Conflict Resolution FAQ : Frequently Asked Questions
Conflict Resolution Questions at a glance
- Why Do We Have Disagreements, Disputes and Conflicts?
- What Is The Difference Between A Position And An Interest?
- What Is Difference Between A Disagreement, Complaint, Dispute And A Conflict?
- How Do You Resolve A Disagreement?
- Is There A ‘Best Practice’ Approach In Resolving Disagreements?
- What Is Conflict Resolution, known as ADR?
- What Are The Advantages Of Conflict Resolution?
- What Are The Types Of Conflict Resolution?
- What is difference ‘Alternative Dispute Resolution’ And ‘Conflict Resolution’?
- I’ve Heard That In ‘Conflict Resolution’ A Neutral Third Party Is Involved?
- How Do I Decide When To Used ‘Conflict Resolution’?
- How Do I Start The ‘Conflict Resolution’ Process?
- How Do The Parties And The Mediator Work Together?
- During The Mediation, What Does The Mediator(s)Do?
- How Long Does Mediation Take?
- Why Use Mediation If We Are Unable To Agree?
- Do I Need To Hire A Lawyer To Mediate?
- If I Don’t Bring A Lawyer Can I Bring Someone To Help Assist Me?
- Is Mediation Legally Binding?
- If I Use Mediation, Will I Need To Go To Court?
- Must An Agreement Be Reached In Mediation?
- Can A Mediator Be A Witness Or Talk To The Judge?
- What Should I Know About A Mediator Before Choosing One?
- What Are The Advantages Of Mediation Over Litigation?
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- Need to Find a Mediator, Arbitrator, Lawyer/Attorney, Ombudsman or Paralegal?
Conflict Resolution FAQ : Frequently Asked Questions
Each person is unique. And, this uniqueness being positive, also creates differences. As unique individuals, each of us has unique behaviors ‘forms of action’ we utilize to get the things we need and want. This is sometimes referred to as our innate survival instinct.
A Position is a demand or a preferred course of action. It is
specific. It involves doing, taking a stand on one’s belief.
A position is “If you don’t do that, then
I’ll to do this.
An Interest is the reason(s) for a position or an objective. An interest is more general than a position, and open to interpretation. It is not an action. An interest can be financial well-being, fair work rules, retaining control, maintaining privacy, personal safety or the right to be treated with dignity.
What Is The Difference Between A Disagreement, Nuisance, Complaint, Problem, Dispute And A Conflict?
Part of the education processes is determining what you have
before trying to resolve it.
Is there a hierarchy in the formation of a disagreement? Maybe. One thing is sure; most everything starts with a thought in one’s mind. This thought comes about in the form of an irritation or nuisance.
Nuisance: Interference with one’s personal enjoyment and with a person's use and enjoyment of his/her property. An act which causes inconvenience, discomfort, or harm (unintentional or intentional) that is persistent or likely to re-occur. Annoyance, an unvoiced inequity or hidden fear is sometimes referred to as nuisances as they occur within us without the other party being aware of the situation or our feelings.
Complaint: A nuisance that has been made known to another person. A complaint generally takes on a positional viewpoint where a desired outcome is perceived.
Problem: An obstacle which makes it difficult to achieve a desired goal, objective or purpose. A problem is the unplanned or unexpected incongruity that exists between the actual ‘reality’ and a predefined standard or expectation. It generally starts as an internal divergence within an individual’s mind, such as a struggle to make a decision, take an action, or overcome a feeling.
Dispute: Disputes are generally ‘opinion-based’ over which parties take sides and actively disagree, argue, or debate. Disputes are short-term disagreements that are relatively easy to resolve. Disputes involve interests that are negotiable. It is possible to find a solution that at least partially meets the interests and needs of both parties.
Conflict: Conflict is an ‘issue’ clash between two opposing groups or individuals. Conflicts are long-term problems and disputes that usually involve non-negotiable issues. Conflict issues generally involve fundamental human psychological needs for identity, security, and recognition. Conflicts are characterized as disagreements between parties of which only one possible outcome would be acceptable. Usually this outcome is non-negotiable, not easily defined and not majority held. And, in a circuitous way facilitates a convergence of community within each group or individuals that precipitates a higher meaning than the conflict itself.
Resolution is usually achieved through a) education; b) a willingness to be educated; c) a willingness to forego the past; d) the ability to enter into a new realm. Each one of these variables has considerable psychology and philosophy involved, plus intra-personal and inter-social consequences. For example, a willingness to be educated requires a personal acknowledgment to be open to receive information; ability to neutrally critique information authenticity and value, and the desire to become something (better or worse) than you were before. Likewise, a willingness to forego the past requires mental amnesia. The ability to forgive and forget. The ability to enter into a new realm requires an acknowledgment of one’s comfort zone and courage to expand it.
