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Dispute Systems Design

By
Chris Honeyman

Updated April 2013

 

Definition:

Dispute systems design is a process by which two or more parties who expect a continuing relationship analyze their patterns of disputing with each other, typically with the help of a neutral "designer," and agree on an overall approach to handling future disputes. It is distinguishable from most conflict resolution work because it does not directly attempt to resolve any one case, but instead works with streams of cases, including cases that are expected but that have not yet occurred.

Users:

This concept is useful to anyone who repeatedly deals with a particular other party or set of parties, such as business and labor leaders and attorneys.

Description:

Some parties deal frequently with each other in situations where there is a great deal of conflict. They may find that their conflict resolution procedures, such as multi-step grievance processes, take too much time. Where caseloads are high, other dissatisfactions are also common. For instance, even parties that regularly "win" their disputes may often be dissatisfied with the practical outcome; or the procedures may not provide a way to bring the people most concerned together to address the real issues.

When parties see such a pattern developing, increasingly they turn to dispute systems design, the process by which a neutral professional helps two or more parties create better methods for handling future disputes. The process differs from mediation in several ways, but particularly in that the neutral typically has not been asked to address the merits or settlement of any particular case.

The designer must work with parties who are often already in conflict to analyze the current and past problems, and to tailor a new system to suit them. Often, this involves finding ways to overcome resistance to change. Creating an effective dispute system usually involves designing a series or hierarchy of dispute resolution mechanisms, starting with the simplest and most informal.

The lowest level is often simple negotiation. Parties will be encouraged to talk with each other about their concerns and desires (often called their "interests") and try to develop a way in which both sides' interests are met. If this can be done, this will be as far as that case goes.

But dispute systems design must also allow for more complex and formal processes, because parties will not always be willing to negotiate based on interests. The second level is often based on the identification and enforcement of rights — for example, deciding if an employer had the "right" to demote an employee for frequent tardiness.

Sometimes even a third layer is added which allows parties to use tests of power to decide whose view will prevail (in situations where nothing else has worked) — but in a prescribed way that tries to limit the damage to relationships inevitably caused by such a test of power, so that at least it does not create a vicious circle. Strikes and lockouts, for example, are "power-based" options that may be used as a last resort if neither interest-based negotiation nor adjudication of rights are able to resolve the dispute. Many dispute systems contain "loop backs," however, which encourage parties to back down to a less formal and less costly dispute resolution mechanism once the power relationships and rights are clarified.

Example:

Over decades of hostility, labor and management at the Chaney Creek coal mine had settled into a routine which worked for nobody: Hundreds of grievances each year were filed over safety and other working conditions. Large numbers of them were not settled by negotiation in the multi-stage grievance procedure and were referred to arbitration; the volume of arbitrations was such that the cases often took years to be addressed, and the frustrations of everyone involved regularly boiled over, so that Chaney Creek suffered the worst record of "wildcat" strikes in the entire coal industry. A team of three neutrals was hired jointly by the parties to study the situation and make recommendations. After spending enough time on site that the regular workers and supervisors began to trust them, it became possible to devise a new set of approaches to low-cost and rapid resolution of most of the disputes. As a result, the disputes did not disappear, but the parties were far better satisfied with the fairness and speed with which they were addressed, and the rate of strikes dropped greatly. (This case is described in detail in Ury, Brett, and Goldberg's book, Getting Disputes Resolved.)

Application:

Dispute systems design had its origins in the unionized coal industry, but in other forms, it now exists in many settings, including such variations as the now widespread "partnering" arrangements for heading off and managing disputes among contractors in large construction projects, and a variety of advance planning systems for disputes over federal contracts. It is also used in the processes of democratization and nation-building or state-building, as officials, often with outside consultation, design new dispute resolution systems within new governmental structures in newly forming or re-forming countries.

Links to Related Articles:

Alternative Dispute Resolution (ADR)
Mediation
Arbitration

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