Conflict Management Class Manual

 

By Lisa Maxwell and Christina Simokat

 


 

Contents

  • Conflict Theory                                                                  
    • What is Conflict?
    • Conflict Analysis
    • Conflict Cycles
    • Conflict Styles
      • Thomas Killman Conflict Mode Instrument
    • Managing Conflict:  Positions & Interests
    • Culture and Conflict Management

 

  • Conflict Management
    • Process Definitions
    • Negotiation
      • Preparation
      • BATNA
    • Mediation
    • Legal Aspects of ADR
    • Comparing Processes

 

 

CONFLICT AND CONFLICT RESOLUTION

 

"In its most basic sense, conflict is inevitable, the source of all growth, and an absolute necessity if one is to be alive.

 

...Adults don't seem to know how to enter into it with integrity and respect and some degree of confidence and hope."

 

-- Jean Baker Miller

 

“Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict.”

 
--Dorothy Thompson

pg 1



Conflict Theory

 

What is Conflict?

 

Ø  Perception

Ø  Feeling

Ø  Action

 

 

What causes conflict?

 

Ø  Communication

Ø  Emotion

Ø  Values

Ø  History

Ø  Structure

 

 

What do we have conflicts about?  What are the issues?

 

Ø  Resources

Ø  Needs

Ø  Values

 

 

How do you find a resolution for conflict, or how do you manage conflict?

 

Ø  Power

Ø  Rights

Ø  Interests

pg 2


 

Conflict Analysis

 What is the Topic?

 Who are the Parties involved?

 What are the parties’ Positions and Interests?  Why?

 What are the Causes?  Why?

 What are the Issues?  Why?

 What Conflict Styles do the parties exhibit?  Do these Styles serve them well?

 What would be the best approach for Managing the Conflict?  Why?

pg 3


Conflict Cycles         (from R. Lulofs, Conflict: From Theory to Action, 1994)

How and why does conflict escalate?

 

Beliefs and attitudes about conflict

           

          1.

            2.

3.

4.

 

 

 

Consequence                                                                 Conflict occurs

Stress

Resolution

Better or poorer relationship

Escalation or De-escalation

Hurt feelings   

 

                                                Response

                                                Pretend nothing’s wrong

         Just give in

        Get visibly angry

        Cry

       Silent Treatment

      Make jokes

    Complain to someone else

   Agree to talk about it

 pg 4


THOMAS-KILMANN CONFLICT MODE INSTRUMENT

 

Consider situations in which you find your wishes differing from those of another person.  How do you usually respond to such situations?

 

Following are pairs of statements describing possible responses.  For each pair, please circle the A or B statement which is most like your behavior.

 

In many cases neither A nor B may be very typical of your behavior, but select the response which you would be more likely to use.

 

 

1. 

  1. There are times when I let others take responsibility for solving the problem.

 

  1. Rather than negotiate the things on which we disagree, I try to stress those things upon which we both agree.

 

2.

  1. I try to find a compromise solution.

 

  1. I attempt to deal with all of his and my concerns.

 

3.

  1. I am usually firm in pursuing my goals.

 

  1. I might try to soothe the other's feelings and preserve our relationship.

 

4.

  1. I try to find a compromise solution.

 

  1. I sometimes sacrifice my own wishes for the wishes of the other person. .

 

5.

  1. I consistently seek the other's help in working out a solution.

 

  1. I try to do what is necessary to avoid useless tensions.

 

6.

  1. I try to avoid creating unpleasantness for myself.

 

  1. I try to win my position.

 

7.

  1. I try to postpone the issue until I have had some time to think it over.

 

  1. I give up some points in exchange for others.

 

 

8.

  1. I am usually firm in pursuing my goals.

 

  1. I attempt to get all concerns and issues immediately out in the open.

pg 5


 

 

9.

  1. I feel that differences are not always worth worrying about.

 

  1. I make some effort to get my way.

 

10.

  1. I am firm in pursuing my goals.

 

  1. I try to find a compromise solution.

 

11.

  1. I attempt to get all concerns and issues immediately out in the open.

 

  1. I might try to soothe the other's feelings and preserve our relationship.

 

12.

