If you find yourself considering litigation to resolve a dispute, consider a couple of points:

· First, greater than 80 percent of all civil cases in most jurisdictions, and greater than 95 percent in many, settle at or before trial (from Beyond Winning:  Negotiating to Create Value in Deals and Disputes by Mnookin, Peppet and Tulumello).

· Second, if most cases settle before trial, but at a late point in the process, it seems obvious that disputing parties could realize considerable savings in time and costs if they resolved their dispute early in the process rather than later near the time of trial.

Are there options other than the threat of litigation that can help disputing parties enjoy savings of time and money?  Yes, there are.  In general, alternative dispute resolution (ADR) processes may be used prior to suit or trial to provide these benefits.  Furthermore, by engaging in an ADR process, disputants may reduce the risk of an “all or nothing” costly gamble of winning or losing their dispute in a trial before strangers.  Finally, and most importantly, ADR permits participants to engage in self-determination.  They control the process themselves and strive to reach common ground in order to resolve their dispute in a way that satisfies their respective needs and interests.

The spreadsheet in this article offers some cost and benefit considerations for using assisted alternative processes available to resolve disputes short of costly and time-consuming litigation.  With some caveats, the spreadsheet compares ADR processes available today at reasonable cost in money and time.  Generally referred to as “alternative dispute resolution” or ADR, these processes involve alternative dispute resolution professionals, i.e., mediators, settlement facilitators and arbitrators, who are trained and experienced in modern ADR methods.  ADR professionals assist disputing participants in resolving their disputes satisfactorily, timely and at significantly less cost than litigation.  In addition, most ADR processes permit the participants themselves rather than strangers to control the dispute’s outcome.  This would not happen in a formal court trial.  This self-determination aspect of ADR is one of its most attractive attributes of ADR in addition to the time and cost-savings benefits.

In a dispute, each party must determine the balance between the benefits and costs of moving forward toward resolution depending on the factual and monetary circumstances involved.  The spreadsheet provides criteria for use in choosing an ADR process that allows each participant to be heard, to negotiate fully and to maximize each participant’s opportunity to satisfy its needs and interests.  The spreadsheet does not attempt to answer all questions concerning the important choices involved in selecting an ADR process.  The intent is to create an ADR menu highlighting some important general criteria for comparing and selecting among several dispute resolution processes to resolve a dispute satisfactorily.

The spreadsheet assumes as a benchmark that the transaction costs of litigation constitute the most expensive and time-consuming dispute resolution process.  Transaction costs include the time-based costs involved in preparing a case for trial and then trying it in a formal court setting.  These costs include attorney and paralegal fees, pre-trial discovery costs, witness deposition costs, expert witness fees, photocopy costs, telephone charges, expedited document delivery or messenger services, etc.  Related costs include the time expended by party litigants themselves and witnesses involved in preparing for and participating in the trial.  A contract or business dispute likely will involve costs related to employee witness time spent away from their work assisting in trial preparation and participating in the trial.

The ADR processes described in the columns to the right of the litigation column in the spreadsheet tend to be less formal and time consuming than litigation, resulting in less expense.  Moving to the right in each column, the spreadsheet describes the comparative benefits associated with ADR that allow disputing participants to retain control over the dispute’s outcome rather than forfeiting that control to strangers, i.e., judges or juries involved in a trial.  Some transaction costs similar to those incurred in litigation will occur when using an ADR process, e.g., attorney fees and costs and time spent involved in preparing for and participating in the ADR process, but to a far less degree.  The spreadsheet indicates subjectively a decrease in ADR transaction costs as one moves to the right, reflecting that ADR processes typically involve much less time than litigation to reach a resolution and may be used even before a law suit is filed.  Arbitration may include transaction costs approaching those of litigation but they generally tend to be less.  Although less formal and time consuming than litigation, arbitration still suffers from the involvement of third parties who control the process and make the ultimate win or lose decision.

The rows in the spreadsheet provide criteria for comparing ADR processes with litigation and with each other.  Moving down each column, the spreadsheet describes criteria, including benefits and costs associated with each process, and associated procedures typically involved with litigation and with each ADR process.  The spreadsheet is not intended to constitute legal advice but to give an overview of different processes for use as a guideline when considering the use of ADR.

