Designing Conflict Management Systems

by

Cathy A. Costantino and Christina Sickles Merchant

 (San Francisco: Jossey-Bass, Inc., 1996)

 

“Typically, organizational leaders do not view the management of conflict as systematically as they do information, human resource, and financial management systems.  Rather, conflict in organizations is viewed and managed in a piecemeal, ad hoc fashion, as isolated events, which are sometimes grouped by category if the risk exposure is great enough but that are rarely examined in the aggregate to reveal patterns and systemic issues.” [Costantino at xiii]

 

“People frequently use the terms dispute and conflict interchangeably but they are not synonymous.  Conflict is a process; a dispute may be one of several products of conflict. . . . Whereas conflict is often ongoing, amorphous, and intangible, a dispute is tangible and concrete–it has issues, positions, and expectations for relief.” [Costantino at 5]

 

“Conflict in an organization shows up in several ways:

1.                  Disputes . . .

2.                  Competition . . .

3.                  Sabotage . . .

4.                  Inefficiency/lack of productivity . . .

5.                  Low morale . . .

6.                  Withholding knowledge . . .

[Costantino at 5-6]

 

“Organizations have a multitude of ways to respond to conflict, choosing a particular method in light of perceived importance, context, or players. . . . Moreover, organization responses to conflict do not occur separate and apart from the organizational ‘culture,’ or the attitudes, practices, and beliefs of the system and its members.  The ‘way we do things around here’ provides the collective lens throught which the organization and its key players view internal disagreement or external threat.” [Costantino at 7]

 

“[M]ost people are uncomfortable with conflict and do not like change.  The status quo often prevails because individuals accept the known more readily than the unknown.” [Costantino at 11]

 

“[C]hronic conflict in organizations . . . is often due to internal disagreement and rivalry over how best to distribute the organization’s limited resources among competing priorities and components.” [Costantino at 17]

 

“[T]he core values associated with organization development–openness, tolerance of diversity, learning, involvement, appreciation of and management of differences, generation of valid data, and the search for feedback–are particularly critical for successful work with conflict itself and for the systemic management of it in any organization.” [Costantino at 19-20]

 

“Traditionally, dispute resolution functions have been housed intwo locations within an organization: the legal department (dealing primarily with external disputes) and the human resources and/or personnel department (dealing primarily with internal disputes). . . . In practice, it is often the case that the legal and human resource departments of many organizations are viewed as a necessary evil that must be tolerated to handle the conflicts that others neither like not believe they are equipped to handle.” [Costantino at 23]

 

“The continuum of ADR options ranges from those that are least invasive and allow the parties the most control over the process and outcome (such as negotiation) to those that are most invasive and allow the disputants the least control over the process and outcome (such as arbitration). . . . There are six broad categories of ADR options: preventive, negotiated, facilitated, fact finding, advisory, and imposed[:]

Preventive ADR

–ADR clauses

–Parterning

–Consensus building

–Negotiated rule making

–Joint problem solving

 

Negotiated ADR

–Principled

–Positional

–Problem solving

 

Facilitated ADR

–Mediation

–Conciliation

–Ombudsperson

 

Fact-Finding ADR

–Neutral expert fact finding

–Masters

–Magistrates

 

Advisory ADR

–Early neutral evaluation

–Private judging

–Summary jury trials

–Minitrials

–Nonbinding arbitration

 

Imposed ADR

–Binding arbitration

[Costantino at 37-38]

 

“In designing and improving conflict management systems, the idea of ADR as alternative dispute resolution is perhaps less useful that the concept of ADR as appropriate dispute resolution.  That is, the method of dispute resolution must be appropriate for the particular dispute or problem; there must be a fit between the process and the problem.   ADR methods are not necessarily interchangeable . . . [S]ome organizations say . . . ‘We tried ADR and it just didn’t work.’ . . . Often, the problem is not that ADR was inappropriate for the particular organization; rather, the method of ADR chosen was inappropriate for the particular dispute.” [Costantino at 41]

 

“[There are] six practical principles to guide those who design dispute resolution mechanisms:

1.                  Put the focus on interests (encourage the use of interest-based methods such as negotiation and mediation).

2.                  Provide ‘loop-backs’ (make procedures available that allow the parties to return to a lower-cost method, such as negotiation).

3.                  Provide low-cost rights and power ‘back-ups’ (offer low-cost alternatives such as arbitration if interest-based procedures fail).

4.                  Build in consultation before and feedback after (notify and consult before taking any action and provide postdispute feedback to prevent similar disputes in the future).

