Pilar Vaile, P.C. focuses almost exclusively on providing neutral alternative dispute resolution (ADR) services throughout metro Albuquerque, greater New Mexico, and western and mid-western/central United States.

The firm and its principal, Pilar Vaile, believe in and are committed to helping individuals and organizations achieve their conflict resolution—or conflict management—goals at the lowest possible level of disruption. In our experience, moreover, clients can frequently manage their conflict issues at lowest level of disruption simply by accessing information about their options. It is in that spirit, that this ADR page of general information is offered.

TABLE OF CONTENTS

I.			Introduction
II.			Mediation and Facilitation
III.			Conflict or Communication Coaching
IV.			Arbitration and Administrative Adjudication
V.			“Med-Arb”

I. INTRODUCTION            

Alternative Dispute Resolution—ADR—is a broad term that refers to a variety of methods, processes, systems, theories and techniques implemented to resolve or manage conflict directly, and/or to promote better communication skills in the first instance. The “alternative” part of ADR usually signifies that it is alternative to more commonly recognized methods of handling dispute, such as

• going to court; or
• simply ignoring the conflict as best you can.

Most people easily recognize that going to court can be very expensive, time consuming and draining. They may not realize, however, the extent to which simply ignoring the problem can create its own issues. Frequently, it leads in turn to festering, passive aggressive responses, loss in moral, and/or eventual escalation.

In between these two polar points, however, there is a broad array of options that can help. A sample of the ADR services this firm offers include:

• mediation;
• settlement facilitation;
• arbitration;
• serving as ALJ/Hearing Examiner. communication/conflict coaching;
• large group facilitation; and
• conflict or communication coaching.

Moreover, we provide these neutral services in a number of different areas:

• labor disputes;
• employment and workplace disputes;
• all areas of administrative law;
• community/neighborhood disputes;
• land use facilitation;
• foreclosure (residential and commercial);
• domestic relations (divorce, parentage, and custody); and
• civil litigation.

For more information on the firm’s neutral services and credentials, please click on the following documents:

• Ms. Vaile’s Arbitration/Mediation Resume
• Understanding the Mediation Process
• Understanding Administrative Adjudication and Arbitration Processes

These documents describe the general processes this firm uses in ADR. We recognize, however, that even with the general information provided in these documents, it can be extraordinarily difficult to determine whether you or your organization can benefit from ADR services. Since opening our doors in 2010 as a private neutral practice, the firm has heard the following questions come up with fair frequency:

• What is alternative dispute resolution, exactly?
• What is the difference between arbitration and mediation?
• What is communication coaching?
• And, perhaps more fundamentally, what can mediation, arbitration or communication coaching do for me?

Ironically, these are questions that challenge even practitioners. The field of ADR has grown dramatically in the last several decades, and it can be a rather crowded and confusing field.¹ The field is marked by a dizzying array of terms and theories, and styles and techniques, many of which are hotly debated among practitioners as to both their specific meaning and their relative value or "authenticity."

Accordingly, this page will seek to address the outlines of ADR, by describing and defining the various terminology associated with ADR. No one procedure or system is better that another. Rather, the choice of ADR process will turn on the parties’ individual needs and interests, and it is a choice that can only be made by the parties. Offering a variety of ADR services, however, we urge you to contact us to help you evaluate which method is most appropriate to your dispute resolution needs.

A final, general point on the role of an ADR practitioner, as compared to an attorney is also warranted. While serving as a neutral, an ADR practitioner—whether mediator, facilitator, coach or decision-maker—is prohibited from acting as a legal advocate to either party. Thus, although the firm understands the underlying legal issues and processes that are often confronting our clients when they come to us for neutral services, we may not provide those ADR clients with legal advice or services.

II. MEDIATION AND FACILITATION            

Whenever two good people argue over
principles, they are both right.
- Marie Ebner von Eschenback

Every conflict we face in life is rich with
positive and negative potential.
- Kenneth Cloke & Joan Goldsmith

The aim of an argument or discussion
should not be victory, but progress
- Joseph Joubert

At their most basic, mediation and facilitation can both be understood as "facilitated negotiations" or “facilitated dialogue.” In its Preamble, the Uniform Model Standards of Conduct for Mediators define mediation broadly as “…a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.”

