Methods of resolving grievance can be divided in to two parts:
- Decisional Processes: Binding Decisions
- Non-Decisional (Collaborative) Processes: Managed Negotiations
Decisional Processes: Binding Decisions
The dispute resolver makes a ruling, judgment or determination on legal and/or factual issues: Arbitration, Adjudication, Reconciliation & Expert Determination are the methods under the decisional procerss.
Expert professional dispute resolvers organise and manage the dispute resolution process; review and evaluate relevant evidence; determine facts and points of law and produce legally binding, written judgments (called “awards” or “determinations”).
(i). Arbitration
Arbitration (sometimes called “Adjudication”), is a private, trial-like process that can be commenced by any two or more parties who agree to arbitrate — either under a contract, by legislation, or by simple written agreement. A properly designed, well managed arbitration process can be completed quickly and is a highly efficient means of resolving many types of dispute.
The Arbitrator is usually an expert in the area of the dispute, e.g. an accountant for a financial/commercial dispute; a doctor for a medical dispute etc. If the issues are mainly legal in nature, the Arbitrator may be a legal expert, e.g. a solicitor, barrister or even a retired judge.
All properly qualified arbitrators have been trained and tested in both law and arbitration process, in addition to their own professional/technical training. Experienced arbitrators can therefore deal very efficiently with both difficult legal and technical issues.
The main advantage of appointing an Arbitrator to determine a technical dispute lies in their dual qualification in law and their own discipline. This substantially reduces the time otherwise required to educate the Arbitrator in the technicalities of the dispute.
In large cases a panel of (usually) three Arbitrators is appointed to cover all likely technical and legal aspects of the dispute. Each arbitrator is briefed to take the lead in their respective areas of technical expertise.
Arbitrations are conducted under the Commercial Arbitration Acts. The Acts give Arbitrators most of the power and authority of Supreme Court judges. The Acts encourage Arbitrators to use this power to make the process quick, fair, pragmatic, tightly managed and, above all, cost-effective.
The Arbitration Process
In effect, an Arbitrator is appointed to be a “private judge”, and is required to manage a confidential, “private trial”.
The process is adversarial, like conventional litigation, although the parties and the Arbitrator can determine the degree of formality required. This decision should be based on trying to achieve the most time and cost-efficient process, above all other considerations. Inevitably, the more formal the process, the lengthier and more expensive it becomes.
Depending on the issues and the parties, the whole process can be based solely on documents. However, most arbitrations involve hearings where, under the watchful eye and control of the Arbitrator, the parties have an opportunity to present and promote their arguments and to have them tested by their opponents.
After all information and arguments have been presented and tested, the Arbitrator evaluates everything he or she has heard or seen and produces a written decision, called the “award”. The award is legally binding on the parties and is enforceable through the courts, like a court judgment. It provides finality because it can only be appealed, directly to Court, on very restricted grounds – and even these can be excluded by agreement!
Benefits of Arbitration
Well-managed arbitrations can deal efficiently with a vast range of disputes. Small, non-complex disputes can usually be resolved within weeks, while even the largest and most complex disputes should only require a few months to resolve – an attractive proposition compared to the years such disputes take in the courts.
Well-managed arbitrations are much cheaper and quicker than conventional litigation. Parties are generally more satisfied with the outcomes as they are more involved in the process and gain a better understanding of what is happening.
Confidentiality is another advantage of this process – both the problem and its solution remain confidential – often a critical factor in sensitive commercial and employee/ employer disputes.
(ii) Adjudication
Adjudication generally refers to processes of decision making that involve a neutral third party with the authority to determine a binding resolution through some form of judgment or award. Adjudication is carried out in various forms, but most commonly occurs in the court system. It can also take place outside the court system in the form of alternative dispute resolution processes such as arbitration, private judging, and mini-trials. However, court-based adjudication is usually significantly more formal than arbitration and other ADR processes. The development of the field of alternative dispute resolution has led many people to use the term adjudication to refer specifically to litigation or conflicts addressed in court.
Adjudication is an involuntary, adversarial process. This means arguments are presented to prove one side right and one side wrong, resulting in win-lose outcomes. In civil cases, one side/person that believes he or she has been wronged (plaintiff) files legal charges against another (defendant). In other words, somebody sues someone they have a legal problem with. Once this occurs, both parties are obligated by law to participate in court-based proceedings. If the case goes to trial, each side then presents reasoned arguments and evidence to support their claims. Once that presentation of evidence and arguments is completed, a judge or jury then makes a decision. Appeals may be filed in an attempt to get a higher court to reverse the decision. If no appeal is filed, the decision is binding on both parties.
