

Conflict
Management HRM624
VU
Lesson
43
POWER
TOOLS AND MAGIC KEYS
II
Invisible
Veil Consideration
Reasons
for needing conflict
diagnosis are often hidden.
Conflict escalation obscures
important information
and
disempowers participants. Anger is part
of the invisible veil. It hampers
rationality and curtails
your
capability to
see the hidden interests. As a
consequence, your ability to
understand conflict is impaired.
Factors
thought to impede the
usefulness of facilitative
mediation
FACTORS
EFFECTS
Other
disputant/team refusing
May
not be possible to use facilitative
mediation. Even if other
teams
to
participate
participation
can be coerced, quality of
consent may be
impaired.
Unfamiliar
format disturbing
Quality
of consent may be
impaired.
to other
disputant/team
One or
both disputants or their
Quality of consent may be
impaired.
teams
unsure of their
BATNAs
Large
differences in
Impasse
may result unless BATNAs are
clarified
perceptions
of fact or law
Immediate
enforcement
Irreparable
harm may result from failure
to act decisively.
needed
Untrustworthy
disputant
Irreparable
harm may result from failure
to act decisively.
Underlying
interest in legal
Consensual
processes may not address
underlying interests.
reform
Disempowered
disputant
Exploitation
of disempowered disputant may occur in
any dispute
resolution
process. Decisions will reflect poor
quality of consent
unless
disputant acquires more
power.
Time
and/or money very
Facilitative
mediation can take longer than more
evaluative, informal
limited
processes.
Proposed
Contents of a Clients'
Interview
1.
A
summary of the client's
interview
2.
A description of
the client's presenting problems
and goals
3.
A description of
the likely sources of the
conflict
4.
A
sociogram showing he participants and
their roles
5.
An
exploration of the client's underlying
interests and goals, as well
as the other disputants
likely
goals
and interests (it is helpful
analytically to use interest
trees)
6.
Analysis
of how the other participants interests
may play into exacerbating or resolving
the conflict
7.
A
sense of how escalated the
conflict has become and the
state of trust between the
parties
8.
An
initial list of the apparent
impediments to cooperative
resolution
9.
An
assessment of the various sources of
power held by the client and the other
disputant
10.
An
analysis of the client's BATNA,
including a case evaluation, and the
same for the other
disputant
11.
A list
of the information needed to prepare the
case, including any analysis
of the legal and
factual
issues
12.
An
analysis of what strategy would
best help the client meet
his or her underlying goals,
interests,
and
needs, with the discussion of the
tactics that might be
useful
13.
A
section discussing "next
steps"further interviews, investigation, legal
research, referrals, and
so
fourth
145
Conflict
Management HRM624
VU
Collaborative
Law
A form
of lawyering currently seen primarily in
family law and based on a
contractual relationship between a
lawyer
and a client is called collaborative
law. This contract generally
specifies the lawyer's duty to
seek
collaborative
and interestbased document with the
other disputant. If litigation commences,
the lawyer is
required to
withdraw from representing the
client.
Fitting
the Forum to Fuss
(Brainchild of Frank Sander and
Stephen Goldberg)
Basic
Ideas:
Different
dispute resolution processes
are better at different things and
different things are important
to
different
people.
Fitting
the Forum to the Fuss
Sander/Goldberg
List of Client
Objectives
1. Minimize
costs
2. Speed
3. Privacy
4. Maintain/improve
relationships
5. Obtain
vindication
6. Obtain
neutral opinion
7. Obtain
precedent
8. Maximize
or minimize recovery
How to use fitting
the forum to the
fuss
VALUE
CLIENT
OBJECTIVE
("I")
Minimize
costs
5
Speed
Privacy
Maintain
or improve relationship with
other disputant
Obtain
vindication
Obtain
a neutral opinion
Obtain
a precedent
Maximize
or minimize recovery
OTHER

Describe___________________________________
146
Conflict
Management HRM624
VU
Filling in
the Grid  Step 1
Early
Neutral
Summary
Evaluation
Jury
Trial
Arbitration
Litigation
Mediation
Minitrial
3x 5 15 2x
5 10 2x
5 10 3x
5
15 1x
5
5
Costs
0
2x
3x
2x
3x
1x
0
Speed
Privacy
3x
3x
2x
2x
0
3x
Maintain/
Improve
3x
2x
2x
1x
1x
0
Relationships
Obtain
2x
3x
1x
1x
1x
0
Vindication
Obtain
neutral
3x
3x
0
3x
3x
3x
opinion
Obtain
2x
3x
0
0
0
0
precedent
Maximize/
1x
1x
0
1x
Minimize
2x
3x
Recovery
SUM
Another
client objective filled
in
VALUE
CLIENT
OBJECTIVE
("I")
5
Minimize
costs
Speed
Privacy
Maintain
or improve relationship with
other
disputant
Obtain
vindication
Obtain
a neutral opinion
Obtain
a precedent
Maximize
or minimize recovery
OTHER

