Neil Carmichael is vice president of U.S. and International Mediation Services for the American Arbitration Association. He can be reached at email@example.com. This article is based on a paper presented by the author at the Advanced Commercial Mediation Institute in Atlanta, Ga., on Oct. 7 - 8, 2009.
Many commercial mediators take the view that they are solely engaged by parties to resolve the presenting business dispute. But does such a view blind mediators—to the parties’ detriment—to the presence of personal conflict that may have more to do with achieving a settlement than the business issue? This article looks at whether mediators should pursue the twin outcomes of resolution and reconciliation to achieve truly satisfactory outcomes in commercial mediations.
At a recent conference I attended, I was asked to take one side in a debate about whether mediators are responsible for resolving only the dispute presented or both the dispute and any attendant personal conflicts. The issue as framed assumed that there is a difference between a dispute and a conflict. Whether there is a difference or not, opinions surely vary, but after considering the issue off and on now for several years, I have come to believe the two terms are markedly different. The definitions of these terms suggest that disputes involve material issues and conflicts involve personal relationships and emotions.