On October 8, 2006, Fred Butler, an attorney engaged in arbitrations and mediations, gave a talk in San Francisco, CA on alternative dispute resolution mechanisms. There are many ways to resolve conflicts: litigation, go to war, arbitration, mediation, denial, avoidance, negotiation.
As to negotiation, there are two types of negotiation: win-win, win-lose. In the win-lose, each party is interested only his/her own gains, which are usually to the detriment of the other party. In win-win, each party determines not only what the other party wants, but why the other wants. With the other party’s interests in mind, a party is able to craft a solution that expands the pie to the benefit of both parties.
Mediation is assisted negotiation. A trusted third party assists in resolving a dispute. The third party needs to be respected by both parties, not necessarily someone in the mediation business. Mediation gives the parties control over the dispute resolution process because the parties are able to choose who to assist them in the dispute. Mediation allows the parties to preserve their relationship.
There are three styles of mediation: facilitative, evaluative, transformative. In facilitative, the mediator causes conversations between the parties. In transformative, the mediator transforms the culture of the parties in order to prevent the dispute from occurring again.
Arbitration takes place in three situations: labor, commercial, judicial. In labor, arbitration is used to resolve labor and management disputes involving contract interpretations, benefits, wages, discipline. Usually the labor contract governs the arbitrator’s decision. Commercial arbitration occurs in medical disputes, consumer situations, contractually agreed situations, and real estate disputes. Usually the arbitrator needs to disclose any conflicts in order to prevent the award from being overturned. Judicial arbitration occurs when required by statute or a court.
In arbitration, the rules of evidence are relaxed. The arbitrator may ask witnesses questions in order to clarify information. Parties may agree to arbitration procedures ahead of time.
As workplace mediator and an Ombuds who works for fairness and equity in organizations, I'm delighted to read about alternative dispute resolution in this blog.
It would be a shame if readers were left with an incorrect understanding of mediation so I hope you won't mind one small correction about the different types of mediation.
Both facilitative and evaluative mediation seek agreement. Evaluative mediation, which most often related to court-based cases, differs because the parties turn to the mediator to offer an opinion as to the value or outcome of the case in litigation. Facilitative mediation attempts to find solutions by interest-based negotiation. The differences may seem insignificant but understanding each type better and when it's use if best may be critical to obtaining a good result.
Savvy in-house counsel know that ADR mechanisms are an effective management tool. The Ombudsman function is emerging as an enlightened way to deal with both systemic and interpersonal issues within an organization.
Organizations interested in learning more about Ombuds can visit the website of the International Ombudsman Association.
Thanks for shining a light on these tools.
Dina Beach Lynch, Ombuds
The Ombuds Academy
Posted by: Dina Beach Lynch, JD | October 14, 2006 5:21 PM | Permalink to Comment