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| Preface | xi | ||||
| Introduction | xiii | ||||
| ALTERNATIVE DISPUTE RESOLUTION AND THE VOLUNTARY TECHNIQUES OF CONFLICT RESOLUTION | |||||
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| TEN COMMANDMENTS FOR NEGOTIATORS | 48 | (34) | |||
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| TEN COMMANDMENTS FOR MEDIATORS | 82 | (14) | |||
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| TEN COMMANDMENTS FOR ARBITRATORS | 96 | (31) | |||
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| POSTSCRIPT | |||||
| What's Ahead for ADR | 127 | (2) | |||
| The Trend Toward Conflict Management Systems | |||||
| Index | 129 |
The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.
The Used, Rental and eBook copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.
Chapter One
STRENGTHS AND LIMITATIONS OF THE VOLUNTARY TECHNIQUES
We have been encouraged to prevent and resolve disputes almost since the beginning of time. The Bible tells us to "love thy neighbor as thyself," a prime technique of conflict resolution.
The Bible also has good words for those who try to prevent or resolve disputes. "Blessed are the peacemakers," it says, "for they shall be called the children of God." Shakespeare expressed a similar sentiment. Confining himself to this planet, he simply said, "Blessed are the peacemakers on earth."
Most of the conflicts I discuss in this book are between identifiable individuals or groups possessing either the power to reach binding agreements or the authority to recommend resolution to principals who have the power to reach final agreement.
The voluntary techniques of conflict resolution function in much the same manner in all types of conflicts, domestic or international, even including those that society condemns--extortion, blackmail or kidnapping, for example. While exercising care to avoid being caught, the culprits invariably negotiate with their victims on what they want from them.
The disputants, the issues in dispute and the circumstances are variables that distinguish one conflict from another. They affect, but do not alter, the mechanics of the voluntary techniques of conflict resolution.
Once the variables are mastered, the techniques can be applied with equal effectiveness in any and all types of disputes.
While negotiators' skills (or lack of them) and their relative bargaining strength generally outweigh personal influences, such traits as pride, conceit, ambition and jealousy can frequently affect the outcome. Personal likes and dislikes can also be a factor.
A big ego, for example, may sometimes be helpful. But it can also get in the way. I've seen many a disputant snatch defeat from the jaws of victory as his personal ambitions overwhelmed his better judgment. "The gentle art of losing face," a seasoned negotiator once told me, "may some day save the human race."
Being True to the Role You Are Playing
There are not only many variables within each of the recognized techniques of conflict resolution; there are also varying roles the disputants and third party neutrals play.
A negotiator's aim is to get the best deal for his side.
A mediator seeks to bring the negotiators together.
An arbitrator decides how the dispute should be resolved.
Each role has its own requirements. A participant in conflict resolution should be clear on the role he is playing and remain faithful to it during the course of the dispute. A departure can be damaging.
At the invitation of Mayor Robert F. Wagner, I became the mediator in the 1962/63 conflict between the major newspapers of New York City and Local Six of the International Typographical Union, one of ten unions representing employees of the newspapers. Amory H. Bradford, vice president and general manager of the New York Times , was the chief negotiator for the Publishers Association, which at the time represented ten New York City newspapers. Bertram Powers, president of the union, was the union's chief spokesman.
During the months before I became involved, Bradford dominated the procedural aspects of the negotiations: when and where the meetings should be held, whether they should be joint or separate, the order in which the issues should be considered, when the negotiations should be recessed and then reconvened etc. At the outset of my involvement, I clashed frequently with Bradford on these procedural matters. It is far better for the mediator, rather than one of the negotiators, to be in charge of these procedural matters. He can resolve them without influencing the outcome of the substantive issues on which the negotiators must retain the right to make the final decision.
After several weeks of bickering with Bradford, I concluded that I could not be effective as mediator in face of his continued insistence on determining how the mediation should be conducted. In the circumstances, I decided and announced that I was resigning. Since each side is entitled to chose whomever they want to represent them, I did not make Bradford's removal a condition of my continued participation.
