MIXED AND MULTIMODAL DISPUTE RESOLUTION:Six System Design Principles, Extensions of Dispute Systems Design

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Conflict Management HRM624

Lesson 41

MIXED AND MULTIMODAL DISPUTE RESOLUTION

Designing New Dispute Resolution Systems

The first heuristic involves the relationship between three ways of resolving disputes: by negotiating

interests, by adjudicating rights, or by pursuing power options (such as strikes or lockouts).

The following diagram shows a distressed conflict management system, such as the one found at Caney

Creek before it was improved, and a healthy dispute management system that resolves most disputes at the

interest level, fewer at the rights level, and fewest through power options. This is healthy for several

reasons.

Negotiating interests is less expensive than adjudicating rights or pursuing power options.

Negotiating interests results in mutually satisfactory solutions, while the other two approaches are win-lose,

meaning one side wins and the other side loses. When power-based approaches are tried, the losing side

often is angry, and may try to "get back" at the other side whenever they get the chance. Interest-based

negotiation is usually less time consuming than the other approaches.

Six System Design Principles

1. Put the focus on interests. This means any dispute resolution should start with a process (either

direct negotiation or mediation) where the parties try to solve the problem using interest-based

bargaining. This is the best way to find a solution that satisfies everyone. Only when this doesn't

work, you move on to rights-based processes (such as arbitration) or power-based processes (such

as elections).

2. Provide low-cost rights and power backups. Arbitration, voting, and protests are low-cost

alternatives to rights and power contests. Although they are higher in cost than negotiation, they

are less costly than adjudication or violent force.

3. Build in "loop-backs" to negotiation. Rights-based and power-based strategies for resolving

disputes seldom need to be played out to the end. Rather, as soon as it is clear who is going to

"win," parties can return (the authors call this "loop-back" to negotiation to develop a solution

which best meets their needs, as well as their rights). A common example of such a "loop-back"

process is when parties settle a lawsuit out of court. As soon as it becomes clear who is likely to

win, it is advantageous for both sides to avoid the costs and uncertainty of further litigation, and

negotiate a solution to their dispute.

4. Build in consultation before, feedback after. Increasing shared information is a basic strategy in

ameliorating all conflicts. Consultation and feedback mechanisms between parties provide a

consistent and reliable method of sharing information.

5. Arrange procedures in a low-to-high-cost sequence. Dispute-resolution systems typically have

a series of steps. If one has a grievance or a conflict with another person or an organization, first

you try to solve it on your own, and then you seek the help of a lawyer, etc. Ury, Brett, and

Goldberg advise that by arranging dispute-resolution procedures in a low-to-high-cost sequence

one can reduce the probability of rapid escalation. Minimizing this tendency toward rapid escalation

had the added benefit of reducing enmity and increasing faith in the ability of the system to resolve

basic disputes.

6. Provide the necessary motivation, skills, and resources. An alternative system can function

only if people buy into it. People are creatures of habit, and this is the greatest limit to broad-based

systemic change. While there may be active resistance from some groups to new dispute-resolution

systems, the greater problem is spreading the skills, knowledge, and habits that reinforce the new

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system. It is incumbent on the elites in the conflict, and third-party interveners, to provide the

resources and time necessary to generate cooperation with the new system.

Designing

New

Dispute

Resolution

Systems

While every situation is unique, the typical steps involved in dispute resolution systems are the

following:

Dispute Resolution System Design

1. Establish a process for making decisions about new or enhanced dispute resolution processes.

2. Identify and diagnose the causes of recurring ORG conflicts and effectiveness of existing dispute

handling procedures.

3. Examine the range of options for additional procedures or revisions of existing procedures.

4. Select or revise conflict resolution procedures, considering the corporate culture and the kinds of

disputes that arise.

5. Organize the selected procedures in a comprehensive conflict management system.

6. Seek support from key organizational constituencies and secure approval for the proposed new

system.

7. Develop a plan for implementing the new system and promoting its use. Train personnel to

administer the system and to provide specific services, such as mediation.

8. Create a process for quality control, feedback and refinement of the system.

Guiding a Disputant

· Screening clerk

Room 1

· Mediation

Room 2

· Arbitration

Room 3

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Face finding

Room 4

Malpractice screening panel

Room 5

Superior court

Room 6

Ombudsman

Room 7

ADR and the Internet

ADR of cyber disputes: use of ADR to resolve disputes occurring in the online environment

Online dispute resolution (ODR): use of online platforms to resolve conflicts of all origins

ODR Varieties

Following are some of the ODR varieties.

1. ADR by email

2. ADR with web-based conferencing

3. ADR using technologically sophisticated, multimodal platforms

4. Analytical tools added to multimodal platforms

5. Blind bidding sites

6. Online summary jury trial

Advantages of ADR Conducted Online

Following are the advantages of the ADR conducted online.

1. Transcend geographic and time-zone differences

2. More immediate than letter writing

3. Time to diagnose conflict, think, respond appropriately

4. Protect intimidated disputants

5. Separate enraged disputants

6. Handle disabilities that prevent attending sessions

7. Technologies allow better conflict diagnosis

Disadvantages of ADR Conducted Online

Here are some of the disadvantages of the ADR conducted online.

1. Disempowers computer-illiterate; people who write poorly

2. Disempowers people with impaired access to Internet

3. Lack of body language, technology problems may produce meta-disputes

4. ADR neutrals lose non-verbal information

5. Disputants may abandon process

Dispute Resolution System Design

Dispute Resolution System Design is

1. Performed by consultants

2. Used by large organizations

3. Tailor dispute resolution processes and procedures to fit entity or enterprise

Legal Issues in ODR

There are some issues which are involved in ODR e.g.

1. Where did the dispute arise? (cyberspace dispute choice of law problem)

2. Where is ADR taking place? (ADR choice of law problem)

3. How can settlements be enforced?

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Extensions of Dispute Systems Design

Several authors advocate refinements to make dispute systems design more effective. For example, Rowe

suggests that an effective dispute-resolution system should incorporate:

Commitment to the values of fairness and freedom from reprisal;

Interest- and rights-based options;

Multiple access points;

An organizational ombudsperson;

Wide scope; and

Continuous improvement via an oversight committee.

Lynch argues that an effective system should incorporate:

1. Responding to stakeholder interest;

2. Reflecting important values;

3. Promoting the mission of the new agency;

4. Providing visible support by the organization's leadership;

5. Loop-backs forward and back between interest- and rights-based options;

6. A system that is fair, flexible, friendly, and fast;

7. The goal of resolution at a low level; and

8. Mechanisms by which the organization can shift from conflict resolution to management.

Extensions of Dispute Systems Design

Slaikeu and Hasson outline four principles for an effective system:

1. It should acknowledge four means of resolution (essentially, power, rights, interest, and avoidance);

2. It should include prevention and early-intervention options;

3. It should seek to build collaborative strength through seven checkpoints;

4. It should utilize the mediation model in order to build consensus among those involved.

Summary

Dispute resolution systems are necessary for resolving ongoing disputes around us, in our personal and

work lives. ODR (online dispute resolution) systems are also becoming need of the time. People are finding

solutions through online systems.

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