Dispute resolution processes are the practices in the science of conflict management. With expanding the discussion about dispute resolution at work, it is important to illustrate the options available for decision making about how to manage disputes.
There are a variety of strategies employed within the field of conflict resolution to manage and resolve conflict at all levels of social interaction. In practice, the most appropriate way to approach a particular conflict will vary according to the level on which it occurs, our personality, the power or resources we possess, our perspective on the future, the strength of our feelings and the complexity of the problem.
In this post, we will be examining the most prominent strategies for managing disputes.
Disputes may be settled by disputing parties using a process that builds consensus between them or by disputing parties relying on the command of a third party. These two streams of the dispute resolution process fall within a continuum.
This continuum includes both the consensual models and the command models that are currently used for dispute resolution at all levels of the judicial and legal system in Canada. These models are:
The following image shows you the continuum from consensual to command models often used in Canada for dispute resolution:
“A consensus process can be adapted to fit almost any situation and set of circumstances. It can complement existing governmental and private sector decision-making processes and can be applied to existing mandates and authorities. It does not require special legislation or special mandates. It can result in broadly supported and informed solutions that are practical and feasible and can build the commitments necessary for their implementation.”
Building Consensus for a Sustainable Future: Putting Principles into Practice (2018). Nrt-trn.ca. Retrieved 14 January 2018, from http://nrt-trn.ca/wp-content/uploads/2011/06/building-consensus-eng.pdf
Negotiation is a process whereby the parties to the conflict seek to settle or resolve their conflicts themselves. It is a process of direct communication between the conflict parties, without the presence of a third party facilitator, in an effort to reach a mutually acceptable agreement. Negotiation sometimes means a very formalized process, such as the negotiations between a labour union and management representatives or in hostage negotiation situations employed by police officials. It can also refer to the informal process through which everyday decisions get made, for example, negotiation between family members about who gets to use the newly purchased car.
Negotiation is comprised of two separate, yet essential, underlying principles: interest-based and competitive based. Depending on the type of Negotiation, the negotiator may employ a variety of models. For the purpose of this post, we are going to focus on Interest-Based Negotiation.
Interest-Based Negotiation is a Negotiation strategy whereby the parties work together to find shared needs and interests relating to their dispute. In most disputes, there are many underlying needs and interests supporting each position. Focusing on those underlying needs and interests is the best way to achieve solutions that meet some or all of the mutually shared needs and interests. This is where the term ‘win/win’ is most applicable.
A classic example of a win/win resolution is the parable of the orange from the book, ‘Getting to Yes’ (Fisher and Ury, 1981). This video explains the parable:
Skills of an effective negotiator include being able to empathize, to promote fairness, to engage in dialogue and to value differences. Essential characteristics of effective Negotiation include patience, kindness, open-mindedness and a willingness to resolve the dispute.
Assisted Negotiation is a process designed for parties to resolve their dispute with representation speaking on their behalf. A common example of this is with Real Estate Agents. Essentially, in the purest sense of the definition, Real Estate Agents are Assistant Negotiators.
In another example, parties seeking out a divorce may enter an Assisted Negotiation process by engaging in what is known as Collaborative Family Law. Collaborative Family Law was first practiced in Medicine Hat, Alberta in 2001 and has since saved disputants and court systems time and money. With Collaborative Family Law, the disputing parties meet with their respective Collaborative lawyers to discuss their individual needs and interests as it relates to their dispute.
Then, the couple and their respective lawyers meet in sessions to reach a settlement without involving the court. At these sessions, every issue to be discussed and resolved between the parties including the division of property, assets and debts, parenting plans, child support and spousal support. Sometimes, other professionals like social workers, counsellors, financial experts and psychologists may become part of the discussions to provide the parties with support and information to resolve their dispute.
The intent of this Assisted Negotiation process is for the parties and their lawyers to strive to work things out in a positive, future-focused manner. When a settlement is reached, the lawyers create the appropriate documentation to make their settlement legally binding in a court of law.
The main advantages of Assisted Negotiation are:
A Mediator as a competent and trusted intermediary attempts to facilitate a negotiated settlement on substantive issues through the use of reasoning, persuasion, the control of information and the suggestion of alternatives.
The Mediator’s role is:
The function and objectives of Mediation are first and foremost to motivate the parties toward a settlement of their issues and dispute. This is achieved through a diagnostic focus on the process used.
Essentially, Mediation is designed to:
The following video shows an example of how mediation works for the Alberta New Home Warranty Dispute Resolution Program:
Arbitration is a dispute resolution process in which the disputing parties present their case to a third party who will examine all of the evidence and then make a legally binding decision based on the evidence. Like in Mediation, the Arbitrator is a neutral third party who is impartial to the dispute.
During Arbitration, the parties are typically embedded in their positions and present their respective evidence to prove the other party wrong and at fault in the dispute. The parties assume they are working against each other and most Arbitrations end with a win/lose outcome.
Arbitration is a very common approach for resolving international commercial or business disputes.
Judicial Dispute Resolution (JDR) is an adjudicative process defined by the following elements:
Also known as administrative decision making where the administrator has direct control over the subject matter beyond the immediate dispute. This is true in organizations where there exist organizational policies for conduct and behaviour as it relates to relating to each other and relating to outside sources. The administrative regulation also includes the chain of command for all.
Guidelines, ground rules and specific processes are designed for filing grievances for disputes taking place within the organizational setting.
An administrative regulation:
Administrative Regulations are detailed directions developed by administrators to put policy into practice. They tell how, by whom, where and when things are to be done.
Administrative Regulation is important because it:
Rule Making, as a form of Dispute Resolution, covers the masses in our societies. It is a broad brush application of the values and norms our society has agreed to. For the most part, laws provide a framework for what is acceptable and what is unacceptable in Canada. As it relates to Dispute Resolution, when appropriate laws are in place and enforced, they provide a model for dispute resolution in that they are non-negotiable and provide solutions to difficult decisions.
Rule-making is regarded as one of the most significant tasks of Parliament. This legislative process takes up a major portion of Parliament’s time. In the Parliament of Canada, as in all legislative assemblies based on the British model, there is a clearly defined method for enacting legislation.
Disputes may be settled by using a process that builds consensus or by relying on the command of a third party to make decisions. Typically, most disputing parties begin their journey to dispute resolution with Negotiation. Failing that, they try Assisted Negotiation and potentially Mediation. As disputes escalate and disputing parties feel an increasing amount of resistance, they begin to look to others to make decisions for them. These decisions may be made through Arbitration or in some cases, Judicial Dispute Resolution. Eventually, Administrative Regulation may intervene and ultimately, Rule Making determines the right and wrong of a dispute.
The various models explored in this article provide a guide for the processes you may encounter. As these models continue to become more integral to the systems that use them, they will evolve and change for adaptability to the needs of society.
Thank you for reading my post.
Until next time,
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