Every situation or issue has its own unique circumstances and history. Before investing time talking to the other side, it is best that you determine where you stand and gather together your thoughts. The word ‘resolution’ implies that you want to achieve a solution. The hardest step, which should be the first step, is to create a decision matrix. A decision matrix allows you and the other side to structure the situation or issue. Sometimes when dealing with nuisances, which are generally one-sided, we must internally explore our own thoughts. A decision matrix generally has three components. The first component is to specify and prioritize our interests and needs. Once this has been accomplished, the next component is to determine and evaluate different solutions for each of the interests and needs. The third component is to select options that best match an overall acceptable solution. After these three components have been complied and written, now is the time to approach the other party.
Alternative Dispute Resolution (ADR) is a cost effective and time efficient method of resolving current disputes avoiding lengthy and expensive legal litigation. It keeps matters private between parties, preserves and possibly improves the disputants’ relationships and creates ‘win-win’ situations.
Aside from low cost and high success rate, Conflict Resolution
provides important aspects.
The advantages of ADR Alternative Dispute Resolution are numerous and include:
• Savings in legal costs and time
• Flexibility in process
• Preservation of relationship
• Suitability for multi-party disputes
• Practical solutions
• Timely Resolution
• Decreased stress
Generally, the types or approaches utilized are:
• Ombudsman /Ombudsperson
• Mediation. Also includes: Conciliation - Expert Determination - Consensus decision-making
• Collaborative Law
Unfortunately these terms are used interchangeably and
sometimes used inappropriately. To help clarify their use, I suggest
the following distinction.
Alternative Dispute Resolution is used to differentiate between court room litigation from non-court dispute resolution. Hence, the word ‘alternative’ is placed before the words ‘dispute resolution’. In modern times, it has become standard to settle disputes in court and the saying ‘see you in court’ has become a popular cliché. When we go to court the outcome is subject to variables out of our control. The empowerment trend ‘taking back the power from the court into the hands of the people’ has given re-birth to the term ‘alternative dispute resolution’. I say ‘re-birth’ because in historical time before the advent of ‘court room litigation’, disputes were usually resolved by the parties themselves without the intervention of a decision-maker.
The term ‘Conflict Resolution’ is becoming more associated with globalization, urbanization, and community/cultural diversity than between two individuals. Two individuals generally have a resolvable dispute, not a conflict. As discussed above, conflicts are issue clashes between two opposing groups or individuals. Two people with a disagreement seldom have a conflict unless it involves a serious or life-threatening issue that is completely non-negotiable. Conflicts normally are group/community-related where societal pressure and principles are drawn an ‘initial’ disagreement. Have you ever had the experience of not liking something but not knowing really why? Perhaps it is based on hearsay or inherited perceived notions. This is a good example of how societal pressure and principles work. In a way we become captive and feel it is our nature without directly experiencing the ‘initial’ disagreement. This is conflict.
Yes, that is correct. Technically, the word
‘neutral’ is generally used to describe that the
‘third party’ has no vested interest in the outcome
of the resolution and is not directly involved in the disagreement. The
term ‘neutral’ is sometimes inappropriately used to
replicate the ‘judge’ in court room. However, in
alternative dispute resolution, the third party has no
‘decision making authority’. The third party
assists as the ‘process guide’ steering the parties
from disagreement to resolution. The third party is similar to the
conductor of an orchestra. The conductor does not play the instruments.
The conductor directs. The third party directs, conducts and guides the
dispute resolution process using his/her skills as a facilitator,
negotiator, counselor, agreement documenter and sometimes adding in a
dose of common sense. Only in arbitration and binding mediation is the
third party given permission to make a ‘decision’
as a court room judge would do.
Also, it should be mentioned that the ‘third party’ is usually a single individual. It is becoming common practice to have two individuals or a panel of three acting as the ‘third party’. In this way, the ‘process’ is conducted with expanded neutrality. The theory is we are all biased in some way. Individuals have has their own unique viewpoints, past experiences and filters through which they see the world around them. In a pure sense, it would be idealistic to say that ‘anyone’ can be ‘truly neutral’. However, with two individuals or a panel as the ‘third party’ the probability of neutrality in enhanced, plus the parties gain more insight and knowledge from different individuals sharing the roles of facilitator, negotiator, counselor, and agreement documenter.
AA good rule is: If you wish to maintain a relationship with the other party either directly or indirectly, you should consider ‘alternative dispute resolution’ as your first course of action. Heading into the court room may seem powerful and persuasive; however it is threatening and adversarial and does little to maintain or build closer relationships.
Many businesses and medical professionals are adding ‘alternative dispute resolution’ clauses into their agreements and contracts. If you have a written disclosure or contract, check if there is an existing clause. If so, there may be procedures you need to follow. If your written agreement is without an ‘alternative dispute resolution’ clause or written agreement, please contact an ADR Alternative Dispute Resolution Professional known as a mediator, arbitrator or ombudsman.
