Recently I’ve been in the position of explaining just exactly what ombuds and mediators do, and how informal conflict resolution differs from the formal disposition of complaints. I know, it sounds like a delightfully dry way to pass the time, but it seemed more exciting when I was in the middle of it. Anyway, two conversations along these lines in the space of about four hours inspired me to think more deeply about how alternate dispute resolution differs from formal processes. And when inspiration strikes, you probably know that I’m going to head to a keyboard to puzzle through my thoughts and share them with you.
I want to start by talking about how mediation is distinct from a formal resolution, like one would pursue in court. I have heard it said that the law abstractly, and legal proceedings like trials more concretely, are a search for the truth. To me, that seems accurate; in a criminal trial, police investigate crimes while district attorneys prosecute the offenders. To do so, they present evidence that establishes the truth of what happened. Defense attorneys marshal evidence as well, to construct a competing truth. In theory, the jury weighs the evidence as presented and decides which truth is “the” truth.
Similarly, in a civil proceeding, there is a search for what really happened, a quest to determine liability. Even if we haven’t spent much time in a courtroom, we have likely seen enough trial dramatizations and police procedurals to absorb an idea of the process. And it makes, viscerally, sense: someone was wronged, so truth needs to be established and justice served.
Facilitative mediation, by contrast, is not a search for truth, but for reconciliation. It can be an off-ramp from conflict. While truth and reconciliation are not mutually exclusive, they don’t necessarily require each other. A formal legal proceeding seeks to answer the question “What happened?” Those involved in mediation, ideally, have let go of what happened and are now ready to ask, “What happens next?”
While a trial serves to determine who is right and who is wrong, or guilty and innocent, mediation and alternative dispute resolution in general help parties to a conflict to decide how they can best live with—or without—each other. In court-referred mediation cases, reconciliation may be a simple task of negotiating a settlement that both sides can live with rather than rolling the dice and seeing what the judge or jury sees as the truth.
Why, you might wonder, wouldn’t we want to find the truth? Abstractly, I suppose there’s no reason why we shouldn’t—is there in truth no beauty, and all that—but the grimy actual world we inhabit isn’t so clear-cut. Maybe others will see another truth than we do. Maybe the truth won’t actually make us better off. Maybe we are no longer sure just what the truth is. And it is possible that the truth, whatever it is, won’t get us what we really want. A mediated settlement, where the parties control the outcome, just might.
Working with an organizational ombuds, similarly, prioritizes what is going to make the future better over assigning blame. Let’s say that someone is having a hard time with a co-worker. Going the formal route, they could complain to a supervisor, who could counsel the co-worker to be better—maybe. But perhaps the supervisor won’t do anything, or, even worse, magnify the tension between the co-workers. Or it’s a case where while someone feels definite bad vibes but can’t point to any violations of policy, anything actionable, that could be a cause for discipline.
Also, your perspective is not the only one. While your co-workers misdeeds seem obvious to you, others might interpret the situation differently. Quite possibly, they could find fault with your own conduct. And knowing who is right (or wrong) without any way of changing the behavior might be simultaneously satisfying and frustrating—an untoward combination.
When someone has unambiguously committed wrongdoing, formal processes are a godsend. Supervisor made you work unpaid overtime? Co-worker threw a punch at you? Probably best to initiate a formal complaint that triggers an investigation.
In cases where there is no objectively flagrant misconduct, an informal approach might suit everyone better, might lead to more positive outcomes all around. For example, you are frustrated with the feedback your supervisor has given you. Rather than filing a complaint, why not try talking with them first? At the very least, a calm exchange of information can help clarify just what the issue might be, and can certainly set the stage for more productive interactions in the future.
In our hypothetical scenario of a breakdown in supervisory communication, a formal, truth-seeking approach would be to report the alleged wrongdoing to a third party, whether part of the dispute resolution or someone in the supervisory chain. That party would then determine who was in the right. No matter who that determination favored, the very process of adjudicating the issue may quite possibly lead to increased distrust and dysfunction between the two parties.
By contrast, an informal approach, whether it is mediation or simply sitting down to discuss the issue, doesn’t ask anyone to decide who is right. Both parties (hopefully) accept that their perspective is one of many, and see more value in creating a framework for better future interactions than rehashing past disagreements. While it might not give one party a sense of vindication, it has the potential for both parties to learn about each other and to change how they treat each other. In many situations, this kind of future-focused resolution is much more useful than the past-gazing, fault-finding process.
The best thing about seeking an informal settlement is that, in all cases, formal channels are still available if the informal approach—whether it is mediation or something less structured—doesn’t produce results. When facing a difficult situation, working with an organizational ombuds to explore options never precludes someone from later turning to formal complaint channels. And the confidentiality and informality of the ombuds office (nobody told about any communications, and no paper trail) means that the person in the tough spot has someplace to visit with no barriers or risk.
So until next time, expect the unexpected, stay informed, and I’ll stay informal.
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