Mediation's most important principles are party self-determination, impartiality and confidentiality. Beyond those basics, however, mediation may utilize any number of techniques for getting the parties to speak to and listen to one another, such as:

• facilitating free, open and nonjudgmental brainstorming;
• getting the parties to speak together directly, but also breaking into separate confidential caucuses as necessary and appropriate;
• engaging in active listening to hear underlying interest and concerns beyond the stated position, and helping the parties to do the same;
• helping the parties to focus on the future rather than the past;
• helping parties distinguish between their positions (what they are arguing for) and the underling interest (what need they are seeking to meet), and identify win-win proposals in which all interests are met;
• re-framing problems, especially as being shared or mutual;
• using bridging phrases to re-direct negative statements, and to link the parties’ individual interests and goals;
• providing venting opportunities, while still steering parties gently back to the issues at hand;
• while in private caucus, engaging in reality checking and, if appropriate, offering the other sides' suggestions or sometimes your own thoughts;
• while in private caucus, encouraging each side to put themselves in the other sides' shoes, to see their perspective on the injury, the solutions, and the risks and benefits of proceeding to litigation;
• helping build trust between the parties, such as by acting as a "cheerleader" of sorts as they come to agreement on small issues, or acknowledging when the parties are making good faith efforts at reconciliation or accommodation; and
• once an agreement is reached, ironing out the who/what/when/how details, and memorializing the parties' agreement in a clear, do-able and enforceable writing.

In addition to these basic principles and tools, mediation itself can come in a variety of different forms or flavors. The main categories, styles or theories of mediation include:

• facilitative mediation, in which the mediator focuses only on the process and lets the parties find their own resolution;
• evaluative mediation, in which the mediator may give the parties the mediator’s opinions or views about the merits and value of the case; and
• transformative mediation, in which the mediator tries to help the parties change their very thinking and perceptions about themselves, each other, and/or the nature of the dispute.

While the merits of each style or theory are often hotly debated amongst mediators, I personally tend to view all mediation as mutable and flexible. For me the manner, method, theory and tools used in a given matter are entirely dependent on the needs of the party, and sometimes the type of case, although my mediations will always adhere to the three basic tenets (self determination, impartiality and confidentiality). This way of practicing/ understanding mediation has also been described by various mediators as “analytical mediation,” or “FEEL” (facilitate early, evaluate later) mediation.

As for the differences between mediation and facilitation, many practitioners view facilitation as essentially the same as mediation. Facilitation (sometimes called "group facilitation," to distinguish it from either settlement facilitation or facilitative mediation) could be understood as a cousin of mediation in which a neutral person helps a group work together more effectively to build a consensus, or at least identify issues and be heard, on a specific issue.

In my own practice, facilitation involves a coordinated discussion between multiple parties, for example in zoning and environmental petitions impacting one or more neighborhoods. During facilitation, I use the same active, deep listing skills as in mediation, but I use them a bit differently. In these cases, I help the parties stay on task, while they explore various points of need, contention and/or agreement. This role also involves focusing, redirecting and engaging the parties, but more to develop a consensus—or to develop a record of consensus or lack thereof—than to break any impasse. Finally, because of the difference in focus, reality testing is replaced by preplanning, and post-reporting.

In either system, I encourage and try to help the parties to look beyond a legalistic or “rights based” approach to analyzing their issues and interest, or identifying potential solutions.

III. CONFLICT OR COMMUNICATION COACHING            

In conflict or communication coaching, an objective “coach” seeks to help individuals improve their understanding of conflict dynamics, and their conflict management skills.

Mediation and conflict coaching share a number of similar traits. Both the mediator and the conflict coach act as "normalizers" of conflict, operating from the basic proposition that conflict is normal and the real issue is how to control and/or manage conflict, or its effects. Both the mediator and conflict coach are also "process experts" who focus on conflict management rather than the outcome. Finally, both the mediator and the conflict coach can offer guidance on how to confront or set the stage for conflict, and help the party or parties think about what to say and how to say it, and how the other side may respond.

The biggest differences between conflict coaching and meditation are that (a) the coaching relationship is an ongoing one; (b) contact between the coach and client tends to be more involved or personal; and (c) the coach doesn't use re-framing so much as "questioning around the triggers." The coach also generally goes deeper into the background or source of the conflict, such as an earlier trauma, and may be called upon to provide a bit of healing work. Also, while a mediator works with both parties, even if separately, the coach usually works only with one party. Thus, conflict coaches are generally in agreement that there can be serious conflict or ethical issues for an ADR practitioner who seeks to shift roles between coaching and mediation.

