A discussion of the relative merits of dispute resolution methods (with apologies to Albert Einstein) and some of the drivers to choice.
A translation this well known formula into our modern business existence is long overdue. By application of this formula (as amended), it may be that you can avoid atomic explosions of a dissatisfied superior, or a radio active wasteland free of clients. These graphic analogies are all considered in the sphere where Alternative Dispute Resolution (ADR) presents real options from the “lose lose” environment that can be the courts.
Best of all you will appreciate as you consider the elements, which you do not have be Einstein to put it into practice.
In the subject formula the letters in the formula represents the following terms.
e Expectation. In this formula expectation represents the views of the workers with regard to quiet enjoyment of their daily toil, and management’s view that a professional line manager will ensure cordial efficient working relationships amongst staff. In a broader sense it represents the societal view that we will deal with conflict in a quick, civil and if possible consensual way.
m Method. There are now a variety of ‘methods’ available for dealing with disputes, amongst them are litigation, procrastination, conciliation, mediation, adjudication, negotiation, arbitration and countless variations and combinations of these methods / processes
c3 Cost, confidentiality & continuity. These three words often represent the key drivers for parties in a dispute. With cost including staff time, turnover, training and direct cost to the business such as legal fees. Confidentiality is exactly that; these are not methods that require disclosure of outcomes and it is very rare that the processes are subject to review by either the courts or the community. Continuity represents the relationship between the disputants, court processes often mark the end of a relationship while ADR processes frequently allow the relationship to continue; they may even flourish. There are of course many other drivers that could be included such as culture or convenience, but I did not want to go to more than one power greater than the good professor.
adr Alternative Dispute Resolution. This definition is now used interchangeably with appropriate dispute resolution. This represents the process of selecting the method to address the dispute. By placing the denominating formula over this, I have excluded from my discussion those processes which are curial in nature. Those processes excluded are fundamentally the courts’ described as ‘litigation’. This leaves two determinative processes to consider, from those listed in method above, arbitration and adjudication. The remaining processes are facilitative, that is, where the disputants determine and agree the outcome.
Expectations deliver energy to a dispute. The expectation can be created by the disputant or imposed from a party who is apparently external to the dispute. In truth these external parties are often present in many senses in the heart of the dispute and are not recognised as participants. It may be that a senior manager has stated a level of performance required in maintaining an effective work environment. Internally, it may relate to a participants understanding of work policies, reward and recognition structures or innumerable other variables. The most troubling aspect of expectations is that they are often not ever expressed to other parties, and remain as undisclosed barriers to settlement. The net effect of an undisclosed expectation is that it can often not be met. In a mathematical or analytic assessment this means the equation does not balance.
If the formula is not in balance, the agreement is impermanent, therefore the dispute is not resolved but merely deferred. This can equally occur where the expectation is far exceeded, as the illusory level of expectation created in the last dispute may provoke future disputes.
In a mathematical sense ‘e’ generates a value and this must be equalled by the other side of the equation for the outcome to be true.
Methods abound for dealing with disputes; some of the pros, cons and practice tips for those options listed above are investigated.
Litigation is excluded from detailed development because of the formulaic structure involving ADR. This is potentially a little simplistic as many parties who head to court now are sent directly to an ADR process (most commonly mediation), before they are ‘permitted’ to return to the full blown adversarial system. This has been a great step forward and has significantly reduced the waiting time to access a judicial determination. (Interested readers may wish to review a recent study conducted in Ontario where mandatory mediation was introduced and trialed over 23 months1)
Procrastination was one of the options listed above. It is practised to excess by uncertain managers and occasionally very effectively by the very sage amongst us. Those who practise this skill wisely recognise the transient nature of some disputes and let time take its course; cooling off. When practised poorly it has added the procrastinator as a party to the dispute and fuelled the original concern. How many times have the words been spoken with indignant tone ‘and now (insert name) won’t do anything about it !’
Conciliation (serendipitously flanked by concierge (a person who know all in large apartment blocks) and concise (brief and to the point)) is the process of pacifying or resolving disputants. It has come to mean an assisted discussions process by a person who has skills or knowledge in one of the areas in dispute. Examples of its use are the industrial dispute arena, where specialists in labour law and associated specialities such as Occupation Health and Safety will guide discussions down fruitful paths to a satisfactory conclusion that all parties accept they can live with. In many regards this is method used by marriage counsellors.
