Alternative Dispute Resolution (ADR) has been embraced and enshrined in the Ghanaian legal system through various legislations such as the Alternative Dispute Act, 2010 (Act 798), Labour Act, 2003 (Act 651), Land Act, 2010 (Act 1036), Chieftaincy Act, 2008 (Act 759), Courts Act, 1993 (Act 459) as well as the High Court (Civil Procedure) (Amendment) Rules, 2020. Relevant Sections give legal justification to the practice of Alternative Dispute Resolution.
The use of the word “Alternative” in the various legislations except for the National Pensions Act, 2008 (Act 766) which refers to “Appropriate”, suggest that the various dispute resolution methods such as Negotiation, Mediation, Facilitation and Arbitration are “alternatives” to judicial litigation at the law courts and that the judicial process is the first point of call to resolve disputes. This is most inappropriate resulting in litigation, first being taken to the courts for it to be referred for mediation or arbitration, through what is called Court Connected ADR.
There is a school of thought that holds a different opinion that litigation is also just one of the methods of dispute resolution only in circumstances that the parties have irreconcilable differences or the conflict has reached a crisis situation that cannot be resolved through negotiation, mediation, facilitation or arbitration. According to Dana Mediation Institute (2005, P1:22) conflicts have different intensities and occur within a continuum of Blips–where the anger is mild and passes quickly with nothing much at stake. Clash- where distancing or coercion are frequently used for handling such conflicts. Crisis – where the relationship is on the verge of being terminated and you feel tension, stress or anger when interacting with the other person. Hence depending on the intensity of the conflict there is the need to employ the most “APPROPIRATE” conflict resolution method of negotiation, mediation, facilitation, arbitration or litigation. This then makes the use of the word “alternative” in the concept of ADR practice by the PULSE Practitioner inappropriate and a misnomer.
Appropriate Dispute Resolution therefore, according to Gamey and Gamey, is an umbrella phrase used to describe a continuum of dispute resolution processes ranging from collaborative, non-binding processes to litigation processes. A continuum from Negotiation, Mediation, Arbitration that proceeds to the level of Litigation in a competent court of jurisdiction. It is worth noting that Section 127 (3) of the National Pensions Act, 2008 (Act 766) states that “An applicant dissatisfied with the decision of the Board may refer the matter for settlement through an appropriate dispute resolution mechanism”. Here “appropriate” instead of “alternative” is used.
There are various approaches to a mediation process and Section 74 (6) of the Alternative Dispute Resolution Act 2010, (Act 798) allows the mediator to use the most appropriate manner in resolving a dispute whilst taking into account the wishes of the parties. If the wish of the parties is to amicably resolve their dispute and to continue to maintain or build a relationship despite the dispute, then the most appropriate manner is using the PULSE Conversation Frame as the tool in resolving their dispute.
WHAT IS PULSE?
The PULSE Discovery Frame, which is about People Using Language Skills Effectively, is an effective relationship building five stage methodology that (1) Prepares disputing parties for the process of conversation to (2) Uncover what their issues are about? Allowing them to (3) Learn about what is significant to them about the circumstance, to be able to (4) Search by themselves through brainstorming, for options that will resolve the dispute by consensus and finally at the (5) Explain stage, craft a settlement agreement with a plan of action. In following this five PULSE stages, certain associated communication protocols of Appreciative Inquiry, HEART principle, GHOST principle and POWER skills are used to successfully engage and navigate the disputing parties into a conversation in reaching an amicable solution in about ninety minutes. It is a process anchored on relationship building during dispute resolution and the parties must trust the process and subject themselves to genuinely wanting to resolve the dispute and still maintain the relationship.
THE PULSE COMMUNICATION PROTOCOLS
· GHOST Communication Protocol
GHOST is an acronym for Gentle, Honest, Open, Specific and Talk. Words create worlds hence parties must agree to be courteous and use conciliatory language during their conversation by being Gentle to each other and saying what they want to say in a gentle way; being Honest with the process by speaking honestly to each other with their emotions, feelings being expressed; Open in their deliberations by being open to hear what the other party has to say and to allow information being shared to influence their perspectives of the circumstance, their own story; being Specific with their issues by speaking their truth about the circumstance with examples and not generalize. to allow common understanding of the issue from each other’s perspective and to have a common issue statement to be resolved; and finally Talk assertively in seeking their interests by talking about what they are thinking so all issues are brought to the fore. The more parties keep talking the clearer what they are thinking about becomes evident.