Spreadsheet - ADR v. Litigation

Definitions

The following describes litigation and some ADR processes available from trained and experienced ADR professionals.  The list includes some ADR processes not included in the spreadsheet.

Litigation – Litigation generally involves two or more parties involved in a dispute resolved through a trial that results in a public record of the outcome.  A judge or jury issues a binding decision that may be appealed.  Parties settle prior to trial greater than eighty percent (80%) of civil lawsuits filed in most jurisdictions in the United States and greater than ninety-five percent (95%) in many jurisdictions.  In many instances, the parties involved in a lawsuit settle on the day of trial after a significant expenditure of time and money.

Arbitration – This confidential process generally involves two parties who present their respective versions of the matter in dispute to one or more arbitrators.  Arbitrators conduct the hearing in a less formal setting than in a court proceeding.  The parties may provide opening arguments, present documentary evidence and witnesses, cross-examine the opposing party’s witnesses and provide closing arguments and briefs.  Arbitrators follow relaxed guidelines regarding the rules of evidence.  Arbitrators decide the outcome by issuing a brief award.  If the parties agree, the arbitrators may issue a more detailed written award, with findings of fact and conclusions of law.  There are very limited grounds on which an arbitration award may be appealed to a court.

Settlement Facilitation – A settlement facilitation process involves a neutral settlement facilitator and is voluntary and nonbinding, meaning each party may end the conference at any time prior to reaching agreement.  The settlement facilitator (sometimes referred to as a neutral and who is a mediator for all intents and purposes) in joint session with the parties and engages them in discussion of their issues, topics, values, needs and interests.  The neutral may conduct a confidential caucus with each party to explore options for settlement.  The neutral may evaluate and point out the strengths and weaknesses of each party’s case, suggest options for settlement, make non-binding recommendations for resolution or give an advisory opinion as to the possible outcome if the case goes to trial.  These characteristics distinguish settlement facilitation from the facilitative mediation model where the mediator guides the communications but does not suggest options, discuss strengths and weaknesses or opine about a possible trial outcome.  Settlement facilitation is essentially the same as the directive-evaluative mediation process discussed below.

Mediation – Mediation involves a voluntary, non-judgmental, neutral and confidential communication process.  A trained, professional mediator employed by the parties serves as a neutral intermediary and facilitates communications between the parties with the goal of finding common ground leading to a binding agreement resolving the dispute.  In joint session with the parties, the mediator listens to the parties’ presentations, gathers information from the parties, assists the parties in communicating topics for discussion and reflects and reframes the parties’ presentations regarding their values, interests and needs.  The mediator helps the parties in their brainstorming of options and creative solutions leading to agreement.  The mediator may hold a separate, confidential discussion, or caucus, with each party to assist them in reaching an agreement.  The mediator uses the caucus when the parties may feel more comfortable in discussing certain topics only with the mediator on a confidential basis or when the mediator determines that a caucus may be help clarify issues, discuss a party’s settlement offers or be helpful generally to the mediation’s progress.  Use of caucuses during mediation will depend upon on the circumstances and the mediator’s approach to their use.  Mediation is non-binding and voluntary, meaning the parties may withdraw from mediation at any time so long as they bargain in good faith up to that point.  The agreement the parties reach in mediation generally is binding and enforceable.

As indicated, mediators may use several mediation models that should be discussed with the mediator at the time of employment.  This discussion assures that the model the mediator uses meets the parties’ needs.  For example, in a facilitative mediation model, the parties brainstorm options and create solutions to reach a resolution of the dispute that meets their needs.  The facilitative mediator does not suggest options for resolution, point out the strengths and weaknesses of each party’s case, or give an advisory opinion regarding possible outcomes if the dispute proceeds to litigation and trial.

The evaluative or directive mediation model is similar to the settlement facilitation or mediation process discussed above but differs in some aspects.  A mediator using the evaluative or directive mediation model may suggest options for settlement, may discuss the strengths and weaknesses of parties’ positions in a caucus, and, at the parties’ request, may give an advisory opinion regarding the possible outcome of the dispute if the case goes to trial.  Mediators following either the facilitative mediation model or the evaluative, directive mediation model do not act as advocates for either party or give legal advice.