The normal process is for the parties and mediator to
meettogether, at scheduled sessions determined by the parties.
Essentially mediation runs like a guided negotiation between the
parties, with the mediator facilitating the communication. Most
meditations generally run by the following five-stage format:
Stage 1: Establishing the Process: The mediator and the parties agree to a number of guidelines they will follow in the mediation. This usually includes only allowing one person to speak at a time, treating all parties with respect, and confidentially.
Stage 2: Exploring Positions and Interests: The parties usually make their initial statements regarding their disagreement and define what they hope to resolve in the mediation.
Stage 3: Developing Solutions: Each party discusses their interests and possible solutions to resolve their disagreement.
Stage 4: Finalizing A Resolution: The parties assisted by the mediator create a solution mutually agreeable to both parties.
Stage 5: The Written Agreement: Once agreed on, the solution is formalized in a written resolution agreement.
Traditionally mediation is conduct by a single
mediator.However, co-mediation or a panel of three mediators is
becoming commonplace. Co-mediation and panel mediation allows each
party to select a mediator instead of mutually agreeing on a single one.
At the Initial Session:
- Assess whether and how to intervene with the Parties
- Creates a comfortable environment for communication
- Invites parties to participate, to share their thoughts and concerns
- Establishes the purpose, structure and guidelines of mediation with the parties
Throughout the Session:
- Helps each party to feel heard, respected and acknowledged
- Identifies key issues that parties need to address and interests influencing issues
- Outlines the issues and interests so they can be visually seen
- Continues to create an ambiance of safety and dignity
- Helps keep the process focused and forward moving
- Manages emotions and communication styles
- Deals with unproductive power dynamics and egos
- Encourages risk taking
- Facilitates an effective negotiation process
- Sorts out personal and emotional impasses and position obstacles
During the Resolution Process:
- Encourages creativity and out-of-the-box ideas
- Helps parties brainstorm solutions with each other
- Helps each party think through their options
- Establishes vocabulary words of potential agreements
- Discuss how agreed resolutions can be implemented
- Drafts a Resolution Agreement to be reviewed
- Finalizes Resolution Agreement in writing signed both parties
The length of mediation is determined by a variety of factors including the complexity of the issues, the complexity of the relationships, the number of participants, the cooperation of the parties, and the readiness of the parties to explore a mutually satisfying resolution. While some mediations are completed within a half-day session, it can take several half and full-day sessions to reach a mutually agreeable resolution. The each parties control the length of the mediation.
Most times it is not so much ‘not wanting’ to agree but is ‘knowing how’ to agree. A mediator can bring a new perspective. The mediator’s own experiences and knowledge can assist parties in exploring alternatives that they might not have previously considered.
Parties may or may not want lawyers to be present. It is a choice that is usually discussed between the parties prior to mediation. Some parties prefer to decline legal consultation and instead do their own research. Others, especially in complex issues, feel more secure with a legal representative present. Most parties in mediation prefer to have a consulting lawyer present to answer questions that may come up during the mediation. In addition, the lawyer can clarify information provided by the mediator or provide another perspective. The consulting lawyer can also review the resolution agreement to be sure it accurately describes the agreement reached, is clear and enforceable.
Yes, if there is no objection from the other party. As with lawyer, your assistant is present to help you fully understand what takes place and what is discussed in the mediation session. Your representative (lawyer or non-lawyer) does not speak for you. Mediation is not court. Each party must present their own ‘case’ and clearly define their position and interests.
Yes, mediation is legally binding if both parties agree upona mutualresolution. This mediation resolution must be signed by both parties. The mediation resolution agreement is filed with the county clerk and entered as an official record.
In specific cases, for example, in divorce you need to file in court the divorce paperwork. If a mutually agreeable resolution in mediation to all of the property, financial, custody, parenting and other issues and the court accepts your settlement, it is unlikely that you will have to make many, or any, court appearances. Please consult with a lawyer prior to mediation on your local Judicial System requirements.
No party is forced to accept a solution that does not meet his/her interests and needs. The parties should understand that the mediation goal is to create a solution that comes as close as possible to a "win-win" agreement, while recognizing that parties don't receive everything on their wish list. If no resolution, the parties may still go to court to resolve their disagreement.
No. Mediator can neither be a witness nor talk to anyone about the case. Additionally, neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.
You should approach hiring a mediator just like you would
anyother professional. Speak with many mediators to get a feel for
their style and approach to the process. In addition, ask questions
about the following:
- Training, experience and background;
- Experience or knowledge in mediating the type of issues you have;
- Fees charged and how fees are divided among the parties to the mediation
- Timely resolutions
- Reduced legal costs
- Privacy and confidentiality of issues and parties
- Preservation of relationships
- Reduction of court back-logs
- Less intimidating process than litigation
- No cross examination
- Control over the proceedings
- Opportunities for disputants to express their interests
- Limited compromising of legal rights
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