5.                  Arrange the procedures in low-to-high cost sequence (encourage negotiation before mediation , then mediation before arbitration).

6.                  Provide the motivation, skills, and resources necessary (ensure that the procedures are supported and therefore used).”

 [Costantino at 46]

 

“[There are four stages] to guide dispute systems designers in their work: (1) diagnosis; (2) design; (3) implementation; and (4) exit, evaluation, and diffusion.” [Costantino at 46]

 

“[There are] critical organization dynamics that have a direct impact on effective implementation, including organizational culture, resistance to change, and incentive and reward structures.” [Costantino at 48]

 

“If you build it, they may or may not use it.  On the other hand, if they build it, they will use it, refine it, tell [others] about it, and make it their own.” [Costantino at 49]

 

“Participation in interest-based design means involvement of all organizational levels in designing the conflict management systems that affect them.  Each part of the organization has a purpose, population, and product that gives rise to disputes.  By tapping into the entire system and its parts, an interest-based design process has the potential to address more disputes from a variety of perspectives.” [Costantino at 63]

 

“Interest-based conflict management design requires an oppenness by all stakeholders to dialogue and to possible change; a mutual willingness on the part of both the organization and its stakeholders to explore interests and dissatisfactions directly, honestly, and in a true spirit of partnering, joint problem solving, and stewardship.” [Costantino at 63]

 

“Feedback is a corollary concept to openness, to open systems thinking, and to the principles of interest-based conflict management systems design.  It represents a willingness on the part of the stakeholders to offer useful comment and critique as well as a willingness on the part of the organization to consider valid comment and critique.” [Costantino at 64]

 

“[T]here must be both a presenting problem and a perceived opportunity in order for an organization to initiate change in any of its systems.  The same is true with regard to any change in the way an organization manages its conflict.  Organization leadership, stakeholders, and constituents need to have a sense that something is amiss in the system and that a different way might be better–cheaper, faster, mor lasting, more satisfactory.  Otherwise the organization has little or no motivation to address the need for change through the commitment of time, energy, and resources.” [Costantino at 69-70]

 

“In order to gather more information so they can consider whether to act and what to do, most organizations usually assign [an internal specialist] on the existing staff to investigate possible opportunities and options to resolve the perceived presenting problem..” [Costantino at 73]

 

“[I]nternal specialists often need to learn to go slowly.  The first challenge is to expand the number of organizational participants involved and to share with them all the available information about possible ADR options, refraining from making specific recommendations at this early stage.” [Costantino at 74]

 

“[I]t may be useful for the organization to employ the services of an experienced external [consultant] . . . It may require the internal specialist to persuade key organizational leadership that necessary resources should be expended to obtain external assistance with the assessment and design process.” [Costantino at 75]

“[T]he initial entry stage in interest-based conflict management systems design includes the following steps:

·                    Engage critical stakeholders in generating information about how the organization is managing its disputes.

·                    provide an opportunity for these same stakeholders to determine whether such information indicates a need for any change in the dispute resolution system.

·                    Educate stakeholders about the critical ingredients for a successful design effort.”

[Costantino at 76]

 

“If neither the internal specialist nor the external designer can achieve an understanding and agreement with organizational leadership on the design principles, values, and scope of the intervention, the chance of effective and lasting change is dramatically lowered. . . . [A different problem occurs if] the design [is] not a process but a product–by the designer, imposed by leadership on the stakeholders . . .” [Costantino at 77]

 

“Thus, the key elements contained in the design contract are the following:

·                    Initial identification of the key stakeholders in a dispute system . . .

·                    Commitment that these stakeholders will be actively involved in the assessment, design, implementation, and evaluation stages 

·                    Understanding and acceptance of basic change and design principles . . .

·                    Acceptance and commitment to the need for evaluation and feedback at every stage of assessment, design, implementation, and evaluation . . .

·                    Willingness of designers, stakeholders, and leadership to actively ‘partner’ in a collaborative problem identification and resolution process and mutual expression of what that might look like

·                    Agreement on who (individual, committee, or collective consensus) will make the final determination of whether a revised system will be adopted, upon what criteria, and how that decision will be implemented

[Costantino at 78]

 

“The designer as catalyst triggers movement in the system without becoming part of the reaction.  The designer lends energy and excitement to the change effort–suggesting, encouraging, guiding, affirming, questioning, not deciding or imposing. . . .

“The designer as educator teaches the organization and its stakeholders about conflict and change and makes them aware of communication styles and techniques.  The designer also educates about possible design strategies, ADR options, evaluation methodologies, and training techniques. . . .

