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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 40
NON BINDING EVALUATION II
Quotation
"Excellence is to do a common thing in an uncommon way". Booker, T.
We have already discussed the following points in the previous lecture. In this lecture we will analyze them
again in detail.
1.
Advantages and disadvantages of non-binding evaluation compared with other forms of ADR.
2.
Appropriate uses of non-binding evaluation.
3.
Legal issues around non-binding evaluation.
4.
Innovative nonbinding evaluation processes including non-binding arbitration (summary jury trial,
minitrial, and neutral evaluation and dispute review boards).
There are a number of varieties of non-binding evaluation. Non-binding evaluation is intended to give each
disputant's legal team a preview at a litigation future, in an effort to give both sides enough information that
their positions will overlap, enabling settlement to take place.
Varieties of Non-binding Evaluation
1. Non-binding arbitration.
2. Minitrial
3. Summary jury trial.
4. Neutral evaluation.
5. Dispute review board
1. Non-binding Arbitration
Non-binding arbitration is the most basic form of non-binding evaluation. Non-binding evaluation simply
consists of an adjudication process in which the out come is not binding. Sometimes non-binding
arbitration is a process chosen by private parties, but often it is a mandatory process ordered by the court.
2. Minitrial
In minitrial, the time and expense of case presentation is minimized through the presentation of a summary
version of the dispute. Minitrials are usually attended by representatives of the disputants who have the
authority to settle the case. After case presentation, the neutral will either issue a non-binding decision or
will discuss strengths and weaknesses with disputant representatives and their advocates.
3. Summary Jury Trial
Summary jury trial is a form of non-binding evaluation intended to promote settlement by demonstrating to
the disputants and their legal teams what would be likely to happen if jury decided the case.
4. Neutral Evaluation
Neutral evaluation is a process in which an expert in the subject matter of the dispute, or a legal expert, is
hired to give an assessment of the strengths and weaknesses of each side's case. Neutral evaluation has
many variations and is known by a variety of terms, used in often inconsistent fashion.
5. Dispute Review Boards
Dispute review boards (also known as dispute resolution boards) are entities created by contract to resolve
disputes as they arise during construction projects. Boards are generally made up of three members
empanelled by the owner and contractor. As disputes arise during construction, they are submitted by
informal hearing process to the review board, which issues an advisory decision in the matter.
The dispute review board process is designed to facilitate the complex relationship among owners,
contractors, and others involved in large construction projects.
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Conflict Management ­HRM624
VU
Advantages and disadvantages of Non-binding Evaluation
Non-binding evaluation represents an effort to obtain the benefits of both negotiation and adjudication.
1. Compared with litigation
2. Compared with arbitration
3. Compared with mediation
1. Compared with litigation
The most important advantage of non-binding evaluation is probably also its greatest disadvantage, i.e. its
non-binding quality. Non binding evaluation allows the disputants to retain a measure of their autonomy. A
settlement reached after non-binding evaluation is more likely to be accompanied by psychological
ownership than a judgment imposed by the court, because the disputants have freely chosen the outcome
themselves.
Non-binding evaluation is also chosen by disputants because it is potentially cheaper and faster than
litigation. Non-binding evaluation is sometimes touted as an efficiency measure without due regard for
whether, in fact, the presumed cost and time savings will be realized.
Finally, like other forms of ADR, non-binding evaluation is typically a private process. Privacy can have
both advantages and disadvantages. Some disputants may benefit from the privacy, whereas others prefer
that the public be informed of the process and outcome.
2. Compared with Arbitration
In many ways, non-binding evaluation is similar to arbitration: it can seem indistinguishable from arbitration
until the moment when one disputant decides not to accept the decision of the neutral. It should not be
surprising, then, that non-binding evaluation has many of the same advantages and disadvantages of
arbitration. Like arbitration it has a tendency to promote an adversarial, competitive perspective on the
conflict and to promote positional bargaining.
3. Compared with Mediation
The comparison of non-binding evaluation with facilitative varieties of mediation raises the most interesting
questions for conflict diagnosticians. Non-binding evaluation is considered effective in dealing with extreme
differences of fact or law, and it is useful for BATNA clarification: it functions as a dry run at litigation,
enabling attorneys and their clients to get a reasonable estimate of what would happen if the case went to
trial.
135
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Conflict Management ­HRM624
VU
Varieties of nonbinding evaluation
What is the
Process
Who is typically the What is typically
Nature of outcome
process useful
neutral?
presented?
for?
Arbitration award, advisory
General BATNA
Oral arguments;
Arbitrator, who may
Nonbinding
only; may be oral, written, or
clarification
occasionally
be an attorney, a
arbitration
both
exhibits and
retired judge or an
informal testimony
ADR neutral
(as in arbitration)
BATNA
Typically, no outcome per se;
Typically, oral
Corporate executives
Minitrial
clarification for
observations of hearing provide
arguments; may
with authority to
those in a position
BATNA clarification to those
also be some
settle; may also be a
to settle
with authority to negotiate
evidentiary
neutral moderator
settlement; advisory award
showing
may be issued by neutral if no
settlement reached
Teasing out of
Members of the jury Abbreviated
Nonbinding verdict
Summary jury
complicated factual
version of litigated
pool as a
trial
issues (as in class
adjudicators; judge  case
actions/products
or retired judge as
liability); BATNA if
moderator
jury trial expected;
"day in court" for
litigants
136
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Conflict Management ­HRM624
VU
Varieties of nonbinding evaluation
What is the
Who is typically What is
Nature of outcome
Process
process useful
typically
the neutral?
for?
presented?
BATNA
Assessment of the
Experts in
Typically, oral
Neutral
clarification;
strengths and weaknesses
technical area of arguments
evaluation
expert
of each sides case; may
dispute, or
empowerment
include advisory award
lawyers with
expertise in the
sort of dispute
being litigated
Overcoming of
A summary of An advisory decision
A penal of
Dispute
costly
disputes that
leaders or other
review board
impasses and
threatens to
experts in the
(example;
delays created
delay or derail a
field involved,
M2
by disputes
complex
empanelled by
Motorway
that occur
construction
the owner and
construction
during
project
contractor in a
by Turkish
complex
construction
firm)
construction
project
projects
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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