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

            http://www2.gsu.edu/~wwwomb/helpfulstrategies2.htm.

Grasp Mediation. Retrieved May 15, 2010, from

http://www.graspmediation.com/blog/2010/04/26/mediation-examples/.

Moffitt, M.L. & Bordone, R.C. (2005) The Handbook of Dispute Resolution.

            San Francisco, CA: Jossey-Bass.

Appropriate Dispute Resolution Procedures

Appropriate Dispute Resolution Procedures

 Determining the appropriate dispute resolution procedure for a given situation may be a difficult challenge.  Although the selection process is more art than science, “both theoretical and practical indications should guide this process choice” (Moffitt & Bordone, 2005, p. 386).  There are several factors to consider when choosing a strategy, such as which process is complimentary to both parties or to society as a whole, the climate in the environment of the conflict, the goals for the processes, etc.  Of the “four principal attempts to develop a taxonomy for deciding which process is best for a dispute” (Moffitt & Bordone, 2005, p. 389), the following shall consider the Dauer model and the CPR approach.

            To begin with, the Dauer model does not specify any particular dispute resolution process for consideration, yet it focuses on the characteristics of the case, the attributes of the parties, features of the environment, and the barriers to settlement (Moffitt & Bordone, 2005).  Characteristics of the case may be inclusive of contracts, third parties, court-relative or out-of-court processes, etc.  The parties’ individual understanding, age, position / occupation, and relation to one another, also determines what type of process will be chosen.  As far as the environment is concerned, “one should determine the dispute resolution climate in the place of the dispute” (Moffitt & Bordone, 2005, p. 388).

Is this a work environment, a public or private school, a household, within a government office, between neighbors, or a community issue?  State and federal laws coupled with cultural acceptance must be taken into account as well.  Then, what are the barriers to the settlement?  Is this issue time contingent, how many resources are available to either party, are both parties competent enough to represent themselves, or is travel involved, are examples of possible obstacles when deciding which process to select.  Utilizing the Dauer model is most effective when the parties are unfamiliar with one another, loosely related, and / or the environment is uncommon.  This strategy is applicable in the following scenarios;

1. A store owner is debating with the salon owner next door over customer-parking.
2. An Islamic student is denied the right and time to pray during the school day.

The Dauer model would help to secure a desirable outcome for the disputants in either scenario because it helps to define the issue and / or the common goal (adequate parking / individual religious rights versus interrupting the educational system), pinpoints any potential impediments (property rights, street zoning / school and county by-laws), and will determine what type of third party assistance may be required (landlord, county zoning agents / private attorney, school and government officials).  Negotiation may be utilized initially in scenario one, however if unsuccessful mediation or arbitration may be sought.  In scenario two, mediation should be the first step, followed by arbitration if unsuccessful.

            Secondly, the CPR approach is tailored towards mediation within business disputes.  It focuses on the parties’ goals for managing the dispute, how suitable the dispute is for problem-solving, the potential benefits of mediation, and the possible contraindications for mediation (Moffitt & Bordone, 2005).  One must consider what each party desires to accomplish or achieve throughout or as a result of the ordeal.  Also, does the conflict in question lend itself to be resolved by a process of mediation?  Or is this issue a win / lose scenario?  How would mediation improve or better the situation?  In addition, why would the disputants utilize mediation?  For what reasons?  Utilizing the CPR approach would be beneficial under the following circumstances;

1. Co-workers having difficulty sharing a common work area.
2. An unwanted sexual advance between co-workers.

The CPR approach is beneficial in either situation due to the fact that it pinpoints the desirable goals of the disputants (suitable time and utilization of resources on hand / a comfortable work environment), identifies whether or not the dispute may be resolved by problem-solving (creating workable solutions and suitable conditions), identifies the benefits (cost and time efficiency / sets the stage for future success and workability), and identifies the necessity for mediation (to resolve the issue between the opposing parties by the use of a neutral third party mediator).

            Possessing the ability to select “these informal conflict resolvers make a significant impact upon organizations either by resolving the conflict or channeling it to a formal mechanism” (Taylor, 2000).  This capability benefits household, community, and societal disputes as well.  Although it may be challenging, utilizing these selection strategies will help secure a desirable outcome for the disputants.

References:

Moffitt, M.L. & Bordone, R.C. (2005) The Handbook of Dispute Resolution.

            San Francisco, CA: Jossey-Bass.

Taylor, M. Informal Conflict Resolution: A Workplace Case Study. Retrieved

May 22, 2010, from http://www.mediate.com/articles/taylor.cfm.