  1. I sometimes avoid taking positions which would create controversy.

 

  1. I will let him have some of his positions if he lets me have some of mine.

 

13.

  1. I propose a middle ground.

 

  1. I press to get my points made.

 

14.

  1. I tell him my ideas and ask him for his.

 

  1. I try to show him the logic and benefits of my position.

 

15.

  1. I might try to soothe the other's feelings and preserve our relationship.

 

  1. I try to do what is necessary to avoid tensions.

 

16.

  1. I try not to hurt the other's feelings.

 

  1. I try to convince the other person of the merits of my position.

 

17.

  1. I am usually firm in pursuing my goals.

 

  1. I try to do what is necessary to avoid useless tensions.

 

18.

  1. If it makes the other person happy, I might let him maintain his views.

 

  1. I will let him have some of his positions if he lets me have some of mine.

 

19.

  1. I attempt to get all concerns and issues immediately out in the open.

 

  1. I try to postpone the issue until I have had some time to think it over.

 pg 6



20.

  1. I attempt to immediately work through our differences.

 

  1. I try to find a fair combination of gains and losses for both of us.

 

21.

  1. In approaching negotiations, I try to be considerate of the other person's wishes.

 

  1. I always lean toward a direct discussion of the problem.

 

22.

  1. I try to find a position that is intermediate between his and mine.

 

  1. I assert my wishes.

 

23.

  1. I am very often concerned with satisfying all our wishes.

 

  1. There are times when I let others take responsibility for solving the problem.

24.

  1. If the other's position seems very important to him I would try to meet his wishes.

 

  1. I try to get him to settle for a compromise.

 

25.

  1. I try to show him the logic and benefits of my position.

 

  1. In approaching negotiations, I try to be considerate of the other person's wishes. .

 

26.

  1. I propose a middle ground. .

 

  1. I am nearly always concerned with satisfying all our wishes.

 

27.

  1. I sometimes avoid taking positions that would create controversy.

 

  1. If it makes the other person happy, I might let him maintain his views.

 

28.

  1. I am usually firm in pursuing my goals.

 

  1. I usually seek the other’s help in working out a solution.

 

29.

  1. I propose a middle ground.

 

  1. I feel that differences are not always worth worrying about.

 

30.

  1. I try not to hurt the other's feelings,

 

  1. I always share the problem with the other person so that we can work it out.


pg 7



SCORING THE THOMAS-KILMANN CONFLICT MODE INSTRUMENT

 

Circle the letters below which you circled on each question of the test.

 

 

1

 

 

 

A

B

2

 

B

A

 

 

3

A

 

 

 

B

4

 

 

A

 

B

5

 

A

 

B

 

6

B

 

 

A

 

7

 

 

B

A

 

8

A

B

 

 

 

9

B

 

 

A

 

10

A

 

B

 

 

11

 

A

 

 

B

12

 

 

B

A

 

13

B

 

A

 

 

14

B

A

 

 

 

15

 

 

 

B

A

16

B

 

 

 

A

17

A

 

 

B

 

18

 

 

B

 

A

19

 

A

 

B

 

20

 

A

B

 

 

21

 

B

 

 

A

22

B

 

A

 

 

23

 

A

 

B

 

24

 

 

B

 

A

25

A

 

 

 

B

26

 

B

A

 

 

27

 

 

 

A

B

28

A

B

 

 

 

29

 

 

A

B

 

30

 

B

 

 

A

 

Competing

Collaborating

Compromising

Avoiding

Accommodating

Total Circled

 

 

 

 

 

 

 

 

 

 












 

 pg 8


Conflict Management Styles

 

1.       Collaborating

Description: Assert your views while also inviting other views. Welcome differences; identify all main concerns; generate options; search for solution which meets as many concerns as possible; search for mutual agreement.  Perspective on Conflict: Conflict is natural and normal.

 

Collaborating IS good when:

*   you have the time and want to work something out that satisfies all sides.

*   you care about the other person(s) and also feel strongly about the issue.

*   you want to get thoughts and feelings out on the table and deal with them, so they don’t cause problems later.

 

Collaborating is NOT good when:

*   you don’t care that much about the issue.

*   you need to do something quickly. ("Fire! Everybody out!")

