Tuesday, March 20, 2012

Dispute Resolution Strategies




Dispute Resolution Strategies

       In effort to resolve conflict, disputants often utilize negotiation, mediation, or litigation.  The strategy selected depends upon the situation at hand, thus their utilization is tailored to fit the pending circumstances.  While some disputes may be resolved between the disputants, others may require a neutral third party or even a negotiation agent.  These dispute resolution strategies are designed in order for disputants to present their concerns in a calm, methodical manner (Helpful Strategies, 2010).
Negotiation serves as a “back and forth communication designed to reach an agreement between two or more parties with some interests that are shared and others that may conflict or simply be different.  It can be verbal or nonverbal, explicit or implicit, direct or through intermediaries, oral or written, face-to-face, ear-to-ear, or by letter or e-mail” (Moffitt & Bordone, 2005, p. 279).  Typically, “the parties to a dispute engage in back and forth discussions designed to reach a settlement” (Helpful Strategies, 2010).  Although “disputants will virtually never have identical interests…focusing on interests in common presents the opportunity to discover mutually attractive settlement options” (Moffitt & Bordone, 2005, p. 177).  This element of negotiation is joined with alternatives, options, legitimacy, commitments, relationships, and communication as well.  While the elements are definable and relative, their utilization may be overwhelming in the midst of interaction.  The most common of these interactions are as follows; positional bargaining, favors and ledgers, chicken, and problem-solving (Moffitt & Bordone, 2005).  Negotiation is common in usage and may be utilized in any of the following scenarios and so on:
1.      Rationing household chores, responsibilities, family outings, etc.
2.      Child custody
3.      Sales, i.e. cars, homes, open markets, etc.
4.      Employee strikes
5.      Contractual agreements
While many negotiations do not directly require the law, several others may.  As afore mentioned, child custody hearings and contractual agreements are examples of legal remedies utilizing negotiation.  Others span from divorce hearings and employee compensation, to international treaties between countries.  The fact that negotiation may be utilized to resolve day to day disputes between families, friends, and co-workers, and in addition, the court system to global conflict, makes it the most universal dispute resolution strategy (Moffitt & Bordone, 2005).
Another popular method of conflict resolution is mediation.  In this process, “a third party, the mediator, assists disputing parties in reaching a mutually agreeable resolution” (Moffitt & Bordone, 2005, p. 304).  The mediator is “skilled in identifying areas of agreement, assists disputants in identifying common interests, inventing options for mutual gain, clarifying and narrowing differences, and designing settlement terms that will work for all parties” (Helpful Strategies, 2010).  The mediation process entails several steps as listed below:
1.  Preliminary Arrangements- This occurs before the actual mediation begins.  It includes the referral, the selection of a mediator, determines who will be in attendance, costs, and issues to be resolved.
2.  Mediator’s Introduction- Introduces the participants, describes the process, and sets the ground rules.
3.  Opening Remarks- A presentation of each side’s views are expressed to the mediator.
4.  Venting / Information Gathering- Inquiries are made from both parties and the mediator in effort to gain a better understanding of the issues and what caused them.
5.  Issue & Interest Identification- The mediator expresses the issues in agreeable terms in effort to heighten parties’ understanding, acceptance, and ability to find solutions.  Agenda setting, private caucus, listing options, and reality testing may ensue.
6.  Bargaining & Negotiating- The mediator helps the parties find trade-offs, which will hopefully lead to a settlement, the…
7.  Agreement, followed by closure (Moffitt & Bordone, 2005).
As with negotiation, mediation may be utilized between family members, neighbors, students, co-workers, etc.  In addition, the judicial system also utilizes mediation.  With this considered, mediation is the second most common method of dispute resolution.  (Negotiation is more universal due to the fact that it does not require the use of a third party).  Legal matters resolved with the assistance of mediation include: divorce proceedings, victim offender mediation, property disputes, doctor / dental malpractice, or car accident cases (Grasp Mediation, 2010).
Lastly, litigation is a legal court proceeding which determines and enforces legal rights, to resolve civil disputes.  It normally involves several participants, the plaintiff and defendant, judge, jury, private investigators, consultants, et cetera.  The process is initiated by a formal complaint filed by the plaintiff to the court, and served to the defendant.  The defendant then responds or files a motion to the court on their behalf.  If the court refuses to recognize the motion, the defendant must adhere to the complaint, and the pre-trial stage ensues.  Evidence, witnesses, and legal theories are gathered, and the trial strategy is developed.  Next the trial begins.  Once the jury is selected (if applicable) attorneys make their opening statements, present their case, deliver closing arguments, then the judge or jury ponders the evidence and renders a decision.  However, this decision is not final until “all opportunities for appeal have been exhausted.  Once all opportunities for appeal have been exhausted, the last decision of the highest court that considered the case is final and binding upon all parties” (Moffitt & Bordone, 2005, p. 339).  Disputants seek litigation to resolve child custody, divorce settlements, property damage, breach of contract, criminal proceedings, etc.  Although litigation is common, it is utilized the least due to the fact that it is limited to the judicial system and often times, negotiation and mediation are utilized in effort to avoid litigation (Moffitt & Bordone, 2005).

References:
Helpful Strategies. Retrieved May 15, 2010, from
Grasp Mediation. Retrieved May 15, 2010, from
Moffitt, M.L. & Bordone, R.C. (2005) The Handbook of Dispute Resolution.
            San Francisco, CA: Jossey-Bass.

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