A CONFLICT RESOLUTION TOOLKIT

Resolution techniques encompass many different methods, with differing degrees of empowerment, neutral intervention, timeliness and cost. The following is an introduction to some of more common techniques of conflict management and dispute resolution generally encountered. This description is not exhaustive, and the flexibility of conflict resolution is its strength. New techniques, new variations on existing techniques, or combinations of options are always possible, and often necessary.

I. Conflict Prevention Techniques

Several conflict prevention strategies are available within the dispute resolution menu.

Sometimes in the course of interaction between parties issues will arise between them that are incapable of resolution due to an uncertainty concerning the true facts of the matter. In such cases it may be advisable to engage in a fact-finding exercise. The parties may jointly appoint a fact-finder to investigate the circumstances of the issues and provide the parties with an objective report describing the facts, as determined by the fact-finder. Based on that report the parties can decide whether a dispute does exist and take steps to resolve it. In an organizational setting, a workplace assessment involves detailed scrutiny of a work unit through individual interviews and group processes to develop a composite picture of workplace conflict. It can form the basis for a further intervention.

The use of good offices occurs when a third party initiates communication between disputants without further partaking in their discussions. Sometimes a person may act as a counsellor, a person respected by people in conflict who can assist them in an informal way to resolve the issues that divide them. This role is sometimes played by senior managers in an organization.

Ombudsmen originated in Scandinavia and are now commonly found in provincial jurisdictions in Canada . An ombudsman acts as an intermediary to explain actions by an authority and possibly to resolve disputes. The function of an ombudsman can encompass fact-finding, problem-solving and the use of good offices.

Negotiated rulemaking involves bringing together all affected interests to assist in the preparation of a set of rules to govern behaviour. The process encompasses negotiation, facilitation, problem-solving and possibly mediation with the intent of creating a consensual product that meets the needs of all of the affected interests.

Where a person or entity perceives that engaging in an activity will give rise to disputes, they may propose a partnering arrangement. Partnering involves bringing together all affected interests at the outset of an interaction to meet, discuss and plan an activity, with special emphasis on the identification of key persons or parties who will act as problem-solvers when disputes arise. A neutral facilitator assists the affected interests in the partnering process. Partnering also involves the creation of Dispute Resolution Board, consisting of persons who may or may not be the interacting parties, and chaired by a neutral person. The board provides determinations where a dispute arises between interacting parties. The determinations of the board are normally non-binding but occasionally the parties may provide for binding determinations. Partnering serves to prevent or minimise conflict and is a dispute resolution technique that is particularly important in project management.

Conflict coaching is a technique that straddles both conflict prevention and resolution. Coaching is a relationship between a person and an independent coach to change or improve certain aspects of a person’s professional or personal life. Conflict coaching empowers people to manage their personal conflicts by identifying goals for effective conflict management, improve communication skills, shift reactions from detrimental to constructive, change negative behaviours, and provide for reflection on conflict interactions.

Conflict prevention strategies are non-binding on the parties. Reports and other products utilised in a conflict prevention strategy may be used in further dispute resolution settings if a dispute crystallises between the parties.

II. Resolution by Consensus

Consensual forms of dispute resolution require that the disputants participate of their own volition in efforts to mitigate or ameliorate their conflict. There is an escalating hierarchy in the degree to which neutral intervention is a necessary component of consensual dispute resolution activity. At the minimalist end of the scale, negotiation is the most basic form of dispute resolution and involves two parties interacting directly with each other to arrive at a mutually satisfactory accommodation.

Parties who contemplate entering into negotiations may engage a third party neutral to provide a convening function. Convening involves an open meeting to explore the issues in a controversy and to identify all of the affected interests. A discussion of dispute resolution methodologies may be undertaken during convening.

Facilitation involves a neutral third party that undertakes a convening function to bring together disputants so that they may resolve their dispute. The facilitator’s role is normally limited to providing a forum for the parties to interact directly, including the enforcement of very basic rules of communication protocol during discussions and negotiations.

Conciliation is a term that describes two quite separate techniques. In labour relations, conciliation may involve a neutral acting as a communications link between two disputants who are unable to interact directly due to strained relations. The conciliator’s main purpose is to restore or maintain the lines of communication between the disputants but the mandate of the conciliator may reach further and encompass active efforts to settle the dispute, or to reconcile the disputants.

