THIRD PARTY APPROACHES

what are the two transformative dimensions

1. empowering the negotiators to express themselves 2. increasing the capacity of negotiators to recognize the other's perspective

several key factors that should drive the design of an effective dispute resolution system

1. ensure that the parties understand their choices before they begin using a particular procedure, that disputants understand the chosen procedure well, and that they try low cost options first 2. it appears that users may need to be involved in the design of alternative dispute resolution systems in order for them to be effective 3. appoint, train and support people to advise and assist disputants in dispute resolution 4. through systemic research

what are the four aspects of effective mediation

1. mediator-parties relationship 2. relationship between the parties 3. the issues 4. the parties

what are the formal intervention methods

arbitration mediation process consultation

requires the parties to comply with the decision, either by law or by contractual agreement

binding arbitration

the arbiter is to

choose from opposing positions when disputing parties are unable to decide for themselves

where parties are divided into subgroups to deal with different issues

committee strategy

the witness is to

contain escalating conflict by watching and remembering the events that occur in her presence

the arbitrator must choose wither one party's position or the other's- nothing in between

final offer arbitration

research suggests that negotiators expecting a split the difference rule in the case of impasse may be chilled and

final offer arbitration is an alternative that reduced the chilling effect

those in which the third party makes a binding decision that the parties must live with

imposed adr systems

what happens where there is a high amount of mediator's perception of common ground and a low mediator's concern for parties aspiration

inaction

typically comes from wearing the parties down over time and increasing the cost of holding out

indirect pressure

incidental to the negotiation

informal interventions

the peacekeeper is to

intervene in a dispute to prevent violence or to stop it once it occurs

a dispute about the dispute

metadispute

negotiator passivity, loss of initiative, and dependence on the third party are common results of recurring dispute arbitration and collectively are known as the

narcotic effect of arbitration

mechanisms that allow the parties to resolve their own disputes without the help of any third party

negotiated adr systems

what category of third party negotiations features high negotiator control over outcome and high negotiator control over procedure

negotiation

the narcotic effect is even more likely when

negotiators are accountable to constituencies because negotiators can take tough, unyielding stands on issues and blame compromise settlements on the arbitrator

conflict may escalate at the contain stage for three reasons

no attention no limitation no protection

in which types of third party negotiations are decisions made by extralegal decisions

nonviolent direct action violence

those that companies adopt to prevent disputes

preventative adr systems

the primary focus of process consultation is to

teach the parties how to resolve substantive differences themselves

how do you transform disputed rights

the arbiter

how do you transform no attention

the wintess

when the parties in negotiation anticipate that their own failure to agree will lead to binding arbitration,

they may stop working seriously for a negotiated settlement

it is suggested that mediator bias has two forms

1. general alignment or affiliation with parties prior to mediation 2. greater support of one side during mediation

three general sequences to discussing issues

1. gradualism 2. boulder in the road 3. committee strategy

two stage strategy to motivate parties to negotiate

1. improve the relationship 2. understanding the benefits

conditions where third party intervention may help

1. intense emotions 2. poor communications 3. misperceptions/stereotypes 4. repeated negative behaviors 5. serious disagreement 6. disagreement of the number of issues 7. incompatible interests 8. unnecessary value differences 9. absence of process 10. difficulty in getting it started

what are the disadvantages of mediation

1. lack of impetus or initiative to adhere to any particular settlement or to settle at all 2. possible perpetuation of the dispute, perhaps indefinitely 3. possible escalation of the dispute into more damaging, more costly forms

what are the disadvantages of arbitration

1. negative consequences for negotiators when they anticipate a third party intervention 2. removal of outcome control from negotiators 3. possible lack of commitment to implementing the imposed outcome

field studies revealed four types of mediator approaches

1. parties who controlled all three 2. those who controlled only outcome and motivation 3. those who controlled only process and outcome 4. those who controlled none of these

process consultants should be

1. perceived as experts in the technique 2. perceived as clearly neutral 3. should be authoritative

third parties can influence conflict at three stages

1. prevent conflicts 2. resolve conflict 3. contain conflict

mediators are advised to

1. push for agreement only when a positive bargaining zone exists 2. search for fully efficient agreements 3. help the parties think through the issues of fairness 4. avoid reaching an agreement for agreements sake 5. Avoid accepting the first agreement discovered 6. Avoid the 50-50 split if it doesn't teat both parties equally

what are the limitations of third-party interventions?