“The designer as facilitator assists the organizational and individual stakeholders to work together as a group, identifying their interests and creating options for a more effective conflict management system. . . .

“The designer as translator interprets ADR ideas and options to the varioud stakeholders and constituencies, explaining their nuances. . . .

Finally, the designer as an agent of reality [identifies] those areas where change may be difficult, where stakeholders may resist, where organizational structures or practices may create constraints, or where knowledge or skills are lacking. . . .”             [Costantino at 82-83]

 

“[T]he focus of the design effort [next] shifts to assessment of the organization itself, of the nature and number of disputes, of resolutions methods, [of costs,] and of results.” [Costantino at 96]

 

“The assessment begins with the organization taking a look at itself and identifying several key components.  What is the organizational mission?  What does the organization do and why does it do it?  Is there a shared understanding, both within and outside the organization, of what the organization does?  In organizations where there are dissonant views of the mission, there are usually differing views of how conflict should be managed and of what is ‘successful’ conflict management.” [Costantino at 97]

 

“The assessment also explores the ‘culture of conflict’ at the organization: how the organization views conflict and how it makes decisions about conflict.  Does the organization avoid conflict?  Deny it?  Fight it?  Control it?  Is conflict seen as a sign of failure?  How does the organization make decisions [about conflict]: it is risk-aversive, decision-avoiding, hierarchical?” [Costantino at 98]

 

“The organization’s ‘customers’ also need to be identified.  Do they receive a product or a service?  Are they constant, or are they an ever changing population: Are there both internal customers and external customers?  What is the relationship of the organization to its customers?  How does the organization know if its customers are satisfied?” [Costantino at 98]

 

“In order to frame the investigation and assessment from the outset, the design team asks itself and others, ‘What are the various types of disputes in our system?’  There are disputes among employees, supervisors, and organizational subcomponents, and there are the inevitable disputes between the organization and its customers and constituents. . . . With this information in hand, the team turns to assessing the nature of the disputes–the issues involved, the tenor and/or tone, and the effect on the organization, whether in terms of time, money, lost opportunity, resources, or relationships with customers, employees, and stakeholders.  The design team identifies and accumulates these costs, since they wiell be among the key forces driving any eventual change effort, be it incremental or systemwide.” [Costantino at 100]

 

“The next step is to assess the number of disputes.  How many disputes are there of each type?  Has the number increased or decreased over the last several years?  Why?  What is the anticipated volume of disputes for the future?  What factors will influence whether the number of disputes increases or decreases?” [Costantino at 100-01]

 

“[T]he design team is [next] concerned with what dispute resolution processes are currently available.  Are most disputes resolved informally without resort to court or administrative remedies?  Are there any preventive or negotiated mechanisms in place to resolve disputes?  If disputes are resolved formally, what methods of dispute resolution are used (court, arbitration)?  The design team will want to collect any written dispute resolution processes and procedures used throughout the organization.” [Costantino at 102]

 

“The corollary to determining what procedures to use is determining who chooses the method of dispute resolution and who has authority to resolve disputes.  In some organizations . . . the method of dispute resolution is predetermined by a policy or procedure, and stakeholders have little or not control over it.  In other organizations, the method is chosen by someone ‘up the ladder’ who is relatively unaffected or disinterested in the dispute yet has the authority to impose a resolution or method on the disputants.  In other settings, the person with ‘line responsibility’ for the dispute may be able to recommend or even choose a form of dispute resolution.  In a very few organizations, the disputants themselves have substantial control over the dispute resolution method chosen.” [Costantino at 102-03]

 

 

“[T]he person who chooses the dispute resolution mechanism may not be the same person who has actual authority to settle the dispute.  This lack of continuity and responsibility creates challenges. . . . Understanding the ‘who’ is often an indication of where the power lies within the organization’s conflict management system.  In many organizations, the people who control selection of the dispute resolution process and the resolution of disputes have both the power (the ability to influence) and authority (the ability to decide).  As a result, they may have a personal stake in preserving the status quo dispute resolution process and may be potential sources of resistance to any change effort.  It is wise to identify these people early on in the assessment phase, to solicit their input and concerns, and to involve them in the decision and commitment to change if any decision is made.” [Costantino at 103]

 

“It is not enough to inventory the official methods used to resolve disputes and to catalogue who has the power to choose a method and authority to resolve a dispute.  The follow-up question must be posed: why does the organization use the dispute resolution methods it does?  The decision may be driven by mission, culture, time, cost, history, or the organizational structure itself. . . . [I]t is critical that the design team unearth the ‘why’ behind the ‘what’ and the ‘who.’” [Costantino at 104]