In a commercial context, conciliation involves a form of mediation in which the conciliator has the power to make independent proposals for resolution of the dispute to the parties. In this way the conciliator combines problem solving with mediation.

Where disputants have reached an impasse in their ability to engage in negotiations, they may resort to mediation. A mediator is a neutral that interacts with the disputants to engage them in resolving their dispute in a mutually satisfactory manner. The mediator sets ground rules for the parties to interact, engages them in problem-solving, either jointly or through private caucuses, and helps them to reduce any resolution they reach to written form. A mediator may be facilitative, by allowing free play to the parties to reach agreement or not, or the mediator may adopt an evaluative approach by expressing a view in joint session on possible outcomes if the dispute results in subsequent litigation. Mediation is the most common form of dispute resolution using neutral intervention. Where more than one mediator conducts mediation it is sometimes referred to as co-mediation.

In some jurisdictions, parties may enter mediation through court-annexed mediation. Programs established by the courts that involve mandatory mediation are court-annexed. They typically require the parties to attend a short mediation session. The extent to which the parties successfully resolve their dispute through court-annexed mediation depends upon their willingness to participate in good faith. Some participants merely attend pro-forma mediation in order to satisfy the requirements to the rules of court. However, many cases that would have otherwise entailed significant litigation have in fact been resolved through court-annexed mediation. Mandatory mediation is exceptional, in that it does remove the consensual element from the decision to enter mediation but active participation and resolution of the dispute continue to retain their consensual elements.

Judicial mediation consists of mediation that is convened before a Justice of a court of law. Where mediation is unsuccessful the dispute will be litigated before a different justice of the court. This form of mediation is found in the superior courts of several Canadian provinces.

A form of assisted negotiation available to disputants is a mini-trial. The procedure for a mini-trial involves the presentation by advocates of an abbreviated case to a panel consisting of one principal or executive from each of the disputants and a neutral third party that presides over the panel. After presentation of the cases the panel retires and the principals of each party negotiate with each other to arrive at a solution. The third-party neutral may act as facilitator or mediator for the purposes of those negotiations.

A court-annexed variation to mini-trials that has found support in the United States but less favour in Canada has been the summary jury trial. In the process an abbreviated case is entered before a regular jury that is not told that it is participating in non-binding dispute resolution. After the jury returns with a finding the parties negotiate a solution to the dispute. If agreement is not forthcoming the case will be properly litigated before a different jury.

Neutral evaluation or early neutral evaluation is a form of dispute resolution that helps its participants to narrow technical gaps between them. Disputants select a neutral with subject-matter expertise in relation to their dispute and present technical memoranda or briefs of argument to the evaluator. After hearing both sides, the evaluator delivers a report that offers an opinion on the matter in dispute. Neutral evaluation is a technique that can be used in scientific or technical cases as well as in matters of law.

Non-binding arbitration is a formal method of dispute resolution involving the presentation of a case to a sole arbitrator, or a panel of arbitrators, who will hear the dispute in accordance with the arbitration rules selected by the disputants. The process involves the same formalities as in binding arbitration although procedures are less formal than a court of law. The key feature of this process is that the award is not binding on the parties.

III. Binding Resolution

Various techniques exist to provide parties with binding resolution of disputes.

Expert determination is a process in which parties in a business relationship contract with a third party expert, who is tasked with applying their expertise to decide an issue between the parties. A simple procedure is provided for in the contract and contract law governs the process and enforcement of expert determination. Expert determination is commonly found in commercial practice but the technique can be widely applied. Expert determination had its origins in the technique of appraisement.

Where the value of property is or may become an issue between persons or entities they may engage in appraisement of the property. Appraisement involves obtaining an opinion of value from a skilled third party with respect to the property that is the subject of a transaction between persons or entities. Valuation may serve to prevent future disputes concerning the value of an object where loss or damage occurs through usage or otherwise.

