Up Your Business - May - 2018

Seek Wisdom In Dispute Resolution

Up Your Business is an exclusive GEARS Magazine feature in which I share stories, insights, and reflections about real business and life challenges.

In this article, we’ll look at wisdom’s role in resolving disputes. At one time or another, we all face situations in which we’re asked to intervene or to interject ourselves into a dispute. It might be between employees, your children, your siblings, or even disputes between you and someone else. (If you’re arguing with or having a dispute with yourself, this article can’t help you, but there are plenty of professionals who can.)

HOW I BECAME AN ARBITRATOR

When I owned my transmission company in Washington, I was a volunteer at the Seattle Better Business Bureau. They asked me a few times to provide some guidance on automotive-related customer complaints, and I guess I said something that led to an invitation to attend arbitrator training.

To obtain the arbitrator certification, I had to attend a week of training and pass a written, essay-style test. The test included role-playing a mock hearing, summarizing the evidence, and writing what I decided and why I decided as I did.

As I recall, that week of training was more about how to ask good questions and listen to the disputants’ answers than it was about making a good ruling. The instructors told us not just to listen to what was said, but how they said it. Their body language, as well as the tone of their responses, often contained more information and truth than their words themselves.

They warned us that emotions like anger, frustration, and fear could easily get out of control during the hearings. We listened to recordings of emotional testimony and had to sift through what was called the “story” and get to the “facts.”

They taught us that, when someone angrily or defensively talks over the other, it prevents them from listening and makes being reasonable almost impossible.

After years of hearing actual cases, I can tell you that our instructors weren’t lying: The emotions attached to live testimony posed the most difficult challenge to getting to the truth. It was as if the truth was hidden within a fog created by emotions.

The witnesses weren’t much different. The amazing thing about them was their testimonies typically mirrored the same tone and body language and contained nearly as much emotion as the person they testified for in the hearing.

But the physical evidence was usually quite straightforward. Normally it was made up of things like written agreements, contracts, invoices, cancelled or NSF checks, pictures, and written affidavits from witnesses or subject-matter experts. The nicest thing about physical evidence was that it didn’t speak and had no emotions… it just was what it was. Ironically, it didn’t always reflect or prove the facts that the parties were claiming.

I also learned that being a fair and just arbitrator didn’t always make me a peacemaker. But I was able to settle most of my cases before the hearing was completed and usually before it even started with a pre-hearing speech that I’d give. I’ll explain that a bit later.

WHAT IS ALTERNATIVE DISPUTE RESOLUTION?

For over 20 years, I served as an arbitrator and mediator for the BBB. The position of arbitrator fell under a department called Alternative Dispute Resolution. As the name implies, this department’s mission was to use alternative means to resolve disputes before they ended up in court. In a nutshell, the ADR toolbox included 3 basic levels of dispute resolution:

