First Component of an Integrated Conflict Management System: Dispute Resolution Models

In a previous editorial I provided a checklist to enable you to assess the gaps between your organization’s conflict management practices and respected best practices. I described the two components of an integrated conflict management system:

1. A new or updated dispute resolution model

2. A fostering and sustaining environment: organization-wide practices and support structures that assist the organization in: preventing and managing conflict and creating a culture of conflict competence 1 – the creation of an environment where all who experience conflict feel comfortable to raise it, knowing it will be dealt with respectfully and responsibly.

In this article, I provide an example of an updated dispute resolution model. For example, a good dispute resolution procedure might include this combination of options:

• Appropriate negotiation is often recommended as the first step in resolving any conflict that arises. At the earliest possible time and lowest possible level, employees are expected to recognize and acknowledge conflict and to try to resolve it responsibly. “Appropriate” means:
  -The appropriate persons will initiate and be involved in negotiations.
  The appropriate approach – interest-based negotiation – will be used.

  
  

• Ombudsperson: In “Workplace Justice, Zero Tolerance and Zero Barriers – Getting People to Come Forward in Conflict Management Systems 2, Rowe and Bendersky describe the key elements of an effective system and provide the following definition of an ombudsperson:

  An Ombudsperson is an independent, confidential, designated neutral who works in an impartial way. The Ombudsperson should report to the CEO or COO, with access to the Board of Directors. The purpose of the office is to provide a possible path to fairness and justice. An organizational ombudsperson has in effect all the common functions of any dispute resolver… – except those of advocate, formal fact-finder, appeals officer, arbitrator, judge or peace officer. Ombuds typically work informally, with great flexibility…. They make no decisions for the employer or for their visitors except in (rare) emergencies. …what an ombudsperson can and should do is work with every visitor to devise acceptable options that both protect the confidentiality of the visitor, and either get information where it needs to go, or help to see that appropriate action is taken. Through helping to develop options, and informal intervention if requested, an ombudsperson should be able to foster resolution of most issues or get them appropriately referred.

  This office is accessible by all – suppliers, clients and employees. The most used functions will be listening, coaching (helping people help themselves to take the direct approach such as one-on-one interest based negotiation), referring (to the appropriate office) and “looking into” the problem informally. Other functions include: giving and receiving information, developing options, shuttle diplomacy, classic formal mediation, following up on something, referring cases to the Process Facilitator for a Facilitated Process Meeting (see below), or developing a customized approach.

• Usual chain of management decisions, but using an interest based approach: If efforts to resolve the conflict are not successful at the “Appropriate Negotiation” stage, another option is for senior managers to review the issue; invite input from, and engage in discussions with representatives of stakeholders who have an interest in the outcome; while always using an interest-based approach.

• Organizational referral and assistance points:

  Human resources, conflict management co-ordination offices, employee assistance, staff relations, union representatives, health and safety, audit and ethics, etc.

• Process Facilitator

  Sometimes called a ‘facilitated process meeting”, or “convening” 3, this option is relatively new and growing in popularity, as organizations realized after the fact that many problems that go to mediation get settled at intake. With this option, a voluntary meeting or series of meetings brings together affected parties to discuss their dispute and to select and plan possible options for resolution. It can be utilized at any time, usually after the appropriate negotiation level. The facilitator who conducts this meeting (from within the organization or an external provider) is in effect a “mediator of the process”, guiding a meeting where the parties will select from a broad array of appropriate dispute resolution options, and decide how to: – identify the right parties with authority; – obtain information and disclosure; – allocate costs and who pays; define the roles of the disputing parties and their staffs, experts, and legal counsel; – select a third party neutral (e.g. for mediation, arbitration, or neutral evaluation).

  An agreement is created that commits the parties on issues such as:
  – bona fide attempts to reach a resolution,
  – confidentiality,
  – privacy and without prejudice discussions,
  – enforcement of any agreements reached,
  – timelines,
  – logistics, and
  – procedures for the conduct of the future process.

  Process facilitations are held expeditiously and do not delay any rights based process (e.g. litigation). An informed “no” and a decision to proceed to court is a perfectly acceptable result to a process mediation. Even in cases requiring litigation, the parties may well have streamlined the litigation process, saving considerable time and resources for all concerned.

