DOCSLIB.ORG

Integrated Conflict Management Systems Management Conflict Integrated

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Integrated Conflict Management Systems Management Conflict Integrated Introduction to: Employee Dispute Resolution Programs Copyright © 2011 CoralBridge Partners THE STATISTICS • ON AVERAGE, EVERY EMPLOYEE SPENDS OVER TWO HOURS/WEEK, AND 10% OF EMPLOYEES SPEND SIX HOURS/WEEK DEALING WITH SOME TYPE OF CONFLICT • THE NUMBER OF EMPLOYEES SEEKING HELP FOR WORK‐RELATED CONFLICT CONTINUES TO RISE AND COSTS BUSINESSES BILLIONS OF DOLLARS IN LOST PRODUCTIVITY 2 THE STATISTICS • Unresolved conflict is a decisive factor in 50% of voluntary employee turnover and 90% of involuntary turnover, costing 70‐150% of annual salary for each departing employee 3 THE STATISTICS • AN EMPLOYMENT COMPLAINT THAT ESCALATES INTO A LAWSUIT CAN EASILY COST $100,000, TAKE 3‐5 YEARS TO RESOLVE, AND SERVE AS A MAJOR DISTRACTION 4 Sample Employment Class Actions Company Settlement Allegation UBS $30 million Gender discrimination Wal-Mart $173 million Wage and hour Red Lobster $9.5 million Wage and hour Morgan Stanley $53 million Gender discrimination Ralph’s Grocery $30 million Sexual harassment Rent-A-Center $47 million Gender discrimination AMEX $31 million Gender/age discrimination Coca-Cola $192.5 million Race discrimination Texaco $176 million Race discrimination Home Depot $65 million Gender discrimination Publix $81.5 million Gender discrimination EMPLOYMENT-RELATED DEVELOPMENTS • Emphasis on being proactive/dispute avoidance • Increased litigation and litigation expenses/costlier settlements • Protracted conflict • Increased interest in utilizing HR programs to improve PR • Recent court decisions affirming continued support for ADR • Increasingly diverse workforce • Globalization • EEOC mediation “refer-back” program and other programs • Six Sigma and other quality-initiatives • More organizations seeking alternative solutions and new definitions of “success” and “win” in HR and legal environment 6 1990s BiRth of “conflict Management system Design” • Alternative Disputes Movement into Corporations • Approach to Conflict: 1. Systematic 2. Proactive/Preventitive 3. Collaborative Effort of Entire Organization 4. Interest Based instead of Rights Based 7 INTEGRATED CONFLICT MANAGEMENT SYSTEMS • Employee Dispute Resolution Programs • Consumer Conflict Management Systems • Early Warning Systems • Early Case Assessment Programs • After Action Review Programs 8 A Progressive Approach to Conflict Management •Prevent and eliminate all litigation costs and fall-out. •Create a more productive workplace: Managers and Leaders focus on driving value added services Teams operate effectively and efficiently to deliver services Individuals support customer needs Increased revenues and profits to sustain a competitive advantage 9 Interest-based Conflict Management Systems Design (Costantino and Merchant, 1996) • Merge organizational development, dispute systems design, and the interest-based concepts of ADR to create effective conflict management systems • Conflict management systems v. dispute resolution programs • A more systemic approach with a focus on stakeholders • “If you build it, they may or may not use it. If they build it, they will use it, refine it, tell their friends about it, and make it their own.” What is an Employment Dispute Resolution Program? A systematic approach within an organization to provide employees and the organization with a variety of processes outside the existing, formal judicial system to resolve employment related disputes. Such programs lend consistency and manageability to the handling of workplace issues while saving time, money and other valuable resources. 11 Employment ADR Programs vs. Litigation ADR Litigation Avg. Cycle Time to Resolve 3 months - 1 year 1 - 3 years Avg. Outside Cost to Resolve $2,000 - 30,000 $35,000 - 250,000 Confidentiality Private Public Trier of Fact (w/arbitration) Experienced Neutral Jury Degree of Control High Low Avg. Settlement Cost $5,000 - 25,000 $15,000 - 195,000 Participant Satisfaction Level Medium/High Low/Medium Class Action Experience None to Low None to High Charge and Lawsuit Volume Low Low to High Source: Compilation of Client and Public Information (1993 - 2012) 12 Reasons to Design and Implement an Employee Dispute Resolution Program: • Creates a “Litigation Prevention System” to eliminate large settlements, jury awards, and class-actions. • Saves time and money by resolving disputes quickly, fairly and economically. • Leverages the strengths of any current process by creating more options for the employee to resolve disputes and opportunities for the company to assess the issues. • Produces more cooperative and creative solutions, preserving the employer-employee relationship. • Prevents “bad press” for the company because the process is confidential. 13 Program Benefits (cont.) • Control process/minimize uncertainty and maximize uniformity • Decreased turnover • Improved company decision making 14 What organizations have programs? 