Adversarial versus cooperative methods of resolving disputes.

When we are embroiled in conflict, it is very difficult not to think in  terms of right and wrong.  We instinctively think of the person who disagrees with us as our adversaries.  We are hurt and we seek comfort, usually in the form of recognition that we are “in the right”. We have been taught since grade school that we can ask the “authorities”, like our teachers or parents for help in adjudicating disputes. When we become adults, the authorities are the courts.

Adopting an adversarial approach, and looking to courts to resolve disputes is natural to most people. In this article, I explore how a cooperative approach can be used. In fact, I will use a scenario of a private dispute, before the courts have been engaged.

The Situation

Suppose Tom has borrowed a sum of money ($100,000) from his sister Jane to start a business. Tom has just finished high school. Instead of rushing off to university, he wants to start his own eavestrough cleaning business. Her elder sister Jane is an accountant. Jane is eager to help. There was no written contract. After all, they were family! She said he can re-pay her whenever he can. So, after 5 years, Tom was finally able to pay Jane back.  He paid her the original amount of $100,000.  Jane asked Tom to pay her interest. Tom was offended. He did not pay her the interest because she had never mentioned she’s expecting interest. He felt that family members should not be so “calculating” when it comes to loans. He was starting to wonder whether Jane’s loan was out of love for him as her little brother, or was this just a business transaction to her! Tom told Jane he shouldn’t have to pay interest, as she never told him. Jane was taken aback. To her, even though the interest is a small amount, it’s the principle that counts. Surely Tom, as a business person realizes that when you re-pay a loan, you have to include the interest!  Jane felt that she was taken advantage of.  The relationship cooled after the disagreement. 

Adversarial process 

One common feature in an adversarial approach involves each side adopting a position, and finding facts and arguments to support their position.  Jane’s position is that Tom should pay him interest. Tom’s position is that the return of the original amount was sufficient. 

A second common feature in adversarial approaches is that each disputant often think to themselves: “They are being unreasonable. There is no reason why I should compromise.  I am in the right. I am being taken advantage of here.”

If Jane and Tom were discussing this together, each person would be talking at other, explaining why they are in the right, defending their own opinion.

If they took this to lawyers, they would likely be receiving legal advice on contract law.  If they took it to court or arbitration, the dispute would end by an adjudicator deciding who wins. But creating a win/lose outcome may make it harder for them to continue in their relationship going forward.

A cooperative approach

In the past, I have often been wary of non-adversarial resolution methods. Although I agree that in theory, one should avoid being judgemental, I did not want to abandon ethical and moral principles! I would find it very challenging to cooperate with someone who I believe harmed me on purpose.

However, a cooperative approach does not mean one has to give up on their values and principles. Rather, the idea is to go beyond simply making a quick judgement on people’s opinions or behaviour as good or bad, without a deeper understanding of why they adopt such opinion or behaviour. Fairness, kindness, honesty and good will are still valued. What is different is that such values are adopted in a cooperative environment. In a cooperative discussion between parties, each agree not to talk over, or talk at each other. Adversarial dialogues consist mainly of attacks and defences, of one side convincing the other side they are in the “right”. In cooperative processes, communication takes on the opposite role. Each party makes an effort to understand the other’s opinions. Communication is used to build bridges of understanding, not drive parties further apart.

One of the most important goals in communication is to  find out the reasons behind the other person’s opinion, “ Why is their position or opinion is the way it is? Am I missing something? Am I making wrong assumptions?” Instead of taking positions, a cooperative approach does away with blame and determining who’s right and who’s wrong. There are no “sides” to the dispute. Instead, they focus on a common problem that has to be resolved in an inclusive, and respectable manner. 

A change in mindset is also necessary. The other person is not viewed as an enemy, but rather, as an equal, who just happen to have a different opinion. Each side avoids judging the other side by labelling their view points as  “wrong” or “unreasonable”. 

A tip to break the ice in discussions is for each side to make an effort to recall the good relationship they had in the past. (Remembering good times and good attributes about the other person is one of the hardest things to do when you are in conflict. But just because it is natural to adopt an adversarial stance, doesn’t mean it’s always the best thing to do. Reacting to negative feelings can offer temporary relief, but it does not lead to long term peace and resolution.)

Solutions do not have to be binary. Instead, they can then work towards a solution that shows that they understand and respect each other’s opinion. Instead of each side asking “How do I get what I want?” the question is “How do we make sure we are both satisfied with our solution?” 

Going back to our example, Jane can say that she was expecting an interest payment because it is common practice that loans are re-paid with interest.  When Tom does not pay interest, she feels that Tom is taking advantage of their familial relationship.  Tom can explain to Jane that his understanding is when you borrow a certain amount, you pay that amount back, especially when it’s between family members. Tom can explain that he believes family should look out for each other, and not be so fixated on rules or legality.  

Tom can express regret that she was feeling taken advantage of, and of course, he doesn’t want her to feel that way. Tom can also explain that he also feels hurt when Jane seem to focus  so much on the “business” side of the transaction, which causes him to feel insecure about her affection for him. Jane can acknowledge this by reassuring him she clearly cares about him, which was why she readily offered the loan in the first place.

A big advantage in settling disputes out of court is that the parties can create solutions that are truly unique to both of them, remedies which are not provided through litigation.  The solution is not either “pay interest” or “no interest should be paid.”  A solution that incorporates and respects both Jane and Tom’s opinions could be one that acknowledges both Tom and Jane’s perspectives. For example, Tom can offer to do favours for her, such as performing work on her house, or even treating her to a lovely dinner at a nice restaurant! Having one’s voice heard, as demonstrated in the mutually agreeable solution, is what allows a conflict to be truly resolved.

Conclusion

Of course, not all disputes can be resolved in a cooperative discussion. It also takes hard work and an open mind to reach settlement. The key is not to jump into conclusions and condemn someone’s “wrong” behaviour, assuming they had an intention to hurt. Cooperative conflict resolution can salvage broken friendship and trust, and perhaps even strengthen relationship going forward. 

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(End note: I wrote this article in the spirit of suggesting that people should try to resolve their differences in a respectful and cooperative way. There are times when litigation is necessary.  I am not a mediator or mental health counsellor. This article is only offered as a reflection from my own experience. I would also like to thank McGill Ph.D. candidate Sandrine Ampleman-Tremblay for her feedback on this article. I am also grateful to mediators Gregg Fenten and Laura Tarcea for educating me on mediation.)

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