Designing New Dispute Resolution Systems

 

By
Eric Brahm
Julian Ouellet

September 2003
 

At the center of any society's culture are basic agreements about cooperation between its members. Many scholars have tried to define the core properties of these human social systems. Marx argued that the relationship of class, of the proletariat to the bourgeoisie, orders all modern social systems. Kenneth Boulding has argued that social systems are ordered by threat, exchange, and integration or love.[1] There are many more theories of social order, but they all make the same fundamental claim; at some point, an individual will need the help of another individual to accomplish a task. Convincing a person to aid in a task that is not his or her own can take multiple forms, and the forms that are most often used in a system will define that system.

Before addressing the topic of dispute-resolution systems, it is helpful to examine the concept of "systems." Boulding described a system as, "that which is not chaos,"[2] a definition that initially seems vague and indefinite, but on further reflection, proves quite useful. In examining intricate networks of causes and effects, one can identify linked sets of causes and effects. The complete set of causes and effects comprises a system. For example, the human body is a system that relies on interconnected subsystems (nervous, respiratory, digestive, etc.) to enable life. One can speak of any society in similar terms, as a system of causes and effects.


Additional insights into designing new dispute resolution systems are offered by Beyond Intractability project participants.

We know from our own day-to-day experiences that people fail to cooperate as often as they do cooperate. Dispute resolution is a part of every society's culture, and in each society some methods are favored over others. Each culture in the world may be unique, but underlying each culture is its own specific -- though usually tacit -- agreement or system that determines how to resolve disputes. Yet Ury, Brett, and Goldberg argue that some systems of dispute resolution lead to consistently inefficient outcomes,[3] by encouraging and reinforcing actions that are not in the best interests of everyone involved.

In this essay, we focus on explaining how inefficient dispute-resolution systems can be identified, and how effective replacements can be designed. We can think of this process as the design of new, more efficient ways of agreeing not to agree. It does not imply eliminating dissent, or encouraging constant cooperation. Instead, it argues that when cooperation breaks down there are better and worse ways of resolving the resulting conflict. Third parties who work with intractable conflicts often focus on designing new dispute-settlement systems, tailored to the situation, using best practices of conflict resolution. In this essay, we first consider dispute systems design as it has developed in the United States (where it was used first), and then examine how these principles have been and can be extended to other countries.

Dispute Systems Design

Ury, Brett, and Goldberg pioneered Dispute Systems Design (DSD) in the 1980s, as a method for resolving intractable or frequent conflicts in troubled organizations, businesses, or entire industries. Their pioneering work was done at the Caney Creek Coal Mine, a mine that had been plagued by strikes in the 1970s.[4] At the center of their method were three heuristics for analyzing conflicts and designing new systems, which could deal with these conflicts quickly and efficiently, before they escalated into the frequent strikes, and lockouts that had been occurring at this mine almost routinely.

The first heuristic involves the relationship between three ways of resolving disputes: by negotiating interests, by adjudicating rights, or by pursuing power options (such as strikes or lockouts). Ideally, disputes should be resolved at the lowest level, through negotiating interests. Claims of interest focus on the desires of the actors in any given dispute. Rather than focusing on what a person can do based on their rights and power, Ury, Brett, and Goldberg argue that actors should focus on what they would like to do based on their own interests. Interest-based claims are more negotiable, and hence less likely to become intractable. Only if interest negotiation doesn't work, should the parties try a rights-based approach (such as a legal suit). And power-based approaches, such as strikes, should be reserved for those few conflicts that cannot be resolved either through interest or rights-based approaches.

At the Caney Creek mine, most disputes, even minor ones, were resolved with power struggles. The employees found the grievance procedures so cumbersome and ineffectual, that they just started a wildcat (impromptu) strike whenever an affront occurred, because they found this to be the best and quickest way to get response from management. But this approach is very costly for both sides.[5]

The following diagram shows a distressed conflict management system, such as the one found at Caney Creek before it was improved, and a healthy dispute management system that resolves most disputes at the interest level, fewer at the rights level, and fewest through power options. This is healthy for several reasons.

  1. Negotiating interests is less expensive than adjudicating rights or pursuing power options.
  2. Negotiating interests results in mutually satisfactory solutions, while the other two approaches are win-lose, meaning one side wins and the other side loses.
  3. When power-based approaches are tried, the losing side often is angry, and may try to "get back" at the other side whenever they get the chance.
  4. Interest-based negotiation is usually less time consuming than the other approaches.

