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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