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User's Guide to Collaborative Dispute Resolution

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User's Guide to Collaborative Dispute Resolution USER'S GUIDE TO COLLABORATIVE DISPUTE RESOLUTION Florida Conflict Resolution The Consortium's mission is to bring people together to facilitate consensus solutions to Florida's public problems. THE CONFLICT RESOLUTION CONSORTIUM ABOUT CONFLICT RESOLUTION ABOUT THE CONSORTIUM A consensus has emerged within Florida's The Consortium is dedicated to helping par- communities on the value and need for bet- ties focus on reconciling their interests ter approaches to resolving growth-related through joint problem-solving, collabora- conflicts. These conflicts often call for a bal- tive planning and negotiations, often as- ancing of the needs of a growing population sisted by a mediator. The goal of these pro- and economy while enhancing and protect- cesses is to reduce the uncertainty and ing Florida's environment and communities. costs while producing quality consensus out- In the past, Florida's growth management comes that build relationships, enhance com- framework directed such conflicts to last- munity and ensure better implementation. resort adversarial forums, such as adminis- The Consortium is a publicly funded pro- trative appeals, the courts, or the legisla- gram based in the state university system, ture where winners and losers were de- which serves as a neutral resource for those clared. A new direction, calling for less involved with land-use, environmental and adversarial collaborative problem-solving growth-related community conflicts. Based has emerged. Mediation and facilitation at Florida State University in Tallahassee, have a special role to play in the imple- and at the University of Central Florida, mentation of comprehensive plans, in de- the Consortium responds veloping local visions of sustainable fu- to requests for assistance in specific cases, in tures, in solving environmental and social the collaborative development of policy and problems brought on by rapid growth, and in the design of dispute resolution proce- in improving intergovernmental coordina- dures. We offer conflict resolution training tion. ◆◆◆ and education and sponsor documentation and evaluation of the value and effective use For more information visit our web site at of these approaches. http://consensus.fsu.edu THE USER'S GUIDE Too often people consider seeking assistance available, when to seek help, and how to lo- from professional neutrals after all else has cate, assess and retain neutrals.1 failed and the situation has deteriorated to a point where even a skilled mediator or fa- 1 This guide draws on A Consumer Guide to Se- cilitator may have difficulty getting people lecting Third Parties to Help Resolve Public Con- flicts, Ohio Commission on Dispute Resolution and to talk to one another. For a dispute resolu- Conflict Management, Columbus, Ohio; Building tion market to thrive and serve the public in Consensus for a Sustainable Future: Guiding Prin- growth management controversies, those ciples, Round Tables on the Environment and seeking these services must understand the Economy in Canada, Ottawa, Canada; Mediation various collaborative tools and when and Handbook for Cities, Minnesota Office of Dispute Resolution, Minneapolis, Minnesota; and the Direc- how to use them. This user guide on collabo- tory of Consultants Helping Communities Collabo- rative dispute resolution processes provides rate and Consumer’s Guide, Program for Commu- guidance on what kinds of assistance are nity Problem-Solving, Washington, D.C. ◆◆◆ User's Guide...2 DISPUTE RESOLUTION DEFINED Arbitration. An arbitrator reviews evidence, Fact-Finding. A formal procedure where a hears the arguments involving the parties technical expert or panel evaluates the mat- and renders a decision. In cases involving ter presented by the contending parties and governments, however, arbitration is gener- produces a non-binding report establishing ally non-binding. As with mediation, the the “facts.” Parties may then negotiate or parties to the dispute usually select the arbi- proceed to mediation. trator. Arbitration differs from litigation in that it involves more limited discovery, less Mediation. A neutral mediator assists par- formal rules of evidence and strict time lim- ties in a dispute to explore their interests, to its for rendering a decision. develop and evaluate options, and negoti- ate a mutually acceptable settlement of their Facilitation. A collaborative process in differences. A mediator may meet privately which individuals and groups with diver- with each party. A mediator has no author- gent views meet to reach consensus on a goal ity to make or recommend a decision. or to solve a problem with the assistance of a neutral facilitator. The facilitator is con- Neutral. An