CONFLICT RESOLUTION

Formal and Informal Processes

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
Douglas. W. Bush, M.A. © 2007
dwbush@aol.com
Conflict Management Processes

Generally, conflict management literature makes a distinction between two main types of conflict
management processes: “rights-based” and “interest-based”.

Rights-Based Processes:

• A rights-based process focuses on an individual’s claims and the facts that support these claims.
It is a formal way of resolving conflicts, which may involve assessing whether or not an
employee’s rights have been infringed upon.

• Traditionally, in a rights-based process, the opposite sides of a conflict are competing to

convince a decision-maker (judge or adjudicator) to decide on the outcome of the conflict in a
way that favors one party over the other.

• Such a process seeks to determine whether a legal or contractual right has been violated, and
the parties compete to protect their rights and/or positions. The solution to the conflict is
imposed on the parties by an outside party, which typically results in one or both sides feeling
unsatisfied with the decided outcome.

• The grievance procedure is an example of a rights-based process.

“I’m Right – He’s Wrong”

“I rule in favor of the plaintiff in this case, awarding

him his job back with back pay.”

“I win, you lose!”

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
Interest-Based Processes:

• An interest-based process is an alternative “…process in which parties focus on their underlying

interests (i.e. needs, desires, concerns, fears) rather than on their positions in an attempt to
understand each other’s real interests and propose options which meet as many of the interests
of all parties as possible.”

• Interest-based processes attempt to identify and address deeper concerns that may be at the
root of a problem (the cause) as opposed to only resolving or fixing what appears on the
surface (the effect). Instead of bargaining over people’s positions, which are generally
solutions that a party considers to be their most gainful outcome, the interests are considered,
which are the underlying reasons for a person’s position or personal need.

• It is an informal way of resolving disputes through respectful/active listening and discussions

designed to transform the traditional tug-of-war process into a more cooperative and
collaborative approach to problem solving. Examples of interest-based processes are
facilitation, mediation, conflict coaching, etc. definitions).

• Several key features of interest-based processes include:

• Separating the people from the problem
• Understanding, without judging, the other party’s perceptions
• Not allowing emotions and feelings to cloud one’s objectivity
• Communicating effectively by using active listening and clearly exchanging messages to
avoid misunderstandings

• Interest-based processes are the foundation of informal conflict management systems.

The iceberg analogy is often referred to when addressing the subject of interest-based processes:

The portion above waterline includes concerns such as positions or rights, which are typically dealt
with through the use of formal/rights-based processes.

The submerged part of the iceberg represents the personal interests of the party, the fundamental
underlying factors contributing to any given conflict (which do not always come to light during formal
rights-based processes).

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
This image symbolizes the concept that when only the problems at the tip of the iceberg are examined,
issues residing underwater are more likely to eventually surface. For this reason, interest-based
processes are complementary to formal processes.

“Me and You Against The Problem”

Spectrum of Conflict Management Options

There are a wide variety of options available to individuals in conflict. The spectrum below ranges from
informal/collaborative processes to more traditional/formal processes, and is an example of where
some of those options would be situated on a linear scale. However, a flexible ICMS allows for the free
movement among all of its options, and the passage from one process to another does not have to be
sequential. This spectrum is not meant to be all-inclusive.

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
INFORMAL OPTIONS - “interest-based;” when there is a “clash” between two parties; both parties decide
what option will meet their needs; both parties discuss their issues with a neutral, independent and skilled third-
party person (not a decision-maker); role may be confidential coach, ombudsperson, facilitator or mediator; both
parties decide on the processes and outcomes; more than one option may be used in conjunction; both parties
resolve their differences relative to their interests; no legal advice is given.

Consultation

The purpose of a consultation is to brainstorm, to get appropriate referrals to Company resources, to get
information about policies and practices, or to get the perspective of a neutral person not connected to
the dispute. Conflict resolution staff is knowledgeable about Company policy and resources and are
skilled in conflict resolution. Individual consultations with staff can help employees clarify their
interests and identify and evaluate options.

The Office for Conflict Resolution is not an advocate for any group of employees. Conflict resolution
staff does not provide legal advice; they are not trained as therapists nor are they arbiters of policy
disputes. Their role is to serve as third-party, skilled neutrals to help employees express differences,
evaluate interests, and reach resolution.
Many employees find that consultations are all that they need or want. They appreciate the confidential
nature of the consultation process and the fact that they decide what the next steps will be.

Conflict Coaching

Conflict coaching helps employees to develop and improve the way they deal with conflict. It helps
employees to manage their personal conflicts by identifying goals for effective conflict management,
improve communication and problem-solving skills, shift reactions from detrimental to constructive,
change negative behaviors, and provide for reflection on conflict interactions. Coaching can be
performed by supervisors, managers, peers, human resource professionals, Ombuds, trainers or external
consultants. The role of the coach is to train a voluntary participant to manage conflict on his or her
own.
Ombuds

In an ombuds role, conflict resolution staff receive complaints and questions from employees concerning
different issues. Employees decide which initiatives, if any, conflict resolution staff should take to
process the conflict. Conflict resolution staff may contact other involved employees to gather, and to
convey information. Through dialogue with involved individuals, the ombuds helps the parties
understand each other’s perspectives and identify workable resolution options. Options are identified
and evaluated. Ombuds services are very flexible. They can be structured to meet the needs of each
individual matter.

Facilitation

When an employee requests a facilitated dialogue, conflict resolution staff gathers information on the
nature of the dispute, who else may be involved and what needs to be discussed. Staff then contact the
other involved employees to convey the request and to schedule a facilitated dialogue. Employees need
to be strongly encouraged to participate in facilitated dialogue, when requested.