Disadvantages of Court-Based Adjudication
It is argued that alternative processes such as mediation and arbitration are more effective and constructive for the employee-employer disputes, than litigation. Though the debate over which form of justice is “better” is still ongoing, adjudication definitely does have some negative qualities or disadvantages. Some of the main criticisms of court-based adjudication include:
Court-based adjudication is prohibitively expensive in terms of monetary cost making it impossible for some parties to take their complaints to a court of law.
Control of the process is removed from the client/disputant and delegated to the lawyer and the court.
The decision makers lack expertise in the area of the dispute. In most courts the judges are generalists and practically every jury is too.
Court dockets are often overbooked, causing significant delays before a case is heard. In the meantime, the unresolved issues can cause serious problems for the disputants.
Litigation requires that people’s problems be translated into legal issues, yet the court’s decision about those issues does not always respond to the real nature of the underlying problem. For example, issues might be framed in terms of money, where the real issue is one of trust and respect…emotional issues not dealt with in an adversarial process.
In addition, courts are constrained by the law as to what solutions they can offer. When the underlying issues are not addressed, the decision may produce a short-term settlement, but not a long-term resolution.
Adjudication results in win-lose outcomes, leaving little chance the parties will develop a collaborative or integrative solution to the problem, unless the case is settled out of court before the trial.
Litigation often drives parties apart because of its adversarial, positional nature, while effective resolution often requires that they come closer together. This polarization of the disputants is also often accompanied by emotional distress.
People enmeshed in litigation experience indirect costs beyond the legal fees. For example, disruption to the functioning of one’s business or progression of one’s career can be just as damaging.
Advantages of Adjudication/Litigation
Though adjudication is an adversarial process, it can produce some clear benefits over other options for dispute resolution. Proponents of adjudication argue that the process produces more fair and consistent decisions than alternative dispute resolution processes. In fact, other dispute resolution processes have been criticized as providing “second-class justice.” This allegation is based on the fact that processes like mediation have not been institutionalized and there are no set standards of practice or rules of law upon which they are based. On the other hand, adjudication or litigation is grounded in the public judicial system and has a vast array of rules and regulations. There are several advantages that adjudication advocates cite when promoting this dispute settlement process:
Adjudication produces an imposed, final decision that the parties are obligated to respect. An alternative process, such as mediation, produces only voluntary agreements that can easily fail.
The outcomes of litigation are, without exception, binding and enforceable. Although arbitration decisions can be binding and enforceable (with the backing of the judicial system) this only occurs when the participating parties agree to such parameters. A party who has not agreed to arbitrate cannot be forced to do so, or be bound by the outcome of arbitration between other parties. With court-based adjudication, however, participation is involuntary and all outcomes are binding and enforceable. This can be a true advantage in situations where there is a serious lack of trust and/or respect between the parties.
The use of court-based adjudication or litigation allows for decisions to be appealed. The option to appeal confers multiple benefits. For example in monetary settlements, the winning party is often willing to re-negotiate the settlement before it goes to appeal so as to avoid full reversal and retrial. Appeals also allow the reversal of incorrect decisions. Sometimes mistakes are made or evidence that was clearly prejudicial was allowed, thus tarnishing what otherwise may have been a just outcome.
Public adjudication offers procedural safeguards that ensure parties due process under the law. Among such safeguards are cross-examination, limitations on hearsay and other rules of evidence, pre-hearing mandatory sharing of information between sides, and other statutory and constitutional protections that fall under the umbrella of due process. Procedural stipulations such as these help ensure that adjudicated outcomes will be fair.
Litigated decisions are authoritative and based on precedent.
Court-based decisions are, in theory, based on principles of the law (established norms) that have been previously validated. This makes for consistency in how similar cases are decided over time and better predictability regarding the range of possible outcomes.
Court-based adjudication is institutionalized, meaning that a party with a complaint needs no one’s permission to bring a lawsuit against another party. In addition, since the courts are funded by the government and do not rely on customer satisfaction, they can issue decisions that may be disliked by the parties, without fear of reprisal in any form.
Judges, the ultimate adjudicative decision makers, are chosen through a variety of publicly known procedures that ensure they are qualified for the job.
In addition, there are cases where settlement of a short-term dispute is all that is needed or possible. (Here “settlement” is being compared to resolution which is deeper and more lasting.) If there is no need for or no possibility of a future relationship between the parties, a settlement of their dispute is adequate. If relationships are going to be a long-term issue, however, resolution is preferable, when possible. When not, dispute settlement may well be better than continued fighting, and arbitration is a way to obtain such a settlement.
