Good Reasons Not to Envisage Amicable Resolution

Kluwer Mediation Blog
November 24, 2019

Please refer to this post as: , ‘Good Reasons Not to Envisage Amicable Resolution’, Kluwer Mediation Blog, November 24 2019, http://mediationblog.kluwerarbitration.com/2019/11/24/good-reasons-not-to-envisage-amicable-resolution/


People have very good reasons not to want to enter into dialogue with each other over conflict (with or without mediation).

By this, I am not considering the rational choice that a dispute or conflict is “not suited” to mediation since the chances of a better outcome without amicable resolution are deemed higher. It is the deeper seated reasons that lead to conflict remaining unresolved, hardening, becoming ossified, and escalating.

Though I would like to agree with Rosemary Howell’s last blogpost here, I find it optimistic. For most people conflict is not a “magic” to be “embraced.” It is a very scary business, and if it is magic then of a darker kind. Sometimes it is necessary to fight. On the social and political level, for the German sociologist Georg Simmel, the “struggle” was an essential force for social change. This is productive, for sure, but not necessarily for the best. Managing this struggle amicably and creatively would be nice to have, but is often not a realistic option.

Even when the idea of mediation is considered, it is often not pursued. People change their minds. Someone pulls out. One person does not agree to the process. It takes so long to decide for or against, and the work of making that decision becomes too bothersome.

In my practice I see mediation considered and not taken up. Tenants in the same building do not get to the table, as one side refuses to talk. Teams in companies and organisations do not get to facilitated dialogue, because scheduling becomes a challenge. In an ongoing case, several parties are taking months to decide whether or not to give mediation a go. They have nothing to lose, I think. This is naive of me. This is not how they see it.

Here are some reasons not to seek resolution:

  1. The dispute has become a (paradoxical) comfort zone. It may be easier to stay in that place where I am right – and the other party is so clearly wrong – than to engage in a dialogue that will give a voice to two sides of the story. Even if I suffer. Or because I suffer.
  2. The very idea of dialogue scares me. I am afraid.
  3. I am not the problem. The other is the problem. Talking to that intransigent bully, that idiot, that aggressive psychopath, that incompetent boss – no way. There is simply no point.
  4. I may have to give up something dear to me. Better to dig in and fight my corner. Or to avoid.
  5. My case is clear, and I will win it. It may take a while, but I am right. Sooner or later this will become apparent to everyone.
  6. The power is on my side, so I do not need to engage with the other – weaker – party.

Behind all of these reasons there is something that goes much deeper – relating to how we have been and are taught to deal with conflict.

Look at all the positional bickering in politics, of which the media are so full. Few ordinary people will consciously see politicians as role models, but they are. Politics is a game of winners and losers, and today some of the world’s most prominent and powerful politicians are playing out zero-sum games, as if this were the best way to deal with conflict.

Look at the media, and in particular the film industry. To make films (or theatre), we need conflict, of course. We need tragedy. But don’t we also need some narratives that offer alternatives to adversarial problem-solving? It is not only escapist and fantasy movies that focus to a large degree on competitive and often violent ways of dealing with conflict. The adversarial mode is the default mode in much of the entertainment we consume. Too often with a lot of violence. I think this must rub off.

Personal experience plays a big role. How was conflict managed in the family where you grew up? What did you learn about how to deal with conflict as a child? Which role models did you see? When did you win and when did you lose? What about in school? Were there examples of “amicable” dispute resolution? For many of us, the answer is no, or only very few.

There are good political reasons too. There are many examples around the world as I write, but let me finish with one historical example. This month saw the thirtieth anniversary of the fall of the Berlin Wall. Under the Eastern European communist regimes, the judiciary was not impartial (to put it mildly), and there was no such thing as “alternative” or “amicable” or “appropriate” dispute resolution (the ADRs) at any level of institutional social interaction. In 1989, the opposition took to the streets. The regimes fell. This system change was not the result of participative process, dialogue, win-win negotiation, the exploration of mutual interests, creative and constructive engagement, or any of the other mindsets mediation works with. Opposition was the only way. It was the right thing to do. If the powerful won’t talk, what other options do you have?