impartial professional assisting cerned primarily with process during a meet- disputing parties in various ways to solve a ing or negotiation and may help the parties problem or resolve a dispute. Neutrals can design and follow an agenda and communi- serve as mediators, facilitators, arbitrators, ◆◆◆ cate more effectively. fact-finders or process experts. A Continuum of Approaches to Conflicts Inaction Negotiation Facilitation Mediation Arbitration Administrative Judicial Legislative Nonviolent Violence Decision Decision Decision Direct Action Avoidance Private, informal decision- Private, formal third- Public, formal third- Coerced decision making by parties party decision-making party decision-making decision-making STEP 1 WHEN YOU SHOULD ASK FOR NEUTRAL ASSISTANCE When negotiation is deadlocked—Relation- that may call for the assistance of a media- ships have deteriorated and progress on sub- tor. stantive issues is blocked, third parties can get discussions back on track. When sensitive information is involved— When the parties need help in establishing It is sometimes difficult for parties to pro- vide each other candid assessments about the communication—To solve a problem, ex- central problems because what they might changes of information must be directed to- reveal could be used later in an adversarial wards understanding what each party needs proceeding. A trusted third-party can handle in an agreement. If information is used as a confidential information, generalizing it as weapon to win a point and negotiators are appropriate, to suggest a set of issues that not hearing what their adversaries are say- can be negotiated by the parties. ing, they have a communication problem User's Guide...3 When a process is not working--Sometimes, solving the problem. A mediator can help parties come together to negotiate over a set suggest a process that moves parties through of issues and find themselves months later a sequence of steps that are more likely to not having made any real progress towards result in reaching an agreement. ◆◆◆ STEP 2 WHAT ARE YOUR DISPUTE RESOLUTION GOALS? To help you understand your dispute Mediation is most useful in addressing resolution options, you may want to consider the following impediments to settlement: how different procedures may be better poor communications; need to express emo- suited to meet your objectives or for over- tions; different view of the facts; constituent coming barriers to settlement. Table 1 sug- pressure; multiple parties; and linkage gests a series of potential objectives for a dis- among issues in dispute. Mediation may be pute resolution process and offers an assess- less useful in addressing different views of ment of the extent to which each procedure law, important principles, where lawyer and is likely to satisfy the objective. Consider client interests may be different and where a which objectives are most important to you. party is seeking a win/lose all or nothing outcome. DOES THE PROCESS SATISFY THE OBJECTIVE? 1 PROCEDURES NONBINDING BINDING Objectives Mediation Arbitration/Private Judging Court/Administrative Litigation Minimize Costs Very substantially Somewhat Not at all Speed Very substantially Somewhat Not at all Privacy Very substantially Very substantially Not at all Maintain/Improve Relationship Very substantially Somewhat Not at all Vindication Not at all Somewhat Very substantially Neutral Opinion Not at all Very substantially Very substantially Precedent Not at all Substantially Very substantially Maximizing/Minimizing Recovery Not at all Substantially Very substantially 1See Frank Sander and Stephen Goldberg, "Making The Right Choice", ABA Journal, November, 1993. STEP 3 ASSESS WHETHER A COLLABORATIVE DISPUTE RESOLUTION PROCESS CAN WORK FOR YOU If you can answer yes to most of the following questions, it is likely that a collaborative dispute resolution process can work for you: • Is your most likely alternative to this process unacceptable? • Can you identify the key players? • Can you find legitimate representatives for the key players? • Do they have the resources to participate effectively? • Are the power relationships sufficiently balanced? • Do you have deadlines? Are they realistic? • Can the problem be framed so that it does not focus primarily on "sacrosanct" values or pre-existing positions? User's Guide...4 KEY STAGES IN COLLABORATIVE DISPUTE RESOLUTION PROCESSES Collaborative processes must be adapted to What A Neutral Expert Can Do To Help the needs of each situation. However, most processes incorporate the following four A dispute resolution specialist can provide steps: an objective situation assessment and sug- deciding whether to talk; gest an appropriate process and structure for deciding how to talk; participation. A neutral can help parties talking; and think through their concerns
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