• Customized Options

  When none of the “usual” alternative dispute resolution options such as mediation, neutral evaluation, mixed stakeholder panel review or arbitration fits the problem, an Ombudsperson or (where the organization has implemented it) a Process Facilitator may assist the parties in tailor-making a responsible approach for the particular situation. This could include advisory options such as fact-finding, or a mini-trial (a type of mediation where, at the end of presentations, a neutral advisor gives a prediction of the likely outcome if the matter is litigated), binding options such as a stakeholder panel, or “hybrid” options such as “med/arb” (where the mediator will conduct a mediation, and if the parties are unable to structure their own agreement, the mediator then becomes an arbitrator and renders a decision), or “simultaneous med-arb” (where two people, one a mediator and the other an arbitrator, work with the parties simultaneously, the mediator conducting the mediation process and the arbitrator making on-the-spot rulings on areas where the parties become “stuck” from time to time).

• Mixed Panels of Stakeholders

  A committee with representatives from stakeholders reviews the dispute –usually after hearing representations in person from affected parties and sometimes just on a paper review- and makes an advisory recommendation. The recommendation is usually not binding and serves as guidance to the parties in further negotiations. Examples are peer review panels, joint councils of management and unions, and joint panels of industry and regulators.

• Mediation

  – a voluntary process in which a neutral third party assists parties to a dispute to develop a mutually acceptable solution to their conflict. The mediator does not make decisions about the outcome; rather, the mediator is responsible for and in charge of the process.

• Neutral Evaluation occurs when a neutral third party is asked to provide an opinion about some aspect(s) of a dispute. The evaluator is brought in due to his or her neutrality, experience and knowledge of the subject matter of the dispute. It is called Early Neutral Evaluation when it is used early in the conflict. It can be used successfully very late in the conflict as the penultimate mechanism; for example, before an adjudication decision is announced.

• Arbitration is a rights-based process that provides the opportunity for disputants to have their issues determined by a neutral person (or a panel of neutral persons) without going to court. The arbitrator(s) renders a decision/opinion after hearing presentations on evidence and argument. A contract or statute might provide that the decision is binding; if not, the parties agree in advance whether the decision will be binding or non-binding. Arbitration decisions are usually binding, but can be appealed to court on questions of law.

• Agencies/Tribunals provide rights based adjudication of specific issues. In Canada this Agencies and Tribunals have jurisdiction over public service staffing actions, grievances, human rights, official languages, privacy and access to information. An example of a United States agency is the Equal Employment Opportunity Commission. Such decisions are usually binding but can be appealed to court on questions of law.

• Court

  Courts are part of the established judicial system, and allow disputants to litigate issues before a judge of a court of competent jurisdiction.

  
  Please click here or the image above to see full size graphic

  End Notes

  
  

  
  1 The term “conflict competency” was first used in the Canadian context by Lynch, Jennifer. Listening and Learning: an Analysis of Conflict Management Practices within Correctional Service Canada, Ottawa: Correctional Service Canada, 1998. p55, to suggest a core competency for performance measurement. This was subsequently adopted by the Canada Customs and Revenue Agency and is being considered by other Canadian federal departments and agencies. It builds on Rob Robinson’s essay, “The conflict competent organization”, in Negotiation as a social process, edited by R.M. Kramer and D.M. Messick. Thousand Oaks, Calif.: Sage.

  
  

  
  2 Rowe and Bendersky.

  
  3 “Convening” has been successfully used for years by the Insurance Corporation of BC. The concept of “mediating the process” was first described by J. Lynch in CCRA: Contemporary Conflict Resolution Approaches supra, 1998. “Pre-ADR” meetings have been designed by David Gould and Brian Gardiner of Certus Strategies for the Alberta Energy and Utilities Board and for the National Energy Board, and the definition of a Facilitated Process Meeting has been adapted from their materials. The concept is being introduced at Public Works and Government Services Canada for its department-wide conflict management system.

                         

  Jennifer Lynch

  Jennifer Lynch, is Chief Commissioner of the Canadian Human Rights Commission MORE >