Describe___________________________________
147
Conflict
Management HRM624
VU
Filling in
the Grid Next
Step
Early
Neutral
Summary
Evaluation
Jury
Trial
Arbitration
Litigation
Mediation
Minitrial
Costs
2x
2x
3x
1x
3x
0
2x
2x
3x
1x
3x
0
Speed
Privacy
3x
2x
2x
3x
3x
0
Maintain/
Improve
2x
2x
1x
1x
3x
0
Relationships
Obtain
2x
3x
0
1x
1x
1x
Vindication
Obtain
neutral
0
3x
3x
3x
3x
3x
opinion
Obtain
2x
3x
0
0
0
0
precedent
Maximize/
Minimize
0
1x
1x
1x
2x
3x
Recovery
SUM
More client
objectives filled in
VALUE
CLIENT
OBJECTIVE
("I")
5
Minimize
costs
Speed
Privacy
Maintain
or improve relationship with
other
disputant
Obtain
vindication
Obtain
a neutral opinion
Obtain
a precedent
Maximize
or minimize recovery
OTHER

Describe___________________________________
148
Conflict
Management HRM624
VU
Filling in more of
the Grid
Early
Summary
Neutral
Mediation
Minitrial Jury Trial Evaluation Arbitration Litigation
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
Costs
0
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
0
Speed
Privacy
3x
3x
2x
2x
3x
0
Maintain/
Improve
3x
2x
2x
1x
1x
0
Relationships
Obtain
2x
0
1x
1x
1x
3x
Vindication
Obtain
neutral
0
3x
3x
3x
3x
3x
opinion
Obtain
2x
3x
0
0
0
0
precedent
Maximize/
0
1x
1x
1x
Minimize
2x
3x
Recovery
SUM
Completing
the client objectives
VALUE
CLIENT
OBJECTIVE
("I")
5
Minimize
costs
Speed
1
Privacy
Maintain
or improve relationship with
other
5
disputant
Obtain
vindication
Obtain
a neutral opinion
Obtain
a precedent
Maximize
or minimize recovery
OTHER

Describe___________________________________
149
Conflict
Management HRM624
VU
Entering
Remaining Objective Utilities on
the Grid
Early
Summary
Neutral
Mediation
Minitrial Jury Trial
Evaluation Arbitration
Litigation
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
Costs
0
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
0
Speed
1 3 3x 1 3 2x 3 6 2x 3 6 3x 3 9
Privacy
3x
0
Maintain/
5 15 2x 5 10 2x 5 10 1x 5 5
55
3x
1x
Improve
0
Relationships
Obtain
2x
22
2 2
26
2 2 1x
2 4
3x
0
1x
1x
Vindication
Obtain
neutral
3x
3x
0
2 6
6
26
2 6 3x
2
6 3x
2
3x
opinion
Obtain
13
2 3x
1
2x
0
0
0
0
precedent
Maximize/
4 4 1x 4
4 1x
4 2x 4
4
0
1x
8
4 12
3x
Minimize
Recovery
SUM
Calculating
the Scores for Dispute
Resolution Processes
Early
Summary
Neutral
Mediation
Minitrial Jury Trial
Evaluation Arbitration
Litigation
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
Costs
0
5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5
3x
0
Speed
1 3 3x 1 3 2x 3 6 2x 3 6 3x 3 9
Privacy
3x
0
Maintain/
5 15 2x 5 10 2x 5 10 1x 5 5
55
3x
1x
Improve
0
Relationships
Obtain
2x
22
2 2
26
2 2 1x
2 4
0
1x
1x
3x
Vindication
Obtain
neutral
3x
3x
0
2 6
6
26
2 6 3x
2
6 3x
2
3x
opinion
Obtain
13
2 3x
1
2x
0
0
0
0
precedent
Maximize/
4 4 1x 4
4 1x
4 2x 4
4
1x
0
8
4 12
Minimize
3x
Recovery
48
45
48
53
44
27
SUM
Conflict
Diagnosis Approach
1. Facilitative
mediation is the default choice
2. If
there are reasons not to
use facilitative mediation:
Try
to work around them
If
not possible, use fallback
choices
150
Conflict
Management HRM624
VU
Diispute
Resollution,
IInvisibleVeil
Thiinking,
D spute Reso
ution,
nvisibleVeil Thnking,
&
Quallity off Consentt
& Qua
it
y o
Consen
effective
Pure
and Transformative Mediation
Facilitative
Mediation
Featuring
Compromising
Evaluative
Mediation
Nonbinding
Evaluation
MedArb
Arbitration
Litigation
ineffective
low
high
Resulting
Quality of Consent
Impediments
to use facilitative mediation
There
are certain hindrances to
use facilitative mediation
which are given below.
1. The
other team won't play
2. Worry
about signaling weakness
3. Unknown
or uncertain BATNA
4. Wildly
divergent BATNA assessments
5. Limited
time, money
6. Need
for immediate enforcement
7. Other
disputant a nasty fellow
8. Underlying
interest in legal
reform
9. Facilitative
process already tried,
settlement did not
result
Theories
of conflict, cooperation, and
competition, and negotiation
style, suggest that the best
processes for
promoting
constructive, equitable, and
efficacious dispute resolution
are those in which the participants
are
consistently
guided away from invisible
veil, zerosum thinking and
toward collaborative, integrative
problem
solving. These processes include (1) pure
mediation geared directly toward
promoting collaborative
problem
solving and (2) transformative
mediation.
151
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