Six System Design Principles

The second heuristic incorporates six design principles for new dispute-resolution systems, which follow directly from the first heuristic. The six principles are as follows:

1. Put the focus on interests. This means any dispute resolution should start with a process (either direct negotiation or mediation) where the parties try to solve the problem using interest-based bargaining. This is the best way to find a solution that satisfies everyone. Only when this doesn't work, do you move on to rights-based processes (such as arbitration) or power-based processes (such as elections).

2. Provide low-cost rights and power backups. Arbitration, voting, and protests are low-cost alternatives to rights and power contests. Although they are higher in cost than negotiation, they are less costly than adjudication or violent force.

3. Build in "loop-backs" to negotiation. Rights-based and power-based strategies for resolving disputes seldom need to be played out to the end. Rather, as soon as it is clear who is going to "win," parties can return (the authors call this "loop-back" to negotiation to develop a solution which best meets their needs, as well as their rights). A common example of such a "loop-back" process is when parties settle a lawsuit out of court. As soon as it becomes clear who is likely to win, it is advantageous for both sides to avoid the costs and uncertainty of further litigation, and negotiate a solution to their dispute.

4. Build in consultation before, feedback after. Increasing shared information is a basic strategy in ameliorating all conflicts. Consultation and feedback mechanisms between parties provide a consistent and reliable method of sharing information.

5. Arrange procedures in a low-to-high-cost sequence. Dispute-resolution systems typically have a series of steps. If one has a grievance or a conflict with another person or an organization, first you try to solve it on your own, and then you seek the help of a lawyer, etc. Ury, Brett, and Goldberg advise that by arranging dispute-resolution procedures in a low-to-high-cost sequence one can reduce the probability of rapid escalation, as had been happening at Caney Creek, when workers organized "wildcat" strikes over small conflicts. Minimizing this tendency toward rapid escalation had the added benefit of reducing enmity and increasing faith in the ability of the system to resolve basic disputes.

6. Provide the necessary motivation, skills, and resources.[6] An alternative system can function only if people buy into it. People are creatures of habit, and this is the greatest limit to broad-based systemic change. While there may be active resistance from some groups to new dispute-resolution systems, the greater problem is spreading the skills, knowledge, and habits that reinforce the new system. It is incumbent on the elites in the conflict, and third-party interveners, to provide the resources and time necessary to generate cooperation with the new system.

Timing and Process

The third heuristic is a set of four stages for implementing the new dispute-resolution system. The four stages are:

  1. diagnosis
  2. design
  3. implementation
  4. exit, evaluation, and diffusion[7]

These stages are self-explanatory, but they are helpful for explaining the changing roles that third-party interveners must perform in designing new dispute-resolution systems.

The third heuristic focuses more on the process of designing dispute-resolution systems than the content. It implies that there is no single approach to designing dispute-resolution systems; the findings over the course of implementation should determine the specific content of each dispute-resolution system. Each system must be tailored to the groups involved. Further, it implies that a well-designed system should be self-sustaining. Once the system is in place, the process should be successful.

Challenges of Dispute Systems Design

Constantino and Merchant argue that the dispute systems design is problematic because it focuses on individual disputes rather than underlying systemic problems.[8] We would expect conflict to occur in any system, and in most systems, specific patterns of conflict will recur, indicating a problem with the system itself. DSD is focused on managing disputes once they arise, but Constantino and Merchant argue that interveners should focus instead on resolving underlying systemic conflicts.[9]

For example, some actions have lower costs than others. Inefficient social systems will consistently attach lower costs to actions that result in inefficient outcomes. This can be a major source of systemic conflict. One goal of DSD is to attach different costs to the standard set of actions that an actor might take, so that the actor becomes more likely to engage in efficient behavior. In the Caney Creek case, Ury, Brett, and Goldberg found that mineworkers chose "wildcat strikes" rather than the prearranged grievance process,[10] indicating that the existing system of costs led to inefficient outcomes. If it was easier for a worker to go on strike than to go through a grievance process, and the likely outcome of the strike was better than that of the grievance process, then clearly the dispute-resolution system in place needed to be redesigned. The goal of Ury, Brett, and Goldberg's DSD process was to change the costs attached to actions, such that the new process of rapid mediation was the most favorable option.