 

2.       Compromising

Description: Urge moderation; bargain; split the difference; find a little something for everyone; meet them halfway.  Perspective on Conflict: Conflict is mutual difference best resolved by cooperation and compromise. If each comes halfway, progress can be made by the democratic process.

 

Compromising IS good when:

*   you need a quick solution and can both give up something.

*   you both want exactly the same thing and it can be divided up or shared.

*   you are willing to let chance decide it (flip a coin).

*   you have tried to satisfy each one completely and it isn’t possible (or would take too long).

 

Compromising is NOT good when:

*   you might work a little longer and find a solution that pleases each one better.

 pg 9


 

3.       Accommodating

Description: Accept the other's view; let the other's view prevail; give in; support; acknowledge error; decide it's no big deal or it doesn't matter.  Perspective on Conflict: Conflict is usually disastrous, so yield. Sacrifice your own interests, ignore the issues, put relationships first, keep peace at any price.

 

Accommodating IS good when:

*   you are, or were, wrong about something.

*   you care more about the other person than you do about the issue.

 

Accommodating is NOT good when:

*   it happens a lot and you wish you could speak up more often.

 

4.       Avoiding

Description: Delay or avoid response; withdraw; be inaccessible; divert attention.

Perspective on Conflict: Conflict is hopeless; avoid it. Overlook differences, accept disagreement or get out.

 

Avoiding IS good when:

*   you don’t care about the issue.

*   you (or someone else) are very angry and need time to cool off before discussing the issue.

*   you are in a dangerous situation and don’t need to be there.

 

Avoiding is NOT good when:

*   you rarely want to deal with the conflicts in your life.

*   you care about an issue but are afraid to speak up.

*   you keep being bothered by a disagreement with someone you care about.

 

5.       Competing

Description: Control the outcome; discourage disagreement; insist on my view prevailing.

Perspective on Conflict: Conflict is obvious; some people are right and some people are wrong. The central issue is who is right. Pressure and coercion are necessary.

 

Competing IS good when:

*   you need to do something quickly.

 

Forcing is NOT good when:

*   you use it often with people you care about or will need to spend time with in the future.

*   you want people to feel they can discuss and disagree with you openly.

 

Adapted from the Peace and Justice Support Network of the Mennonite Church USA

http://peace.mennolink.org/resources/conflictstyle/styles.html

 

 pg 10



Managing Conflict:  Positions vs. Interests

 

Positions are things that we decide. Interests are the reasons behind our decisions. As a mediator, it is important to try and identify interests rather than focusing on positions as interests start discussion between participants while positions end it. Positions are solutions to problems, specific and definite, and require justification. It is when we focus on positions that arguments develop. Interests are the reasons behind why a solution is preferred and require explanation rather than justification.

In order to draw out a participant's interests, ask open ended questions to generate more information in storytelling. The more information that is revealed, the less vulnerable people will feel as they will be exposing a universal human need. When people can hear about all this information, it can assist them in reassessing their position.

To get the difference between interests and positions, think about this story:

 

Two men were quarreling in a library. One wants the window open and the other wants it closed. They bicker back and forth about how much to leave it open; a crack, halfway, three quarters of the way. No solution satisfies them both.

Enter the librarian. She asks one why he wants the window open: "To get some fresh air." She asks the other why he wants it closed: "To avoid the draft." After thinking a minute, she opens wide a window in the next room, bringing in fresh air without a draft. She looked to their underlying interests of fresh air and no draft.

 This difference between positions and interests is crucial.

-          Mary Parker Follett

From http://conflictcrushers.blogspot.com/2006/04/mediator-tips-positions-vs.html

pg 11



CULTURE AND CONFLICT

Notes from article ‘Culture and Conflict’ by Michelle LeBaron

www.beyondintractability.org/essay/culture_conflict/

 

COMMUNICATION

High Context Communication v. Low Context Communication

 

In high-context communication, most of a message is conveyed by the context surrounding it, rather than being named explicitly in words.  Meaning is carried through the physical setting, the way things are said, shared understandings, and non-verbal cues.  Communication is less direct so helps to save face and avoid conflict.

 

Low-context communication emphasizes directness rather than relying on the context to communicate.  Verbal communication is specific and literal; less emphasis is given to implied or indirect signals.  This type of communication can prevent misunderstandings because of the clarity, but also can be more confrontational.

