Marghanita da Cruz
The Australian Computer Society (ACS) and the Australian Commercial Disputes Centre (ACDC) have developed a course to accredit dispute mediators.
As one of a handful of ACS members who attended the first course in April 2002, I was keen to find out more about Mediation as an alternative to Litigation and to explore whether it was a service I could provide. As a group we were curious about the significance of certification and whether ICT professionals, acting as mediators, could add value to the process.
Mediation is a voluntary process, in which a neutral mediator facilitates a consensual resolution of a dispute. It requires the parties to negotiate in Good Faith and preserve the confidentiality of the discussions. The confidentiality provides both parties with an opportunity to frankly discuss the situation and possible outcomes, without prejudice to future litigation.
In Australia, there are two other widely recognised forms of Alternative Dispute Resolution (ADR) - In arbitration, the arbitrator makes a determination and in conciliation, a Conciliator provides advice to the parties and may even suggest solutions to facilitate an outcome. However, in these two processes, the parties look to the third party for a resolution of the dispute.
While not suitable for all disputes Mediation is used widely to resolve disputes as diverse as international conflicts and family disputes. These are disputes where the parties cannot or do not wish to walk away from an ongoing relationship. This is also often the case in Commercial Disputes, particularly those involving the implementation of ICT.
The course employed extensive role playing and coaching as a powerful learning tool. The demonstrations, peer and coach feedback provided an excellent appreciation of the Mediation process and a bonus of developing generally useful communication skills. As a business analyst/project manager, these communication skills will be invaluable in negotiating the space between business and IT. The role playing also provided an opportunity to contemplate an ICT dispute from the parties' as well as the mediator's perspective.
The difficulty in implementing ICT has always been in negotiating the change ICT brings to an enterprise. ICT project benefits are invariably identified in terms of new business or improved business processes. While the technical risks of introducing new technology are relatively easy to appreciate, the business risks and opportunities are more complex. Commercial Contracts and Performance Agreements designed to come into play, when disputes arise, often don't provide or encourage the parties to embrace new business opportunities or constructively address unforeseen problems.
However, if both parties recognise benefits in the relationship and wish to preserve it. Mediation offers an efficient process for arriving at a productive and lasting resolution to a dispute. The agreement arising out of a mediation may be documented, as part of the process, and is legally binding.
My observations of ICT professionals as mediators, was that they brought a comprehension of the jargon and technology, as well as an appreciation of the complexity and benefits of implementing ICT systems to the process. In addition, an ICT Professional with membership of the ACS, agrees to abide by a set of rules of conduct and professional ethics.
The inclusion of Mediation in ICT Service Delivery Performance Agreements and evaluating Mediation when disputes arise could lead to better outcomes for a wide range of ICT projects. The possibiity of a practical resolution of a dispute in 4-5 hours is an attractive alternative to a damaged business relationship resulting from a drawn out non-delivery and non-payment litigation.
The ACDC accreditation involves a practical, written and oral examination.
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