A facilitated dialogue is a face-to-face discussion between the disputing parties with a third-party
neutral facilitator. Usually the facilitator asks the employee raising the issue to explain the issue from
his/her perspective. Other employees are then invited to participate. Each participant has the
opportunity to ask questions for information. The facilitator may ask questions. All participants are
involved in discussions to identify their respective interests, brainstorm possible options for resolutions,
and evaluate the options against the interests to reach accords.

Mediation

Conflict resolution staff are trained mediators. The parties usually participate together in general

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
discussions and in separate caucus meetings with the mediator. Mediation is usually a more structured
process than a facilitated meeting and includes a written agreement to mediate that assures the
confidentiality of the mediation process.

Negotiation

Negotiation is the most basic form of dispute resolution and involves two parties interacting directly with
each other to arrive at a mutually satisfactory accommodation.
Parties who contemplate entering into negotiations may engage a third party neutral to provide a
convening function.

Negotiation can be the 'traditional' model of hard bargaining where the interests of a group far outweigh
the working relationships concerned. The 'principled' negotiation model is where both the interests and
the working relationships concerned are viewed as important.

Conciliation

Conciliation is a process whereby the parties to a dispute (including future interest disputes) agree to
utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve
their differences.

Advantages

- Bringing an objective, unbiased third-party to the discussion can contribute significantly to

an effective outcome.
- Both parties identify the solution to their differences that also solves a workplace problem.
- Both parties are more willing and committed to bringing about a longer-term change.

Appropriateness

- the individuals in dispute are willing to address and try to settle their issue(s)
- parties want an informal and flexible process
- ignoring the problem is not viable
- other options for resolving the dispute are not acceptable (i.e., formal grievance process)
- there is interest in maintaining the relationship
- a case is complex and requires a creative solution
- parties prefer to resolve their dispute in private

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
FORMAL OPTIONS - “rights-based;” when there is a “crisis” between two parties; both parties
have irreconcilable interests or positions; a professional hears both sides and decides the outcome.

Grievance

In a unionized organization, a grievance is a formal complaint against the employer, in written format,
usually filed by a union steward on behalf of a member of the local union. It is typically understood as
any difference arising out of the interpretation, application, administration or alleged violation of the
collective bargaining agreement that is in effect at the place of employment but it can also concern
violations of common law, such as workplace safety regulations or a human rights code. Ordinarily,
unionized workers must ask their operations managers for time during work hours to meet with a shop
steward in order to discuss the problem, which may or may not result in a grievance. If the grievance
cannot be resolved through negotiation between labor and management, mediation, arbitration or legal
remedies may be employed. Typically, everyone involved with a grievance has strict timelines which
must be met in the processing of this formal complaint, until it is resolved. Employers cannot legally
treat an employee any differently whether he or she has filed a grievance or not. The difference
between a grievance and a complaint, in the unionized workplace, is whether the subject matter relates
to the collective bargaining agreement.

Investigation

Workplace investigations establish legitimacy about “findings of fact” in contentious workplace conflicts,
such as disciplinary matters, performance issues or workplace discrimination and harassment issues. The
investigation is performed by an external investigator or by a “disinterested” workplace participant (like
another manager, HR professional or Ombuds). The investigator provides observations, findings of fact,
and recommendations but leaves decision-making to management.

Arbitration

A legal technique for the resolution of disputes outside the courts, where the parties involved in a
dispute refer it to one or more persons (the "arbitrators" or "arbitral tribunal"), whose decision (the
"award") they agree to be bound to.

Adjudication

The legal process by which an arbiter or judge reviews evidence and argumentation including legal
reasoning set forth by opposing parties or litigants to come to a decision which determines rights and
obligations between the parties involved. Three types of disputes are resolved through adjudication:
1. Disputes between private parties, such as individuals or corporations.
2. Disputes between private parties and public officials.
3. Disputes between public officials or public bodies.

Litigation

A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff,
seeks a legal remedy. Often, one or more defendants are required to answer the plaintiff's complaint. If
the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court orders may
be issued to enforce a right, impose a penalty, award damages, impose an injunction to prevent an act
or compel an act, or to obtain a declaratory judgment to prevent future legal disputes.

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com
ADDITIONAL INFORMAL OPTIONS

Internal Peer Review Panel

Some companies have a committee that reviews complaints and makes recommendations to senior
management. These panels have decision-making authority and thus are forums where employees can
get their complaints addressed. They are usually comprised of senior, well respected employees and
management members. While they can range in actual authority, these panels normally do not normally
have the power to alter existing polices or other conditions of employment.

Early Neutral Evaluation (ENE)

Early neutral evaluation (ENE) is used in the shadow of litigation to help the parties to determine the
strengths and weaknesses of their case should they proceed to external litigation. ENE helps parties to
reach agreement outside of litigation by clarifying what their litigation alternative might be.

Advantages

- Decisions are made by a third-party (i.e., arbitrator, judge, hearing officer, etc.)
- The outcome is “binding.” The “reward” translates into action that involved parties must comply
with.

Appropriateness

When:
- the dispute cannot be resolved between the parties involved.
- both parties are unwilling to work toward a resolution on their issue(s).
- more formal “legal” intervention is required.
- the individuals involved do not have the authority required to solve the problem.
- fact-gathering is critical for determining the appropriate outcome for parties involved.
- there is fear of violence between the individuals involved.
- there is a need to set a precedence with regards to the issue of law.

Douglas. W. Bush, M.A. © 2007

dwbush@aol.com