 

WAYS OF NAMING, FRAMING, AND TAMING CONFLICT

 

This variable looks at what we call conflict and how we manage it.  When is a conflict a conflict?  Or do we call it something else to save face or restore relationships?  How do we manage it?  Do we avoid it?  Do we talk through family members?  Do we go to a   mediator?  What kind of role would the person who helps us have?

 

MEANING-MAKING

How do we make sense of our lives and our conflicts?

 

Universalist (favoring rules, laws, and generalizations) v. particularist (favoring exceptions, relations, and contextual evaluation)

Specificity (preferring explicit definitions, breaking down wholes into component parts, and measurable results) v. diffuseness (focusing on patterns, the big picture, and process over outcome)

Inner direction (sees virtue in individuals who strive to realize their conscious purpose) v. outer direction (where virtue is outside each of us in natural rhythms, nature, beauty, and relationships)

Synchronous time (cyclical and spiral) v. sequential time (linear and unidirectional)

 

IDENTITY

       Collectivist v. individualist settings

 

Collectivist                                           Individualist

Cooperation                                        Competition

Filial Piety (respect for elders)            Independence

Participation in shared progress         Individual achievement

Reputation of group                            Personal growth and fulfillment

Interdependence                                  Self-reliance


pg12

 

Types of Dispute Resolution

 

Negotiation:  Parties work together, privately and voluntarily, to resolve their dispute.

 

Mediation:  A neutral third party assists the parties to the dispute in coming to their own agreement, but the neutral does not decide the case for them.

 

Facilitation:  A neutral third party assists a group in resolving their current conflicts while developing a process of working together in the future.

 

Arbitration:  Parties to a dispute choose a neutral third party to resolve their dispute for them in a private forum.

 

Mediation-Arbitration:  The process begins as a mediation, and if the parties are unable to reach an agreement, the mediator takes on the role of arbitrator and decides the case for them.

 

Private judging:  Parties to a dispute choose a neutral third party who is not a sitting judge to resolve their dispute for them by private trial.

 

Early Neutral Evaluation:  A case assessment by a neutral third party which gives the parties and their attorneys an objective idea of what might happen at trial.

 

Mini-Trial:  Usually used in corporate disputes.  A short, nonbinding trial is held before a three-person panel made up of one neutral and one decision-making officer from each organization.

 

Summary jury trial:  Similar to mini-trial, this is a short, nonbinding presentation by attorneys on behalf of their clients to a jury which renders a decision.

 

Litigation (Adjudication):  This process is initiated by one party and is then involuntary for the other party.  Both parties have their dispute resolved by the decision of a judge or jury.

 

 pg 13

 


 

Key Features of Negotiations


Adversarial Negotiations

Problem-Solving Negotiations

View dispute as a Distributive Problem or Zero-Sum Game

 

View Problem Broadly to Encompass

Underlying interests and Needs

 

View strategy as win-lose

 

View as Shared Problem

View Dispute as Only One Issue, so

No Opportunity for Trades

 

View Dispute as an Integrative Opportunity, Not a Distributive Problem

 

View Resources as Fixed and Valued Equally by Both Sides (Fixed Pie)

 

View Dispute as Search for “Win-Win” and Pareto Optimal Solutions

View Problem Narrowly

 

Think Creatively Outside the Legal Box

Approach Other Side as Adversaries

 

Search for Increased Value

Advocate for Your Position

 

Promote Effective Communication and Exchange of Information

Claim One Right Solution – My Solution

 

No Early Opening Offer Strategy

Disinterested in the Other Side’s Case

 

Value Relationship

View Strategically the Use of Information

 

Be Open to Other Side’s Views and Interests

Compete for Larger Piece of Pie

Approach Search for Solutions with Open Mind

 

Adapted from Harold I Abramson’s Mediation Representation:  Advocating in a Problem-Solving Process (NITA 2004).


pg 14



Differences Between Adversarial

and Problem-Solving Negotiations

 

