and interact with others and with our highly developed social institutions.

At the same time, there has been a gigantic increase in the number and complexity of the laws, rules and regulations by which human conduct is regulated. Hardly anything now occurs in the realm of human activity that, in some way or another, is not governed or affected by some law, rule, bylaw or Order-in-Council passed by Parliament, Legislature, Regional Government, Municipal Government, Boards, Tribunals, Courts...

These enormous increases in choices, in people, in interaction and in regulation have spawned an exponential increase in the incidence of problems, differences and disagreements.

Traffic problems on city streets are an apt illustration of what I am saying: there is an enormous increase in the number of automobiles vying for the limited and dwindling number of spaces in the traffic flow, and there are many more collisions than there were in the past, when traffic was much lighter. Drivers, one could say, are experiencing voluminous conflicts in the struggle for position.

So, involvement in many more conflicts is one of the new realities of our lives.

I want to be very clear in what I mean and how I use the word "conflict."

The word comes from the Latin noun conflictus [please note it is a noun and not a verb!] which refers to "the fact of striking together" -- which is precisely what happens on our roads and highways; the word is defined as [from Webster's] "a competition or mutual interference of opposing or incompatible forces, qualities, ideas or interests; an emotional state characterized  by indecision, restlessness, uncertainty and tension resulting from incompatible needs; to show variance, incompatibility or disharmony calling for adjustment."

We experience these states of conflict every day of our lives in practically everything we do: schedules, interests, opinions, options, ideas, choosing what to wear, interaction with others... I can go on forever! The operative words, in my context, are "variance, incompatibility or disharmony calling for adjustment."

In our customary way of thinking about human conduct, conflicts between people have been assigned to our legal system for management and control...for the making of these adjustments: case in point, motor vehicle litigation, something which, of course, is now changing!

As a consequence, we have been witnessing a tremendous increase in business for our Courts ‑‑ much more than they can handle or were designed to manage. Whether or not our legal system is now overwhelmed by the rising tide of litigation is no longer an undecided or debatable question.

What is open for speculation, is whether or not the crisis has reached its peak, or whether the worst is yet to come -- particularly if we do not find some practical solutions.

To the extent that we have attempted to deal with the problem by building more courts and appointing more judges, we have brought Parkinson's Law into greater prominence: litigation expands to meet the Courts available. The costs, time, human energy and ineffectiveness of litigation are rising to prohibitive levels and, in the meantime, litigants are simmering in a stew which is not necessarily of their own making.

The question I want to pose for you is this: Is there a real alternative? If so, what is it?

To you, as constituents of the ADR Institute of Canada, this question may not appear too difficult to answer. That is why you do what you do; that is why you are here. But I have a further question: Are arbitration and mediation viable alternatives?

Let's briefly consider what has been called ADR. There is no need for me to review at length the propositions that this acronym stands for, but, often, it is easier to define it by describing what it is not, than by describing what it is.

Most people think of ADR as an alternative to litigation in resolving these conflicts; others more bent on precision say it is recognition of the fact we have always had alternate methods of resolving conflicts, and that litigation is just one of them. Either way, it is a matter of choices for conflict resolution; looking at it in terms of alternate methods, however, helps us better to understand what the real problem is.

If you get anything out of this lecture, please get this point because it is at the heart of everything I am saying. The real problem is not the explosion of conflicts, "out there," for the reasons and causes I have referred to, but tunnel vision, "inside here," in relation to how we deal with conflicts.

I am saying that the time has come to pay attention to some fundamental questions which, heretofore, we have largely ignored.

First, we must truly learn to understand the nature and meaning of that which we call conflict; then, we can begin to select techniques or processes to manage them, to make those requisite "adjustments."

Let me be even more explicit in what I am saying to you. I am saying that conflicts are not necessarily disputes.

Let's examine what the word "dispute" means. It is derived from the Latin verb, disputare [please note it is a verb and not a noun], meaning "to examine or discuss;" it means [again, Webster's] "to contend in argument; to argue for or against something; to engage in a disputation or debate; verbal controversy or strife; physical combat; to oppose by argument or assertion; to struggle against."

Please note that, at root, conflict is a noun and dispute a verb; in our daily vocabulary we have come to use the word conflict as a verb and the word dispute as a noun.

Conflict is a state of being or a human condition; dispute is a method or technique for addressing conflict. The words are not really interchangeable. Both do refer to a phenomenon that is becoming increasingly more common in our lives as society and culture expand and become progressively more complex: more obvious differences, diversity and immense variety which immerse us in disagreements.

Dispute is what we are accustomed to doing with conflicts. It's the way we think about conflicts: we struggle against them, or against each other.

Indeed, it's a fixation, an addiction, a learned response much like a reflex reaction which, I say, we must overcome and transcend -- hence my meaning for the title I have given this lecture, Beyond Dispute.

How are we going to do that? "By changing how we think about conflict."