 

“Finally, the design team looks at the results of the resolution processes.  Are disputes actually resolved?  How long does it take?  How much does it cost?  Do the resolutions stick?  Are the disputants satisfied with the resolutions? . . . [T]his involves looking not only at tangible results (money collected, money paid out, promotions, reinstatements, and others) but also intangible effects: how the results affect the organization and its stakeholders (bad publicity, nasty interdivisional bickering, or turf wars).  It is often these intangible effects that cause the most distress to the organization and its stakeholders.” [Costantino at 104]

 

“[T]he design team concerns itself with generating valid data.  The term valid data refers to collecting information about the nature and state of the organization’s disputes from the appropriate stakeholders. [These data are used to create a baseline which accurately describes where the organization is currently, and which can be used to accurately measure changes from the baseline that are caused by implementation of the new dispute resolution system.  Without such an accurate baseline, it is virtually impossible to objectively measure the effectiveness (e.g., the success) of a new dispute resolution system.] [Costantino at 105]

 

“To do an accurate and meaningful organizational assessment, the design team should ideally have access to all of [the managers, supervisors, technicians, employees, union representatives, and customers, both external and internal] and be able to assure them that there will be no reprisal for participating, offering information, or making suggestions. . . . Generally, interviews can be conducted or a questionnaire developed that asks the following critical questions:

·                    How are these particular disputes handled?

·                    to your knowledge, why are disputes handled this way?

·                    How many of these disputes occur and what are the costs, both direct and indirect, of handling them?

·                    From your perspective, what is working well with respect to the handling of disputes?

·                    From your perspective, what is not working well?

·                    If you could change the current dispute resolution process, where would you focus your efforts and what would you do?

·                    If the process is changed, what problems and resistance do you anticipate?

·                    If the process is changed, who will gain power and who will lose power?”

[Costantino at 105-06]

 

“Interviews of short duration are the preferable process for acquiring the above information from relevant stakeholders.  In face-to-face interviews, the design team has the opportunity to ask clarifying questions.  In addition, interviewees often volunteer important information about unwritten rules and practices and the informal fashion in which the disputes are actually processed and resolved.  To maximize the potential ofr an open and frank discussion, however, it is helpful if assurance can be given that the interview or survey results will be reported without attribution and that the organizational leadership has agreed to support the inquiry though a guarantee of no reprisal.” [Costantino at 106]

 

“After the interviews are concluded or surveys completed, the design team gathers the results into a manageable and identifiable series of observations about the current state of the dispute [resolution] system 9working well, not working well, number and nature of disputes and their costs, history of resolution processes, and opportunities to improve).  It is important that the design team not overwhelm the groups receiving the data 9leadership, employees, stakeholders) with too much detail or too much information, such as voluminous reports or statistical treatises.  Rather, the information should be loosely grouped into [relevant] areas of questioning, with some tentative observations about what the interviewees said (as a whole, not be reference to specific individuals).  These data and conclusions are then presented to as many system participants and stakeholders as is possible for confirmation, clarification, or revision.” [Costantino at 107]

 

“One method of conducting the ‘report-back’ is through the use of focus groups . . . The overall objective of these sessions is to share what has been learned, to validate the data, to discuss the implications of such information, and to make tentative recommendations for action, if necessary. . . . the feedback of information through focus groups allows the key organizational players in a particular dispute processing arena to gather, often for the first time, and to analyze together the success of or need for improvement in their operation. . . . It is also useful to feed the information back to outside stakeholders such as customers or those who have disputes with the organization. . . . [A] successful change effort requires buy-in and use by organizational disputants as well as any external disputants.  In addition, the outside disputants often bring observations and suggestions that those within the organization are not aware of or have not considered.”  [Costantino at 107-08]

 

“[The focus group also should] discuss the origins of the current dispute resolution procedures.  This allows for linkage of current procedures to relevant policies, procedures, laws, and regulations; to organizational mission and goals; to organizational history and culture; and to organizational attitude toward conflict and change[; including] . . . the identification of specific areas of concern with regard to the current dispute resolution procedures and results. . . . Frequently, this part of any focus group’s discussion leads to the identification of may previously unknown costs to the organization: dollars, management and staff time, employee morale, workplace disturbance and sabotage, adverse publicity, diminished reputation in the marketplace, and recurrence of disputes.” [Costantino at 109]

 