Knowing and accepting the GHOST protocol before a meeting begins allows people to relax and feel safe because they know everyone is expected to behave and because of that expectation they will feel free and more amenable to open discussion and full disclosure (Love, 2008, p.14).
The HEART is an acronym for Hush, Empathise, Attend, Reflect and Trust. It provides the internal skills for staying focused and a tool used by the PP to provide evidence of deep listening (Love, 2011). This allows the PP to keep the parties talking and trust the process knowing that there is a third-party impartial who is interested in what they have to say. By Hush, the PP stays detached from the content of the conversation; By Empathising, the PP tries to be in the “shoes” of the parties, understanding and sharing in their feelings and allowing their feelings to be poured out without being labelled; By Attending, the PP pays attention to words, tone volume, body posture by noticing whatever is happening in the conversation both verbal and non-verbal. Listening to both what is being said and most importantly what is not being said to be able to use open questions to get the party talking and bringing all the issues out; By Reflecting, the PP is trained to use both their own body and facial expressions to silently mirror what is being said, using paraphrasing, summary, and mirroring to reflect the content, process, and response that the mediator hears, sees and experiences; finally the PP must Trust that the parties are saying their truth is important for the PULSE Mediator.
· POWER Skills
The POWER skill, an active listening and evidence of listening tool, is an acronym for (1) Paraphrasing, where the PP summarizes the understanding of each other’s issues or interest using their own words without adding any personal thoughts or interpretation for clarity. It is an evidence to the party that they have been heard; (2) The PP asking Open Questions for the parties to elaborate on their story or understanding of an issue, keeps them talking and the more they keep talking the more they likely to express what they are thinking to reach conciliation;(3) The PP without filling in silence, Waits for parties to continue speaking, allows time, some quiet between questions, so parties can have time to reflect on questions and search for appropriate honest responses to own the outcome; (4) Empathizing and Reframing, is where the PP names the level of emotions being displayed and redirects a conversation towards a clearer shared understanding of the positive aspects of the conversation, allowing parties to see the story and each other differently thereby making the future more glaring (Love, 2011).
Appreciative Inquiry (AI) is an approach to organizational change that was originally developed by David Cooperrider and Suresh Srivastva in 1987. It is commonly called an “asset-based” or “strengths-based” approach to systems change because it emphasizes positive idea generation over negative problem identification. The PP capitalizing on the positive sides of the relationship, utilizes questions and dialogue to help participants uncover existing strengths, advantages, or opportunities in their relationship, encouraging the parties to agree to speak from a positive, appreciative stance. According to Love, (2011) it is a bold invitation to give the parties the freedom to be positive, move away from doom to gloom, inviting them to act in the service of the relationship, to shift from a blame game to name the game and to co-create a positive future.
THE PULSE PRACTITIONER (PP)
A PULSE Practitioner (PP), is an impartial third party, who uses the PULSE Conversation Frame as a tool to help disputing parties resolve their differences. The PP as a mediator, is independent of the content of the dispute but acts as a facilitator of the process, for the parties to themselves reach a workable solution. The PP in this case is a process expert as against a content expert. Where the PP acts as an arbitrator in an area of speciality, the PULSE Conversation Frame is also used within the arbitration legal framework to reach a settlement agreement.
The PULSE Practitioner, using the PULSE Conversation Frame, at the Prepare and Uncover stages is in a much better position to diagnose a dispute to determine the most appropriate dispute resolution method that is whether or not, mediation will resolve the dispute and if not, allow the parties to proceed to litigation through the court. Where mediation will have to be pursued, the PP will then continue with the Learn, Search and Explain stages to reach the needed Both-Win solution. The role of the PP in the five–stage process is as follows:
- Prepare Stage: This is where the PP, prepares the parties for the conversation. At this stage, the PP does most of the talking to the parties by taking parties through how the process will go, the protocols and tools for the convention, the grounds rules relating to confidentiality, authority, transparency, time and the cardinal or ground rules. Also, the purpose of the process and the people who will be involved are established at this stage. The PP establishes the role as an independent, impartial facilitator of the conversation between the parties and will be detached from the content of the conversation but keep the parties engaged, talking to reach their own settlement. Basically, guiding the conversation by validating the emotional response of the past for the parties, letting them understand the present situation and to facilitate the plan for the future.