Orvil E. Dryfoos, then publisher of the New York Times, sought me out and pleaded with me not to resign. He said that he was convinced that Powers was out to destroy the Times . While I did not believe that was Powers's goal, I agreed to stay on. Without my asking, Dryfoos withdrew Bradford from the negotiations. Jack Flynn of the New York Daily News and Walter Thayer of the New York Herald Tribune took over in behalf of the Publishers Association. Their better understanding of the rules of the game helped produce an agreement that both sides ultimately ratified.
The Importance of Defining the Issues and Asssessing the Facts
If there is one major lesson I have learned about the resolution of conflicts, it is the importance of defining the issues in dispute at the earliest possible date. Surprisingly, even the most sophisticated negotiators sometimes fail to address this aspect of conflict resolution. In so doing, they frequently waste time and effort on matters that may not be in controversy and irritate each other by making claims that obscure their basic differences.
It is also important to get the facts offered in support of the claims properly identified and assessed for accuracy and relevance. As William H. Davis, a distinguished patent lawyer who served as Chairman of the National War Labor Board, often observed, "You can't argue about a fact, you can only be ignorant of it." But disputants nevertheless frequently argue about the facts. Like politicians, they will "spin" the facts to favor their side. Even so, the exercise in getting the facts straight can, by itself, help immeasurably in bringing a dispute to a successful conclusion.
Another point of importance--focusing on procedure before substance--also deserves mention. The value of addressing procedure first was dramatically confirmed by the unanimous vote of a sharply divided United States Senate on how President Clinton's impeachment should be conducted. Issues of procedure rarely engender the intense feelings substantive issues incite. Besides, agreement on procedure generally gets the negotiations off on a positive note.
Simple as the points I am making may sound, they are essential in reaching settlements or, at the least, in narrowing the differences between the disputants.
Framing the Issues Precisely
The way an issue is framed can dictate the answer; even seemingly innocuous phrasing can make a difference. As the New York Times reported, a small change in the wording of a question by the Gallup Organization led to a significant overstatement of the drop in President Clinton's personal favorability rating after his August 17, 1998 speech confessing that he had misled the public in denying that he had an affair with Monica Lewinsky.
In a poll taken a week before his speech, the wording was, "Now I'd like to get your opinion about some people in the news. As I read the name, please say if you have a favorable or unfavorable opinion of this person." That traditional wording resulted in public impressions of Mr. Clinton that were 60% favorable and 38% unfavorable.
In a survey conducted immediately after his speech, Gallup asked respondents, "Now thinking about Bill Clinton as a person, do you have a favorable or unfavorable opinion of him?" The responses from the public were 40% favorable and 48% unfavorable, a huge shift in opinion.
In another poll conducted on the day after his speech. Gallup used the traditional wording and measured 55% with favorable views of Mr. Clinton and 42% unfavorable, a far less dramatic shift.
* * *
When pollsters ask respondents if they favor or oppose equal opportunity, most will say they are in favor of it. If they are asked about affirmative action, many will likely respond in the negative. But affirmative action is simply the nametag of programs to advance equal opportunity. How opportunities can be made equal and what actions are appropriate to make them equal calls for careful definition of the terms.
The meaning that people attach to specific words related to equal opportunity and affirmative action frequently arouse emotional responses. The word "quota" is one. Quotas can help correct past denials but they tend to be viewed as a denial of equal opportunity. On the other hand, training to help applicants qualify will generally draw support.
Does equal opportunity mean that the applicant best able to perform the job must always be selected? If so, how are the respective skills of the applicants to be measured? Should applicants for admission to a college or university, for example, be judged solely on the basis of their ACT and SAT scorecards? Should an applicant's extra-curricular attainments be considered? Can the advantages to the college or university and the other students of a racially balanced student body or work force in our pluralistic society be taken into account? Defining what is meant by the terms is an indispensable prerequisite to fair solutions.