“Usually, an organizational assessment generates feedback that certain disputes are of greater concern than others.  Some disputes may be causing more distress, costing more, taking more time, or damaging customer or employee relationships.  These perceptions are invaluable to the design team: they provide guidance about where initial efforts to improve the organization’s conflict management system could (not should) begin.” [Costantino at 111]

 

“With its enhanced knowledge of the organizational culture, mission, and conflict management system, the design team can now present its discoveries and proposals to the organizational leadership.  Here, the team prepares and presents a focused and well-reasoned strategy that addresses the need for change but does not violate the normative culture of the organization’s conflict management practices. . . . [The team] must also anticipate, admit, and address the real-life political dynamics of any change effort.” [Costantino at 111-12]

 

“The drastic approach–‘what you now have is dead . . .’–is inadvisable.  Similarly, the ‘we must create something new . . . is also inadvisable.  Rather, . . . the objective is to outline clearly for the organization the opportunities for improvement in parts or the whole of its conflict management system as linked to organizational goals.  This allows the organization to choose to approach interest-based conflict management systems design incrementally or experimentally, if need be, by making changes in one particular area as a start . . . [or with] limited, pilot ADR initiatives.” [Costantino at 112]

 

“The design team must also be able to answer [what’s-in-it-for-me questions] . . . for each of the stakeholders (the organization, leadership, employees, disputants, customers) as it relates to the recommendation for a revised system.  If the answer is ‘nothing’ for any of the key stakeholders, the change effort, even if successfully implemented, will not be sustained. It is thus advisable for the design team to explicitly note ‘what’s in it’ for each component of the organizational system: leadership, managers, employees, stakeholders, customers, the public.” [Costantino at 113]

 

“At this point, deciding to move ahead with a resed conflict management system is usually natural and nonthreatening. . . . The design team, however, must also anticipate and be prepared for an organizational decision not to change or, as is more usually the case, a decision not to decide.” [Costantino at 115]

 

“The first question of design architecture is whether to use ADR at all. . . . Here, the design architects, the organization and its stakeholders ask the following questions in determining whether to use ADR:

·                    What, if anything, is missing these disputes?

·                    Do stakeholders express dissatisfaction and frustration with all or only part of existing dispute resolution processes?

·                    How do stakeholders express this dissatisfaction?

·                    Is an ADR process a possible and appropriate way to address the concerns expressed?

·                    If so, what type(s) of ADR is/are appropriate?

·                    Would such ADR steps or processes be a good ‘fit’ with the goals of the organization (mission) and the technology of doing its work (culture)?”

[Costantino at 118]

 

“If it is decided that ADR is appropriate, the next inquire for the seign team, the organization, and the stakeholders is when to use ADR:

·                    At what stage of the dispute is there a gap or complaint?

·                    Can an interest-based process be introduced at that point in the existing procedure?

·                    Would such an addition address the concern expressed?

·                    If an ADR step is introduced at that time, what is the likely effect on subsequent stages of the existing dispute resolution system?  Would ADR enhance or diminish the possibility of satisfactory resolution?

·                    Have preventive forms of ADR (such as partnering, ADR clauses, joint problem solving) been attempted with regard to these disputes–before they arise?

·                    For both prevention and new ADR steps, will disputants have the necessary skills and knowledge to use ADR effectively to resolve the disputes at that stage?”

[Costantino at 119]

 

“The whether, when, how paradigm for design architecture can be translated into practical guiding principles that can help frame any design architecture effort”

1.                  Develop guidelines for whether ADR is appropriate.

2.                  Tailor the ADR process to the particular problem.

3.                  Build in preventive methods of ADR.

4.                  Make sure that disputants have the necessary knowledge and skill to choose and use ADR. 

5.                  Create ADR systems that are simple to use and easy to access and that resolve disputes early, at the lowest organizational level, with the least bureaucracy. 

6.                  Allow disputants to retain maximum control over choice of ADR method and selection of [any] neutral wherever possible.”