Presently, we are stuck in a mental process or locked into a syllogism that unfolds along these lines:

• first, we experience diversity and variety in our lives,
• this diversity awakens us to the existence of differences amongst us,
• we interpret these differences as engaging us in conflicts,
• we then jump to the conclusion that these conflicts can be resolved by reference to our respective legal rights and obligations,
• then, we embrace dispute as a means of determining those rights,
• then, we determine we need adjudication,
• thus, we engage in  litigation, and
• lastly, we assume the need for an adversarial mentality.   

We go from diversity to adversity as quickly and as automatically as one's leg reflexively reacts to the doctor's tap below the knee.

We are obsessed with our win/lose, zero sum equations. Seeing our diversity as implicating us in disputes is something that is deeply ingrained in us, culturally.

Yet, the fact that conflicts exist is the natural consequence of the fact that we are each unique as individuals and have different and divergent views and interests in any given situation.

The one way of describing the mind set or paradigm which prevails in this field, is our belief in the adversarial system: Trial by Battle.

The one thing that has not changed in the world of the law and legal affairs in nearly 300 years, is its commitment to the adversarial system -- that is, the compulsion to engage in dispute in order to manage or resolve conflicts.

If we can consider conflicts in a broader context, the differences we experience in our interaction with others are, quite frequently, totally consistent and harmonious ‑‑ but we are not accustomed to think about conflicts in that way.

We have much to learn.

The accomplished pianist plays different and, often, conflicting parts with his right and left hands; yet these harmonize when they are considered from a broader perspective which takes into account the melody or symphony. I say we must learn to understand our differences and our conflicts as if they were different parts of one melody.

Figuratively, just as surgery is not the answer to every medical problem, and just as physicians must first understand the nature of the illness before choosing the medical procedure, so must we who are engaged in conflict resolution begin to understand the nature of conflict before selecting the processes to deal with it.

It would be more useful in the world of conflict management to understand the nature of conflict and its causes rather than to habitually or blindly continue to manage them by engaging in disputes.

I no longer believe in Trial by Battle as way of dealing with conflicts for a vast majority of the conflicts that arise. Resolution processes need to be informational process -- that is, a process in which people exchange the information relevant to understanding a situation or condition in the paramount interest of pursuing a reasonable adjustment of their conflict.

The objective should be to dissolve rather than resolve conflicts.

In this sense, the adversarial mind set is as self defeating as anything intentionally designed to self-defeat could be. The fundamental premise of an information exchange process is disclosure; the fundamental idea behind the adversarial system is non-disclosure and the extreme value and power of exclusivity in access to information.

Discovery, oral examination and cross-examination are very ineffective tools or methods for information disclosure and sharing; implicit in these techniques is the proposition that you have to have the information before asking the question or even knowing what question to ask. In the litigation process subterfuge and evasion are rampant -- though not in a "moral" or "ethical” sense, but in the sense of "just playing by the rules."

The assumption that a judge comes into the court room with a mind totally blank and void of any knowledge or information is, at best, extremely inefficient; it means, for example, that in what may be a simple construction case the judge has to be educated on the science and technologies of construction during the trial.

If educating the judge is not sufficiently a wasteful and inefficient process, then consider that the process must be conducted over the strenuous efforts of the opposite side to interfere and contradict. The most brutal part of the adversarial process is over the facts or the sometimes tenuous evidence to support them.

Frankly, I don't believe in arbitration as an alternative to litigation, either. Before you start throwing buns, I did not say I don't believe in arbitration, but that I don't believe in it as an alternative to litigation! Why? Because it is litigation -- just by a different name. It is much like the proverbial wolf in sheep's clothing. It retains the adversarial mind set and adjudicative function.

I have been and am critical of the ADR industry for this very reason: if the emerging models and/or techniques for conflict resolution offer only new ways of utilizing the same, old, adversarial mind set, then they are destined to increase our burden rather than alleviate it.

I believe the adversarial stance and the adjudicative process are the fundamental causes for the mess that we have; if so, then these ideas will not be the source of a solution.

If these ideas continue to be part of the underlying structures of ADR processes, then ADR will simply become as cumbersome and expensive as the legal system which ADR seeks to circumvent.

So what do I believe in? Mediation. But, we have to change the way we think about mediation, too. I don't think we are using this technique to its full potential as it is most commonly practised, right now.

Why? First, let's look at what the word means:  it is derived from the Latin mediare and means "to be in the middle." The Latin word is also the root for the word "mediocre" -- and, for me, that is the problem with the way we customarily or commonly practice mediation. Mediators and mediation also retain the adversarial mind set.

It may be just a matter of semantics, but I don't think so. I prefer a process that I describe as "conciliation." The word is derived  from the Latin conciliare, which  means "to bring together or unite"; it is a process fundamentally concerned with harmonizing  the parties and their respective interests rather than merely finding a middle ground or position that may bring the dispute to an end, but leave the parties alienated.

What is it? How does it work? What are the differences?

The most fundamental difference is in the premise that the people who are involved in a conflict are, themselves, the persons best qualified to find a satisfactory resolution.