15 Statistics Support Earlier Resolution and ADR Companies utilizing a collaborative approach to dispute resolution and mediation on a systematic basis report tremendous time and cost savings, usually millions of dollars in settlement costs alone – GE has reported upwards of $15 million per year in cost avoidance through its Early Dispute Resolution System. – Toro’s Early Intervention Program saved the company $50 million in its first six years. – Georgia-Pacific saves $3.5 million in legal fees and related costs each year. – Motorola reported a 75% reduction per year over six years in outside litigation expenses by using a systematic approach to conflict management – NCR reported a reduction in outside litigation expenses of 50% and a drop in its number of pending lawsuits from 263 to 28 over a 10 year period, following the systematic use of ADR 16 Employment Dispute Resolution Programs: An Overview 17 Goals of a Program To Prevent or Resolve Disputes at 1. the earliest possible time, 2. the lowest possible cost, and 3. with the most informal interest-based process as possible. 18 Primary Dispute Resolution Methods • Rights-based methods are grounded in fixed rules or principles (litigation, binding arbitration) • Interest-based methods allow parties to identify their concerns, needs, and desires as a starting point in addressing the issues in dispute (mediation, facilitation) Dispute Resolution Continuum Rights Based RIGHTS BASED Interests Based& INTERESTS Adjudicative Conciliatory Litigation Mediation Arbitration Conciliation Negotiation • most formal • most adversarial • least party control • least formal • least adversarial • most party control Evaluative Summary Jury Trial Mini Trial Early Neutral Evaluation • formal & adversarial • parties retain control 20 Distressed System v. Effective System Rights r Rights Interests Interests Effective System Distressed System 21 Sample Employment Dispute Resolution Mechanisms ... • Open Door • Mediation • Negotiation • Mini-Trial • Facilitation • Case Evaluation • Ombuds • Arbitration • Fact-finding • Private Judging • Peer Review 22 Open Door Policy Supervisors, Managers and CEO all leave their office door “open” in order to encourage openness and transparency with the employees. Employees are encouraged to stop by whenever they feel the need to meet and ask questions, discuss suggestions and address problems or concerns with management. 23 Negotiation A method of exchanging interests and proposals through direct communication. •Positional-based negotiation: driven by the assessment of desired outcomes and the iterative exchange of those outcomes towards a compromise. •Interest-based negotiation: driven by the parties’ ultimate commercial objectives and the exchange of proposals for obtaining those objectives in the context of the other parties’ interests. 24 Facilitation Some programs include a “Facilitation Office”. The Office oversees administration of the program and can be the touch point to guide employees through the various processes. However, the “Facilitator” can also help facilitate discussions between management and the employee. Sometimes discussing the problem with the “Facilitator” is enough. 25 Ombuds An organizational ombudsman (1) works with individuals and groups in an organization to explore and assist them in determining options to help resolve conflicts, problematic issues or concerns, and (2) brings systemic concerns to the attention of the organization for resolution. Operates: 1. confidentiality 2.maintains a neutral/impartial position 3.works at an informal level of the organizational system, and 4.independent of formal organizational structures. 26 Fact Finding A neutral fact finder conducts an independent investigation into the cause of the disagreement. The fact finder will interview both sides, gather additional information, and then present findings and possible solutions to the parties. The findings and recommendations are not binding but are incorporated into the negotiations between the parties and their counsel. The fact finder usually does not directly participate in the negotiation process. 27 Peer Review Employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision is not binding on the employee, and s/he would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision. Typically, the panel consists of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. 28 Mediation Mediation is facilitated negotiation, whose object
Load more

Recommended publications
  • Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation Craig A
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1995 Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation Craig A. McEwen Nancy H. Rogers Richard J. Maiman Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation McEwen, Craig A.; Rogers, Nancy H.; and Maiman, Richard J., "Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation" (1995). Minnesota Law Review. 1059. https://scholarship.law.umn.edu/mlr/1059 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation Craig A. McEwen, Nancy H. Rogers, and Richard J. Maiman* Introduction ............................................. 1319 I. The 'Fairness" Debate .............................. 1323 II. Evaluating the Two Dominant Statutory Approaches ......................................... 1329 A. The "Regulatory Approach" ...................... 1330 1. Mediator Duties Regarding Fairness ......... 1332 2. Case Selection ............................... 1335 3. Issue Limitations ............................ 1340 4. Mediator Qualifications ...................... 1343 5. Lawyer and Court Review