[Costantino at 120-21]

 

“To date, not much attention has been focused on preventive methods of ADR.  As organizations continue to adopt ‘best practices’ in their day-to-day operations and relationships–to compete, to control costs, and to maximize resources–dispute prevention becomes increasingly important.” [Costantino at 127]

 

“Determining when to use ADR depends in large measure on whether the affected disputants have the necessary knowledge to choose ADR and the skills to use it once they have chosen it.  People are unlikely to choose a procedure about which they know nothing.” [Costantino at 128]

 

“[D]isputants and organizations [mistakenly] delay ADR use to the point where the dollars and time already expended in overdeveloping the facts require them to justify [the expenditure of] such resources [by going] to the point of litigation.” [Costantino at 128-29]

 

“Effective design architects . . . make ADR simple to use, easy to access, and readily available, with a minimum of delay.  In order for disputants to actually choose ADR, it must be easier to use than the current dispute resolution system.  If ADR becomes too complicated to use or is too frustrating to access, disputants will default to the status quo, the current dispute resolution mechanism (usually litigation or another rights-based method) . . .” [Costantino at 129]

 

“[D]isputants are likely to be more resistant to an ADR process if they are not involved in selecting it and even more resistant if they have little or no voice in determining who the neutral will be.”  [Costantino at 133]

 

“Stakeholders need to have a sound skill and knowledge foundation to use new dispute resolution practices such as alternative dispute resolution . . . Whether stakeholders are internal or external, they need to know how to access they system, to understand the ADR options available to them, and to have some level of confidence in using the ADR processes they choose.” [Costantino at 134]

 

“Although they terms training and education are often used interchangeably in the literature and in practice, they are not the same.  ADR education provides the contextual background and framework to understand and appreciate the strengths and limitations of ADR: how it furthers institutional and individual goals and where, when, and how to use it. . . . These educational approaches generally take the form of ADR marketing and awareness programs for executives, managers, resource allocators, and end users. . . . In contrast, ADR training is more skill based: building competencies to use ADR, improving communication skills, learning mediation practices, and developing negotiation techniques.” [Costantino at 134-35]

 

“In designing training and education, it is important to ask several key questions of organizational leadership and stakeholders in order to have a meeting of the minds on key training and education issues:

1.                  What is the purpose of the training and/or education?  Is it to market ADR?  To increase awareness about ADR options?  To train consumers in how to use ADR?  To train neutrals in how to perform ADR dispute resolution roles?

2.                  Who is the target audience: Who is being educated: executives, senior management, mid-level staff, customers?  Who is being trained: users, neutrals, or individuals involved in the operation and administration of the ADR program?

3.                  Who will assess ADR training and education needs?  What stakeholders, both within and outside the organization, need to be involved in the training and education eeds assessment and task analysis?  How will it be done?

4.                  When will ADR training and education be needed?  Is there an immediate need to market ADR or to increase awareness about ADR?  What long-term sustained training and education efforts are necessary?  How does the timing of training and education affect implementation?

5.                  Who will conduct ADR training and education?  What internal resources and expertise are available?  Can ADR education be conducted by internal stakeholders?  If an outside expert or consultant is to be used, what joint efforts are necessary to ensure that the training and education will be specific to the organizational culture, mission and goals?

6.                  How will participants use the ADR training and education?  Will participants use their new skills and knowledge to enhance their ability to resolve disputes and manage conflict in day-to-day work life?  To decide whether and when to refer disputes to ADR?  To serve as ADR neutrals in a third-party process?  To administer an ADR program?  To evaluate ADR efforts and results?

7.                  What will help participants use their new ADR skills and knowledge?  Will they need ongoing technical assistance to identify when ADR is appropriate and when it is not?  Weill they need mentoring and coaching in how to choose the most appropriate form of ADR?  What guidance will they need in overcoming organizational resistance and constraints and in evaluating ADR efforts and results?”

[Costantino at 140-41]

 

“Five basic types of ADR training and education target particular audiences and serve different purposes: (1) marketing efforts, (2) awareness education, (3) conflict management and communication training, (4) consumer/user training, and (5) training of third-party neutrals.” [Costantino at 142]

 

“Marketing is a form of education.  Its purpose is usually to convince the organization’s stakeholders and managers to buy in to ADR.  Specifically, it addresses the benefits of ADR, its limitations (including when it is not appropriate), and how ADR will further specific institutional or individual goals . . .” [Costantino at 142]

 

“Awareness efforts educate stakeholders about what ADR is and how it is used in the particular organizational setting.  Such efforts can be targeted toward users and consumers who will be using ADR, to those who will be selecting cases for ADR, or to those who will administer ADR programs.  It includes what ADR is (and what it is not), an explanation of the various ADR optons, when ADR is inappropriate, and how to access ADR in the partiuclar organization.  Success stories are useful, as well as examples of how ADR has actually been used.  Having peers and colleagues of the target audience conduct the awareness education is often effective . . . The emphasis in awareness education is on interaction and information dissemination rather than on providing skills in how to use ADR or how to be a neutral.” [Costantino at 143]

 