Being directly involved, they have a greater appreciation and understanding than any "outsider" of their needs, their specific situation, how it impacts upon them, and of the alternatives available.

The second premise is that, because the people are directly involved, they are most likely to be emotional, biased and/or subjective; therefore, what they most need is assistance, advice and guidance so that they can begin to see things more clearly and become more objective.

They need help in clearing away the obstacles, walls and impediments that usually exist, so that they can learn and begin to collaborate in the process of finding a creative, productive path.

Above all, conciliation honours Abba Eban's poignant observation:

If you deeply understand the implications of this assertion, then it should be relatively easy for you to switch from a conventional, passive role as mediator to the very pro-active role of a conciliator... and you will enjoy it much more, too.

In conciliation, the parties, face‑to‑face, engage in a search for common ground,  mutual interests and a balancing of benefits which may lead to an agreement resolving the conflict rather than submitting it to someone else for decision.

A conciliator, like a mediator, does not adjudicate. S/He is a fact finder, an advisor, and a resource person with a wealth of practical experience -- a talented, open facilitator. S/He understands the subject matter of the conflict and brings to it professionalism in identifying its problems, understanding the issues and then dealing with them in a practical and creative way.

S/He is an expert in helping people recognize their similarities and understand their differences; s/he is a catalyst for a resolution process that the parties undertake for themselves, not someone who does it for them.

Her/His function is to help the parties communicate and see the real ‑‑ rather than partisan or emotional -- issues involved; to "draw out" from them their real concerns; to facilitate a process of objective understanding as between them. S/He may, independently, obtain expert or legal advice and assistance in relation to the issues.

S/He presides at all meetings of the parties and meets with them as the circumstances warrant: together, separately, alone or in any other configuration. What is said to her/him or in her/his presence, however, is privileged and confidential and may not be disclosed or used against any party except with the consent of all parties.

S/He is responsible for preparing a Conciliation Agreement and documents any agreements the parties may reach on issues or facts during the process, regardless of whether or not such agreement resolves the whole conflict.

S/he helps the parties understand the fundamental lessons they need learn in order to be creative and productive in their process: (i) "to agree to disagree," (ii) to understand their own and the other side's position objectively, (iii) to communicate clearly and openly without concern that they are thereby hurting themselves, (iv) to engage in open, meaningful dialogue, and (v) to collaborate in the process of finding creative, productive ideas.

I have created an outline of the various steps involved in the conciliation process which I have designed and created and gladly share it with you. I call it Neutral Ground Conciliation: I am not suggesting that what follows is perfect, but only that it reflects a very different approach and mentality to conflict management:

1.  First, each party executes the Conciliation Agreement which includes the Rules describing the process and the role and function of the Conciliator.

2.  Each party then submits a short, written Report to the Conciliator describing and detailing the problems as s/he sees them and how s/he would "like" to see them resolved. This document is, for all purposes, confidential information for her/his eyes only, and deemed privileged ‑‑ that is, in law, as a "without prejudice" disclosure made in the process of negotiation of a settlement.

3.  The Conciliator may then request further information and clarification from the parties, which also is deemed privileged.

4.  After considering the Reports and such further information, s/he prepares a written Summary outlining her/his opinion upon (i) those questions or issues upon which the parties appear to be in agreement, (ii) those matters upon which there is disagreement, (iii) the questions that need be considered, (iv) what are the fundamental issues, and (v) her/his preliminary remarks and observations on the matter. Copies of the Summary are distributed to all parties.

5.  Each party then prepares and submits a written Response to the Summary in which s/he sets forth her/his own views, opinions and comments on the Summary. Please note that the Response is directed to the Conciliator's Summary and not to each other's statements, thus deflecting disagreements away from each other. Copies are distributes to all other parties.

6.  The Conciliator then undertakes research on any questions of fact or law that may be relevant to the issues and submits her/his opinion to the parties. If appropriate, independent Counsel and/or investigators may be retained (with the consent of the parties) and their opinions and reports are made available to all parties.

7.  The Conciliator or the parties may then offer and exchange suggestions for each other's consideration.

8.  If the parties can then reach agreement on any issues or facts, the Conciliator documents it and such agreements become binding upon the parties, whether or not it resolves the whole of the conflict or just some of the issues.

9.  Only after this preparation and research is completed, are the parties prepared and ready to meet face to face and with the Conciliator.

Conciliation is, in substance, consensus building. Please note the difference, however, between stopping war and making peace: to me, conventional mediation is like stopping war; conciliation is like making peace.

I have been speaking about the need for a paradigm shift in conflict resolution. I am talking about getting beyond the world of disputes and seeing conflicts from an entirely different perspective.

Listen to what Albert Einstein said. It is very relevant to what I have been saying:

Do you know what a "Necker Cube" is? It is that two-dimensional drawing of a cube which appears concave or convex depending upon the perceptions of the observer. Conflict management is like that: it depends upon the perceptions of the observer. We need a new type of thinking.

               Conflicts are unavoidable; disputes are unnecessary.

            The time has come to change how we think about conflict.