Dispute Systems Design
Dispute systems design is a process for assisting an organization to develop a structure for handling a series of similar recurring or anticipated disputes (e.g., environmental enforcement cases or EEO complaints within a federal agency) more effectively.
Facilitation is a collaborative process in which a neutral seeks to assist a group of individuals or other parties to discuss constructively a number of complex, potentially controversial issues. The neutral in a facilitation process (the "facilitator") plays a less active role than a mediator and, unlike a mediator, does not see “resolution” of a conflict as a goal of his or her work.
Mediation is a facilitated negotiation in which a skilled, impartial third party seeks to enhance negotiations between parties to a conflict or their representatives, by improving communication, identifying interests, and exploring possibilities for a mutually agreeable resolution. The disputants remain responsible for negotiating the settlement, and the mediator lacks power to impose any solution; the mediator's role is to assist the process in ways acceptable to the parties. Typically this involves helping the disputants identify their interests, find areas of common ground and understand their alternatives, then suggesting possible solutions, and drafting a final settlement agreement.
A mediator's style may be described as "evaluative" or "facilitative." Most "evaluative" mediators emphasize helping the parties understand the strengths and weaknesses of their cases, and provide guidance as to the likely outcome in court and appropriate grounds for settling. "Facilitative" mediators tend to be less likely to provide direct advice, propose solutions, or predict outcomes; they usually seek to establish a framework that makes it safe for parties to communicate more effectively as to their interests, options, and realistic alternatives. In most situations, DOE utilizes facilitative mediation.
In neutral evaluation, a neutral - often someone with relevant legal, substantive, or technical expertise - hears informal presentations by the parties, offers them a non-binding oral or written evaluation of their cases' strengths and weaknesses and the likely reaction of a judge or jury if settlement is not reached, and provides his or her view of an appropriate range of outcomes. He may also assist the parties to narrow areas of disagreement or identify relevant information that may enhance their chances of reaching settlement.
Arbitration is a process in which a third-party neutral (arbitrator), after reviewing evidence and listening to arguments from both sides, issues a decision “award” to resolve the case. In non-binding arbitration, the parties have agreed to consider the award. In binding arbitration, the parties agree in advance to be bound by the award. There are very limited grounds to appeal a binding arbitration award.
Binding arbitration is a statutorily-mandated feature of Federal labor management agreements. Consistent with statute, the parties to such agreements are free to negotiate the terms and conditions under which arbitrators are used to resolve disputes, including the procedures for their selection.
Mini-trials involve a structured settlement process in which attorneys for each side to a dispute present a summary of their case before the major decision makers. The rationale behind a minitrial is that if the decision makers are fully informed about the merits of their cases and that of the opposing parties, they will be better prepared to successfully engage in settlement discussions.
A neutral oversees the minitrial, and is responsible for explaining and maintaining an orderly process. When the case presentation is over, he will meet with the parties and assist in their settlement negotiations.
The minitrial method is a particularly efficient and cost effective means for settling large contract disputes and can be used in other cases where some or all of the following characteristics are present: (1) it is important to get facts and positions before high-level decision makers; (2) the parties are looking for a substantial level of control over the resolution of the dispute; (3) some or all of the issues are of a technical nature; and (4) a trial on the merits of the case would be very long and/or complex.
Peer Review Panel
A peer review panel is a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision may or may not be binding on the employee and/or the employer, depending on the conditions of the particular process. If it is not binding on the employee, he or she would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision under peer review. The principle objective of the method is to resolve disputes early before they become formal complaints or grievances.
Typically, the panel is made up of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. Peer review panels may be standing groups of individuals who are available to address whatever disputes employees might bring to the panel at any given time. Other panels may be formed on an ad hoc basis through some selection process initiated by the employee, e.g., blind selection of a certain number of names from a pool of qualified employees and managers.
An ombuds is a neutral person who can assist in resolving work-related concerns in an informal, confidential, and impartial manner who rely on a number of techniques to resolve disputes. These techniques include counseling, mediating, conciliating, and fact finding. Usually, when an ombuds receives a complaint, he or she interviews parties, reviews files, and makes recommendations to the disputants. Typically, ombuds do not impose solutions.
Ombuds may be used to handle employee workplace complaints and disputes or complaints and disputes from outside of the place of employment, such as those from customers or clients. Ombuds are often able to identify and track systemic problems and suggest ways of dealing with those problems.
Partnering is a process used to facilitate contract performance. Using a trained facilitator to assist them, parties to a contract participate in a partnering workshop, where they work on identifying mutual interests, potential problems and techniques to resolve disputes. After the workshop, all participants sign an agreement or “charter” which includes such things as performance goals, strategies for achieving these goals, organizational structure for the project, and a process for resolving disputes. Based on open and continuous communication, mutual trust and respect, and the replacement of an “us vs. them” mentality with a joint problem solving approach, partnering has been shown to improve safety, reduce litigation and time delays and to promote creative solutions and pride in performance.