(iii) Reconciliation
Compared to conflict handling mechanisms such as negotiation, mediation, adjudication, and arbitration, the approach called ‘reconciliation’ is perhaps the least well understood. Its meaning, processes, and application have not been clearly articulated or developed. A place to start understanding what it entails might be by trying to distinguish it from the other approaches used in grievance redressal and peace building.
If we were to look at the ‘degree of mutual participation by the conflicting parties in the search for solutions to the problems underlying their conflict’ we could place these approaches in a spectrum as follows.
At the left end of the spectrum, we find approaches where mutual participation is minimal. The use of force by one of the parties to impose a solution would be an example of a mechanism that would be placed at this end of the spectrum. Further to the right of the spectrum, we could place mechanisms such as adjudication. Here a third party, instead of an adversary, imposes a solution to the conflict. However, the mutual participation of the parties in the choice of the solution is comparatively higher here than in the first. In the adjudication process, at least the parties have an opportunity to present their cases, to be heard, and submit their arguments for why their preferred solution should be the basis upon which the decision is made. Nonetheless, the choice of the solution is made by a third party, and the decision is backed by force (enforced) which ensures that the losing party complies.
Arbitration is placed further to the right of ‘adjudication’. Here, the participation of the parties is even higher since both adversaries can choose who is going to decide the issues under dispute, whereas in adjudication the decision maker is already appointed by the state. The parties in conflict can sometimes identify the basis upon which their case will be decided and whether the outcome will be binding or not. Although the mutual involvement of the parties in the decision making process is much higher than adjudication, the solution is still decided by an outsider and, depending on the type of arbitration, the outcome could be imposed by the power of the law.
Further to the right on the spectrum we find negotiation. Here the participation of all the involved parties in the search for solution is very high. It is the parties themselves who have to formulate the issues, and find a resolution that is satisfactory to all of them. In this situation, however, particularly in bargaining type negotiations (as opposed to problem-solving type of negotiations), the final choice of the solution might depend on the relative power position of the adversaries rather than on what might be the most satisfactory solution to everyone involved. The party with the higher bargaining leverage might end up getting the most out of the negotiations.
Mediation is a special type of negotiation where the parties’ search for mutually satisfactory solutions is assisted by a third party. The third party’s role is to minimize obstacles to the negotiation process including those that emanate from power imbalance. Unlike adjudication, however, in the final analysis it is the decision and agreement of the conflict parties that determines how the conflict will be resolved.
Towards the far right of the spectrum we find reconciliation. This approach not only tries to find solutions to the issues underlying the conflict but also works to alter the adversaries’ relationships from that of resentment and hostility to friendship and harmony. Of course, for this to happen, both parties must be equally invested and participate intensively in the resolution process.
The conflict handling mechanisms illustrated in the spectrum can be categorized into three groups which we will call conflict management, conflict resolution, and conflict prevention approaches. Conflict management approaches generally tend to focus more on mitigating or controlling the destructive consequences that emanate from a given conflict than on finding solutions to the underlying issues causing it. On the other hand, conflict resolution approaches aim at going beyond mitigation of consequences and attempt to resolve the substantive and relational root-causes so that the conflict comes to an end. While conflict management and resolution are reactive, they come into motion once conflict has surfaced, conflict prevention tries to anticipate the destructive aspects of the conflict before they arise and attempts to take positive measures to prevent them from occurring.
‘Justice is a necessary but not sufficient condition for reconciliation.’
Most of the mechanisms identified on the left hand of the spectrum are conflict management approaches. To the extent that adjudication, arbitration, and bargaining negotiations do not become avenues to solve the underlying issues of the conflict, and in most instances they do not, they become mere stop-gap conflict management measures. But if they provide an opportunity to work out not only differences on substantive issues but also negative relationships, they can become conflict resolution mechanisms.
Observations
We notice that as we move from the left to the right on the spectrum, i.e., as the participation of all the parties in the search for solution increases, the likelihood of achieving a mutually satisfactory and durable solution also increases. We know that solutions imposed by force will only last until the vanquished is able to muster sufficient force to reverse the situation. Solutions imposed by adjudication and arbitration, unless somehow the loser gives up, can always be frustrated by the latter’s endless appeals or lack of cooperation in the implementation process. If, however, the parties are engaged earnestly in the search for the solutions and are able to find resolutions that could satisfy the needs and interests of all involved, there could be no better guarantee for the durability of the settlements. It would be in the interest of every one to see to it that they are fully enforced. This is what we believe problem-solving negotiations, mediation, and reconciliation can do.
