In 1988, the book Getting Disputes Resolved proposed the concept of dispute resolution systems design, essentially that we can do much better managing our resolution of disputes. Rather than having a view that conflicts are bad, this book suggests that conflicts are inevitable between competing interests in our increasingly complex and high-paced world. Given the inevitability of conflict, the authors, William Ury, Jeanne Brett, and Stephen Goldberg, suggest a systematic approach for determining what can be done to improve organizational dispute management.
Three Major Ways of Resolving Disputes
The authors say that there are three major ways of resolving disputes:
(1) seeking to reconcile disputants' underlying interests;
(2) determining who is "right;" and
(3) determination of who has more power.
Problem-solving negotiations exemplify the interest-based approach; going to court, the rights approach; and strikes and wars, the power approach.
The authors suggest that, in general, an interests approach is less costly and more rewarding than a rights approach, which is in turn less costly and more rewarding than a power approach. The goal is then to design a system that provides interest-based procedures for disputants to use whenever possible and low-cost rights procedures (such as advisory arbitration) or low-cost power procedures (such as voting) as back-ups.
Overall Model
As a model of design, there are six suggested principles:
(1) Focus on interests.
(2) Procedures should be designed to return disputants to negotiation procedures called "loopbacks."
(3) The third principle is to provide low-cost rights and power procedures that, if all else fails, can bring about a final resolution of the dispute.
(4) Prevent disputes whenever possible by building in a consultation procedure and a procedure for constructive feedback after a dispute.
(5) Arrange approaches in a sequence from least to most costly.
(6) Provide the motivation, skills and resources necessary to make all these procedures work.
System Diagnosis
The first step in moving toward such a new system is to diagnose the existing system. It is suggested that this diagnosis focus on three questions.
(1) What type of disputes arise?
What are current and recent issues in dispute?
Who are the parties?
How many disputes occur?
Are any changes expected in the organization or wider environment that may affect the number and nature of disputes?
What is causing the disputes?
(2) How are disputes handled?
What do people do if they have a complaint?
With whom, if anyone, do they bring it up?
How often do people just "lump it?"
What types of dispute resolution procedures are being used and with what frequency?
What happens when disputes are negotiated?
Is there a search for interest-based settlement or a focus on the parties' respective "rights" and power?
How often do negotiations break down and what happens when they do?
Are adjudicatory procedures available? What kinds?
How often are they used and how long does it take before a decision is reached?
How often do power contests erupt?
What are the overall costs and benefits of these procedures?
The answers give the dispute systems designer a map of existing procedures from which he or she can work.
(3) Why do disputants use some procedures and not others? What functions are served by court or power contests and other high cost procedures?
What are the obstacles that hinder the use of interest-based negotiation?
Assessing Costs
Since the designer's goal is to reduce costs, it is important to know what those costs are to start out with. This will allow for effective measurement and adjustment. Questions to determine cost may include the following:
How long do the various procedures take, and how much money is consumed by them?
How satisfied are disputants with the outcomes of disputes?
What effect do existing procedures have on personal or organizational relationships?
How often do the same disputes recur because they were never actually resolved?
Promoting Interests
In seeking to determine why interest-based procedures are not utilized more often, the designer may ask:
Are interest-based procedures available to handle the full range of disputes that occur?
Are some disputes being lumped simply because no established procedure exists to deal with them?
Does a mediation procedure exist that focuses on interests?
Motivation for Change
The designer is also wise to determine whether there is any motivation for change within the organization. The following type of questions may be asked:
How satisfied are disputants with the outcomes of the procedures?
Does the procedure provide any opportunity for "voice?"
Can disputants air their grievances in their own terms?
Do disputants have control over the procedures?
Do disputants participate in the shaping of the outcome?
Do they think that the procedure is fair?
Does the procedure allow for the venting of emotions such as anger and frustration?
Is the procedure a way of getting revenge?
How much do people simply enjoy fighting in this organization?
How costly do disputants perceive the procedure to be in terms of time and money?
Does the procedure serve the interests of parties other than the disputants?
Does the procedure serve purposes for the disputants other than resolving the particular dispute at hand?
Assessing Skill Level
The designer is also wise to assess the level of dispute resolution skills and knowledge to determine whether training or coaching would help. The following type of questions may be asked:
Do people know what procedures are available and when?
Do they know what they are expected to do in the procedures?
Do they know how to use the procedures to generate satisfactory resolution?
How skilled are disputants and their representatives in problem-solving negotiation?
How good are parties at listening to one another, probing interests and creatively developing options?
Criteria for System Evaluation
In terms of ultimate evaluation of a system, the authors suggest four criteria:
(1) Transaction Costs. (including financial, temporal, opportunity, emotional and other costs)
(2) Satisfaction with Outcomes. (to what extent does the outcome satisfy underlying interests, substantive and procedural)
(3) Effect on the Relationship. (a continuing relationship?)
(4) Recurrence. (whether there are durable resolutions)
Note also that these various factors will tend to be related. The greater the transaction costs, the less likely there is satisfaction with the outcomes, damaging the parties' relationship, often yielding lack of commitment to upholding the result. One may thus reasonably attempt to identify "low cost" separate from "high cost" procedures. In the future we will see shifting to emphasize "low cost" procedures that satisfy underlying interests over our traditional polarizing adjudicatory procedures.
Not all disputes can be, or should be, resolved by reconciling interests. Rights and power procedures can sometimes accomplish what interest-based procedures cannot. The problem is that rights and power procedures are often used when they are not necessary. Too often, the procedure that should be the last resort is the first resort.
Organizational Dispute Resolution System Health
Organizational dispute resolution system health may be defined as a system where most disputes are resolved through reconciling interests, some through determining who is right, and fewest through determining who is most powerful. Organizational dispute resolution system ill-health is a system that has comparatively few disputes resolved on the basis of interests, while many are resolved by determinations of rights and power. The ultimate system will thus include promotion for the reconciliation of interests and low cost ways to determine rights or power for those disputes that cannot or should not be resolved by focusing on interests alone.
Bring Participants into Dispute Resolution System Design
There is also the political task of garnering support, dealing with resistance, and motivating people to use the changed procedures. Participants can be effectively incorporated into system design by providing their own useful ideas about what is wrong and what is needed, what will work and what won't. It may even make sense to have a mediation among various stakeholders about which changes should be made. Participants in the system should be involved in the process of diagnosis, design and implementation.
The Practicality of Dispute Resolution Systems Design
Dispute systems design is thus a practical method for cutting the costs of conflict and, at the same time, achieving the gains that come from satisfactory resolutions. The distinctive contribution of a systems approach is that it addresses not just a single dispute but a series of disputes that occur -- and will continue to occur -- in any relationship or organization. One indicator of an organization's health is how well it supports its members in effectively resolving disputes in a satisfying and economic way. Dispute resolution system design is clearly a wave of the future.