    [Show full text]
  • Oath Commissioner and Chief Administrative Law Judge Joni Kletter Introduces Members of the First-Ever Advisory Committee on Creative Conflict Resolution
    FOR IMMEDIATE RELEASE June 9, 2021 Contact: Marisa Senigo, [email protected] OATH COMMISSIONER AND CHIEF ADMINISTRATIVE LAW JUDGE JONI KLETTER INTRODUCES MEMBERS OF THE FIRST-EVER ADVISORY COMMITTEE ON CREATIVE CONFLICT RESOLUTION Local and National Thought Leaders to Advise City on Restorative Practices and Reimagine How to Address Disputes Outside of Traditional Justice System. Today, the NYC Office of Administrative Trials and Hearings (“OATH”) announced the appointment of the inaugural members of the newly created Advisory Committee on Creative Conflict Resolution. The Committee members are leaders and practitioners in their respective conflict resolution related fields; including, mediation, negotiation, restorative practices, dispute systems design, group facilitation, community-based programming, organizational development, change management and more. The creation of the Advisory Committee follows the issuance of Executive Order 63 which was signed by Mayor Bill de Blasio in February and formally established the Center for Creative Conflict Resolution (“the Center”) within OATH, designating it as the City government’s central alternative dispute resolution (“ADR”) resource, and creating the Advisory Committee. In addition, the Executive Order directed all agencies to appoint an ADR Coordinator and consult with the Center to incorporate ADR processes and restorative principles into their workplaces and where applicable into their public-facing work. The Advisory Committee on Creative Conflict Resolution will serve as an independent
    [Show full text]
  • Dispute System Design and Bias in Dispute Resolution Lisa Blomgren Amsler Indiana University School of Public and Environmental Affairs, [email protected]
    CORE Metadata, citation and similar papers at core.ac.uk Provided by Southern Methodist University SMU Law Review Volume 70 Article 7 Issue 4 ADR Symposium Part 2 of 2 2017 Dispute System Design and Bias in Dispute Resolution Lisa Blomgren Amsler Indiana University School of Public and Environmental Affairs, [email protected] Alexander B. Avtgis [email protected] Michael Scott aJ ckman Indiana University, [email protected] Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Lisa Blomgren Amsler, et al., Dispute System Design and Bias in Dispute Resolution, 70 SMU L. Rev. 913 (2017) https://scholar.smu.edu/smulr/vol70/iss4/7 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. DISPUTE SYSTEM DESIGN AND BIAS IN DISPUTE RESOLUTION Lisa Blomgren Amsler, Alexander B. Avtgis, and M. Scott Jackman* ABSTRACT This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bu- reaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Ser- vice. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve.
    [Show full text]
  • Concepts of Conciliation and Mediation and Their Differences
    CONCEPTS OF CONCILIATION AND MEDIATION AND THEIR DIFFERENCES by Justice M. Jagannadha Rao One of the questions constantly asked by many is as to what is meant by conciliation and mediation, whether they are the same and, if not, whether there are any differences? Conciliation and Mediation Whether, in common parlance, there is some difference between conciliation and mediation or not, it is however clear that two statutes by Parliament treat them as different. (a) In the year 1996, the Arbitration and Conciliation Act, 1996 was passed and sec. 30 of that Act, which is in Part I, provides that an arbitral tribunal may try to have the dispute settled by use of ‘mediation’ or ‘conciliation’. Sub-section (1) of sec. 30 permits the arbitral tribunal to “use mediation, conciliation or other procedures”, for the purpose of reaching settlement. (b) The Civil Procedure Code (Amendment) Act, 1999 which introduced sec. 89, too speaks of ‘conciliation’ and ‘mediation’ as different concepts. Order 10 Rules 1A, 1B, 1C of the Code also go along with sec. 89. Thus our Parliament has made a clear distinction between conciliation and mediation. In Part III of the 1996 Act (sections 61 to 81) which deals with ‘Conciliation’ there is no definition of ‘conciliation’. Nor is there any definition of ‘conciliation’ or ‘mediation’ in sec. 89 of the Code of Civil Procedure, 1908 (as amended in 1999). Conciliation In order to understand what Parliament meant by ‘Conciliation’, we have necessarily to refer to the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act.