* * *
Opponents on the issue of abortion use the catch phrases "pro choice" and "pro life" to gain adherents to their respective positions. As phrases, it is difficult to be against either of them. Obscured behind the phrases is the central question of whether life begins at the moment of conception, as some believe, or when the fetus becomes viable, as others contend.
The Supreme Court drew a line of distinction between the first and succeeding trimesters of pregnancy and concluded that abortion should not be barred during the first trimester. Those who believe that life begins at conception remain opposed to the decision. Hardly anyone would favor abortion to end a pregnancy in the ninth month. A majority appears to have no problem with a morning-after approach. A narrower issue in the continuing debate is where and how the line should be drawn after the first trimester.
* * *
I recently spoke at a forum on drug control, pointing out that the issue of whether drugs should be legalized was misleading since it seemed to suggest that if legalized, hard drugs could become as available as any over-the-counter drug. But a doctor's prescription is necessary before anyone can buy most sleeping pills and antibiotics. Surely the advocates of legalizing drugs would not make cocaine and heroin more readily available than those far milder drugs. The requirement of a doctor's prescription is a form of drug regulation. The sharper question is how hard drugs should be regulated, not whether they should be legalized.
* * *
The identification of areas of common interest can frequently assist in the resolution of conflicts in on-going group relationships. The labor-management relationship provides a good example. In the parlance of game theory, it is sometimes described as a relationship that combines conflict with cooperation. It is in labor's interest for the company to succeed, since the better a company does, the more there is for the employees to seek. Union leaders understand this mutuality of interest and may even go so far as to oppose environmental restrictions that might hurt a company's business. Others will advocate tariffs that limit foreign competition. I have also seen unions come to the aid of management in take-over battles. But they will quarrel intensely over their share of the fruits of success.
At the insistence of Morton Bahr, the President of the Communications Workers of America, joined later by the International Brotherhood of Electrical Workers, AT&T agreed in collective bargaining to a joint educational program they call the Alliance for Employee Growth and Development. Lucent Technologies became a party to the Alliance after it was spun off from AT&T. Some of the so-called Baby Bells have adopted similar programs as have companies in the steel, auto, aerospace and several other industries.
The unions see the programs as safety nets enabling employees to acquire skills they can market in the event of downsizing. Management endorses the programs because it makes better trained employees available. By defining their mutual interests, labor and management can create an atmosphere of cooperation that can help them resolve their unavoidable conflicts over the mandatory subjects of bargaining, wages, hours and working conditions.
Defining the Terms of Conflict Resolution
The terms that describe the techniques of conflict resolution are sometimes misunderstood, even at the highest levels.
I was watching a basketball game on TV the night of April 9, 1964, when an announcer interrupted to say that President Lyndon B. Johnson had secured a 15-day postponement of a strike that threatened to shut down the nation's 523 railroads. The announcer also reported that "new negotiators" would be entering the dispute.
I was relieved to hear that the President had managed to avert the threatened strike. Historians now say that this was Johnson's first major crisis after becoming President following Kennedy's assassination on November 22, 1963. But as a professional in the business of conflict resolution, I was puzzled about the introduction of new negotiators . Each side in a dispute invariably names its own negotiators. It would be unusual for either side to agree in a mediation session to change the negotiators who were representing them.
As I was reflecting on what Johnson meant, the telephone rang and my wife answered. "It's for you," she called, and I reached for the phone. "Mr. Kheel?" an operator inquired. When I said "yes," he quickly announced, "the President of the United States."
"Ted," the President said (I had met with him several times on conflict resolution in race relations when he was vice-president), "we need new negotiators down here. Can you be at the White House first thing tomorrow morning?” I not only agreed but left almost immediately to catch the last shuttle to Washington. I realized, of course, that I was being asked to be a mediator in the railroad dispute, not a negotiator for one side or the other. The President of the United States, like many others, had confused the terms.