Adversarial Negotiations

Problem-Solving Negotiations

Act as Adversaries

Act as Problem-Solvers

Competitive

Collaborative

Rights-Based Positions

Interest- Based

Opening-Offer Strategy

Explore Other Person’s Interests

Win-lose

Win-Win or Mutual Gain

Distributive Dispute

Integrative Dispute

Fixed Pie

Create Value and Expand Pie

Hard Bargaining Position

Search for Value to trade

Compromise between Positions

Reconciling Interests

 

Emphasize a Monetary Solution

Search for Non-Monetary Solutions

 

Propose solutions based on Compromises from Positions

Search for innovative, creative solutions based on interests

Manipulate information

Use information forthrightly

Engage in Tricks and Threats

Establish rapport and be open to reason

 

Make adversarial arguments

Make reasoned points

Be Blind to other person’s perspective

Be open to other person’s reasoned points

 

Yield to Pressure

Yield to Reason

Decide based on pressure

Decide based on Principled, Objective Standards

Limit Exchange of information

More Freely exchange information, especially about interests

Contest over competing positions

Generate options for mutual gain

 

Solve narrow presenting problem

Solve Broader interest-based problem

 

Adapted from Harold I Abramson’s Mediation Representation:  Advocating in a Problem-Solving Process (NITA 2004).

pg 15

 

Problem-Solving Negotiation

PREPARATION

Investigate Facts

1.      Facts known to all

 

 

2.      Facts known to me

 

 

3.      Facts known to other party.  

 

 

Develop list of questions to ask other party – consider the GOAL of each question.

·          

·          

·          

·          

Identify Interests

1.      Mine

 

 

2.      Theirs

 

 

Identify Issues for Resolution – What do we need to resolve?

 

 

Develop a BATNA

 

 

Surmise Other Party’s BATNA

 

 

Identify Sources of Objective Criteria

 

 

Imagine Inventive Solutions – How could you Expand the Pie?

·          

·          

·          

·          

 

Adapted from Harold I Abramson’s Mediation Representation:  Advocating in a Problem-Solving Process (NITA 2004). 

pg 16



BATNA

BATNA is a term coined by Roger Fisher and William Ury in their 1981 bestseller, Getting to Yes: Negotiating Without Giving In.  It stands for "best alternative to a negotiated agreement." BATNAs are critical to negotiation because you cannot make a wise decision about whether to accept a negotiated agreement unless you know what your alternatives are. Your BATNA is the only standard which can protect you both from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept.  In the simplest terms, if the proposed agreement is better than your BATNA, then you should accept it. If the agreement is not better than your BATNA, then you should reopen negotiations. If you cannot improve the agreement, then you should at least consider withdrawing from the negotiations and pursuing your alternative (though the costs of doing that must be considered as well).

Having a good BATNA increases your negotiating power. Therefore, it is important to improve your BATNA whenever possible. Good negotiators know when their opponent is desperate for an agreement. When that occurs, they will demand much more, knowing their opponent will have to give in. If the opponent apparently has many options outside of negotiation, however, they are likely to get many more concessions, in an effort to keep them at the negotiating table. Thus making your BATNA as strong as possible before negotiating, and then making that BATNA known to your opponent will strengthen your negotiating position.

Fisher and Ury outline a simple process for determining your BATNA:

  1. develop a list of actions you might conceivably take if no agreement is reached;
  2. improve some of the more promising ideas and convert them into practical options; and
  3. select, tentatively, the one option that seems best.

BATNAs may be determined for any negotiation situation, whether it be a relatively simple task such as finding a job or a complex problem such as a heated environmental conflict or a protracted ethnic conflict.

Fisher and Ury offer a job search as a basic example of how to determine a BATNA. If you do not receive an attractive job offer by the end of the month from Company X, what will you do? Inventing options is the first step to determining your BATNA. Should you take a different job? Look in another city? Go back to school? If the offer you are waiting for is in New York, but you had also considered Denver, then try to turn that other interest into a job offer there, too. With a job offer on the table in Denver, you will be better equipped to assess the New York offer when it is made. Lastly, you must choose your best alternative option in case you do not reach an agreement with the New York company. Which of your realistic options would you really want to pursue if you do not get the job offer in New York?

