The Psychology of ADR (and why you should use it).

ADR and Its Psychological Proponents

On Monday, President Ruto promised to act tough on Bandit attacks in troubled areas of the North Rift region amidst growing insecurity due to cattle rustling and banditry. However, this causes a question to arise. Is the rise in insecurity due to a lack of policing in the areas of North Rift or rather a growing case of misunderstanding between the parties?

While the purpose of this article is not to delve deep into the insecurity problem in Kenya, it will analyze ADR methods and attempt to form a nexus between ADR and the psychological components between parties in a dispute.

What is ADR?

ADR, also known as Alternative Dispute Resolution (ADR) refers to a set of processes and techniques that are used to resolve conflicts and disputes outside of the traditional court system. ADR is an alternative to litigation, which is resolving disputes through the legal system and courts.

ADR can be used to resolve a wide range of disputes, including commercial, labor, family, and community conflicts. The most common types of ADR include mediation, arbitration, negotiation, and collaborative law. Each of these processes has its own unique characteristics, benefits, and drawbacks.

Mediation

Mediation is a process where a neutral third party, known as a mediator, facilitates communication and negotiation between the parties to help them reach a mutually acceptable agreement. Mediation is a voluntary process, and the mediator does not have the power to make any decisions or impose a solution on the parties.

Arbitration

Arbitration is a process where a neutral third party, known as an arbitrator, hears the evidence, and arguments from the parties and makes a decision that is binding on the parties. Arbitration is less formal than litigation, and the parties can choose the arbitrator they want to use.

Negotiation

Negotiation is a process where the parties attempt to resolve the dispute themselves, without the help of a neutral third party. Negotiation can take place in a variety of settings, such as face-to-face meetings, over the phone, or through written communication.

In addition to these types of ADR, there are also hybrid processes that combine different elements of mediation, arbitration, and negotiation. For example, med-arb is a process where the parties first attempt to resolve the dispute through mediation, but if that is unsuccessful, the mediator can switch to an arbitrator and make a final decision.

It is essential to note that ADR is of voluntary nature and helps to resolve conflicts rather than going through the traditional court process. Historically, it could be seen even in traditional dispute resolution mechanisms (TDR) the communities brought themselves together to work out issues that could lead to the potential conflict between themselves. This arose mainly out of the desire for maintaining social harmony and to mitigate unnecessary bloodshed.

ADR is often based on principles of psychology and human nature, and these principles can help to promote understanding, communication, and cooperation between the parties involved in the dispute.

Human Nature and ADR

Human nature itself is complex and multifaceted. Accordingly, caution must be exercised as it can influence how people approach conflicts and disputes. ADR takes into account various aspects of human nature, such as the need for social recognition and the desire to be understood and validated. ADR processes, such as mediation, can help to fulfill these needs by providing a safe and neutral space for the parties to communicate and express their concerns.

ADR processes, such as mediation and negotiation, are often based on psychological principles, such as communication, empathy, and active listening. In order to effectively solve the dispute, it is essential to be able to positively tap into the emotions that are harbored between the parties.

Emotions are a natural and important part of human nature, and play a significant role in conflicts and disputes. ADR processes, such as mediation and collaborative law, are designed to address the emotional aspects of disputes and help parties manage their emotions effectively. These processes can help to reduce negative emotions and facilitate understanding between the parties involved in the dispute.

Another important psychological principle in ADR is the concept of framing. Framing refers to the way in which information is presented, and can influence the way people perceive and respond to a situation. ADR practitioners often use framing techniques to help parties reframe their perspectives on the dispute, which can lead to more productive communication and better outcomes.

One’s Culture must also be considered an important part of ADR, as it can influence how people approach conflicts and disputes. ADR practitioners must be aware of cultural differences and work to understand the cultural context of the dispute. This can involve understanding cultural norms, beliefs, and values, and adapting ADR processes to suit the cultural context.

We can take the case of BG Group Plc v. the Republic of Argentina, which involved a dispute between a multinational corporation and a sovereign state. The case was heard by an international arbitration panel, and the panel recognized the importance of psychological factors in the dispute. Specifically, the panel noted that the parties had different cultural backgrounds and that these cultural differences were influencing their perceptions of the dispute.

To address this issue, the panel recommended that the parties engage in a form of ADR known as mediation. This process involved the parties meeting with a neutral third party who would facilitate communication and help the parties understand each other's perspectives. The goal of this process was to help the parties bridge the cultural divide and work towards a mutually acceptable resolution.

Conclusion

In conclusion, the nexus between human nature, psychology, and ADR is an important consideration in understanding how ADR works and how it can be used effectively to resolve conflicts and disputes. ADR processes are often based on psychological principles, such as communication, empathy, and active listening, and can help to address the emotional aspects of disputes. ADR practitioners must be aware of cultural differences and work to understand the cultural context of the dispute. By understanding these principles, ADR practitioners can create an effective and efficient process for resolving disputes that are tailored to the needs of the parties involved.