The confusion was harmless. I knew what the President meant and he knew that I would be serving as a mediator. At the risk of oversimplification, I am including the following definitions of the principal terms of conflict resolution.
I use the words conflict and dispute interchangeably to mean any difference between two or more "persons" growing out of "some matter" that one person wants from another. The person can be an individual or a group entity such as a corporation, union, government agency and even a nation itself. The matter can be anything under the sun.
Pick up this morning's newspaper and scan the front page: you will surely find at least one story on a political, business, labor, environmental, communal, social or sports conflict over some matter that one or more persons, as defined, wants from another person or persons.
The term "resolution" is easy to define. It means bringing the conflict or dispute to an end. But there are many ways in which the dispute can be resolved. Disputes can be abandoned by one side or the other or they can be ended by force. My focus is on the resolution of disputes through the voluntary techniques of negotiation, mediation and arbitration.
Mediation is simply an adjunct to negotiation. The mediator's job is to help the disputants reach agreement. The structure of mediation is discussed in Chapter Four.
The term arbitration is also easy to define. It is the resolution of a conflict by the decision of a third party appointed pursuant to an agreement between the disputants. Arbitration is discussed in Chapter Six.
We are all myopic and necessarily see things from our own point of view. And we rarely reflect on the other side's perspective. To see ourselves as others see us is a talent the Scottish poet Robert Burns admired, as he wrote in his poem "To a Louse." It is a skill every negotiator should seek to possess if he doesn't instinctively reflect on how his opponent sees him.
There is an opposite gift negotiators should also possess: the ability to see others as they see themselves. By so doing, they can better devise strategies that will be persuasive in influencing their opponent to agree to give them what they want. Understanding these principles is fundamental. Sometimes even the most experienced negotiators fall short on both counts.
In a recent negotiation over the clean-up of a polluted site on the Hudson River involving ARCO, the giant oil company, I was representing a small not-for-profit organization known as the Earth Pledge Foundation, which I helped found in 1991 to advance the principles of sustainable development, i.e., development that promotes economic growth without damaging the environment. The site involved had been contaminated with hazardous wastes over the course of more than a hundred years. ARCO was legally liable to clean up the site since it had bought and absorbed Anaconda Copper and Wire, the company originally responsible for the contamination.
As a not-for-profit foundation committed to sustainable development, we hoped to prove that in a cooperative effort with ARCO and the relevant government agencies and community organizations, we could reclaim a polluted site and restore it to sound economic use. We thought we were in agreement on the general principles of our joint effort as we set about to reduce them to writing. ARCO undertook to prepare the first drafts of the relevant documents and they retained a prominent law firm for that purpose.
It became clear upon reading the drafts that ARCO and Earth Pledge had totally different ideas on how we could work together. ARCO's lawyer, who had not taken part in the negotiations and did not consult us before preparing the drafts, saw the agreement solely from ARCO's point of view. From my viewpoint the drafts failed to take into account the reasons we had expressed during our negotiations for wanting to work with ARCO on remediation as well as development.
But the drafts served a useful purpose. They brought into focus the fundamental differences between us that we had not considered when we simply agreed that it would be advantageous for us to work together.
Our agreement on general principles was not nearly enough. Whether we could have reached a definitive agreement is problematical. We never did. But we would have had a better chance and, at the least, we could have saved time and energy if we had tried at an earlier date to define the issues in light of our respective purposes.
The Alternatives of Alternative Dispute Resolution
A number of voluntary techniques of conflict resolution in addition to mediation and arbitration are sometimes cited as alternatives to litigation. Actually, they are simply variants of mediation and arbitration that can be categorized by ascertaining who has the power to make the final decision of resolution.
