This month's story involves two Filipino businessmen. Originally, they came from adjacent villages in the Phillipines, but only meet in the United States. They agreed to form a partnership to open a retail store. They planned to sell electronic goods they would import from Asia. Each partner invested $50,000 in the business. When the business opened, both men were happy and optimistic. As time went on, however, the optimism faltered and with it their trust. Eventually, the business failed. Unfortunately, the finances were not well-documented and no systematic bookkeeping system had been used. One of the partners, Guillermo, was responsible for the bookkeeping and maintained the business checking account in his name. The bookkeeping was literally in a shoebox with notations on scraps of paper, along with the checking account. To say the least, this was an unsophisticated enterprise.
Guillermo took the records, such as they were, to a specialist claiming to be an expert in accounting matters. The specialist was neither a CPA nor an attorney. He rendered accounting after accounting, such that the final numbers became a moving target. As the successive accountings were produced, the other partner, Jose, became ever more distrustful. On the advice of relatives, he hired an attorney. The attorney listened to the story, analyzed the matter as involving fraud and breach of partnership duties, and filed a complaint for damages. Guillermo hired his lawyer, who answered.
Eventually, the matter was assigned to mediation and a peacemaker was appointed to see what could be done. As the peacemaker entered the office where the mediation was to take place, one of the lawyers cornered him and said, "This case is impossible and will never settle. The stories are just too different."
The peacemaker responded, "Well, we have three hours set aside for this. Let's give it a shot and see what happens."
Since Guillermo had not arrived, the lawyers took the peacemaker into the conference room and alternately began to explain their client's respective position. After an hour, the peacemaker could tell that the lawyers, as good-hearted and well-meaning as they were, were too much into their roles as advocates to be of much assistance.
"Is Guillermo here yet," asked the peacemaker. Just at that moment, Guillermo followed by Jose, came into the conference room. Introductions were made and everyone sat down. The peacemaker explained the peacemaking process carefully. Neither man's English skills were strong, so the peacemaker wanted absolute clarity. Then the peacemaker invited the two men to, one at a time, tell their stories. As each finished, the peacemaker summarized back what had been said to make certain the speaker knew he had been heard.
When everyone had shared their perspectives, the peacemaker asked each to write on a piece of paper what he needed to make things right.
When they finished, the peacemaker asked Guillermo and Jose to read their notes. Guillermo said, "I want to be treated fairly and I want a fair accounting. I am willing to pay my share of losses if there are any, but I want to be paid my share of profits if any."
Jose said, "I want peace between myself and Guillermo and I want a fair accounting."
This was interesting. They both wanted the same things. The peacemaker paused for a moment and asked, "In the villages where you grew up, how would a dispute like this be handled?" Both men replied that a respected elder would be consulted and more elders would join the discussion until the problems were resolved. The peacemaker said, "So the process would be something like what we are doing today, except an elder would sit in my chair?" It was as if we had been transported back the villages. Now the two men saw the peacemaker as an elder and understood their obligation to respect each other.
Discussions continued for another 30 minutes. Finally, the peacemaker offered a suggestion. "What would happen if we took all of these records and gave them to an independent certified public accountant to compile? Whatever the accountant determined to be the account would be final. Could you agree to that?" The lawyers thought about it and saw it was the solution. They each turned to their clients and re-asked the question. The clients clearly understood the proposition.
After some further discussion involving details, a deal was struck. The case had been settled in less than 3 hours.
The principal reason for the success of this mediation was the peacemaker's sensitivity to the cultural traditions of the disputants.
The lawyers had cast the conflict in terms of American law. The partners were confused by this process, but rightfully relied on their advisors. The peacemaker listened to them attentively and respectfully. When he asked how they might have solved this in their country of origin, they immediately saw the parallels to the current process. The process became natural, not alien. Finally, the lawyers, to their credit, saw the transformation and stepped back from their roles as advocates. As counselors, they worked with their clients to craft a sound, fair and workable solution to the problem.
Noll is an attorney and law professor trained as a peacemaker. He can be reached at email@example.com or Web site www.manageconflict.com.