Adapted from Best Alternative to a Negotiated Agreement (BATNA) by Brad Spangler   http://www.beyondintractability.org/essay/batna/


pg 17

 


Negotiation:  Strategies at the Table

 

Adversarial Negotiations

Problem-Solving Negotiations

Opening Offer Strategy

 

Establish Rapport and Open Communication

 

Present Extreme First Offer (Initial Position)

 

Share Information Judiciously about Interests

Emphasize Positions

 

Educate other person about your interests

Emphasize BATNA

 

Learn more about other person’s interests

Propose Solutions Based on Compromises

Understand other person’s BATNA; De-emphasize own BATNA

Engage in Negotiation Dance of Offers, Counteroffers, Compromises, and Concessions

Identify and Overcome any impediments

Use Information Strategically

 

Identify Issues for Resolution

Make Adversarial Arguments

Jointly Generate Multiple Options for mutual Gain

Employ Tricks and Threats

 

Search for Non-Monetary Solutions

Solve Narrow Presenting Problem

 

Search for Objective Criteria and Opportunities to Expand Value for Trades

Move Toward Compromise Solution

Search for Inventive Solutions

 

Adapted from Harold I Abramson’s Mediation Representation:  Advocating in a Problem-Solving Process (NITA 2004).

pg 18

 


  

Negotiating Skills and Techniques

Adapted from Fisher, Ury and others

 

¨ Don’t react. 

 

¨ Ask questions rather than make statements.

o   Open-ended versus closed questions

o   Ask questions for information, or to clarify, not as a way of making a statement

 

¨ Talk about your own reactions. 

o   Use sentences that start with “I” rather than “You”

 

¨ Focus on what your actually observe rather than what you infer or assume.

o   Paraphrase to clarify and demonstrate understanding.

 

¨ Focus on the person’s behavior rather than qualities or traits.

 

¨ Separate the people from the problem.

 

¨ Focus on interests not positions:  yours and theirs.

 

¨ Determine if you need more information to resolve the dispute, and decide together what you both agree on as objective criteria.

 

¨ Invent options for resolution and mutual gain – Expand the Pie.

 

¨ Don’t reject – Reframe.

 

¨ Don’t argue – Side step.

 

¨ Don’t push – Build a ‘Golden Bridge’ between you. 

 

 pg 19


 

The Mediation Process

 

STAGE 1

OPENING STATEMENTS

STAGE 2

IDENTIFYING ISSUES

STAGE 3

THE EXCHANGE

Goal:

Set a comfortable tone for the mediation.

Give participants information about how the mediation process works.

Steps:

1. Introductions

2. Make appropriate disclosures

3. Brief Explanations of Roles

& Mediation Process

4. Ground Rules-Agree?

5. Confidentiality

6. Separate meetings (caucus)

7. Time Limits

8. Scope of Authority

9. Questions?

 

Transition: Neutral statement of dispute.

Goal:

Give each participant an opportunity to tell the situation from his/her point of view.

Gather information.

Mediator listens and lists issues.

Techniques:

  • Listening
  • Assessing
  • Identifying Issues & interests

Steps:

1. Each party in turn to briefly states perspective.

2. Mediator summarizes KEY points in one list.

3. Check for accuracy.

 

Transition: Break to develop issue agenda for Stage 3.

 

Goal:

Assist participants to see each other in new ways.

Move to focus on the future. Participants develop understanding of other's position.

Techniques:

  • Paraphrase- Ask clarifying questions
  • Acknowledge-Identify expectations
  • Translate/Reframe
  • Summarize
  • Caucus

Steps:

1. Officially reconvene.

2. Describe procedures.

3. Make issue agenda statement.

4. Implement agenda.

a) Neutral icebreaker.

b) Blocking issues.

c) Content issues.

Transition: Shift focus to future.

STAGE 4­

EXPLORING OPTIONS

STAGE 5

WRITING AGREEMENT

STAGE 6

CLOSING STATEMENT

Goal:

Identify and examine options for resolving issues.

Techniques:

  • Brainstorm
  • Reality Test
  • Caucus

 

Steps:

1. Invite parties to suggest options.

2. Write options on board.

3. Encourage participation.

4. Stimulate possibilities with questions.

5. Ensure all necessary topics are addressed.

6. Narrow options using fair standards based on interests.

 

Transition: Draft written agreement.