“[conflict management and communication training] is focused on increasing participants’ understanding and acceptance of conflict and on imporving their communication skills, including active listening and direct communication.  The purpose is to introduce skills that can be used in day-to-day life or are the foundation for additional ADR training such as negotiation or mediation. . . . [C]onflict and communication training is most effective when it is interactive and takes place for no more than a full day.” [Costantino at 144]

 

“[Consumer/user] training targets those who will be sitting at the table negotiating or participating in mediation.  It is practical, focusing on what to expect in an ADR proceeding, how to select a neutral, how to prepare for ADR, how the process progresses, how to identify interests, and how to develop strategies and options.  It is often useful to include a demonstration or videotape showing an actual ADR proceeding . . . [I]t is essential to allow participants an opportunity to prepare for and take part in the simulation of a relevant ADR proceeding during the course of the training.  The exercise should be similar in nature and content to the types of disputes the participants will be handling.” [Costantino at 144-45]

 

“Intensive skills training is targeted only for those individuals who will actually serve as neutrals: mediators, arbitrators, facilitators, and fact finders. . . . [This] includes a dedication to follow-up and reinforcement measures such as mentoring, clinics, and advanced training sessions . . . We suggest a minimum three full days of training for most initial third-party skills training.” [Costantino at 145]

 

“Task Analysis/Results for ADR Training and Education.

[Costantino at 146]”

 

 

“With regard to implementation of conflict management systems, the ‘socio’ aspects include the following:

·                    Top-level permission, notice, and publication of the intent and opportunity to use ADR in certain programs

·                    Clear information about possible incentives that may motivate people to use the new program

·                    Assignment of specific individuals to the operational aspects of the ADR program

·                    Reassurance that the ADR approaches to be used are fair and equitable

·                    Education about the ADR program and training in the skills necessary to use it successfully

·                    Ongoing solicitation of evaluation and feedback so that individuals see that they have a hand in shaping the program to meet their concerns and needs”

[Costantino at 151]

 

“The ‘technical’ aspects of ADR implementation address the following:

·                    The actual construction of the design architecture

·                    The identification and appropriate use of a supply of trained neutrals and other technical experts

·                    Reallocation or designation of material and personnel resources to support ADR implementation

·                    The administrative and logistical arrangements needed to support the ADR program

·                    The evaluative components of ADR implementation, wuch as design and process feedback, as well as performance measures for those charged with administrative and dispute resolution responsibilities

·                    The decision to introduce ADR systemwide or through a more limited test project or pilot approach”

[Costantino at 151-52]

 

“Pilot testing, where ADR is introduced on a limited, experimental basis in particular programs, affords the design team, the organization’s leadership, and its participant stakeholders with the opportunity to test out the reliability of their information, their design, and their planning–with relatively low cost and low risk. . . . Problems are uncovered in pilots, ‘bugs’ can be worked out, people get motivated. . . . Successful pilots can give ADR early, favorable publicity resulting in added credibility within the organization . . .” [Costantino at 154]

 

“[T]he following [are] ‘how to’ suggestions for getting started and selecting [and implementing] a pilot target:

Select individual(s) to be responsible for the pilot. . . .

Look to external experience, expertise, and success stories. . . .

Identify stakeholders who will be affected by the pilot. . . .

Choose a pilot linked to organizational goals. . . .

Select the site of the pilot with success in mind. . . .

Look at similar programs in similar organizations. . . .

Design according to the problem. . . .

Check the design with experienced neutrals. . . .

Determine case selection criteria. . . .

Identify goals and process for evaluating results. . . .

Notify, prepare, and educate participants. . . .

Acquire neutral practitioners. . . .

Determine how costs will be met [and out of whose budget]. . . .

Identify incentives to use ADR. . . .

Develop information exchange and case procedures. . . .

[Accumulate relevant case selection, management, and resolution information]

[Obtain pilot program user satisfaction information]

[Compare the pilot program performance information with baseline information]

[Evaluate and report on the performance of the pilot program]

[Costantino at 154-62]

 

“The organization has to make certain resource commitments even when the ADR effort is experimental and limited in scope.  One of the key commitments is to identify and reassign an individual who will take charge of the coordination of the pilot program and be responsible for all aspects of its implementation.  This individual directs, coordinates, and provides information to others participating in the pilot’s design, implementation, and evaluation.  This person is the point of contact for information, inquiries, and status of the pilot at any given time.  It is a definite plus if this coordinator is from within the organization itself, even if he or she uses outside experts as needed.” [Costantino at 154]

 

“The following are organizational goals for the ADR design team and leadership to examine for linkage to possible pilot projects:

·                    Enhance public image with clients, constituents, employees, and other stakeholders.