- Uncover Stage: This is where the PP, uncovers the circumstances of the past, what the issue is about? An opportunity for the parties to individually talk to the PP about their positions, their story of the circumstance as well as their expectations. The PP at this stage will be doing most of the listening, using the HEART skills be able to establish the issue and craft the issue statement, common theme, emanating from the individual stories of the parties.
- Learn Stage: At this stage, the parties have an opportunity to talk to each other directly with the PP acting as the facilitator and encouraging them to keep talking. This is where the mediator, seeks to allow the parties to establish the significance of the circumstances and why it is important to them? The importance of their individual Beliefs, Expectations Assumptions, Concerns and Hopes, that is BEACHES. At this point the parties are learning, understanding and appreciating each other’s perspective of the circumstance and the PP at this point becomes detached from the process. Using POWER skills, HEART skills and other conversation skills such as Appreciative Inquiry the PP only gives clarity and enhances the quality of the conversation between the parties. The PP at this stage, is alert to recognize any conciliatory gestures by a party for reciprocity by the other party.
- Search Stage: This is the brainstorming stage that parties come up with multiple ideas, as to what if different courses of action are undertaken? Parties searching for various possibilities, some wild and crazy, towards reaching a solution. The role of the PP is to facilitate the parties to continue talking to each other whilst the PP remains passive in the conversation. Again, the PP uses brainstorming skills, POWER skills, HEART skills and other conversation skills such as Appreciative Inquiry to generate options for the future out of the multiple ideas using an objective criterion established by the parties.
- Explain Stage: The parties having generated workable options from the search stage, the PP now together with the parties craft a plan for the future. The commitments to be made, who is to do what? at what time? when it has to be done, where it has to be done? and how it will be done? An action plan or memorandum of understanding is put in place at this point and the plan explained for the future. The dispute would have been resolved at this stage by the PP.
CONCLUSION
A PULSE Practitioner, is trained in using the five stage PULSE process to help disputing parties to uncover the circumstances of the past that has created the dispute, learn the significance of the circumstance with respect their various Beliefs, Expectations, Assumptions, Concerns, Hopes (BEACH) of the parties, to be able to search for options in building a common BEACH of possibilities for the future. It is an issued-based instead of position-based dispute intervention process that is designed particularly for relationship building during dispute resolution.
It is therefore the most appropriate dispute resolution model to be used in marriage and labour disputes where the continuation and building of the relationship is paramount as well as financial related disputes, land disputes and other civil disputes where there exists a high level of interdependency, and where crossing of swords through court litigation will harm future relationships.
The PULSE Practitioner is the “go to person” if you have a dispute that you want resolved and still cherish the relationship and would want to maintain it with a Both-Gain solution. On the other hand, if other “appropriate” methods such as mediation, facilitation, arbitration have failed and you want to damn the relationship through litigation then it is time to seek a lawyer and go to court for a Win-Lose solution. Going to court first to be referred to the other non-judicial methods of dispute resolution through Court Connected ADR can be expensive and waste of time. Reverse the process and maintain your relationships.
References:
Dana, D. (2001). Managing Differences: How to Build Better Relations at Work and Home. Kansas: MTI Publications.
Dana, D. (2005). Managing Workplace Conflict: The Managing Differences Seminar- Module 1.Kansas: MTI Publications.
Love, N. (2008). PULSE Conversation for Change. Virgin Islands:The Pulse Institute Inc.
Love, N. (2011). Complex PULSE Conversation for Change: The Pulse Institute.
The author, PEM.ADR is a PULSE Mediation and ADR Practitioner. A graduate of Gamey and Gamey ADR Institute. contact: [email protected])