 

Goal:

Write down the points of agreement reached in Stage 4.

Techniques:

Ask direct questions that help parties focus on making agreement balanced and

Specific

Measurable

Achievable

Realistic

Timed

Steps:

1. Develop specifics.

2. Write a draft.

3. Read aloud and revise.

4. Rewrite, if necessary.

5. Parties can make the agreement binding.

6. All parties sign agreement.

 

Transition: Mediator makes copies for participants.

 

Goal:

Acknowledge participation and end the mediation on a positive note.

Steps:

Mediation session can end in one of three ways:

Agreement

1. Summarize outcome.

2. Encourage follow-through.

3. Discuss follow-up.

4. Formally end session.

No Agreement

1. Summarize progress.

2. List remaining

difficulties/options.

3. Discuss follow-up.

4. Acknowledge participation.

5. Formally end session.

Another session scheduled

1. Summarize progress.

2. Define interim tasks.

3. Set date for next session.

4. Formally end session.

Adapted from the National Conflict Resolution Center’s Mediation Process.


pg 20





Legal Aspects of ADR

How do you provide for an effective and legally enforceable ADR option for yourself or your client?  Consider:

1.       The Problem

Describe your client and the other parties: 

·         Who are they and what are their goals, interests and needs in regard to resolving disputes?

·         What types of disputes are likely to arise under the relationship?

·         What do they need in a dispute resolution process?

 

2.       The Choices

Describe the ADR processes usually available and the advantages and disadvantages of the

process(es) chosen as well as those not chosen.  Why did you and your client make the choices you did?

 

3.        The Process

Explain how the process will work:

·         in regard to time, location, costs?

·         what rules of evidence, procedure, and decision apply?

·         what style of ADR will be used?

·         are processes voluntary or mandatory, advisory or binding?

·         what or who initiates and ends the process?

·         what disputes will be subject to the agreement?

·         Who participates in the processes, what authority should they have, extent of participation?

·         What, if anything, is the role of lawyers in the process?

·         Identify the neutral’s style, training, qualifications, selection method, fees.

·         Other issues?

 

4.        The Law

Describe the present state of the ADR law in your area, and if the law does not provide the protections you and your client wish, how have you provided those protections?

·         enforceability of agreements to use ADR?

·         confidentiality?

·         enforcement of awards or agreements?

·         reviewability?

·         qualifications of neutrals?

If you chose arbitration, what standard of decision, what rules of procedure and evidence will govern?

 

5.        Ethics

Describe the present state of ethical norms concerning neutrals and lawyers in ADR in your area. If there are none, what standards do you want to govern the neutral and/or the lawyer?


Comparison of Primary Dispute Resolution Processes

(adapted from Goldberg, Sander and Rogers, 1992)

 

Characteristics

Litigation/ Adjudication

Arbitration

Mediation

Negotiation

Voluntary/ involuntary

Involuntary

Voluntary

Voluntary

Voluntary

Binding/ nonbinding

Binding; subject to appeal

Binding; subject to limited review

If parties agree, enforceable as contract

If parties agree, enforceable as contract

Third party involvement

Imposed, neutral decision-maker, generally without subject expertise

Selected by party, may have subject expertise

Selected by party

None

Decision maker

The judge

The arbitrator

The parties

The parties

Degree of formality

Formal

Less formal, procedural rules may be set by parties

Informal

Informal

Privacy/ confidentiality

Public process

Parties may decide; verdict may be made public for enforcement or judicial review

Private and confidential

Private and confidential

Cost

Most expensive with least party control of costs

Less expensive; still may be thousands

Free (at a community mediation center) to less expensive

Free to least expensive

Time

Usually longest process; Weeks to years

Shorter

Shorter

Shortest; only depends on parties to decide to meet

Effect on relationships

Destructive due to adversarial process

Destructive due to adversarial process

Can maintain or improve relationships

Variable, depending on skills of parties

Feeling of justice

Yes, if judgment is in your favor and meets all your interests

Yes, if judgment is in your favor and meets all your interests

Yes, because parties feel the other really heard what they had to say

Variable, depending on skills of parties

Vindication

Yes

Yes

No

Variable

Outcome

Judge issues a final decision, which can be appealed

Arbitrator issues a final decision, which generally cannot be appealed

Mediator writes up the agreement which the parties have created

Parties can choose to produce written agreement

Legal precedent

Can set precedent

Cannot set legal precedent

Cannot set legal precedent

Cannot set legal precedent

 