·                    Resolve disputes before they accelerate and escalate.            

·                    Reduce the costs of litigation.

·                    Eliminate case backlogs.

·                    Reduce appeals.

·                    Increase capacity to address a broader range of disputes.

·                    Increase employee morale and customer satisfaction.”

[Costantino at 155-56]

 

“[S]ome practical considerations need to be addressed about the potential pilot:

·                    Are there sufficient numbers of disputes to test success?

·                    Are there sufficient resources (time, staff, money) to allocate to the pilot?

·                    Are the results of the pilot measurable and easily evaluated?

·                    Is the area of the pilot important to the rest of the organization?”

[Costantino at 156]

 

“Questions [about implementing a pilot program] include the following:

·                    How will disputants be notified that the pilot exists?

·                    How will disputants actually access the program?

·                    How will cases be selected for the pilot, by whom, and on what basis?

·                    What ADR processes will be offered and at what stage of the dispute?

·                    What training will participants need to use ADR?

·                    What will be the measures of success and who will the process be evaluated?

·                    What form of reporting will occur at the conclusion of the pilot and to whom will such reports be given?”

[Costantino at 158]

 

“The issue of whether to use internal or external neutrals raises questions of competence, experience, and perceived ‘true neutrality.’ . . . [It is] preferable where the internal neutrals have credibility within the organization and are perceived as fair and objective.  Such use of internal neutrals allows the organization to develop in-house expertise, save costs, and ensure a cadre of neutrals who are familiar with the mission, philosophy, and operation of the organization.  On the other hand, outside disputants often have a difficult time accpeting an internal neutral as fair and objective and may see the use of internal neutrals as an attempt by the organization to ‘stack the deck.’” [Costantino at 161]

 

“Who will pay the costs, if any of the neutral provider?  Whether the loser pays, the parties split the cost, or the organization always picks up the tab, each method has an effect on the utilization of the ADR procedure.  Payment procedures tend to create both incentives and disincentives to use the program or process.  A balancing of such forces is usually the wisest course.  For example, as an incentive, the organization may pay the cosst of settlement services, including administrative overhead and neutral practitioner services, if the thspute is kept at a certain stage or is settled in a predetermined time period.  After that point, all parties to the dispute might split the cost of the neutral evenly.” [Costantino at 161]

 

“A common belief these days is that alternative dispute resolution (ADR) is ‘better.’  The obvious questions are ‘better that what?’ and ‘if it is better, how do you know?’  Also, how do you know if the revised conflict management system is doing what it was designed to do?” . . . Integrating evaluation aspects in the design from the beginning–what needs to be measured, in what manner will data be collected, how will results be used–and continually conducting evaluation throughout the design process increases the likelihood that the design will be adjusted to achieve the stated ADR and organizational goals.” [Costantino at 168-69]

 

“[The] Evaluation Cycle [includes the following steps:]

Clarify Goals

Determine Methodology

Establish Baseline

Implement System

Chart Progress

Modify System

Measure Result

Reclarify Goals”

[Costantino at 170]

 

“Measurement of ADR Effectiveness/Impact.

[Costantino at 171]”

 

“Measurement of ADR Administration/Operation.

[Costantino at 175]”

 

“[It is necessary to establish an ADR system baseline. The] ADR design teams and relevant stakeholders will need to decide which [evaluation] . . . criteria are particularly relevant to their needs and therefore must be measured.  . . . [T]hey will then need to decide what the evaluation results will be compared with in order to determine whether in fact the ADR additions to the conflict management system are an improvement.  Will the evaluation data be compared to litigation costs and results?  To negotiation costs and results?  To the costs and results of failing to resolve the dispute?  What baseline data will be needed with which to compare the evaluation results?  Where will such baseline information be available–management and annual reports, case studies and statistics:  What sources are available for qualitative data, such as satisfaction with outcome and effects on relationships. 

“In instances where baseline data [are] not available for comparison, it may be necessary to reconstruct or gather it from a variety of sources.  If this is necessary, how will it be done? . . . [T]he most recurrent challenge to ADR evaluations . . . has been no organized past practice of collecting, evaluating, and aggregating current dispute resolution information about cost, time, and satisfaction with results.  Such information is often considered one of the ‘buried costs’ of doing business[, has not been collected,] and is therefore information that must be constructed to ascertain the past nature and attendant cost of conflict in the organization.”

[Costantino at 180-81]