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Alternative Dispute Resolution and Its Methods Case Study


Introduction

In recent decades, the delivery of civil justice through traditional agreements have been attentively studied, challenged, and changed. Still, they can be not working in some situations or be costly for organizations. Therefore, there is a need for alternative processes to litigation in the resolution of disputes. One of the approaches that have the potential to manage conflicts with minimal losses for all the parties involved in Alternative Dispute Resolution (ADR).

The concept of ADR does not have a unified definition and there are arguments about the application of this term. Moreover, the use of ADR methods will differ depending on a company and the region where a company operates (Munk, 2016). Still, it is commonly accepted as a complex of alternatives to litigation, which comprise diverse methods. This paper identifies the key terms related to the concept of ADR, discusses the various methods of ADR used in the practice of conflict management, and addresses the case “John at the Bureau of Reclamation” applying the ADR principles and methods.

Key Terms

It is necessary to determine and define the major terms that are important for further analysis of the concept of ADR. These terms include ADR itself, ADR continuum, negotiation, open-door policy, mediation, case evaluation, peer review, arbitration, and ombudsman. Alternative dispute resolution refers to “a host of processes that serve as alternatives to costly and adversarial litigation, including mediation, arbitration, the use of an ombudsman, and others” (Raines, 2013, p. 80). ADR continuum, in turn, is a sequence of steps or methods from the most cost-efficient to the most expensive that can be used to manage conflict.

Negotiation is a term that is applied to characterize a process that happens between two or more independent parties involved in a conflict when there is an opportunity to come to a favorable negotiated outcome that cannot be achieved unilaterally. An open-door policy is explained as openness of a manager to hearing the problems of every employee, which implies that every employee can share a problem with any manager in an organization and the existing conflict will be resolved. Mediation can be described as “a process of facilitated negotiation” that involves a mediator, whose function is to assist the parties rather than judge in their civil, productive discussion about resolving the dispute (Raines, 2013, p. 413).

Case evaluation is an ADR process in which a hired unbiased expert provides the assessment of strengths and weaknesses of every party involved in a conflict and predicts the outcomes for the court case (Raines, 2013). The peer-review technique is mainly used inside an organization to manage internal employment disputes about discrimination, demotions, improper termination, or other disciplinary actions.

Arbitration is one of the processes of ADR that involves a third-party expert hired by the parties involved in a conflict situation, who is expected to provide a neutral opinion and stimulate decision-making about the issue of dispute (Raines, 2013). Finally, an ombudsman is a specialist responsible for conflict management in an organization, who takes care of both internal disputes with employees and external ones with clients and other stakeholders.

Discussing the Various Methods of Alternative Dispute Resolution

Some diverse processes and techniques allow resolving disputes without resorting to the court. The ones that are considered most effective and are frequently used are included in the ADR Continuum. ADR continuum for workplace disputes includes six steps that are placed in order of increase of expenses in case of applying one of these steps. Thus, the cheapest ADR method is direct negotiation while arbitration is considered to be the most expensive. The other popular steps of the ADR continuum include open-door policy, mediation, case evaluation, and peer review.

Negotiation can be defined as communication for persuasion (Goldberg, Sander, Rogers, & Cole, 2014). It is commonly considered to be a preeminent mode of dispute resolution that precedes any other resolution procedures. According to Raines (2013), direct negotiation is the first step that should be taken to address the majority of workplace disputes. It implies direct discussions between the parties involved in a conflict.

Still, this method can be effective in case employees that have complaints possess good communication skills that allow conducting a productive discussion. For example, negotiation can be applied to resolve conflicts in family businesses when parties are interested in managing their disputes without litigation (Alderson, 2015). To empower negotiation as a leading conflict resolution method, companies should provide training of employee communicative skills.

An open-door policy is a next step in the ADR continuum if direct negotiation does not succeed. It is a method that implies that any employee can address any manager in an organization with a problem that he or she has to get assistance in its resolution (Raines, 2013). Still, the efficiency of this method greatly depends on the organizational culture. The fact that a company positions itself as the one implementing the policy of open communication does not mean that this policy works in practice. To assure the effectiveness of the open-door policy, a company should train managers and supervisors to provide them with the skills necessary for active listening and hearing the needs of employees and be ready to manage conflicts.

Mediation as a method of ADR is utilized when the open-door policy does not give the desired effect. Mediation is a process “of facilitated negotiation in which the mediator does not act as a judge but instead assists the parties as they strive to engage in a civil, productive conversation about how to resolve a dispute” (Raines, 2013, p. 82). This ADR method is aimed at rebuilding relationships between the parties involved in a conflict if there is an opportunity to preserve a continuing relationship. Usually, a mediator is expected to allow every party to present their views (Duursma, 2014). Based on these views, a mediator attempts to engage the parties in brainstorming to produce variants of conflict management. Therefore, mediation can be considered a problem-solving approach.

Case evaluation is an ADR process that involves an unbiased expert hired by an organization to evaluate the conflict situation in case other methods of ADR continuum are not effective. The task of the expert is to provide the assessment of the strengths and weaknesses of both conflicting parties and predicts the most probable outcomes if the case is not resolved within a company and goes to the court (Raines, 2013). This evaluation is not directive and the parties do not have to accept it as guidance (Blake, Browne, & Sime, 2016). Still, they can use the conclusions of the expert to settle their dispute. Moreover, case evaluation provides an outlook on problem resolution and its worse possible outcome.