Related Dispute Resolution Processes

Mini-Trial – This nonbinding, voluntary process is typically used by companies, private entities and government agencies involved in complex disputes involving significant dollar amounts.  The mini-trial has some of the formal aspects of the beginning parts of a trial or arbitration in addition to the attributes of mediation.  In the mini-trial, each party appoints a member to a three-member panel.  The party’s member should be someone at a high level in the organization or government agency who has had little involvement in the dispute and who is not intimately familiar with the dispute’s factual underpinnings.  The parties select a neutral, third-party member who chairs the process, guides the parties through the process and serves as a mediator if needed.

Each party makes an informal presentation of witnesses and evidence.  Each party engages in some, limited informal questioning of the other party’s witnesses and presents argument to the panel.  After both parties complete their presentations, the parties engage each other in negotiations.  Each party’s panel member participates in the negotiations.  The third-party neutral serves in the capacity of a mediator if the parties deem it necessary to facilitate a resolution or to resolve impasses as they may arise.  An agreement reached by the parties is generally binding and enforceable.

Early Neutral Evaluation – This is a nonbinding process used to provide parties with an early evaluation of each party’s case with the goal of reaching settlement early before each party expends significant transaction costs in preparing for trial.  The parties involved make an informal presentation of facts and argument to the selected neutral.  The neutral provides an advisory opinion on the issues raised by the parties.  Using the neutral evaluation, the parties may then proceed independently with their negotiations with the goal of resolving the dispute.  Typically, the neutral may not have further involvement with the parties once the neutral provides the neutral evaluation to the parties.

Dispute Review Board – This process has been used in large ongoing construction projects to resolve disputes as they arise on site during construction.  At the beginning of the project, the parties (e.g., the owner of the new facility and the prime contractor who will construct the facility) appoint one or more persons to serve on a panel of neutrals, i.e., the Dispute Review Board.  The panel members typically have legal, engineering and construction expertise and experience in the type of project involved.  If a dispute arises, the Dispute Review Board assembles.  The parties present facts, issues and argument concerning the dispute to the Dispute Review Board which relatively quickly issues a decision the parties have agreed will be binding.

Takeaways

· Use the spreadsheet to compare the benefits and costs of using ADR to achieve a timely “win-win” dispute resolution with expensive, time consuming litigation before strangers in a public forum in an all or nothing “win-lose” litigation gamble.

· Use an ADR process, e.g., mediation, to resolve a dispute as soon as possible for a significant savings in transaction costs, recognizing that most lawsuits settle before trial, often just before the trial begins.

· Use creative and informal communications facilitated by a mediator to resolve a dispute timely, even before a lawsuit is filed, on common ground meeting each participant’s needs that is recognized as a principal, reduced-cost benefit of ADR.

Copyright (c) 2009, Edward G. Ketchen, All Rights Reserved

Edward G. Ketchen, Administrative Judge (Ret.), Creative Dispute Resolutions, LLC, www.creativedisputeresolutions.com served for 24 years as an administrative judge on the Department of Defense Armed Services Board of Contract Appeals (ASBCA), the US Army Corps of Engineers Board of Contract Appeals (ENGBCA) and the Maryland State Board of Contract Appeals (MSBCA) hearing and deciding state and federal contracts, construction contracts and procurement disputes.  He has served as an arbitrator for the International Court of Arbitration of the International Commerce of Commerce.  He focuses his mediation and arbitration practice on private, state, federal and international contracts, construction contracts and business disputes.  He also mediates cases assigned by the Maryland Circuit Courts and District Courts.

Conflict is a natural part of human affairs. We often try to avoid it, but when we embrace and work through conflicts, this can lead to new levels of creativity in the workplace.

The problem is that most people do not have very good conflict resolution skills.  They tend to get defensive and too personal and they don’t believe in the possibility of win/win solutions.

So when two people have a conflict in the workplace, it is often necessary to meet with a neutral third party who can facilitate a mutually agreeable solution.  In this article, I will teach you the basics of how to do third party facilitation.