    [Show full text]
  • Permanent Court of Arbitration Optional Conciliation Rules
    PERMANENT COURT OF ARBITRATION OPTIONAL CONCILIATION RULES 147 OPTIONAL CONCILIATION RULES CONTENTS Introduction 151 Permanent Court of Arbitration Optional Conciliation Rules 155 Application of the Rules (Article 1) 155 Commencement of Conciliation Proceedings (Article 2) 155 Number of Conciliators (Article 3) 156 Appointment of Conciliators (Article 4) 156 Submission of Statements to Conciliator (Article 5) 157 Representation and Assistance (Article 6) 157 Role of Conciliator (Article 7) 157 Administrative Assistance (Article 8) 158 Communication between Conciliator and Parties (Article 9) 158 Disclosure of Information (Article 10) 159 Co-operation of Parties with Conciliator (Article 11) 159 Suggestions by Parties for Settlement of Dispute (Article 12) 159 Settlement Agreement (Article 13) 159 Confidentiality (Article 14) 160 Termination of Conciliation Proceedings (Article 15) 160 Resort to Arbitral or Judicial Proceedings (Article 16) 161 Costs (Article 17) 161 Deposits (Article 18) 162 Role of Conciliator in Other Proceedings (Article 19) 162 Asmissibility of Evidence in Other Proceedings (Article 20) 162 Notes to the Text 164 149 OPTIONAL CONCILIATION RULES INTRODUCTION Purpose of the Rules Parties who have disputes that they are unable to settle through consultation and negotiation with each other may wish to consider conciliation as a method for resolving their differences without the need to resort to arbitration or judicial means. Although the benefits of conciliation are widely recognized, some parties may hesitate to enter into conciliation because they may be unfamiliar with the process or may have different views concerning how a conciliation should be conducted. In order to facilitate greater use of conciliation, the Permanent Court of Arbitration has, with the approval of the Administrative Council, established these Optional Conciliation Rules (‘the PCA Optional Conciliation Rules’).
    [Show full text]
  • There's No Place Like Home: Applying Dispute Systems Design Theory To
    THERE’S NO PLACE LIKE HOME: APPLYING DISPUTE SYSTEMS DESIGN THEORY TO CREATE A FORECLOSURE MEDIATION SYSTEM Andrea Kupfer Schneider* & Natalie C. Fleury** In partnership with the City of Milwaukee, Marquette University Law School designed and now operates a voluntary mediation program to deal with the foreclosure crisis. The creation of the Marquette Foreclosure Mediation Program (MFMP) is a case study in dispute system design. Because MFMP is unlike other foreclosure mediation programs—in that it is was designed in con- junction with and is now operated by a law school—the design structure and results analysis are unique and can provide important insights for foreclosure programs around the country. This Article uses a dispute system design (DSD) framework to analyze the MFMP. After providing a brief history of the foreclosure crisis in Milwaukee, and the process design of MFMP, the Article then utilizes DSD to analyze MFMP on several different factors. The Article examines participation in the design, the suitability of mediation for this crisis, results thus far, and lessons in permeability and sustainability. Finally, we draw lessons for other designers— dispute system professionals, courts, and legislatures—in how to effectively manage this type of program. I. THE FORECLOSURE CRISIS IN MILWAUKEE AND THE CITY’S RESPONSE A. The Crisis By 2008, the effect of the foreclosure crisis on neighborhoods was also becoming glaringly apparent in the city, and leaders were increasingly con- cerned that the vacant homes would become magnets for crime, contribute to blight in neighborhoods, and drain the city’s resources.1 Board-ups of vacant homes had increased by 50 percent from 2005, and fires in and police calls to vacant homes had doubled.2 Two out of three foreclosed homes had open * Andrea Kupfer Schneider, Professor of Law, Marquette University Law School.