Yet, although Ury, Brett, and Goldberg designed a system that discouraged inefficient dispute resolution, the system design failed to address the source of basic problems. For example, in Caney Creek, if one of the major sources of disputes was stolen property, the system that should be redesigned was not the dispute-resolution system itself, but rather the aspects of the system that led to theft. Constantino and Merchant suggest that new dispute-resolution systems should incorporate not only processes that encourage mediation, conciliation, and other interest-based dispute-resolution methods, but also ongoing processes that identify inefficient outcomes and attempt to resolve them.[11]

Extensions of Dispute Systems Design

Several authors advocate refinements to make dispute systems design more effective.[12] For example, Rowe suggests that an effective dispute-resolution system should incorporate:

  • commitment to the values of fairness and freedom from reprisal;
  • interest- and rights-based options;
  • multiple access points;
  • an organizational ombudsperson;
  • wide scope; and
  • continuous improvement via an oversight committee.[13]

Lynch argues that an effective system should incorporate:

  • responding to stakeholder interest;
  • reflecting important values;
  • promoting the mission of the new agency;
  • providing visible support by the organization's leadership;
  • loop-backs forward and back between interest- and rights-based options;
  • a system that is fair, flexible, friendly, and fast;
  • the goal of resolution at a low level; and
  • mechanisms by which the organization can shift from conflict resolution to management.[14]

Slaikeu and Hasson outline four principles for an effective system:[15]

it should acknowledge four means of resolution (essentially, power, rights, interest, and avoidance);

  • it should include prevention and early-intervention options;
  • it should seek to build collaborative strength through seven checkpoints;
  • it should utilize the mediation model in order to build consensus among those involved.

They go on to outline steps through which conflict can be resolved,[16] and to identify seven subsystems of a successful conflict-management system.[17]

Finally, the Society for Professionals in Dispute Resolution has also put forward its vision of an effective system.[18] A dispute system should:

  • contain options for preventing, identifying, and resolving issues;
  • promote a culture that works to solve problems at the lowest level through direct negotiation;
  • allow multiple access points;
  • empower employees to select from a range of options for addressing the conflict;
  • contain effective structure and support to maintain options.

The Society goes on to identify ten other necessary elements:

  • leadership support;
  • an oversight body composed of representatives from all stakeholder groups;
  • evaluation processes;
  • training;
  • a central coordinator;
  • alignment of the "philosophy of conflict competency" with the mission, vision, values, and policies;
  • institutionalized incentives for effective operation;
  • a communication strategy;
  • incentives for early resolution; and
  • adequate resources for the system to function properly.

It has also been suggested that DSD is most effective when:

  • conflict prevention, rather than conflict management, is emphasized.[19] This requires increasing the capacity of organizations to understand sources of potential conflict and deal with them early, before they escalate.
  • outside designers do not play too prominent a role.
  • the existing organizational culture is recognized.[20]
  • attention is paid to the narratives people tell about conflict.[21]

Many of these issues are discussed in more detail below, with respect to application of DSD principles outside the United States.

Dispute Resolution in Intractable Conflicts

Intractable conflicts, by their nature, are resistant to system redesign. It is difficult to imagine, for example, how designing a dispute-resolution system might help the abortion debate in the United States. This debate occurs at such a basic moral level that dispute systems design is unlikely to resolve the underlying conflict.

In the U.S., most intractable conflicts tend to revolve around the discussion of rights. As Mary Ann Glendon notes, "rights talk" has come to include most actions to which most people feel entitled. Thus, disputes over action quickly devolve to rights-oriented disputes, because all interests tend to be viewed in terms of rights. This is clearly problematic. A key task for third-party interveners is to separate the concept of rights from that of interests, in the dispute-system-design process. This is clearly difficult in cases like the abortion debate, where control of the courts is the pivot point in the power struggle between the two sides. However, there is hope for resolution of less-contentious disputes attached to the abortion debate, which might ease general tensions surrounding the core debate.

Applying Dispute System Design Outside the U.S.