Among the oldest techniques of binding dispute resolution is arbitration. A binding arbitration is a formal process, though it is much less formal than a litigation process. Disputants can choose the procedures they wish to follow and confer upon the arbitrators only that jurisdiction that the parties wish to confer upon them. Arbitration is normally a decision-making process founded upon law. However, sometimes arbitration may be are based on the concept of amiable compositeurs – a moral standard of fairness between the disputants. Unlike consensual forms of dispute resolution, arbitration is subject to the supervisory jurisdiction of the courts exercising prerogative remedies for relief against administrative law errors.

A conditionally binding arbitration is one in which the arbitration proceeds as a non-binding arbitration until the award is issued. At that point the weaker of the disputants has a choice of whether or not to accept the award. If that party elects to accept the award it becomes a binding award on both parties. If the party with the elective choice decides not to accept the award it remains a non-binding arbitration award. Conditionally binding arbitration is used in Better Business Bureau consumer arbitrations.

Final offer arbitration , sometimes called baseball arbitration is a form of arbitration whereby the disputants each put forward their best offer simultaneously to an arbitrator who will then select one of the offers which becomes binding on the parties. The usual arbitration pleadings are filed (Claim, Defence and Reply) and the arbitrator will meet with the parties but the necessity for a formal hearing is left to the discretion of the arbitrator. Sometimes the final offer arbitrator is empowered to modify an offer before selecting it as the award. Night baseball arbitration is one in which the offers made by the parties are sealed and not disclosed to the final offer arbitrator before he or she renders their opinion. The offers are then unsealed, and the offer closest to the arbitrator’s opinion becomes the award.

Bounded, or high-low arbitration, is a type of arbitration where the parties agree upon a range for the award and the award of the arbitrator must fall into the range in order to take effect. Incentive arbitration is one that is only electively binding. However, if the party seeking redress does not elect to accept the result of the arbitration, and subsequently fails to obtain at least the amount of the award in subsequent court litigation, that party will be penalized in litigation legal costs.

Sometimes two arbitrators may be empowered to select an umpire, who will decide an arbitration case where there is disagreement between the two arbitrators concerning the resolution of the dispute.

Mediation-arbitration or med-arb is a hybrid dispute resolution process that involves a neutral acting as both a mediator between the disputants. The neutral will first act in the capacity of a mediator. If the mediation is successful, the mediator-arbitrator converts the mediated settlement agreement into an arbitral award. If the mediation is unsuccessful, the mediator becomes an arbitrator and hears the arbitration case. Subsequently, the arbitrator issues an award in relation to the dispute. The award may be non-binding or binding depending upon the med-arb agreement entered into by the disputants. A co-med-arb model is sometimes used with this process because of tensions surrounding the subject of disclosure of information

A variation of this process is known as arbitration-mediation or arb-med, and results in an arbitration hearing in which the award is sealed by the arbitrator while the arbitrator proceeds to conduct a mediation. If the mediation is successful the settlement agreement between the parties will govern the resolution of the dispute. However, if mediation is unsuccessful, the arbitrator-mediator will unseal the arbitral award and deliver it to the parties to resolve the dispute.

Court-annexed arbitration is a form of arbitration that is provided for by rules of court or arranged on an ad hoc basis within the context of existing litigation. The process is subject to judicial supervision and may actually involve judicial arbitration, which isconducted by a Judge. It is possible in some jurisdictions to convert a litigation case proposed to be litigated in the courts into a judicial arbitration, where all parties and the court consent.

Occasionally, a legislature will provide for statutory arbitration, which is a form of mandatory arbitration. Under statutory arbitration the disputants will be deprived of the choice of whether to enter into arbitration and the manner and process under which the arbitration will be conducted.

IV. Adjudication

Litigation is the preferred method of dispute resolution where all other forms of dispute resolution have been considered and rejected or tried and failed. It is also generally preferred where matters of high principle and public right are the subject of the dispute, where a resolution of a dispute that binds society at large is required, or where it is desirable to obtain a legal precedent for the future relations between the parties. A lawsuit may involve a pre-trial conference at which matters of substance as well as procedure may be discussed. Some cases are settled in pre-trial proceedings. Where substantive matters are discussed in a pre-trial but a settlement has not been forthcoming, the better practice is for the trial to be conducted before another justice.

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