Peer review is a process frequently utilized within organizational settings. It is common for internal employment disputes about such problems as “discrimination, wrongful termination, demotions, claims of favoritism or nepotism, or employee appeals of other disciplinary actions” (Raines, 2013, p. 84). The purpose of this method is to evaluate the fairness of employees’ treatment by an organization as a whole and its managers or supervisors in particular. However, to make this process effective, peer reviewers should have a short training about the process itself as well as the problem in focus.

Arbitration is a final step of the ADR continuum. It is a process of dispute resolution that demands hiring third-party experts to provide an unbiased decision and act as a private judge. This method is more popular within unionized organizations (Raines, 2013). Still, arbitration does not create a legal precedent and differs from court cases. Binding arbitration is a major form of arbitration. It is utilized in case all parties involved in the process agree to follow the findings of the arbitrator. Nonbinding arbitration is less common and implies the acceptance of the arbitrator’s conclusions as advisory.

Particular attention should be paid to resolving disputes within groups or teams because they usually involve more than two opponents, which searches for a solution that satisfies everyone more complicated. For example, Dodoiu (2015) suggests cooperative conflict resolution in groups as an effective approach. Jehn, Rispens, Jonsen, and Greer (2013) claim that conflict contagion can be applied to deal with the development of conflict within teams. Conflict contagion is treated as a model that involves a multi-level perspective to manage a process of intragroup conflict by revealing the mechanisms of the spread of interpersonal, dyadic conflict to other members of the team.

Finally, it is important to consider leadership styles about conflict resolution. Thus, Saeed, Almas, Anis-ul-Haq, and Niazi (2014) suggest that leadership styles predetermine the conflict management styles that managers apply. For example, one of the styles that have the potential to eliminate or at least reduce the incidence of prejudice and conflict between subgroups is constructive leaderships (Hogg, 2015).

Addressing the Case at Hand

The case under consideration involves an application for an open position in mid-level management who was not accepted. The manager who interviewed the applicants is sure he selected the best individual for the position but he had to refuse three other candidates who also had suitable qualifications and could have performed well in the same position. As a result, one of the applicants, a woman named Doris, has filed a complaint with the Equal Employment Opportunities Commission.

She claims that she had faced discrimination based on race and gender. Still, the organization where John works is eager to resolve this conflict in a less costly and time-consuming manner. To achieve this goal, the organizational ombudsman is involved and is expected to provide recommendations for dispute resolution.

The ombudsman can recommend the following approaches to manage the conflict with an applicant. First of all, alternative dispute resolution methods should be applied to find a satisfactory solution for this case. If the applicant was an employee of an organization, the peer review process could have been applied. Still, the woman is just an applicant, and peer-reviewing is not applicable. One of the ADR models that are commonly utilized for equal employment opportunities complaint process is mediation. It usually implies an informal meeting where the conflicting parties are invited. The peculiarity of this method is that it is conducted by a mediator who is neutral and unbiased.

A mediator is expected to have special training and be able to help people who have disagreements about some ideas talk to each other and share the accusations they have. However, the mediator does not act as a judge. The mediator is not the person who decides who is right or wrong among the parties and does not provide a direct decision. The mediator’s role is to help the parties develop their effective solutions to resolve the dispute. Thus, Dorys can be invited to a meeting with the company representative with the participation of an independent mediator. She will have an opportunity to present her claims and listen to the reasons for a company representative for not hiring her for this position. In case she is a valuable employee, the company can suggest another post.

Conclusion

On the whole, alternative dispute resolution is a complex of methods that are used to provide effective solutions that are satisfactory for all the parties involved with minimal waste of time and costs. The choice of a method depends on the nature of an issue that caused a conflict and the expected results. The scope of methods varies from negotiation to arbitration and in case one of the processes does not help, another one can be attempted. Generally, ADR is considered to be an effective approach to resolving conflict situations in different settings, which has the potential to reduce expenses and time wasted in case a problem is resolved in the court.

References

Alderson, K. (2015). Conflict management and resolution in family-owned businesses: A practitioner focused review. Journal of Family Business Management, 5(2), 140-156.

Blake, S. H., Browne, J., & Sime, S. (2016). A practical approach to alternative dispute resolution (3rd ed.). Oxford, United Kingdom: Oxford University Press.

Dodoiu, G. (2015). Intentions for cooperative conflict resolution in groups: An application of the theory of planned behavior. Team Performance Management, 21(5/6), 259-273.

Duursma, A. (2014). A current literature review of international mediation. International Journal of Conflict Management, 25(1), 81-98.

Goldberg, S. B., Sander, F. E. A., Rogers, N. H., & Cole, S. R. (2014). Dispute resolution: Negotiation, mediation and other processes (6th ed.). New York, NY: Wolters Kluwer Law & Business.

Hogg, M. (2015). Constructive leadership across groups: How leaders can combat prejudice and conflict between subgroups. Advances in Group Processes, 32, 177-207.

Jehn, K., Rispens, S., Jonsen, K., & Greer, L. (2013). Conflict contagion: A temporal perspective on the development of conflict within teams. International Journal of Conflict Management, 24(4), 352-373.

Munk, R. (2016). Alternative dispute resolution. In CER comparative European research 2016: Proceedings of a conference (pp. 58-61). London, Great Britain: Sciemcee Publishing.

Raines, S. (2013). Conflict management for managers, resolving workplace, client, and policy disputes. San Francisco, CA: John Wiley & Sons.

Saeed, T., Almas, S., Anis-ul-Haq, A., & Niazi, G. (2014). Leadership styles: Relationship with conflict management styles. International Journal of Conflict Management, 25(3), 214-225.

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