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ROCCO SANZA: Having discussed conflict and its characteristics, it's now time to turn to a discussion of the variety of ways in which conflict can be resolved or managed. In this discussion, we will advance from basic techniques to more sophisticated and complex mechanisms for dealing with conflict.
One of the most elementary methods with which conflict can be resolved is negotiations. Negotiations is a communications process directed at resolving initial differences. The pervasiveness of this process has led some to refer to it as the mother of all conflict resolution processes.
All of us take part in negotiations, be it in our personal lives or in our professional ones. Some sociologists go so far as to argue that the majority of our daily interactions are, in essence, negotiations. This said, negotiations takes on a variety of forms and, as we shall discuss shortly, can be implemented in an effort to reach mutually beneficial results or outcomes that are beneficial to one party at the other party's expense.
Not all negotiations lead to positive outcomes. Some negotiations improve a conflict situation, while other negotiations may leave the parties no better off than they were-- or further yet, worse off. What, then, separates good negotiations from bad negotiations?
First, a good negotiation is one that produces the best available outcome for both parties. One of the common debates in the field of negotiations is whether an actual settlement is, by definition, the best available outcome. Some scholars believe that since negotiations are intended to lead to resolution, a settlement is, in fact, the best possible outcome. Others believe that while a settlement may be a desirable outcome, in many cases, there are occasions in which a settlement is not in the best interest of one of the parties, or perhaps both the parties.
Second, a good negotiation is one that ensures that the parties will comply with the settlement or an agreement that is reached. A settlement or agreement that is not followed by the parties is not useful in resolving conflict.
Third, many scholars maintain that in addition to resolving the specific conflict at hand, the objective of the negotiations process is to mend relationships. Thus a good negotiation, according to this approach, will improve the relationship between the parties.
Finally, a good negotiation is one that achieves its objectives in the most efficient manner in terms of monetary cost, time, and any additional resources invested by the parties. A bad negotiation, on the other hand, is one in which either no settlement is reached or one in which is settlement is reached, but the process has led to a less-than-optimal outcome, the process was not efficient, or the relationship between the parties was damaged.
There are two primary categories of approaches to negotiations. The traditional approach to negotiations is known as the positional approach and was the dominant approach for many years. According to this approach, each party in a negotiation has one dominant solution to their conflict, and their objective is to secure this position.
A second approach known as the interest-based approach has grown in popularity since the mid-1960s. According to this approach, parties to a negotiation should not focus on their specific position or one solution to their problem, but rather address their overarching interests. In order to do so, the party should focus on the underlying need or concern that stems from the conflict. Some refer to this approach as principled negotiations. Since a party's interests or principles are much broader than a specific position, the interest-based approach is able to increase the chances of reaching an agreement that is satisfactory to both sides.
Each approach to negotiations is based on a different assumption about the potential vested in the negotiation process. The positional process is founded on the assumption that negotiations are primarily a win-lose process. One party's gains are, by definition, the other party's losses, according to this approach. The win-lose assumption is based on the premise that the size of the proverbial pie which the parties are trying to divide is fixed. In addition, this approach sees the negotiators as having no compatible interests or objectives.
The interest-based approach to negotiations, on the other hand, is based on the assumption that negotiating parties can reach a win-win agreement, one which improves both parties' situation. The pie under this negotiations assumption is not fixed and can be expanded by seeking out creative and mutually beneficial solutions. This approach also views the negotiators as having some degree of compatible interests and objectives.
Moving now to mediation, mediation is the current star of the dispute resolution processes world. Although mediation has been used for many decades to resolve labor disputes, in the last 10 years, it has emerged as the most desirable alternative process to traditional litigation. Well, what is mediation?
In effect, mediation is negotiations with the help of a third or neutral party-- the mediator. The mediator has no authority to make decisions for the parties. Therefore, the parties retain all the control and authority they have to settle their dispute. They control both the process and the outcome.
A successful mediation requires at least two critical features. First is confidentiality. The parties must be assured that whatever is discussed during the course of the mediation will not be used against them later, especially if they do not settle their dispute. Second is trust-- and specifically, trust of the mediator. Parties must be willing to trust that the mediator will keep confidential all information and all admissions that they may share with her in private meetings during the course of the mediation.