    [Show full text]
  • FEDERAL MEDIATION and CONCILIATION SERVICE 2100 K Street NW., Washington, DC 20427 Phone, 202–606–8100
    546 U.S. GOVERNMENT MANUAL For further information, contact the Office of the Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573±0001. Phone, 202±523±5725. Fax, 202±523±0014. FEDERAL MEDIATION AND CONCILIATION SERVICE 2100 K Street NW., Washington, DC 20427 Phone, 202±606±8100 Director JOHN CALHOUN WELLS Deputy Director, Field Operations FLOYD WOOD Deputy Director, National Office WILMA B. LIEBMAN The Federal Mediation and Conciliation Service assists labor and management in resolving disputes in collective bargaining contract negotiation through voluntary mediation and arbitration services; provides training to unions and management in cooperative processes to improve long-term relationships under the Labor Management Cooperation Act of 1978, including Federal sector partnership training authorized by Executive Order 12871; provides alternative dispute resolution services and training to Government agencies, including the facilitation of regulatory negotiations under the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act of 1990; and awards competitive grants to joint labor-management committees to encourage innovative approaches to cooperative efforts. The Federal Mediation and Conciliation reached 30 days in advance of a Service (FMCS) was created by the Labor contract termination or reopening date. Management Relations Act, 1947 (29 The notice must be filed with the Service U.S.C. 172). The Director is appointed and the appropriate State or local by the President with the advice and mediation agency. The Service is consent of the Senate. required to avoid the mediation of Activities disputes that would have only a minor effect on interstate commerce if State or The Federal Mediation and Conciliation other conciliation services are available Service helps prevent disruptions in the to the parties.
    [Show full text]
  • Peaceful Settlement of Disputes
    G.J.C.M.P.,Vol.6(1):11-17 (January-February, 2017) ISSN: 2319 – 7285 PEACEFUL SETTLEMENT OF DISPUTES Abdualla Mohamed Hamza1,* Miomir Todorovic2 1 Union Nikola Tesla University, Department for Postgraduate Studies, Ph.D Candidate, Libya. 2Knez Mihaljeva Street, Belgrade, Serbia Abstract The purpose is to provide a general survey of the practice among States of the peaceful settlement of international disputes. There are variety of instruments for peaceful settlement, including negotiation, commissions of inquiry, Mediation, Conciliation and Good Offices. Care is taken to indicate the quantitative significance of the inter-State arbitration in relation to the use of standing international tribunals, such as the International Court of Justice. Key word: International law, peaceful settlement. Negotiation, mediation, inquiry, United Nation, Arbitration. 1. Introduction Historically, International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security. The maintenance of international peace and security has always been the major purpose of the International Law. It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945. Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled. Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law. States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences. The most important treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations.
    [Show full text]
  • Analytic Framework for System Design
    CHAPTER 2 ANALYTIC FRAMEWORK FOR DSD • Frameworks in Institutional Analysis • Analytic Framework for Dispute System Design • Goals • Stakeholders • Context and Culture • Processes and Structure • Resources • Success, Accountability, and Learning Over the past twenty years, DSD scholars and practitioners have suggested a number of principles for design practice, as Chapter 1 reviews. Authors have proffered many of these principles as “best practices” or even proposed them as ethical guidelines; some frame principles as criteria to judge or measure the quality of an organizational system’s outcomes. The field requires a more structured approach to dispute system design. In order to develop effective DSDs that are tailored to their dispute streams, stakeholders, culture, and contexts, designers need a “framework and conceptual map.”1 This chapter presents an analytic framework for interrogating an existing or prospective system for preventing, managing, or resolving disputes. To place this framework in its larger context, the following section briefly reviews frameworks as components of institutional analysis. FRAMEWORKS IN INSTITUTIONAL ANALYSIS The late Elinor Ostrom, the first woman Nobel Laureate in Economics, observed that “the terms - framework, theory, and model– are all used almost interchangeably by diverse social Chapter 2:1 From Dispute System Design by Lisa Blomgren Amsler, Janet Martinez, and Stephanie Smith, © Stanford University, all rights reserved. No further reproduction, distribution, nor any use, in any format or by any means, is allowed without the prior permission from Stanford University Press, www.sup.org scientists.”2 She instead characterized these terms as nested concepts, moving from the most general to the most detailed assumptions an analyst makes.
