Lessons for Mediations: Litigation & Life

February 17, 2013

The recent unfolding of events involving Chris Dorner, while extremely sad and tragic in so many ways, also highlight an important part of the resolution process: giving a person the forum to be heard and for justice and fairness to be given. It is impossible for any trier of fact or arbiter to make everyone happy- in fact the process compels there be a winner and a loser. Dorner in his "manifesto" makes clear that he was angered at not being "heard" or listened to when he made his allegations of excessive force by another officer, and then being called a liar on top of it. Nothing can excuse, tolerate or make up for his having taken the lives of innocent people, in addition to putting dozens of others in fear for their and their family's safety for several days.

However there is a lesson in this for us all. For any situation to have a positive outcome, people have a basic need: To know that they were heard, that their views were considered, that the person in whose hands their fate lies, is evaluating their evidence as well as other evidence. That is an underlying principle for all adjudicative hearings. It applies also to mediation, which, while not ending in a "ruling" or decision, is at least leading parties to a compromised outcome that everyone must be able to live with. It is easier to process such an outcome when someone feels their words had meaning. In a workplace, where conflict occurs every day, it is often too easy to ignore the "whiner" and discount their complaints. Much can be gained by hearing those complaints so that the outcome will have the appearance of fair consideration of all sides.


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