Healing and Reconciliation
Despite the lack of knowledge about how to operationalize reconciliation, there is however no question about the tremendous need for it. In fact, it could be said that the need in today’s world is much greater than at any other time in the past.
What Does Reconciliation Entail-
Reconciliation as a conflict handling mechanism entails the following core elements:
- Honest acknowledgment of the harm/injury each party has inflicted on the other;
- Sincere regrets and remorse for the injury done:
- Readiness to apologize for one’s role in inflicting the injury;
- Readiness of the conflicting parties to ‘let go’ of the anger and bitterness caused by the conflict and the injury;
- Commitment by the offender not to repeat the injury;
- Sincere effort to redress past grievances that caused the conflict and compensate the damage caused to the extent possible;
- Entering into a new mutually enriching relationship.
Reconciliation then refers to this new relationship that emerges as a consequence of these processes. What most people refer to as ‘healing’ is the mending of deep emotional wounds (generated by the conflict) that follow the reconciliation process.
A very important aspect of the process of reconciliation and one that distinguishes it from all the other conflict handling mechanisms is its methodology. In most of the conflict handling mechanisms such as adjudication, arbitration, and for that matter even negotiation and mediation the method used for establishing responsibility for the conflict or its consequences is adversarial. In these processes, the parties present their grievances and make a case for the adversary’s fault or responsibility, thereby demanding that it should be the latter that should make amends. Each party begins by defending its own behaviour and denying its own guilt or responsibility until the opponent proves it to his or her satisfaction or to the satisfaction of outside observers, be they judges or mediators. In such a process, one’s behaviour is always explained as a reaction to the behaviour of the adversary. The typical pattern of the interaction is: ‘I did this to you because you did such and such a thing to me!’ The aim is to get the adversary to change his or her future conduct by proving the person’s guilt. Of course, the expectation is that both parties will change each other in this way and will eventually transform their relationship from negative to positive.
Despite the lack of knowledge about how to operationalize reconciliation, there is no question about the tremendous need for it.
On the other hand, the essence of reconciliation is the voluntary initiative of the conflict parties to acknowledge their responsibility and guilt. The interactions that transpire between the parties are not only meant to communicate one’s grievances against the actions of the adversary, but also to engage in self-reflection about one’s own role and behaviour in the dynamic of the conflict. In other words, in this kind of dialogue, as much as one attributes guilt and responsibility to the adversary for the damage generated by the conflict, one has to also be self-critical and acknowledge responsibility for his or her own role in the creation or perpetuation of the conflict and hurtful interaction. The aim of such interaction is that, in the final analysis, each of the parties acknowledges and accepts his or her responsibility and out of such recognition seeks ways to redress the injury that has been inflicted on the adversary, to refrain from further damage, and to construct new positive relationships.
(iv) Private Judging
As above, with the added attraction of using retired senior judges to manage the dispute resolution process in the form of confidential, private trials. These result in written judgments (awards) that are legally binding on the parties. Private Judging has most of the authority of a court process, added to which it is confidential, quicker, more efficient and significantly cheaper than litigation.
2. Non-Decisional (Collaborative) Processes: Managed Negotiations
Under these methods a dispute resolver is generally appointed or agreed upon. He manages a problem solving negotiation process that is designed and run to help parties understand and come to terms with their respective positions and interests, generate options for resolution and develop mutual agreements. Types of non-decisional processes are:
(i) Facilitation
Facilitators bring professional communication and people management skills to meetings and important negotiations. They help to redress grievances, where parties recognise they have serious differences, but don’t consider themselves to be in dispute – or don’t want to acknowledge that they could be in dispute
(ii) Mediation (Facilitated)
Facilitative Mediators manage a style of negotiation process designed to help solve problems and generate settlement options. This type of Mediator is a neutral process manager who is neither expected nor required to express opinions on the issues. Being focused on the process, the Facilitative Mediator does not actively encourage the parties towards settlement, instead they help the parties to develop their perceptions, draw their own conclusions and develop their own solutions.
(iii) Mediation (Directed)
Directive Mediation is a more robust style of mediation. The Mediator is expected/required to provide opinions and suggestions and to actively encourage the parties towards grievance redressal. Directive Mediation is, by far, our most successful and most popular dispute resolution process.
(iv) Advisory & Evaluative Processes: Expert Opinions (non-binding)
The dispute resolver assesses the legal and/or factual and/or technical issues in dispute and advises the parties of the absolute and relative strengths and weaknesses of their positions:
(v) Neutral Interventions: Factfinding & Problem Solving
The dispute resolver has a mandate to “get in and see what they can do” to help rectify and resolve a situation that may otherwise develop into a serious conflict.
