Effictive dispute resolution
Conflict diagnosis
Judicial decisions do not always solve the conflict at hand. In order to determine the most appropriate method of conflict resolution it is important to make the right "diagnosis”. The following questions (based on Euwema 2006) can serve as a guideline:
- Who is involved in the conflict?
- What is the relationship (and power balance) between the parties?
- How do the parties interact with/ behave towards each other?
- What are the issues at stake? What is the nature of the conflict?
- What is the context of the conflict? What is the ‘conflict culture’?
- How far has the conflict escalated?
- What has been done and can be done to solve the problem?
Method of conflict resolution
In order to get the necessary support for the method of conflict resolution, it is important to make the decision for the method of conflict resolution (also) the responsibility of the conflict parties. This is an important task of the referrer. The referrer can be a judge, a (legal) counselor, a human resource manager in a company or a confidential advisor within a public of private organization, et cetera. Referrers can be more or less forceful in their referring style. Ideally, a conversation between the referrer and the conflict parties evolves in which parties voice their expectations of a good solution to their problem and discuss how various conflict resolution methods might help them.
Conflict resolution
In order to guide the process of arriving at the most appropriate method of conflict resolution, the conflict manager (for example a judge or a mediator) needs to:
- analyze and clarify problems to determine whether an evaluative or a facilitative approach is appropriate;
- ask the right questions to uncover the parties’ motives and interests;
- be able to rephrase the conflict so that parties are willing to talk about it. This will help parties to move away from reproaches and start to talk about their need and concerns;
- reflect on emotions and verbalize the intentions of parties, which enables parties to really listen to the other (sometimes for the first time in a long time);
- manage emotions, since emotions often stand in the way of finding a solution.
Customized conflict resolution within the Netherlands judiciary
Over the last ten years, referral to mediation by the Netherlands judiciary has been firmly established within the Netherlands judiciary. Among the judiciary, mediation is now seen as a regular, "normal” means of dispute resolution. This has opened the way to ‘customized conflict resolution’, or stated differently: tailor-made solutions that address the underlying issues of legal disputes. Customized conflict resolution implies that judges determine, together with the litigants, the most appropriate way of conflict resolution: adjudication, judicially supervised settlement agreements or mediation.
So in the end, the launch of court-connected mediation has had a far greater effect on the Netherlands judiciary than the introduction of the referral services as such: it has led to new thinking about the role and tasks of judges in court procedures.
