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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 32
ADVANTAGES AND DISADVANTAGES OF MEDIATION I
Quotations
There are many occasions in life where it is possible to affect by forgiveness every object which proposes to
effect by resentment. Sydney Smith, Sermon: The Forgiveness of Injuries
Identify with the victims and you become one yourself. Victims make lousy litigators.
Russell Banks (1940 - ) U.S. novelist.
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the
lawyer has a superior opportunity of being a good man. There will still be business enough. Abraham
Lincoln (1809 - 1865) U.S. president.
Win your lawsuit and lose your money. Anonymous, Chinese Proverb.
This lesson builds your capacity to act as a good mediator or disputant. In this lecture we will have a look at
the various processes of ADR.
Negotiation
Negotiation is a kind of direct discussion or dialogue between and among disputants.
Broadly speaking, negotiation is an interaction of influences. Such interactions, for example, include the
process of resolving disputes, agreeing upon courses of action, bargaining for individual or collective
advantage, or crafting outcomes to satisfy various interests. Negotiation is thus a form of alternative dispute
resolution.
Negotiation involves three basic elements: process, behavior and substance. The process refers to how the
parties negotiate: the context of negotiations, the parties to the negotiations, the tactics used by the parties,
and the sequence and stages in which all of these play out. Behaviors to the relationships among these
parties, the communication between them and the styles they adopt. The substance refers to what the
parties negotiate over: the agenda, the issues (positions and more helpfully interests), the options, and the
agreement(s) reached at the end.
Arbitration
Arbitration is reference of a dispute to an impartial person or persons, called arbitrators, for a decision or
award based on evidence and arguments presented by the disputants. The parties involved usually agree to
resort to arbitration in lieu of court proceedings to resolve an existing dispute or any grievance that may
arise between them. Arbitration may sometimes be compelled by law, particularly in connection with labor
disputes involving public employees or employees of private companies invested with a public interest, such
as utilities or railroads.
Adjudication
Adjudication is a way of resolving disputes or controversies, usually through action in a court of law. The
issues settled by adjudication may be civil or criminal; they may arise between private parties or between
private parties and public bodies. Issues are settled according to specific procedures involving submission of
proofs and presentation of arguments for each side. The dispute is argued before an impartial judge and jury
or judge, both of whom are empowered to decide in favor of one of the parties
Litigation
A controversy before a court or a "lawsuit" is commonly referred to as "litigation". If it is not settled by
agreement between the parties it would eventually be heard and decided by a judge or jury in a court.
Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual
circumstances.
Lawsuit or Action, legal action brought between two private parties in a court of law is termed as litigation.
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Conflict Management ­HRM624
VU
In American law, a lawsuit is a civil action brought before a court in which the party commencing the
action, the plaintiff, seeks a legal remedy. One or more defendants are required to respond to the plaintiff's
complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court
orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or
compel an act. A declaratory judgment may be issued to prevent future legal disputes.
Efficiency Consideration
Time and money consideration-the efficiency arguments were the original impetus for the ADR movements
in the United States. Early comments on the litigation explosion and the need for alternatives prominently
cite the high cost of litigation, the long delays to trial, and the burden on court systems of our litigious
society. Thus, many early efforts to create ADR programmers focused on considerations of immediate
savings of time and money for clients and courts. When these programmers were evaluated, researchers
focused primarily on comparing the time required to mediate cases to settlement with that required to
litigate to judgment, as well as on the money spent on moving the cases to their conclusions.
It is beyond refute that mediation is cheaper and quicker than litigation. Mediation is an informal process
that does not require discovery, pleading, motions, practice, hearings, or rules of evidence.
The efficiency of mediation is often compared with that of litigation because it is assumed that cases that
are mediated would otherwise be litigated. If mediation is compared with their ADR processes, such as
arbitration and non binding evaluation the pictures become still more cloudy. Arbitration ranges from a
highly informal inexpensive and rapid process to something as expensive, slow, and complex as the most
bureaucratically snarled law suit.
Another way of viewing efficiency considerations is to use the perspective of conflict theory. Litigation,
arbitration, and non binding evaluation are dispute resolution processes that approach conflict from a
positional-bargaining paradigm. If a longer-term view is taken, it seems clear that mediation emphasizing the
use of principled-bargaining techniques is more efficient than mediation based on a positional bargaining
model.
Mediation is more efficient than informal adjudicative and non binding evaluative processes depending on
the perspective taken.
Conflict Management and Prevention
It is the area of reducing and preventing conflict that mediation really shines, relative not only to litigation
but also to arbitration and non bonding evaluation. It is known from the consideration of the conflict
theory that using cooperative principled-bargaining techniques tends to short circuit a competitive conflict
cycle, promote cooperation, build mutual trust, and create solutions that better meet all disputants' most
deeply seated interests.
Mediators act directly on conflict cycles, reducing conflict escalation and promoting cooperation. It
increases efficiency of dispute resolution behavior, increases likelihood of settlement, increases likelihood
that settlement will be good for all concerned. It lessens likelihood of conflict spreading and intensifying it.
If mediation does not result in agreement, it will make it easier to use other forms of dispute resolution. It
improves and preserves trust and relationships.
Summary
We tried to learn that mediation is a good alternative to resolve disputes because negotiation failed to do the
same. Mediation is a good technique to resolve conflict as compared to court-related procedures like
litigation. We also learnt that informal mediation may be cheaper than formal mediation. It may be noted
that informal mediation is more prevalent in our society but it is likely to decline in future. As self-interest
based social relations are developing in this country, the conflict will become rampant and we may be
pushed to establish formal mediation systems.