  1. Written Complaint: This provides the complaining party with a means of venting and explaining how or why they feel they’ve suffered damages by the other party.
    • The complaining party completes a complaint form or writes a letter stating what they’re seeking from the other party. They send the form to the BBB together with any substantiating materials like invoices and pictures.
    • The BBB sends the complaint and related materials to responding party. They’re given a reasonable number of days to respond.
    • Often the process of filing the complain t and the response resolves the dispute. Because it requires the parties to tell their respective stories about what happened and read the other party’s perspective, things often work out. Many times the dispute is merely a case of misunderstanding and miscommunication.
    • Typically, the parties are so wrapped up in talking about what they thought happened that they don’t listen to what the other person’s saying. Once they understand each other’s perspective, they’re able to come up with a reasonable solution on their own.
    • Stephen Covey, the late author of 7 Habits of Highly Effective People puts it this way: “Seek first to understand and then be understood.”
  2. Mediation: This provides the disputing parties with the opportunity to present their respective cases to a third party, called a mediator. Some people like this venue because it’s less confrontational than court or arbitration.
    • The objective is for the parties to agree to a settlement. It’s not a matter of proving one or the other right or wrong. It’s all about the settlement.
    • The parties typically speak privately with the mediator. The mediator carefully listens to their respective stories and asks questions for both clarity and to cause the parties to think introspectively about the matter. The parties are expected to articulate how they’ve been damaged and what it’ll take to make them whole again.
    • After listening to both parties, the mediator will begin a process of “brokering a settlement” between the parties. The mediator remains as neutral as possible, but is always listening for common ground and an opening to reach a negotiated settlement.
    • The idea of a good negotiated settlement is when both parties independently feel they’ve won — or at least that they didn’t lose any worse than the other party.
    • BBB mediation settlements are binding on the parties once they’ve been written by the mediator and signed by the parties.
  3. Arbitration: This provides a venue for disputants to present their cases to an arbitrator or panel of arbitrators. In this case, the parties are attempting to convince the arbitrator(s) that they’re right or the other party is wrong. The arbitrator makes the decision in light of the testimony and evidence presented by the parties to the dispute. In some ways, it similar to TV shows like Judge Judy or The People’s Court, minus the entertainment factors.
    • Before the hearing, the parties agree that they’ll accept the final decision. For that reason, it’s called binding arbitration. It’s rare that a court will agree to hear a case that’s been previously arbitrated.
    • • While there are strict procedural guidelines, the proceedings and rules of evidence are more relaxed than court, and it’s normally held in a conference room instead of a courtroom.
    • Unlike mediation, the parties are both in the room to confront each other with their testimonies, witnesses, evidence, and cross-examinations. In some cases, one or both parties may attend via teleconferencing. Also in some rare instances, one party might rely on written evidence. (This doesn’t normally go well for that party because they aren’t able to listen to the other party’s testimony and cross-examine or offer rebuttal testimony.)
    • Each party presents their respective case in its entirety. While the parties aren’t supposed to interrupt each other’s testimony, the arbitrator can ask questions for clarification.
    • After each party presents his or her case, the other party can ask questions for clarification or question a witness. But they can’t argue about or even rebut the testimony at this point in the hearing.
    • They each have the opportunity to make a rebuttal argument about the other’s testimony after both parties have presented their cases.
    • Once the parties have presented their cases and asked all their questions, the final decision is in the hands of the arbitrator(s). Again, the final decision is binding on the parties.
    • The arbitrator(s) will make their ruling and send a written decision, usually within 10 days of the hearing. Unlike court judges, arbitrators also include a statement, called Reasons, in which they explain the reasoning behind their ruling. Many arbitrators use this as a teaching opportunity to help the parties avoid future disputes.

MY PREHEARING SPEECH

This is the short prehearing speech I mentioned earlier. It brought over 50% of my cases to a close without a hearing.

Welcome to this hearing. I know that you’re here today because you feel you’re right and the other party is wrong. To get to this point, you’ve made some attempt to resolve the matter either on your own or with some help from our staff. I realize that you’re deeply convinced that you’re going to win this case.

However, once this hearing begins, that decision is going to be totally in my hands. While I promise that I’ll be fair and just in making my decision, I guarantee you one thing… one or both of you are going to be disappointed with my decision.

Right now, you both still have some say in the outcome. I’m inviting you to reconsider and make one last attempt at coming to an agreement you can both live with.

Since I can’t be present for any settlement discussions, I can call in a member of our staff to help you work it out. Or shall we proceed with the hearing? It’s up to the two of you.

Again, about 50% of the time, the parties decided to settle rather than proceeding to the hearing.

DISPUTES WITH NO EVIDENCE

This is the classic, “He said, she said” situation. It’s one person’s word against the other, with no witnesses or physical evidence to corroborate either of them.

Most of us have heard the ancient story about the two women, each with newborn baby boys. Because they lived together in the same house with no one else, they had no witnesses as to whose baby was whose. In the middle of the night, while asleep, one of the women accidentally rolled over on her baby and killed him. Of course she was very upset, but quickly conceived a plan to switch the babies while the second woman was still sleeping.

In the morning, when the second woman awoke and carefully examined the dead baby, she recognized that it wasn’t hers and knew what had taken place. Of course, a dispute over the living baby resulted. But, having no witnesses, the women took their dispute to the king: King Solomon. You might recall from my first article how his wisdom had enabled him to become the wisest and richest king in history.

This particular story is found in the Bible in 1st Kings Chapter 3. Let’s look at how wise King Solomon resolved this dispute.

After listening carefully to the two women as they presented their respective arguments, Solomon was unable to determine which woman was telling the truth. So he called for his servant to bring a sword. He ordered the servant to cut the baby in half and to give half to each of the women.

One of the women pleaded with the King saying, “No. Let the baby live. Give the baby to her so that he might live.” Then King Solomon said, “Give the living baby to this woman, for her request proves that she is the true mother.”

In this case, King Solomon made his decision by listening the women’s actions and which woman responded as a mother would.

THE KEY POINT

The key point of this article is that the wisest thing you can do in resolving any kind of a dispute is to listen. The word “listen” is the common thread that weaves its way through this entire article. In fact, it appears 17 times.

Listening is the key to avoiding| disputes as well as resolving them. Remember to ask non-confrontational questions, eliminate confusion, and separate emotional stories from facts. Listen to what’s said as well as how it’s said.

Remember what Stephen Covey observed, “Seek first to understand and then be understood.”