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.

We think we can tell from someone’s non-verbal communications when they are conflicted, upset, etc.

We might sense it in their posture of aggression, their hostile gestures, their unwillingness to make eye contact, or maybe the silent treatment when we’re around.

We think we’re pretty good at figuring out who’s on the team and who is ready to drop the big one. Too bad, another myth busted. The really difficult people are those that smile and say how are you - then slip the knife in when you’re not looking.

For instance one of your coworkers says that they want to be cooperative, they want to share in the information gathering, they want to be part of the team willingly pitching in to help in the accumulation of information around which important plans for the businesses future are being made.

read the entire article here…

http://www.familybusinessconflict.com/workplace-conflict-resolution/when-it-comes-to-conflict-in-workplace-hidden-behaviors-provide-early-warning-clues

I often recommend book to my friends and colleagues. Two books that I frequently recommend are Leadership and Self-Deception and The Anatomy of Peace by The Arbinger Institute.  One of the more challenging concepts I learned from The Anatomy of Peace  is captured in the title of this post: Are you at war or at peace?

     In this context, the question relates to a condition of the heart and not to a specific skill or technique for resolving conflict. To simply state the concept described in the book:

• When your heart is at war,  you see people as objects that are either obstacles to your progress or just irrelevant.
• When you heart is at peace, you see people as people who have hopes, needs, cares, and fears as real as your own.

     This one single concept has completely transformed how I work with, communicate with, and view other people. It’s really a simple question, and it has profound consequences if you take it seriously. Here are some examples to consider.

Scenario 1: 

While working on a business proposal, my daughter asked me to help her with a 4-H woodworking project. The request itself created stress for me. I needed to complete the proposal, and I wanted to invest the time with my daughter. I told her that we could work on it later in the day.

Within 30 or 45 minutes she asked again if I could help her. Caught in the stress of the moment, I felt the flush of anger rising up my spine as my view of her as an interruption and distraction clouded my perception of the situation. Suddenly, on the verge of voicing my frustration with her, I thought: she’s just a young teenage girl who needs her father’s help and attention. As quickly as the anger rose, it dissipated. Suddenly, I saw the situation in a whole new light.

She was no longer an object that stood between me and my goals. She was a person who needed my attention. I moved from anger to acceptance in about 5 seconds, and I went from wanting to “uncork” on her to calmly informing her that I would make time for her at 4:00 pm.

 Scenario 2:

I was sitting in a meeting at my church. Another member of the committee took a position opposed to mine. The same flash of anger that I had with my daughter rose up my spine. I saw them as obstinate and uncooperative, and I sat silent for the rest of the meeting.

     In the first scenario, my view of my daughter went from seeing her as an object to seeing her as a person, and my heart switched from war to peace. In this case, the conflict basically evaporated as my heart calmed towards my daughter. This calm revealed itself in controlled speech that protected both my schedule and our relationship.

     In the second scenario, I did not make the switch in thinking I did in the first scenario. I viewed my fellow committee member as an obstacle to having my opinion heard and considered. As a result, my “flight” response kicked in and I avoided the confrontation. Unfortunately, I also avoided any further contribution to the meeting because my heart remained at war. I simply did not want to contribute to that “object.” I’m not proud to admit it, but I think the value of the lesson makes it worth sharing.

     While I don’t, and can’t, know whether shifting from an at war stance to an at peace stance would have improved the effectiveness of that meeting; I do think that it probably would have. I can say that the tone of the meeting immediately shifted when my heart took an at war stance. It never became confrontational or negative. It just lost something good that it had before I “went to war” internally.

     Remember that I confronted my daughter in the first scenario. I didn’t just give-in to her request. I set some boundaries and established some expectations, and I did it at peace with her. My tone was calm. My breathing was under control. My body language was relaxed. My heart rate never raised. In the second case, I avoided a confrontation, and I failed to contribute to the team. The net effect was probably negative.

     How many times does your heart go to war towards people. Going to war does not require angry exchanges, raised voices, and clenched fists. It only takes a shift in thinking that allows you to see others as objects. The shift is internal. At war or at peace is not about behavior. It is about heart. It is about thinking. It is about attitude. Others sense it in us more than they see it.

     If you want to learn effective conflict resolution techniques, start with your heart and encourage others to do the same. A heart at peace can resolve conflict. A heart at war cannot.

 Guy Harris, The Recovering Engineer   
Resolving Conflict in Teams Blog

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In the last few decades, partners have spent countless hours trying to “work out problems.” Yet over and over again they often come up against a major roadblock: they just don?t see things the same way. No matter how long they talk and how hard they try, neither ends up feeling really heard and understood.

While there are some couples that just naturally see things the same way, most people have a really hard time seeing things through the other person’s eyes. What often happens when they “communicate” is that each person tries to get the other person to see things his or her way. Instead of solving the problem, each is trying to have control over how the other person sees things. This often leads to more conflict and frustration.

While I am not suggesting that couples stop communicating over problems and issues, I am offering an additional way of resolving conflict: taking loving action in your own behalf.

This form of conflict resolution is about action rather than talk. Following are some of the actions you can take that may make a world of difference in your relationship.

LOVING ACTIONS

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