If the disputants themselves retain the right to make the final decision, the alternative is a form of mediation; if a third party makes the final decision, it is a form of arbitration. Here are some examples of these variants and how they can be identified as a form of mediation or arbitration:
* Advisory Arbitration is a form of mediation conducted as an arbitration with the disputants retaining the right to reject the advisory arbitrator's award. In effect, the "decision" of the "advisory arbitrator" is a recommendation dressed in the clothing of a final and binding award. But the "award" does not end the dispute unless both parties accept the recommendations. In composing his decision, the advisory arbitrator's overriding concern should be the same as a mediator's: to get the parties to agree with each other. In pursuance of that objective, he is well advised to focus on what both sides are likely to accept as well as the merits of the dispute.
* Mini-trial is a hearing conducted as if it were a lawsuit. But it must be viewed as a form of mediation since the "decision" of the judge or judges in a mini-trial is not binding. It is merely a recommendation with the disputants themselves retaining the right to reject the decision and to make the final decision of agreement or disagreement.
* Fact-finding can be extremely useful if the facts are in dispute and fact-finders are also frequently called upon to make recommendations. In a railroad or airline dispute that threatens to create a national emergency, the President can by law appoint a fact-finding board that is also called upon to make recommendations to resolve the dispute. In many of such disputes, the facts are not seriously in dispute. You might even say they have never been lost. In such cases, the recommendations are generally the most significant part of the board's report. But the report is nonetheless a form of mediation since the fact-finders' recommendations are not final or binding. They have served their main purpose only if both sides accept the recommendations.
* Med-Arb, as its name implies, encourages the neutral party to mediate at first but, if mediation is unsuccessful, to make a binding award on unresolved issues. It becomes third party decision-making in the second stage and is definitely a form of arbitration.
* Tripartite Boards of Arbitration usually consist of one arbitrator named by each party and a third arbitrator picked jointly by the two party-appointed arbitrators or named by an impartial service provider such as the American Arbitration Association.
While it is not unexpected for the appointed arbitrators to favor the party that appointed them, they are arbitrators and their vote has the same force as the vote of the neutral arbitrator. Nor is the party-appointed arbitrator prohibited from consulting the party that appointed him during the course of the board's deliberations.
In consequence, at least one of the party-appointed arbitrators must join the neutral to make a final and binding award. Three separate decisions would be the equivalent of a tie and would be of no force or effect.
As a practical matter, the neutral arbitrator will frequently try to secure a unanimous award. If unsuccessful, he will then try to persuade one of the appointed arbitrators to join him in making a majority decision. These considerations often lead to a negotiation within the board that resembles the original negotiation of the parties.
Even though the party-appointed arbitrators are, in a sense, standins for the disputants, they are usually more objective and less emotional than the disputants themselves. As a result, the arbitrators often produce a solution satisfactory to both sides.
Arbitration by boards of party-appointed arbitrators in addition to a neutral arbitrator works best in interest disputes where compromise is not unexpected. They are less useful in disputes over the meaning and application of law or contracts. In such disputes, they rarely add anything more to the arbitration than cost and time.
* Final Offer Selection is a form of arbitration. As the name implies, it places a limitation on the authority of the arbitrator who must accept the final offer of one side or the other. He cannot arrive at a compromise decision. This approach has been incorporated in the collective bargaining agreements in professional baseball.
* Judicial Mediation occurs when judges with the ultimate right and power to decide the dispute seek to mediate before making a final decision.
Many authorities question whether it is wise for judges to mix mediation with final decision making. Nor are the disputants likely to be as frank with the judge. Such authorities recommend instead that judges, sensing that the dispute might be settled, should refer the dispute to a mediator.
Many courts now have mediation procedures available for such contingencies. Wisely, they make it clear that, in the event the dispute is not settled, nothing said during mediation can be used in court.
* Legislative Action can also be a method of conflict resolution. But the disputants themselves can neither initiate nor control the action. They can, of course, spark legislative interest and they also can speak up firmly in lobbying the legislature to act in their favor. But they have no voice in the final decision.
Copyright © 1999 Theodore W. Kheel. All rights reserved.
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