It is a very useful skill to have because resolving conflicts successfully strengthens teamwork and morale.  It also tends to raise productivity and reduce absenteeism and turnover.

Before I begin, I would recommend that you do some reading to gain some basic concepts and skills.  I would recommend Getting to Yes, the classic negotiating book by Roger Fisher, William Ury, and Bruce Patton, and Forgive for Good by Fred Luskin.  These are very useful books in this area.

Prior to the Meeting
Once you’ve done your homework, you should meet with each of the individuals separately.  The purpose of these meetings is to determine how willing each of them is to get together to resolve things.

I would emphasize that it’s best to start with relatively simple problems.  Don’t deal with major issues like sexual harassment or serious diversity conflicts when you’re just beginning.

When you begin, ask each person whether they trust you to act as a facilitator.  But if they don’t feel comfortable with you, you’ll need to find someone else.

Telling Their Story
Then ask each one to tell you their story.  Luskin’s book is particularly useful in terms of describing how people get stuck with their grievance stories.  You might also ask me for my articles on “Forgiveness” because forgiveness can make a big difference at this stage.

Simply allowing them to tell their story will help diffuse some of their anger.  Empathize with the person’s pain without justifying their position; e.g., “I see you feel hurt by what happened.”  Doing so will help them trust you more.

Finding Out What They Really Want
When they are calmer, help them clarify their real needs and goals. Often what a person says they want does not meet their underlying needs.

They may be saying what they think they should say rather than what they really want or can live with.  Draw them out by asking a lot of open-ended questions such as “What do you really want?” or  “How could we really resolve this?”  Finding the real needs now will make the joint meeting go much easier.

If you come to the conclusion that one (or both) of the individuals is simply too angry to resolve things, then don’t schedule a facilitation meeting.  It will only make things worse.  If they are willing to get together, then schedule a session within a week of the initial meeting.

(more…)

Marsha Petrie Sue, CSP, MBA Professional Speaker, Author, Executive Coach
www.MarshaPetrieSue.com

We have all encountered Backstabbers at work.  They are gossips, mean-spirited and hurtful. One in every 30 people in high-performing business situations has been identified as a Backstabber.  This rate is several times higher than that of the general population.  Are you surprised?  These people have little conscience or ability to develop one.  Their only goals seem to be power and personal gain.

1. Identify the behavior: Taking credit for others’ work and finding reasons to place blame whenever anything goes wrong are typical behaviors for them. Toxic People: decontaminate difficult people at work without using weapons or duct tape, this category of difficult behavior was referenced most often.

2. Never overlook the damage Backstabbers can do. Don’t laugh at them or shrug off their behavior. If you do, it just reinforces their control and their negative behavior. They won’t change, because this Backstabber behavior has worked for them in the past.

3. Listen for the messages they send and how you interpret them in your thinking: “Be careful what you say about me, or I’ll say something that will embarrass you in front of others” or “There is nothing you can do to stop me; I’m more clever than you.”

Sometimes Backstabbers will even send another kind of message, such as, “I’m only trying to be helpful. Maybe you don’t see the weakness in yourself. It’s lucky for you I’m honest. Listen to my feedback if you want to succeed.”

4. Learn survival tactics: One approach is to build a positive relationship with Backstabbers and anyone they have enlisted. The more your coworkers like you, the less they will side with them. Never say anything negative about the Backstabbers. If they find out, they will turn you into the troublemaker.

If a Backstabber tells you that someone else in the office doesn’t like you or has it in for you, go to the person directly and ask if it’s true. The Backstabber has probably told the other person a similar story about you. These lies can be exposed when there is good communication in your workplace. And yes, it is your job to start the process of clarification. Don’t wait for it to improve on its own.

5. Use specific language: In testing language, I’ve found the following to work most effectively. “That did sound like you were serious. Do the rest of you feel that way? Is this becoming a problem?” Or, “I understand that you’re unhappy with the plan. Your feedback is important. I want to hear what you think.”

Above all, stay pleasant and focus on the positive intent of the interaction. A positive attitude may not solve all your problems, but it will tick off enough people to make it work the effort! And the real key in dealing with Backstabbers at work — don’t become one.