1. signals that the negotiation process has stalled 2. signal that the parties have failed to build relationships or to manage their interdependence positively

five key dimensions could account for a manager's choice of intervention

1. the amount of attention the manager gives to the parties statements of the issues in dispute rather than to underlying problems 2. the degree of voluntary acceptance of the solution proposed by the third party 3. third party vs. disputant control over shaping the outcomes 4. third party's personal approach to conflict 5. whether the dispute is to be handled publicly or privately

what are the three stages of arbitration-mediation

1. the arbitrator holds a hearing and reaches a decision 2. mediation 3. If an agreement is not reached, the arbitration ruling is revealed and is binding on both parties

factors that can undermine ADR systems

1. the belief that winning is the only thing that matters, rather than settling disputes 2. the perception of ADR as an alternative to litigation, rather than the preferred alternative 3. The perception that ADR is nothing more than litigation in disguise

this model suggests that the two mediator styles vary as a function of the degree of third party control exercised over

1. the process 2. the outcome 3. the motivation of the parties to continue deliberations

four key conflict dimensions that disputants should consider if they engage a mediator

1. the quality of the conflict 2. the quality of the relationship among disputants 3. the quality of the context 4. the quality of the process and issues

healthy ADR systems share five features across organizations

1. they are all encompassing 2. there is a conflict competent culture 3. there are multiple access points to the system 4. there are options and choices 5. there are support structures

third parties need to use moderation

1. to borrow the medical dictum first, do no harm 2. to intervene only when necessary and control only as much as necessary to enable the parties to find resolution

in which types of third party negotiations are decisions made by private third parties

administrative decision arbitration

what style happens when there is a high degree of managerial outcome control and a low degree of managerial process control

adversarial intervention

use the expertise of a third party to determine what the resolution would likely be if the dispute went to arbitration, court and so on

advisory adr systems

while content mediation proved to be the most effective intervention in the study,

all three approaches were found to be more satisfying

if negotiators anticipate that the arbitrator will split the difference, then it is in their best interest to maintain

an extreme position because the hard liner will be favored

arbitrators may also craft and reach

any resolution they deem appropriate

allows negotiators to have considerable control over the process, but they have little or no control over outcomes

arbitration

viewed as the result of the negotiators agreement to disagree and a willingness to surrender control over the outcome of their dispute

arbitration

what category of third party negotiations features low negotiator control over outcome and high negotiator control over procedure

arbitration

mediation has also been called

assisted negotiation

establish power over the process that the conflicting parties are pursuing so they may intervene in and control it

authoritative

what category of third party negotiations features low negotiator control over outcome and low negotiator control over procedure

autocracy

negotiators initiate third party interventions when they

believe they can no longer manage the situation on their own

arbitrators must be careful that their decisions do not systematically favor one side or the other and that they maintain an image of fairness and impartiality, or they may be perceived as subject to a

biasing effect

where the mediator begins with the most complex issues in order to identify if the conflict is ripe for resolution

boulder in the road

the parties avoid making compromises they might be otherwise willing to make, because they fear that the fact finder or arbitrator will split the difference between their stated positions

chilling effect

one of the most powerful drivers of effective implementation is the

commitment to a decision that derives from prior participation in making it

what happens where there is a low amount of mediator's perception of common ground and a high mediator's concern for parties aspiration

compensation

what are the four aspects of the strategic choice model

compensation pressure problem solving inaction

in which types of third party negotiations are decisions made by the negotiators

conflict avoidance discussion and problem solving informal negotiation mediation

third party interventions can yield several benefits including

creating breathing space or a cooling off period reestablishing or enhancing communications refocusing on the substantive issues remedying or repairing strained relationships establishing or recommitting to time limits and deadlines salvaging sunk costs increasing levels of negotiator satisfaction with and commitment to the conflict resolution process and its outcomes

whose style was marked by a high degree of issues management, issue packaging, and coordination of exchanges between the parties

deal makers

two main types of kediators

deal makers orchestrators

arbitrated disputes may also engender less commitment to the settlement than alternative forms of dispute resolution

decision-acceptance effect

occurs when the mediator uses tactics to encourage the parties to soften their positions

