The Dispute Resolution field has been enriched by some significant research into process and practice. However, empirical research canvassing the views of end-users of Dispute Resolution services remains significantly uncharted territory.
The early research on negotiation styles and their impact by Gerald R Williams and later Andrea Kupfer Schneider distinguished cooperative/problem solving and competitive/adversarial styles. This research demonstrated the interesting and unsurprising result that cooperative/problem solving attorneys emerged with better working relationships and left less value on the table. However, the research was of lawyers reflecting on the behaviour of other lawyers. Clients, the real consumers of their services, were nowhere to be seen.
More recently we have had the gift of The Global Pound Conference Series 2016-17 comprising 28 events in 22 countries. The main purpose of this program was ‘to generate conversations and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’. The entire DR industry was represented, including parties, and each audience participated in data gathering which included answering 13 open text questions. This program has left us with some significant empirical research resulting from the meticulous analysis of the 7 North American events consolidated into The North America Report. In particular, one of the four key insights explored was the ‘needs, wants and expectations’ of the parties.
This is a big step.
We now have the voice of consumers emerging in significant and influential DR research, revealing a growing recognition that the use of the term ‘ADR’ has become increasingly irrelevant. Supporting this reframing, the report recommended changing the nomenclature to DR ‘to reflect the cultural shift occurring within commercial DR and the need to place parties at the centre of the process…’
Now we have some important new work which adds more insight into how the consumers of DR services see things. Although its title indicates a focus on mediation in EU cross-border disputes, this text draws on rigorous empirical research with findings relevant wherever commercial mediation thrives.
As the title promises, this text achieves two important and inter-related things – it explores a significant opportunity to change the frame (the lens through which we have been viewing mediation) through listening to disputants (in-house counsel, who are the clients who actually choose which process to select for resolving business conflict).
The book opens with this provocative quote from an in-house counsel interviewee – ‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’. This is the perfect entry point for a detailed examination of why the promise of mediation has not been the success story the EU and other jurisdictions were hoping for.
Exploring this conundrum leads to the realisation that the problem lies in the way that mediation has been framed as an alternative to litigation. This ‘either/or’ approach did not sit well with the decision makers as they reflected on the most appropriate process. Their lens is far more holistic – they observe a range of related and overlapping processes. This continues the theme we first saw explored in the North America Report, leading us to the concept of DR as an all-inclusive continuum of processes.
Dr Howard’s research digs deeper into the ‘framing’ and identifies that the pursuit of resolution is seen by users as beginning with negotiation. Changing the frame shows us that it is time to bring negotiation into the foreground as the ‘go-to’ process. Framing the changes means that mediation can be seen as part of an iterative process in which mediation can be reframed as ‘assisted and extended negotiation’.
As a negotiation academic and researcher, this text has particular significance for me. Returning negotiation to its rightful place on the continuum and recognising the value its principles bring to all processes in which it may be applied seems the perfect research-validated way to set the record straight.
The Australian Dispute Resolution Research Network 
Hi Rosemary, thanks for the post very insightful. I found the last part to be most notable that it all seems to come back to the initial conversation or negotiation and getting that right before it escalates to the need for mediation. I have been working on such a tool to assist before they need mediation, which is refreshing for me to hear.
If I could get some feedback on such a tool, I call it the Disputes Review Network or Disputz.com
that would be most appreciated. The idea being that we get 3 chances to resolve it between ourselves before we get it reviewed on the Disputz network.
Here is my latest pitch video:
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