Formal and Informal Processes

Douglas. W. Bush, M.A. © 2007

Douglas. W. Bush, M.A. © 2007

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

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

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


- “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 thirdparty 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

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

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. 2. 3. Disputes between private parties, such as individuals or corporations. Disputes between private parties and public officials. 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


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

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