We have found that very often, the mediation session is the first time that parties have met face-to-face since whatever issues between them erupted into a full-scale conflict. Why is that the case? Well, in the case of litigation or some other formal dispute mechanism, the first thing a party is told by his or her attorney or representative is, don't talk to the other party. That's my job.
So what is it that the mediator does to help the parties settle their dispute? One, the mediator clarifies the parties' positions. Very often, because of emotion, anger, or simple distrust, a party may have trouble simply understanding the other party's position. The mediator can and will help clarify or simplify the issues so that they become understandable to all the disputants.
For example, a party's posturing or pouting-- or, worse, pontificating-- to the other side why they are right and why the other party is wrong.
3. Very often there is real hostility on the part of one or all the parties.
4. A mediator frequently can suggest new or creative ways to settle a particular dispute. This is an important role, especially if the parties have had trouble talking to one another.
5. The mediator can help keep the parties focused on what's really important-- their needs and interests, not the positions they took at the outset of a dispute.
6. Very often, a mediator can help provide some form of face-saving for a party to help bring the conflict to closure. So if a party entered the mediation with very strong views and demands but later had difficulty agreeing to a compromise, the mediator can help frame the compromise position in a way that that person can accept.
7. In many mediations, the mediator does not give the parties his or her opinion of the dispute but focuses on getting the parties to resolve it themselves. However, if all parties ask for the mediator's opinion and it does not appear as if the conflict is going to settle on its own, a mediator may provide an assessment or evaluation of the parties' respective positions.
8. Finally it's important to note that not all disputes are going to be resolved in mediation. However, if the parties are going to continue in their relationship, be it personal or professional, a mediator can attempt to maintain or improve their relationship, even if the particular dispute doesn't get resolved.
Mediation is used in a wide array of contemporary settings-- for example, workplace disputes, mediation in the securities industry, and construction industry disputes, including many multi-party cases.
Moving now to arbitration, arbitration is the traditional and best-known of alternative dispute resolution processes. It is defined as the use of a neutral third party to conduct a hearing between disputants and then make a final decision. Unlike mediation, the arbitrator does have authority, in most cases.
The arbitrator conducts a hearing. Parties present evidence. Evidence can be in the form of direct testimony, witnesses testifying to issues in dispute. Evidence can also include documents which are relevant to a dispute, including contracts, sales invoices, letters, et cetera. Parties have the right to cross-examine witnesses, just as if they were in court. An arbitrator renders a decision at the end of the case, and that decision is known as an award.
Arbitration enjoys a number of features which explain its long-time use and popularity within various industries. They include the right the parties have to participate in the selection of the arbitrator. Unlike courts of law where matters are assigned to specific judges, in arbitration, parties can decide who the arbitrator should be.
This selection process can also include the number of arbitrators, and typically, arbitrations are conducted by either one or three arbitrators. It can also include the background and qualifications of the arbitrator. Also, where and when the arbitration should take place. These are all features that are unique to arbitration.
What is an ombudsman? An ombudsman is an ambassador, typically appointed by an institution. Indeed an ombudsman is frequently an employee of an institution or an organization. The common task for an ombudsman is to help individuals cut through red tape and have their complaints or grievances resolved simply and efficiently. The ombudsman can also be a source of confidential advice to individuals.
Ombudsmen are commonly used in universities. For example, Cornell University has an Ombudsman Office. At Cornell, who can use this office? Any member of the Cornell community-- students, faculty, and staff-- and others who may bring a complaint against the university itself.
How can the ombudsman help? At Cornell, the ombudsman can explain Cornell policies and procedures and help individuals who use the process. They can advise parties of alternative courses of action and help them pursue them. They can refer individuals to the right person and arrange a meeting with that individual. And when appropriate, they can even mediate a conflict. They can also follow up to make sure that an individual's concern has been resolved, and they can recommend changes to correct problem areas.
All interactions, all relationships, include the possibility of conflict. In the business world, great strides have been made in recent years in understanding conflict and mitigating its negative effects. This study room presents various definitions and characterizatons of conflict, and then discusses how conflicts can be resolved through negotiation, mediation, and arbitration.
This video is part 3 of 4 in the Conflict Resolution series.