direct pressure

the teacher is to

educate people in the skills of managing differences and conflict

the provider is to

enable others to fulfill their needs

the purpose of the third party in process consultations is to

encourage the negotiators to confront their differences and the reasons for them

the dominant purpose of other types of third party interventions is to

enhance the parties dispute resolution skills

the odds of the successful resolution of an intractable negotiation are best if there has been

enough pain to inspire motivation to settle but not too much pain to cause lasting animosity

the healer is to

ensure that the emotional aftermath of a conflict is managed so that it does not become the source of future conflict

the equalizer is to

ensure that the voices of weaker parties are heard when resolving conflicts

formal or contractual mediation is based on

established and accepted rules and procedures

provide a third party neutral who assists the parties in negotiating a resolution

facilitated adr systems

use the technical expertise of third parties to determine the facts in a specific situation and how the facts should be interpreted

fact finding adr systems

when the arbitrator must choose, without amendment, one of the positions presented by the disputing parties

final-offer arbitration

the bridge builder is to

find ways to bring parties together to improve relationships in order to avoid conflict escalation

designed intentionally, in advance, and they follow a set of rules or standards

formal interventions

third party intervention may be

formal or informal

conflict may escalate at the prevent stage for three reasons

frustrated needs poor skills weak relationships

where the mediator starts by addressing simpler issues and moves to more complex issues as the discussion progresses

gradualism

refers to decisions about the interpretation of existing contracts

grievance arbitration

arbitration resolves a disagreement by

having a neutral third party impose a decision

the mediator is to

help parties reconcile their differences of opinion by opening channels of communication between parties and helping them search for their own solution

mediation is more effective when negotiators experience a

hurting stalemate

situation in which the relationship is negative enough to be painful but not negative enough to be irreparable

hurting stalemate

inspiring parties at impasse to begin to speak to each other and to engage in discussions is an

important activity of mediators early in the process

what style happens when there is a high degree of managerial outcome control and a high degree of managerial process control

inquisitorial intervention

what are the four intervention styles

inquisitorial intervention adversarial intervention mediational intervention providing impetus

research indicates that managers spontaneously act as

inquisitorial judges or arbitrators, or they threaten to settle the dispute for the parties in an undesirable way if they can't settle it themselves

when a new contract is submitted to arbitration, this process is called

interest arbitration

mediation was less effective when one or both of the negotiating parties had

internal conflict

arbitration is the most recognized form of third party dispute resolution because of

its high profile use in labor relations and the seting of compensation of professional athletes

in which types of third party negotiations are decisions made by the legal third parties

judicial decisions legislative decisions

research has found that mediation was

less costly time consuming produced greater disputant satisfaction

different contexts in which mediation and alternative dispute resolution have been used

malpractice suits tort cases liability claims pretrial diversions of alcohol and drug cases to treatment centers

what are five core determinants of negotiator trust in mediators

mastery explanation warmth and consideration chemistry impartiality

what category of third party negotiations features high negotiator control over outcome and low negotiator control over procedure

mediation

the major difference between mediation and arbitration is

mediation seeks to achieve the objective by having the parties themselves develop and endorse the agreement

should have a complementary and facilitating effect on dispute resolution, but only for final offer arbitration

mediation-arbitration

what are the two combinations of intervention methods

mediation-arbitration arbitration-mediation

what style happens when there is a low degree of managerial outcome control and a high degree of managerial process control

mediational intervention

decreased constraints, increased freedom of action, increased autonomy, increased ability to entertain imaginative ideas

mediator flexibility

another element that influences the success of mediation is the

mediator's acceptability to all the parties to the dispute

the difference between mediation and process consultation is that

mediators are at least somewhat concerned with addressing the substantive issues in the dispute, whereas process consultations focus on improving communication and conflict management procedures

situations in which tension is apparent and tempers are beginning to fray but negotiations have not deteriorated to the point of physical violence or irrevocably damaging threats and actions

moderate conflict

there is good evidence that mediation should be used

more often as an informal third party intervention style

research suggests that splitting the difference may

not be common practice in professional business arbitration

typically charged with being a confidential and informed information resource, communications channel, complaint handler, and a person who helps an organization work for change

ombudsperson

whose style was less issue specific but more oriented toward sequencing conversations between the parties

orchestrators

the referee is to

place limits on the extent to which behaviors are tolerated

mediator attempts to get to know the parties, help them understand the process that will be followed, gain their confidence stages 1-5

premediation preparation

stages in the mediation process can be roughly grouped into four categories

premediation preparation beginning stages of the mediation middle stages of the mediation ending stages of the mediation

