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Today's blog is about dispute resolution. As a
general matter, dispute resolution refers to one of several different processes
used to resolve disputes between parties, including negotiation, mediation,
arbitration, and litigation.
A recent discussion I had with a group of business people
at various stages of their careers is the genesis for this blog posting. In the discussion, we were talking about the different dispute resolution
processes we might use to resolve a dispute that was happening in their
workplace. In the course of the conversation, two things became clear.
First, we were not all using the various dispute resolution terms in the
same manner. Second, we were not all clear on when the various tools
might be used to resolve workplace conflict and the pros and cons of each of
In that discussion, I found myself sketching out on a
piece of paper a dispute resolution continuum. My simple sketch got us
through that conversation, but when I got back to my office I decided to
"pretty it up" a bit and created the following chart.
Defining the Dispute Resolution Processes
Before I discuss the continuum, I think it's important to
define the common dispute resolution terms.
In negotiation, two or more parties discuss directly
their conflict and try to resolve it. There are no third-parties
In a mediation, the parties in conflict ask a third-party
(the mediator) to try to help them resolve their conflict. The mediator
is a neutral and does not decide what is "fair" or "right." Rather, the
mediator's role is to moderate and guide the process in an attempt to bring
the parties together by defining issues and eliminating obstacles to
communication. Although a mediator may point out to the parties potential
strengths or weaknesses in their positions in an effort to help facilitate
resolution, the decision making power remains always with the parties to the
In an arbitration, the parties to the conflict have
agreed that a third-party (the arbitrator) will hear the evidence presented by
each of the parties and make a decision. The arbitrator's decision can
either be binding on the parties or non-binding depending on the terms of the
parties' arbitration agreement.
Litigation is the term used to describe the filing of a
lawsuit in court and the process that follows the filing of the lawsuit.
Most commonly in litigation involving workplace disputes, issues of law
are decided by a judge and issues of fact are decided by a jury.
The Continuum of Dispute Resolution
In looking at the dispute resolution continuum several things
Parties Retain Control on
Left and Cede Control on the Right
The first thing that jumps out at you in looking at the
continuum is that as you move from the left to the right the parties
increasingly cede control for decision making to a third-party. Now many
readers may think - well that's not so bad. Sometimes you just can't
resolve a workplace dispute and it's better - easier - to just hand the issue
to a third-party and let them decide. Maybe.
When I discuss the potential of having a jury decide a
dispute with parties in a mediation, I often ask them whether they agree with
who gets voted on and off of "American Idol" each week. I know I don't.
Those same voters are members of the jury pool. If you are the
person involved in a workplace dispute query whether you want to make the
decision of how to resolve the issue or whether you are comfortable turning it
over to the "American Idol" voters.
The Likelihood of a
Win-Lose Answer Increases as You Move to the Right
As you move to right on the continuum, the parties also
increase the likelihood that one of them will be a loser and one of them will
be a winner. Notice the missed opportunity for a win-win resolution.
The Costs Increase as You
Move to the Right
Costs of lawsuits include not only the legal fees that
each of the parties will pay their attorneys, but also fees associated with
court filings, depositions and expert witnesses. There are
also the non-monetary costs. For employers, there is the productivity
drain that an on-going workplace dispute causes. For the employee there
is the personal distress and perhaps the absence of a paycheck depending on the
circumstance of the dispute.
The Workplace Dispute
Becomes More Public as You Move to the Right
One of the biggest benefits to employees and employers
who can successfully resolve their dispute in either negotiation or mediation
is that they can agree to keep the resolution - and perhaps even the dispute -
confidential. In a workplace dispute, this can be particularly beneficial
to both the employee and the employer. Depending on the terms of the
arbitration agreement, it is also possible to have an arbitration and the
arbitration decision kept confidential.
By contrast, litigation is public. I think it is
particularly important for parties to a workplace dispute to understand this
point as it is increasingly easy for any interested party to go on-line and
read all of the various documents that make up a lawsuit. As such,
investors or potential buyers of a company will often, as a part of their due
diligence, read court pleadings to get a feel for the corporate culture.
Similarly, potential employers might read court filings as a part of
their reference checking.
Insights for Employees and Employers
Control your own conflict. Sit down and talk to
each other face-to-face and see if you can negotiate a resolution. If you
can't do it on your own, retain an experienced mediator who knows the
applicable laws and can work with you to find a win-win resolution.
Do not turn your dispute over to a jury.
Remember, juries are comprised of the same folks who vote
for our "American Idol" each week.
To learn more about mediating a workplace
dispute and how to prepare for a mediation, click here.
more articles about managing workplace conflict at Win-Win HR, a blog by
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