    [Show full text]
  • Online Dispute Resolution Challenges and Opportunities
    Proceedings of the UNECE Forum on ODR 2003 http://www.odr.info/unece2003 Note on Editing: suggested changes are in comments will be in parenthesis. Overall – this is good, some edits imbedded as you can see. Be careful to keep out of the first person and in the third, tried to catch most of them but certainly some got through. Challenges and Opportunities in Implementing ODR by Graham Ross Managing Director The Claim Room.com Ltd www.TheClaimRoom.com Challenges Scope The first challenge is one of definition. What exactly is ODR? Unless we are talking about the same subject it will be difficult to achieve a consensus. ODR, as a term, has been used to offer a wide embrace that covers, at the one end of the scale, consumer complaints negotiated directly between the parties and, at the other end, to mediation and arbitration of commercial disputes, frequently with lawyer representation, that otherwise might be expected, cost permitting, to end up in a court of law. Definition is important to ensure that in discussions and debates all participants are addressing the same issues. In any discussion on ODR, however, its scope can vary according to context. To what does the word ‘online’ refer? Does it refer to the nature of the dispute, so that ODR refers to a facility for disputes formed online, or does it refer to the medium employed in the resolution of the dispute? Is it an online version of ADR (Alternative Dispute Resolution – with ‘alternative’ universally understood to be an alternative to court based resolution) or can it embrace the courts and cyber court technology? Does its validity rest solely with disputes in which the parties are at a distance or can the technological aspects, and the capacity to archive and manipulate outcomes, add value to attendance based mediation? ADR at its most generic level is any system of resolving disputes outside of the Courts.
    [Show full text]
  • The Role of Lawyers in Mediation: Insights from Mediators at Victoria’S Civil and Administrative Tribunal
    THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL KATHY DOUGLAS* AND BECKY BATAGOL** Mediation is an increasingly important part of legal practice with the institutionalisation of alternative or appropriate dispute resolution in our legal system. Mediation has been embraced by courts and may be part of pre-action requirements in some jurisdictions. How lawyers can best contribute to mediation has been discussed in the literature and is informed by ethical requirements. This article provides insights into the role of lawyers in mediation using interviews with sixteen mediators at the Victorian Civil and Administrative Tribunal of Victoria. It explores collaborative approaches that lawyers can adopt within the spectrum of roles that lawyers may take when representing a client in mediation developed by Olivia Rundle. I INTRODUCTION The institutionalisation of alternative or appropriate dispute resolution (ADR) within the Australian civil justice system means that lawyers are increasingly engaging with ADR.1 Lawyers must adjust their practice to serve their clients’ needs in a changing legal environment.2 ADR can include a number of different processes, ranging from arbitration to the most widely used mediation.3 Mediation is a standard feature of contemporary dispute resolution and is mandated in most courts in Australia.4 The approach of lawyers to mediation is important in achieving resolution to a dispute, as lawyers infl uence the process and success of * BA, LLM, (Monash), Dip Ed (Melbourne), PhD (RMIT University), Senior Lecturer in Law, Graduate School of Business and Law, RMIT University. ** BA (Hons), LLB (Hons), PhD (Monash), Senior Lecturer, Faculty of Law, Monash University.
    [Show full text]
  • Alternative Dispute Resolution Practitioner's Guide
    ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS GUIDE CONTENTS I. Introduction: Purposes and Use of the Guide 1 II. Key Observations 3 III. What is ADR? 4 IV. What Can ADR Do? 7 V. The Limitations of ADR 21 VI. What Background Conditions Are Important? 24 VII. What Program Design Considerations Are Important? 33 VIII. Conclusion 48 Appendix A -- Taxonomy of ADR Models from the Developed and Developing World Appendix B -- Case Studies Appendix C -- Research Methodology Appendix D -- Working Bibliography of Literature Appendix E -- Dispute Resolution Institutional Problems; DR/ADR Solutions and Conditions for Success ACKNOWLEDGEMENTS About CMG Conflict Management Group (CMG) is dedicated to improving the methods of negotiation, conflict resolution, and cooperative decision-making as applied to issues of public concern. Public conflicts and ineffective means for dealing with them lead to wasted resources, social instability, reduced investment, chronic underdevelopment, and loss of life. CMG believes that good negotiation, joint problem-solving, facilitation, and dispute management skills can help those with differing interests, values, and cultures cope more effectively with their differences. CMG is an international non- profit organization. It is engaged in the training of negotiators, consulting, diagnostic research, process design, conflict analysis, facilitation, consensus-building, and mediation. CMG also facilitates the building of institutions for the prevention and ongoing management of conflicts. CMG is non-partisan and takes no stand on the substantive issues of a dispute. About the Authors Scott Brown Since 1996, Scott Brown has been the Dean of the William Jewett Tucker Foundation, the first endowed deanship at Dartmouth College. Prior to his appointment as dean, he was the President and Executive Director of Conflict Management Group from 1992–1996.
    [Show full text]