The Business Case for ADR

1. To Mediate or Not? Why the 21st Century Workplace Needs ADR/Mediation The Business Case for ADR Edith B. Primm, Esq. Margaret Unger The Justice Center of Atlanta, Inc. Kedleston Conflict Management LLC GSA Conflict Management Summit June 16, 2020 Chicago, Ilinois

2. ADR: Alternative Dispute Resolution: Alternatives to: Counseling Investigations Hearings Litigation Grievances ULP’s Arbitrations * Ignoring the problem

3. What is the Dx (condition) for Which ADR is the Rx?

4. CONFLICT !!

5. Conflict • What is it? • Why the analysis of a particular conflict is important to its resolution?

6. What is Conflict? • A conflict exists when one person’s attempt to reach his or her goals interferes with another person’s attempt to do the same.

7. The Structure of Conflict • Interdependency • Number of interested parties • Constituent representation • Negotiator authority • Critical urgency • Communication channels

8. The Structure of Conflict • Interdependency • How much do the parties need each other? • High --> cost of not resolving is also high • Low --> “watchful waiting” may be appropriate • No --> no conflict

9. The Structure of Conflict • Number of interested parties • How many distinct parties -- individuals or groups -- have an interest in how the conflict is resolved? • More involved --> more difficult

10. The Structure of Conflict • Constituent representation • Do the parties in the conflict represent other people who are not directly involved in the process of resolving the conflict?

11. The Structure of Conflict • Negotiator authority • Parties consist of more than one individual? • Negotiator authority high --> resolution is easier • Negotiator authority low --> slower and more difficult

12. The Structure of Conflict • Critical urgency • Decision must be made now? • Is their time to talk, gather information? • Greater the critical urgency, the less likely a consensual solution

13. The Structure of Conflict • Communication channels • Face to face? • Through technology?

14. Reaction to Conflict? • Following are 10 statements about conflict. React to each statement in terms of how strongly you AGREE with the statement. • 10 = Very Strong AGREEMENT • 1 = NOT Strong at all

15. Reaction to Conflict? 1.It doesn’t bother me to question a situation or seek a more favorable position. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

16. Reaction to Conflict? 2. I have nothing to lose in seeking a better deal if I do it in a reasonable way. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

17. Reaction to Conflict? 3. Conflict is a fact of life and I work hard to resolve it. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

18. Reaction to Conflict? 4. Conflict is positive because it makes me examine my ideas carefully. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

19. Reaction to Conflict? 5. In resolving conflict, I try to consider the needs of the other person. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

20. Reaction to Conflict? 6. Conflict often produces better solutions to problems. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

21. Reaction to Conflict? 7. Conflict stimulates my thinking and sharpens my judgment. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

22. Reaction to Conflict? 8. Working with conflict has taught me that compromise is not a sign of weakness. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

23. Reaction to Conflict? 9. Satisfactorily resolved, conflict often strengthens relationships. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

24. Reaction to Conflict? 10. Conflict is a way to test one’s own point of view. Very Strong NOT Strong AGREEMENT Agreement at all 10 9 8 7 6 5 4 3 2 1

25. What Are Your Scores?

26. Reaction to Conflict? • 80 = realistic attitude toward conflict and seem willing to work to resolve it • 50 - 79 = appear to be dealing fairly well, but need to work toward a more positive approach • 49 = first understand why, and then work to learn techniques of conflict resolution

27. SOURCES OF CONFLICT 3 General Categories Often Identified: Miscommunication Organizational Structure Personal

28. SOURCES OF CONFLICT • Failure to Deliver on a Promise • Lack of Quality or Competence • Different Perceptions,Values, Styles • Standing on Principle • Competing for Scarce Resources • Expressing Inner Conflict Outwardly

29. BASIC HUMAN NEEDSA. Maslow Self- Actualization Esteem Love Safety Physiological

30. WHAT HAPPENS TO PEOPLE IN CONFLICT? Physiologically? Psychologically?

31. WHAT HAPPENS TO PEOPLE IN CONFLICT? Physiologically:rise in blood pressure; headaches; insomnia; gastro-intestinal problems; loss or gain of weight; negative changes in blood chemistry; weakening of the immune system; susceptibility to illness; increase in use of sick days; etc. Psychologically:irritability; anger; depression; difficulty with social, professional, and intimate, relationships; feelings of isolation; fearful for financial security; obsession with situation, and an inability to focus on the job, etc.

32. DYNAMICS OF CONFLICT Feelings Intensify Positions Harden Dehumanizing Occurs Desire to Punish Emerges Communication Deteriorates

33. Relationships: the First and Often Most Serious Casualty of Unresolved Conflict It [Mediation] can directly address relationship issues, a hostage taken by continued conflict. Mediators Negotiate and Negotiators Mediate VCASE Newsletter, Spring 2004 Art Stewart/Coordinator of Mediation Virginia Department of Education

35. Puzzling Question……… Why do we resistCONFLICT RESOLUTION PROCESSES in the face of the evidence that conflict, unresolved, uses up valuable and scare resources of: TIME EMOTION MONEY PERSONNEL

36. JCA’S LIST OF BARRIERS FOR THE INDIVIDUAL Ego; avoidance& denial; fear; anger; lack of experience; lack of knowledge; lack of role models for managing conflict; aversion to responsibility & risk-taking; desire to punish; unwillingness to look at both sides; need to control; different styles of communication; lack of trust; resistance to change; lethargy; easier to blame others than to resolve issues

37. JCA’S LIST OF BARRIERS FOR ORGANIZATIONS Scarcity of resources; corporate culture doesn’t Support a variety of methods of conflict resolution; Lack of top-down support; unwillingness to commit resources; MISCONCEPTION: to participate is to capitulate; ignorance of the QUANTIFIABLE & NON-QUANTIFIABLE COST of on-going conflict; inertia & resistance to change; avoidance; aversion to responsibility and risk-taking; political and personal turf wars; power struggles, etc.

38. Three Ways to Resolve Conflict • Power Contests • Rights Contests • Interest Reconciliation

39. A Popular Mainstream Legal Book During the ’80’s The Process is the Punishment by Malcolm Feely Highlighting that having one’s rights declared through litigation is often not worth going through the aggravation and cost of the legal process.

43. ADVERSARIAL PROCESS Characteristics Win/Lose Right/Wrong Oriented to the Past Third Party Decides Relationships often Strained Costly in Time, Emotion, Money

44. Power and Rights Processes are Inherently Adversarial

45. Mother led commando raid in Jordan to snatch daughter from ex-husband

48. The Quality of Peace We realize that the peace we enjoy is the absence of war rather than the presence of CONFIDENCE UNDERSTANDING and GENEROUS CONDUCT Journalist Raymond Swing

49. TO DO DIFFERENTLY: YOU MUST SEE DIFFERENTLY