 

Comparison of “Hybrid” Dispute Resolution Processes

 (adapted from Goldberg, Sander and Rogers, 1992)

 

Characteristics

Private Judging

Early Neutral Evaluation

Mini-trial

Summary Jury Trial

Voluntary/ involuntary

Voluntary

Voluntary

Voluntary

Voluntary

Binding/ nonbinding

Binding; subject to appeal

Nonbinding

If parties agree, enforceable as contract

Nonbinding

Third party involvement

Selected by party

Selected by party, may have subject expertise

Selected by party, may have subject expertise

Mock jury through court

Decision maker

The private judge

The evaluator

The parties

The jury

Degree of formality

Less formal, procedural rules may be flexible

Informal

Less formal, procedural rules may be set by parties

Somewhat less formal than adjudication

Privacy/ confidentiality

Private and confidential

Private and confidential

Private and confidential

Usually public

Cost

Less expensive; still may be thousands

Less expensive; still may be thousands

Less expensive; still may be thousands

Less expensive; still may be thousands

Time

Shorter

Shorter

Shorter

Can be nearly as long as traditional trial process

Effect on relationships

Destructive due to adversarial process

Variable to neutral

Can maintain or improve relationships

Destructive due to adversarial process

 Feeling of justice

Yes, if judgment is in your favor and meets all your interests

Yes, if finding is in your favor and meets all your interests

Variable, depending on skills of parties and involvement of neutral

Yes, if judgment is in your favor and meets all your interests

Vindication

Yes

No

Variable

Yes

Outcome

Judge issues a final decision, which can be appealed

Neutral issues a report for the parties

Parties can choose to produce written agreement

An advisory verdict

Legal precedent

Cannot set legal precedent

Cannot set legal precedent

Cannot set legal precedent

Cannot set legal precedent

 


EXTENT TO WHICH A DISPUTE RESOLUTION PROCEDURE SATISFIES PARTY INTERESTS

 

Interests:

 

The party wants…

Litigation/ Adjudication

Arbitration

Mediation

Negotiation

Private Judging

Early Neutral Evaluation

Mini-trial

Summary Jury Trial

Binding outcome

 

 

 

 

 

 

 

 

Ability to choose the neutral third party

 

 

 

 

 

 

 

 

Informal process

 

 

 

 

 

 

 

 

Confidential process

 

 

 

 

 

 

 

 

Nonbinding neutral opinion of case

 

 

 

 

 

 

 

 

Minimize cost

 

 

 

 

 

 

 

 

Speedy resolution

 

 

 

 

 

 

 

 

Control of outcome

 

 

 

 

 

 

 

 

Maintain or improve relationships

 

 

 

 

 

 

 

 

Party wants to set a legal precedent

 

 

 

 

 

 

 

 

 

Yes = this process does meet this interest

No = this process does not meet this interest

Variable = this interest may be met, dependent on situation

N/A = this interest is not applicable to this process


Duties and responsibilities of a paralegal in ADR

 

·  Draft motion to refer case to ADR proceeding.

·  Draft demand for arbitration.

·  Research and procure rules governing ADR proceedings.

·  Assist with preparation of agreement containing procedures and rules the parties will use in the ADR proceeding.

·  Conduct background research on the arbitrator(s), mediator(s), and/or judge(s).

·  Make logistical arrangements for meeting facilities and/or hearing room as necessary and appropriate for the ADR proceeding.

·  Assist with preparation of jury questions for summary jury trial proceeding.

·  Draft documents required by settlement agreement (i.e., lien releases, property transfer documents, and so forth)

·  As necessary and appropriate, conduct legal research and draft ADR contract clauses

·  Store or dispose of case documents in accordance with protective orders and/or settlement agreement.

 

From the National Federation of Paralegal Associations

http://backup.paralegals.org/Development/Handbook/adr.htm

 

http://www.paralegals.org/index.cfm

 

 

 
Ċ
Christina S,
Jan 10, 2011, 2:18 PM