Mediation is the most successful of the ADR methods / disciplines and is much in favour with the Courts currently. This is a process like conciliation where a neutral third party assist the disputants (there can be more then 2) to identify the issues, separate the people from the problem.2 Mediation has a variety of methods of actual conduct though some elements appear to common to most practice styles. These elements include: allowing parties to speak their mind (venting), high levels of confidentiality, private sessions and sessions with all parties, parties reality testing proposed solutions for sustainability and desire for enforceable outcomes). In most cases the end point of mediation is an enforceable written agreement (which is enforceable as a contract). Most practitioners claim an industry wide success rate of about 85%. Because it is an informal process the other strong points made for it by its proponents are cost (most mediations are les than 1 day), and speed (it is common for a mediation to be resolved within two weeks of an agreement to mediate being executed).
Adjudication is one of the determinative processes encompassed in ADR. This means that a request is made of a party, considered by the parties to be sufficiently qualified, to determine a matter for them. In most cases the determination is final and is subject to limited common law rights of appeal, such as duress, misrepresentation and alike. This is sometimes used in association with the other facilitative methods such as conciliation or mediation. It has recently been encompassed in some legislation with power passed to ‘experts’ outside the traditional Government / Courts compact.3 Its key benefits are that the adjudicator is neutral, expert and usually readily available. As an informal process (in most cases) it is faster and can be done from written submissions rather then evidence being led and refuted through the adversarial system of the courts.
Negotiation is a leopard that has changed its spots, as a science has grown around the practise. Once most commonly used with the adjective tough, it is now more aligned with effective. A tool for all of the methods it is increasingly used as a stand-alone method, where a professional negotiator is employed to deal with particular situation. Most of the modern practitioners utilise a method based around that developed at Harvard, where the generation of options, use of standards and close analysis of key drivers are the norm.
Arbitration is the child of commerce, where transactions across political boundaries made the search for neutral determinations and avoidance of delays in getting matters before a court essential. It is now governed by many clearly stated rules both within Australia4 and internationally5. The arbitration process is determinative and in most cases is internationally enforceable through the domestic courts. The process is similar to the Australian court system and is often, though not always formal in nature.
All of these methods, and the others that remain undescribed are valid. What must be borne in mind is the requirement to have a method. In a mathematical sense, if values were attributed to each component of the equation that unless the expectation value is zero, then having a value of zero for method (zero here being when there is no expectation or no method) will balance. This is because it is a mathematical proof that multiplying any number by zero will deliver an outcome of zero.
Cost, confidentiality & continuity along with culture, convenience and similar drivers work to assist in the selection of the method and provide input to the range of acceptable outcomes. In the event that the outcome falls well below the value ascribed to expectation it is possible that either parties will not reach an agreement in a facilitative process or will seek recourse to further consideration in a determinative process (this may be by process of appeal or alike). While all of the ‘c’ words may not be present some must be, or you would be unlikely to have a dispute.
While most understand immediately how cost can be a business drivers, many fail to contemplate how the choice of ‘m’ can be affected by such factors as continuity and culture. The adversarial approach of litigation most frequently rings a close to any future business relationship. This can also be a consequence of selecting a method which is culturally abhorrent to another party. Confidentiality, is legally complex to describe with certainty, however, as many of the methods described are private processes which may be conducted under an enforceable agreement of confidentiality, settlement terms are rarely revealed. Convenience is another central factor, with the escalating costs of many formal processes and the diversion for core activities represented by dispute it should not be undervalued.
Conclusion
Disputes are a reality of the human condition. The nature of them is to diverse to be represented by a single solution strategy, by employing the formula detailed above disputants may be able to cover many of the bases required to be contemplated before embarking on the dispute path. Much of that path should be internal to the organisation, and solutions can be found along the way; however to maintain control and to meet the ‘e’ what soever it may be you will have to look externally at some stage. When that stage is reached, do so as an informed choice, part of your strategy.
Your legal adviser should be able to assist you in explaining choices, or a professional organisation like LEADR can assist. For those who wish to investigate some of the possibilities you may consider, ‘Getting to yes’ by Fisher and Ury6 or ‘A sudden outbreak of common sense’ Ackland.7 |