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Table of Contents:
  1. INTRODUCTION TO CONFLICT:Dispute, Legal Dispute, Call the police
  2. DISPUTE RESOLUTION 1:Positive affect in Negotiation, Alternative Dispute Resolution
  3. DISPUTE RESOLUTION II:Adjudication, Litigation, Mediation-Arbitration
  4. PRECONCEPTIONS ABOUT CONFLICT I:Pedagogical development, Pressures against Innovation
  5. PRECONCEPTIONS ABOUT CONFLICT II:Cultural beliefs about interpersonal conflict, Why strategies of change fail
  6. CONFLICT DIAGNOSIS:Who Needs to Know About Conflict Diagnosis?, Steps in Conflict Diagnosis
  7. RECURRENT THEMES IN CONFLICT DIAGNOSIS I:The Seven Steps of Social Behavior, Seven steps to diagnose conflict
  8. RECURRENT THEMES IN CONFLICT DIAGNOSIS II:Themes of Conflict Diagnosis
  9. DESCRIBING THE CONFLICT I:Description of Conflict, Identifying Interpersonal Conflict
  10. DESCRIBING THE CONFLICT II:Step 1 for Conflict Diagnosis, interpersonal or intrapersonal
  11. SOURCES AND CAUSES OF CONFLICT I:Main Sources of Conflict, Discussing major sources of conflict
  12. SOURCES AND CAUSES OF CONFLICT II
  13. INTEREST ANALYSIS I:Analyzing your interests, Analyzing the other disputant’s interests
  14. INTEREST ANALYSIS II:What are interests?, Tips for Interest Trees
  15. INTEREST ANALYSIS II:Principles and values, Basic Human Needs
  16. ASSESSING THE CHARACTER OF THE CONFLICT I, Premises of Deutsch’s Theory
  17. ASSESSING THE CHARACTER OF THE CONFLICT II:Techniques to transform competitive conflict into cooperative
  18. TRUST AND ITS SIGNIFICANCE I:What is Mistrust,Trust and business,Three levels of trust
  19. TRUST AND ITS SIGNIFICANCE II:Advantages of high trust level, Building of trust
  20. ASSESSING IMPEDIMENTS TO RESOLVE THE CONFLICT I:Motivation to seek vengeance, Mistrust
  21. ASSESSING THE IMPEDIMENTS TO RESOLVING THE CONFLICT II:Disempowered Disputant, Unpleasant Disputant
  22. ASSESSING THE NEGOTIATING STYLE I:Dual Concern Model, Dominating or competition style
  23. ASSESSING THE NEGOTIATING STYLE:Dual Concern Model, Tactics Used In Integrating
  24. ASSESSING POWER AMONG DISPUTANTS:Conflict and Power, Kinds of power in the Relationship Domain
  25. ASSESSING POWER AMONG DISPUTANTS II:Sources of Relationship Power, Context and Power
  26. POWER, CONFLICT, AND BATNA III:Role of Third Party in BATNA, Dealing with Power Imbalance
  27. STEREOTYPES, DIVERSITY, AND CONFLICT I:Stereotyping, Stereotyping in Interpersonal Conflict
  28. STEREOTYPES, DIVERSITY, AND CONFLICT:Categories of Diversity Issues, Seven Mental Processes to Prove Stereotypes
  29. STEREOTYPES, DIVERSITY AND CONFLICT III:Individual Difference and Social Category, Cultural differences in values
  30. MEDIATION I:When is mediation required, Processes Related to Mediation, Product of Mediation
  31. MEDIATION II:Important distinguishing factors, More Advantages and Disadvantages of Pure Mediation
  32. ADVANTAGES AND DISADVANTAGES OF MEDIATION I:Efficiency Consideration, Conflict Management and Prevention
  33. ADVANTAGES AND DISADVANTAGES OF MEDIATION II:Quality of Consent, Effects on the parties to mediation
  34. PROCESS OF MEDIATION:Stages of Mediation, Facilitative tactics in mediation
  35. LAW AND ETHICS OF MEDIATION I:Characteristics of mediation, Confidentiality
  36. LAW AND ETHICS OF MEDIATION II:Role of ethics in mediation, 8 Dimensions of Ethics in Mediation
  37. ARBITRATION I:Ways to Resolve Conflict, Advantages of Arbitration, Disadvantages of Arbitration
  38. ARBITRATION II:Varieties of Arbitration, Process of Arbitration, Contents of Arbitration Act
  39. NON BINDING EVALUATION:Disadvantage, Varieties of Non-binding Evaluation
  40. NON BINDING EVALUATION II:Varieties of Non-binding Evaluation, Advantages and disadvantages of Non-binding Evaluation
  41. MIXED AND MULTIMODAL DISPUTE RESOLUTION:Six System Design Principles, Extensions of Dispute Systems Design
  42. POWER TOOLS AND MAGIC KEYS I:Introduction, Necessity of conflict diagnosis, Using conflict diagnosis
  43. POWER TOOLS AND MAGIC KEYS II:Proposed Contents of a Clients’ Interview, Impediments to use facilitative mediation
  44. PANCHAYAT, LOCAL GOVERNMENT SYSTEM, AND ADR, Definitions of Panchayat, Definition of Jirga
  45. SUMMARY AND MESSAGE OF THE COURSE:Definitions of conflict, Negotiation, Meditation, Adjudication