Other differences noted between mediation and conflict coaching include the following:

Mediation	Coaching
Mediator is neutral	Coach acts as a “champion”
Mediator is a process facilitator	Coach views client as the expert
Mediator examines positions and interests of parties	Coach examines triggers and emotions
Process focuses more actively on resolution or management of the conflict	Coach gives feedback but not advise
Mediator supports constructive dialogue	Coach supports self-discovery
Mediator makes no decision regarding outcome	Coach holds the clients accountable to their stated goal
Mediator uses various strategies and methods to support the parties’ resolution of their dispute	Coach uses various strategies and methods to support client’s goals

A conflict coach can be particularly appropriate where an organization is confronted with recurrent conflicts involving either the same party or parties, or similar issues. In these situations, the organizational conflict is likely a systemic or endemic one, requiring a global approach to identifying, assessing and addressing the source of conflict.

IV. ARBITRATION AND ADMINISTRATIVE ADJUDICATION            

In Arbitration, usually provided for by contract, the parties pick a neutral third party to hear and decide their case, much as a judge would but with less elaborate procedures. A major benefit of arbitration is the speed and finality of the final decision, as compared to a battle in court.

All wars are follies, very expensive and very mischievous ones …
[T]here never was a good war or a bad peace. When will mankind be
convinced and agree to settle their difficulties by arbitration?
- Benjamin Franklin

Administrative hearings, which are usually provided for by a law or statute, also involve a third party decision-maker. They arise as part of an administrative action, and can occur in an innumerable settings, such as tax disputes; labor disputes; employment discrimination disputes; and disputes concerning the issuance, suspension or revocation of various licenses (professional, drivers, recreation or liquor, to name a few). As I’ve written elsewhere,

Throughout our national history, the number, breadth and scope
of administrative agencies have steadily expanded. Today, the
average citizen is vastly more likely to be involved in some kind of
administrative hearing, than a judicial one. Therefore, the fairness
and due process afforded in administrative proceedings must
always pass constitutional muster, both to protect the agency and
to reassure citizens that their government continues to fully and
fairly consider their interests, even when he or she disagrees with
the results.
- Pilar Vaile, JD, CALJ

In both arbitration and administrative adjudication, the parties lose the ability to control or manage the outcome of the proceeding. Resolution or decision making is instead deferred to a neutral third party. Because of this, although more informal and streamlined than ordinary litigation, both must still meet the basic constitutional standards of minimum due process, including notice and opportunity to be heard on facts relevant to the claims or defenses.

Once an administrative or arbitration decision is rendered, it can usually only be overturned on very narrow grounds. Administrative adjudications are only overturned for abuse of discretion, lack of substantial evidence, or clear error; arbitration awards for lack of jurisdiction, fraud, evident bias, or misconduct by the arbitrator. See, e.g., Federal Administrative Procedures Act, 5 USC § 706, and Uniform Arbitration Act (UAA), Sec. 23.

V. “MED-ARB”            

Med-arb, short for mediation-arbitration, is a hybrid between the two processes in which a single ADR professional will initially seek to mediate a dispute but, if a resolution is not possible, he or she will then proceed to arbitrate the same dispute.

Under the Uniform Model Standards of Conduct for Mediators, a mediator may not change his or her dispute resolution role without party consent, or if he or she feels it cannot be done fairly and impartially. Another complication is that statements made to the mediator are confidential, and not to be used in a subsequent hearing. A question naturally arises, then, as to how the mediator-arbitrator can keep the original confidences. See Kristen M. Blankley, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case (draft), available at http://ssrn.com/abstract=1793515.

Because of this, a med-arb practitioner may determine—with proper disclosure—to simply render a decision based on all statements heard/evidence observed in the course of mediation, whether or not such statements would ordinarily have been “confidential” in an ordinary mediation.

Conclusion

We hope this information has been of some help to you in understanding generally what ADR is, and what potential ADR tools exist. Offering a variety of ADR services, we urge you to contact us to help evaluate which method is most appropriate to your dispute resolution needs.

---

¹ The material on this page was adapted from a prior blog by the firm’s principal, Pilar Vaile: ADR Terms, Theories and Concepts - A Quick Primer.