Though it was developed in the U.S. in the context of labor disputes, dispute systems design has recently been applied abroad as a way to design new conflict management and governing processes in countries that are trying to adopt democracy.[22] Democratization makes effective conflict-resolution processes all the more important, because democracy is by its nature conflictual, but requires ways of channeling conflict in positive, creative directions.[23]

DSD initiatives have also been suggested as useful in addressing ethnic conflict, an issue that became highly significant in the 1990s.[24] Moore argues that a properly designed dispute system for dealing with ethnic conflict requires elements of peacekeeping, peacemaking, and peace building.[25]

At the same time as Western practitioners have seized the opportunity to utilize DSD principles in new contexts, other societies have been rediscovering traditional forms of conflict resolution. The traditional conflict-resolution mechanisms of the Kalahari Bushmen, for example, are very similar to the DSD practices outlined by Ury et al.[26]

These trends have resulted in a greater effort on the part of conflict-management practitioners to produce culturally compatible procedures.[27] The resulting systemic approach to conflict management has spurred the evolution of DSD and the integration of conflict-management principles into democratic decision-making.

However, the potential for cultural imperialism, and the adoption of systems inappropriate to particular cultures, are real challenges to these efforts to "export" the DSD model. External consultants coming in to promote DSD face challenges including: controlling resources, thereby disempowering local participants; timing and performance constraints by funders; not practicing democratic principles in relationships with clients; and arrogance of the American way of doing things, especially after the Cold War, when we were the only remaining "super-power."[28] Wildau et al. argue that practitioners tend to follow either the prescriptive paradigm (the camp into which Americans typically fall), meaning they believe culture is not a barrier and processes are readily transferable, or the elicitive paradigm, in which cultures are seen as unique and having their own mechanisms of dispute management that do not translate easily.[29] An integrative approach is most likely to be successful.

As a result, several scholars and practitioners have offered principles that should be followed when working in other cultural contexts. Moore, for example, warns practitioners working abroad to be aware that cultures differ as to:

  • direct vs. indirect negotiations;
  • attitudes toward cooperation, competition, and conflict;
  • the nature and desire for preservation of relationships amongst disputants;
  • authority, social rank, status, and caste issues;
  • high-context and low-context communications;
  • concepts and management of time;
  • attitudes toward third parties; and
  • the broader social and institutional environment in which the dispute system will operate. [30]

Practitioners must not only be aware of the culture in which they are operating, but also of the peculiarities of their own culture.[31] In addition, Alternative Dispute Resolution mechanisms (ADRs), often based on DSD notions, face unique challenges in different national contexts.[32]

One might imagine that the structure of effective intergovernmental organizations (IGOs) would be modeled on DSD principles. Yet a cursory glance at existing IGOs shows that they generally do a poor job of moving conflicts to interest-based disputes, to minimize intractability. Peck has applied DSD principles to the United Nations (U.N.) and finds it lacking.[33] She argues that the U.N. has not been a very effective dispute-settlement system, although since the end of the Cold War it has used a greater variety of tools. Most types of dispute settlement used by the U.N. fall within power- or rights-based approaches, but mediation, negotiation, and good offices are significant interest-based approaches that have been used. Given the role that power plays both in creating IGOs and in their operation, the probability of reform to make procedures more congruent with DSD principles seems remote.


[1] Kenneth Boulding, "Towards a Pure Theory of Threat Systems," The American Economic Review 53(2) (May 1963): 424-34.

[2] Kenneth Boulding, The World as a Total System, (Beverly Hills, CA: Sage Publications, 1985).

[3] William Ury, Jeanne Bret, and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, (London: Jossey-Bass Publishers, 1988).

[4] Ibid

[5] Ibid

[6] William Ury, Jeanne Bret, and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, (London: Jossey-Bass Publishers, 1988).

[7] Ibid

[8] Cathy Constantino and Christina Merchant, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations, (London: Jossey-Bass Publishers, 1996).

[9] Ibid

[10] William Ury, Jeanne Bret, and Stephen Goldberg, Getting Disputes Resolved:Designing Systems to Cut the Costs of Conflict, (London: Jossey-Bass Publishers, 1988).

[11] Cathy Constantino and Christina Merchant, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations, (London: Jossey-Bass Publishers, 1996).

[12] For a review of much of this literature, see Conbere, John P. "Theory Building for Conflict Management System Design" Conflict Resolution Quarterly 19(2)(2001): 215-36.

