GST 222: Non- Military Mean to Conflict

Resolution

Negotiation, Mediation, Conciliation and

Arbitration

By

Duruji, Moses M.
Introduction
 Conflict among men is natural because man is a social
being.
 It is the differences of men that generate conflicts.
 When it escalates, it leads to disruption of social life.
 But it is not in the long term interest of man to prolong
conflict which means that conflict must be settled
through third party intervention.
 One mechanism of achieving peace is through force
which can be costly in terms of human and material
resources.
 Beside coercion, conflict can be resolved through non-
military means or Alternative Dispute Resolution (ADR)
including negotiation, mediation, conciliation and
arbitration.
 ADR are methods of resolving disputes different from
normal trial process. It is an alternative to litigation.
 This lecture seeks to explain these methods of dispute
resolution.
Negotiation
 Negotiation is applied in conflict resolution
when the two parties get together to
discuss the issue under dispute so as to
agree on a settlement.
 The agreement reached via this process
can become binding depending on the kind
of issue at stake and the parties involved.
 Negotiation is the most efficient form of
dispute resolution in terms of management.
 Other advantages of negotiation are:
speed; cost saving, confidentiality and
preservation of relationships.
Elements of Negotiation
 1. Interaction; That is between two parties to
the dispute
 2. Values/Interests; these are things that
matter to the parties in negotiation.
 3. Outcome; is an agreement jointly reached by
the parties in conflict.
 4. Movement; arises because at the initial
stage of the negotiation, the parties hold on to
their extreme positions, but in the course of the
negotiation, certain compromises are made on
each side to reach an agreement.
Assumptions of
Negotiation
 1. Mixed-motive nature of negotiation;
this shows that there are conflicting and
common goals between the conflicting
parties
 2. Reallocation of Values between the
two parties; this occurs in the course of
negotiation for an agreement to be
reached among the conflicting parties.
Assumptions of
Negotiation
 3. Imperfect information; this can be the cause of the conflict and
since the parties are not talking, perception can be wrongly
formed based on the incomplete information the parties have
about each other. Negotiation provides a platform for exchanges
that can correct this initial situation.
 4. Variable value (Hierarchy of Values). Parties rank their interests
in other of importance. There are values that each of the
conflicting parties can afford to give up for an agreement to be
reached and there are core values that are non-negotiable.
 5. Power relations among the conflicting parties; this affects the
outcome of negotiation. The reason is because the parties may
not be at the same level militarily, economically and politically.
Parties with the greater leverage may use such power to its
advantage in the course of negotiation.
Nature of Negotiation

 Negotiation is a process in which parties

to a dispute discuss possible outcomes
directly with each other.
 Parties exchange proposals and
demands, make arguments, and continue
the discussion until a solution is reached,
or an impasse is declared.
Approaches of Negotiation

 Interest based negotiation

 Rights-Based Negotiation
 Power-Based Negotiation
Characteristics of
Negotiation
 Flexibility
 Effectiveness
 Consultation
 Exchanges of views;
Mediation
 Mediation is a process of dialogue in which a
third party assists two or more consenting
conflicting parties to prevent, manage or resolve
a conflict without resort to force.
 The general goal is to enable the parties to
reach satisfactory agreements.
 Under the auspices of a third party, attempts are
made to reach mutually agreeable solution
between disputants.
 Mediation is an extended version of negotiation
whereby the third party interferes to change the
dynamics of a particular conflict.
 The mediator is selected by the parties.
Functions of a Mediator
 The mediator attempts to re-establish
sufficient good communication between
the conflicting parties
 This enables conflicting parties to talk
sensibly to each other without being
blinded to such emotions as anger, fear, or
suspicion.
 The mediator arranges the mediation
process.
 The mediator makes no decisions
Functions of a Mediator
 The mediator acts as a facilitator only to assist
the parties to understand the dispute,
 The mediator provides structured discussion
 The mediator helps the parties reach a dispute
settlement agreement.
 If the parties cannot reach a settlement
agreement, they are free to pursue other
options.
 The mediator plays no role on cost of mediation
but the parties decide in advance how they will
contribute to the cost of the mediation.
Mediation Process
 1. It starts with confirming the consent and willingness
of the parties to get involved in the process
 2. The mediator opens communications between the
parties
 3. Thereafter, an arrangement of a time for face to face
negotiations, initial meetings which help to clarify
positions of both parties
 4. After the initial meeting, mediators can reframe the
issues and ask further questions.
 5. Mediators also attempt to create common grounds
between the conflicting parties by seeking to change
their perception of each other.
Mediation Process
 6.The mediator assists both parties in
constructing the agreements and suggesting
possible solutions.
 7. Mediator keeps confidentiality to bring about
mutual sincerity.
 8. The mediator is impartial to generate trust of
the conflicting parties
 9. Mediator helps to implement agreement
Conciliation

 Conciliation involves building a positive

relationship between the parties to a
dispute;
 It is unlike arbitration in that conciliation is
a much less adversarial proceeding
 It seeks to identify a right that has been
violated and searches to find optimal
solution.
Conciliation
 Conciliation tries to individualize the optimal solution
and direct parties towards satisfactory common
agreement.
 Although this sounds strikingly similar to mediation,
there are differences, the conciliator plays a relatively
direct role in the actual resolution of a dispute and even
advises the parties on solutions by making proposals
for settlement.
 In conciliation, the conciliator is usually seen as an
authority figure that is responsible for figuring out the
best solution for the parties.
Conciliation
 It is the conciliator, not the parties, that
develops and proposes the terms of
settlement.
 The parties come to the conciliator seeking
guidance and the parties make decisions about
proposals made by conciliators.
 The mediator at all times maintains his or her
neutrality and impartiality he does not focus
only on traditional notions of fault and a
mediator does not assume sole responsibility
for generating solutions.
Conciliation
 A mediator’s priority is to facilitate discussion
by the parties.
 Here the parties play active role by identifying
interests, solutions, and takes decisions on
proposals made by other parties.
 Conciliation and mediation both look to
maintain an existing business relationship and
to rekindle a lost balance of power between
two parties.
Arbitration
 Arbitration is a dispute resolution process where the
opposing parties select or appoint an individual called
an Arbitrator.
 Upon appointment, the arbitrator arranges the process
to hear and consider the evidence, review arguments
and afterwards will publish an award in which the items
of dispute are decided.
 In some cases the arbitrator can conduct the arbitration
on documents evidence only.
 When published the arbitrator's decisions are final and
binding on the parties.
 Arbitration decisions cannot be appealed in a courts.
Arbitration
 Arbitration may comprise a sole arbitrator, or may be a
panel of arbitrators.
 Costs of the arbitration are disposed of in the
arbitrator's award, unless the parties have some
agreement to the contrary..
 Arbitration involves adjudication procedure by which
disputants agree to submit the issue of controversy to
judges of their own choosing who render a legally
binding decision in the form of a majority vote.
 The outcome of the settlement depends on the legal
judgement rather than political negotiation..
 Disputants agree to the procedure and the scope of
authority of the arbitration court
Characteristics of
Arbitration
 1. Free Choice of judges by conflicting
parties because the arbitrators must be
acceptable to the disputants.
 2. Disputants determine the proceedings
to be conducted.
 3. Authority of arbitrators are limited to
the questions referred to them by the
conflicting parties.
Conclusion
 Each of the ADR (alternative dispute
resolution) processes addressed herein,
arbitration, mediation, and conciliation,
provides important benefits to parties
 These benefits can be complementary to
the judicial process.
 ADR process also affords the parties the
opportunity to develop settlements that are
practical, economical, and durable.