what happens where there is a low amount of mediator's perception of common ground and a low mediator's concern for parties aspiration

pressure

what happens where there is a high amount of mediator's perception of common ground and a high mediator's concern for parties aspiration

problem solving

marked by attempts to deal with underlying problems and including departures from struct neutrality

problem solving orientation

a set of activities on the part of the consultant that helps the client to perceive, understand and act upon the process events which occur in the client's environment

process consultation

what style happens when there is a low degree of managerial outcome control and a low degree of managerial process control

providing impetus

developing an empathic trusting relationship with the parties

rapport

this appears to be more important to successful mediation than particular mediation tactics

rapport

a negotiation where an intractable situation is just on the verge of being addressable

ripeness

the first step of process consultations is to

separate the parties and interview them to determine each side's view of the other party, positions and history of the relationship

marked by strict neitrality and a narrow focus on arriving at a specific resolution

settlement orientation

two distinct mediator orientations

settlement orientation problem solving orientation

arbitrators may hear and rule on a

single issue or on multiple issues in a total settlement package

recognizing that mediators deal with a variety of situations and choose their behaviors based on what a given situation warrants, Carnevale developed a

strategic choice model of mediator behavior

participants found the problem solving orientation to be more

structured, active approach to resolving conflict seems to have more desirable outcomes

how do you transform weak relationships

the bridge builder

how do you transform unequal power

the equalizer

as the frequency of arbitration increases, disenchantment with the adequacy and fairness of the process develops, and the parties may resort to other means to resolve their disputes

the half-life effect

process consultation puts the issues under dispute into

the hands of the disputing parties

how do you transform injured relationships

the healer

how do you transform conflicting interests

the mediator

how do you transform no protection

the peacekeeper

how do you transform frustrated needs

the provider

how do you transform no limitation

the referee

how do you transform poor skills

the teacher

two elements of the mediation process are integral to its success

timing mediator acceptability

research suggests that while mediational interventions may be preferable to autocratic ones,

timing appears to be critical

a growing focus on ________________ _______________ has sparked debate about the extent to which mediation should focus on the issues at hand versus focusing on two transformative dimensions

transformative mediation

the parties submit their arguments to an arbitrator but they are not required to comply with the arbitrator's decision

voluntary arbitration

arbitration may be

voluntary or binding

mediation is a

voluntary process

conflict costs for organizations include

wasted time and money, emotional damage, drained energy and lost opportunities low levels of disputant satisfaction damage to necessary relationships the likelihood of conflict spreading and or recurring

style and behavior

widely vary across mediators

arbitration initially appears to have two distinct advantages as a resolution procedure:

1. It imposes a clear cut resolution to the problem in dispute 2. It helps the parties avoid the costs of prolonged, unresolved disputes

what are the six broad categories of ADR systems

1. Preventative ADR systems 2. Negotiated ADR systems 3. Facilitated ADR systems 4. Fact-finding ADR systems 5. Advisory ADR systems 6. Imposed ADR systems

research studies have contributed to a better understanding of process consultation in the following ways:

1. Process consultation is less likely to work as an intervention when the parties are deeply locked in a dispute over one or more major unresolved issues 2. Process consultation may be an ineffective technique when dealing with short-term relationships 3. Process consultation may be ineffective when the substantive issues in the dispute are distributive or zero-sum 4. Process consultation may be ineffective when the level of conflict is so high that the parties are more intent on revenge or retribution than reconciliation

mediators can influence the zone of potential agreement in two ways

1. by asking each party what he or she thinks the other party would accept 2. by asking each party to suggest a range out outcomes that they would accept

conflict may escalate at the resolve stage for four reasons

1. conflicting interests 2. disputed rights 3. unequal power 4. injured relationships

should the organization decide to take a more expansive approach, they suggest following key principles in designing and operating such a system

1. consult before disputing & give feedback after 2. keep the focus on interests 3. build in loop backs to disputants 4. develop and use cost efficient mechanisms to protect rights and restore power imbalances 5. arrange and pursue remedies in a cost efficient manner by using and exhausting low cost remedies before trying higher cost approaches 6. provide disputants with the necessary skills, resources and motivation to use the system easily and constructively 7. work with all concerned parties to make the system design viable and valuable

three types of mediator interventions

1. content mediation 2. issue identification 3. positive framing of the issues