Remember this bad behavior can suck the life out of you.  Never take it personally because it’s not about you! This is exactly the mental response they want you to take so don’t give in.  Staying strong and confident is critical, without getting sarcastic and bitter.

Maintain a strong belief in your own competencies to stop the thoughts of vulnerability. Take personal responsibility in building you. Review your talents and build from them. Check your weaknesses and if they are the problem, learn to change them. The Backstabber is just one of six Toxic People.  Get ready to also handle the Whine and Cheeser, the Know-it-all, the Steamroller, the Zipper Lip and the Needy Weenie.  Using the same approach for all of them just forces you into your own mode of Toxic behavior!

Please visit www.MarshaPetriesSue.com or email at Marsha@MarshaPetrieSue.com. Request the Ten Commandments of Cooperation from Marsha!

As a professional speaker and author, Marsha Petrie Sue is the Mohammed Ali of communicators. She can dance and look pretty, and she uses the entire ring, but she knows how and when to land a knockout punch.  Get the smelling salts! Her presentations are charm school with live ammunition.

She is the author of Toxic People: dealing with difficult people in the workplace without using weapons or duct tape.
To order her book visit: www.Amazon.com or www.BarnesandNoble.com
Blog: www.DecontaminateToxicPeople.com

Connect with Marsha Petrie Sue - Speaker, Author, Executive Coach:
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From my experience many conflicts and misunderstandings that I experienced (in the past - I am over it now) had to do with a very common error in judgment that I have heard called a “Fundamental Attribution Error.”

In other words an error in judgement. Does (or did) that happen to you too?

For example when you see someone doing something that really annoys you, to what do you attribute the cause of their action? Is it the character of this person, or the nature of his individual personal situation?

From what I have experienced and observed, most of us jump to conclusions about the person rather than the external factors that might contribute to their behavior.

When  you see a homeless person (we assume they are homeless anyway) on the subway panhandling for money, what are you likely to think - the first thing that pops into your mind? “What’s up with this loser? Why don’t they just get a job like the rest of us? Don’t they have any self-respect at all?”

Before I was sufficiently evolved as a human being that’s what I thought. I never asked questions like these, “What is it about our society that gives rise to such things? What has happened in this unfortunate person’s life to have led to this necessity?”

This is a difference in attribution that sociologists call “Fundamental Attribution Error.”

It appears that people (other than us) tend to have a default assumption that what a person does is based more on what “kind” of person he is, rather than the social, biological, or environmental forces at work on that person. This default assumption leads to people sometimes making erroneous explanations for behavior.

Some think this is because of perspective. When we observe other people, the person is the primary reference point. When we observe ourselves, we are more aware of the forces acting upon us. So, attributions for others’ behavior are more likely to focus on the person we see, not the situational forces we can’t see that are acting upon them.

How can we reduce the error’s effects?

That is my question for you. No doubt there are a number of “debiasing” techniques that have been found effective in reducing the effect of the fundamental attribution error. What are they? Have you any experience with them?

Founded in 1985, the mission of the Mediation Training Institute International is to be a value-adding resource for identifying and removing the hidden costs and business risks caused by adversarial practices within organizations.

Our community’s MTI Monthly Newsletter is enjoyed by our over 75,000 members, making it the most popular newsletter in our field. Our range is global, with daily visitors and inquirers from every corner of the planet.

One of those members is Susan Levin, founder of Dialogue for Solutions. Dialogue for Solutions is a consulting firm specializing in training, facilitation, mediation and organizational development in the United States and abroad.

Susan works with people to strengthen their communications skills and work more effectively. As a trainer, facilitator and mediator, she has led workshops on conflict management, teambuilding, leadership development, diversity appreciation and intercultural communications.

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Susan is a certified mediator with the Supreme Court of Virginia and also mediates employment discrimination cases for the District of Columbia Office of Human Rights and Minority Business Development and for the District of Columbia Courts. She has consulted with the U.S. Institute of Peace and the National Institute for Dispute Resolution. In addition, she has been appointed as an arbitrator for the National Association of Securities Dealers (NASD) and for the Commercial Dispute Resolution Center of the Americas.

For more information about Susan, her organization, and its possible benefit to you, visit http://www.dialogueforsolutions.com
 
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