[13] M. Rowe, "Dispute Resolution in the Non-Union Environment," in S. Gleason, ed. Frontiers in Dispute Resolution in Labor Relations and Human Resources. (East Lansing: Michigan State University Press, 1997).

[14] J. Lynch, CCRA: Contemporary Conflict Resolution Approaches. (Ottawa: Canada Customs and Revenue Agency, 1998),

[15] Slaikeu, Karl A., and Ralph H. Hasson. Controlling the Costs of Conflict: How to Design a System for Your Organization. San Francisco, CA: Jossey-Bass Publishers, 1998.

[16] Slaikeu and Hasson argue that the steps should be taken in the following order, making allowances for loop-back and forward: individual initiative; attempt negotiation; attempt mediation; appeal to higher authority; use of power play.

[17] They are: clear policy; clear roles and responsibilities; documentation; establish selection criteria; training and education; support systems for early resolution; and evaluation.

[18] SPIDR (Society for Professionals in Dispute Resolution), Guidelines for the Design of Integrated Conflict Management Systems Within Organizations (SPIDR, 2000).

[19] Kolb, Deborah M. and Susan S. Silbey. "Enhancing the Capacity of Organizations to Deal with Disputes." Negotiation Journal 6(4)(October 1990): 297-305.

[20] "Culture: The Missing Link in Dispute Systems Design," Corinne Bendersky, Negotiation Journal, 14:4 (October 1998), pp. 307-311.

[21] Cloke, Kenneth, and Joan Goldsmith. Resolving Personal and Organizational Conflict: Stories of Transformation & Forgiveness. San Francisco: Jossey-Bass, 2000.

[22] Moore, Christopher W. 1993. "Have Process Will Travel: Reflections on Democratic Decision Making and Conflict Management Practice Abroad." Forum (National Institute for Dispute Resolution) (Winter): 1-12.

[23] Susan Wildau, Christopher W. Moore, and Bernard S. Mayer. 1993. "Democratic Decision-Making and Dispute Resolution Procedures Abroad." Mediation Quarterly 10 (3) (Spring): 303-320.

[24] Moore, Christopher. "Dispute Systems Design: A Pragmatic Approach for the Development of Procedures and Structures to Manage Ethnic and Political Conflicts." Pacifica Review 6(2)(1994): 43-55.

[25] For a discussion of examples of these processes, see Moore, C.W. 1993. "Implementing Peace Accords on the Ground." Track II, 2 (2): 10-13.

[26] William L. Ury, "Conflict Resolution among the Bushmen: Lessons in Dispute Systems Design," Negotiation Journal vol. 11, no. 4 (October 1995), pp. 379-389.

[27] Moore, Christopher W. 1993. "Have Process Will Travel: Reflections on Democratic Decision Making and Conflict Management Practice Abroad." Forum (National Institute for Dispute Resolution) (Winter): 1-12.

[28] Susan Wildau, Christopher W. Moore, and Bernard S. Mayer. 1993. "Democratic Decision-Making and Dispute Resolution Procedures Abroad." Mediation Quarterly 10 (3) (Spring): 303-320.

[29] Susan Wildau, Christopher W. Moore, and Bernard S. Mayer. 1993. "Democratic Decision-Making and Dispute Resolution Procedures Abroad." Mediation Quarterly 10 (3) (Spring): 307.

[30] Moore, Christopher W. 1993. "Have Process Will Travel: Reflections on Democratic Decision Making and Conflict Management Practice Abroad." Forum (National Institute for Dispute Resolution) (Winter): 1-12.

[31] Moore, Charles W., and Peter Woodrow. 2002. "What Do I Need to Know about Culture: Practitioners Suggest..." In Handbook for International Peacebuilding: Into the Eye of the Storm, edited by J.P.Lederach and J. Moomaw Jenner. San Francisco, CA: Jossey-Bass.

[32] Brown, Scott, Christine Cervenak, and David Fairman. Alternative Dispute Resolution Practitioners Guide. Cambridge, MA: Conflict Management Group, 1998. Online at USAid http://transition.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf

[33] Connie Peck, The United Nations as a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflict, (Boston: Kluwer Law International, 1996).

 


Use the following to cite this article:
Brahm, Eric and Julian Ouellet. "Designing New Dispute Resolution Systems." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/designing-dispute-systems>.


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