LLW3002 ADR Summary PDF

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LLW3002- Alternative Dispute Resolution Session 1- Intro, ADR & Conflict/Dispute Resolution -

Reading: Alternative Dispute Resolution 6th ed/ Tania Sourdin Chapter 1, Appendices A, F and G

Conflict -

Opportunities for conflict arise everyday: at work, at home, at school, on public transport, waiting in line at the football. Individuals respond to conflict in various ways. These reactions have developed from a young age and are shaped by our: o Personality o Culture o Education o Experiences o Values

How do individuals respond to conflict? -

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Emotional response o What feelings do we experience in conflict:? o Anger, fear, despair, anxiety o Differing emotional responses can be confusing and, at times, threatening. Cognitive Response o Our ideas, thoughts, inner voice o Compare: ‘That jerk! Who does he think he is’ VS ‘I wonder if he realizes what he has done. He seems to be lost in his own thoughts’ o Different cognitive responses contribute to our emotional and behavioural response and promote either positive or negative feedback loops

Conflict responders -

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Conflict Super Stars o They are almost always in control of their responses. They know how to communicate calmly and assertively in nearly every situation. Their response seems easy and effortless to the outside observer. Conflict Confidents o They demonstrate appropriate responses to most conflicts. They respond in ways that lead to resolution rather than to escalation. Even though they might feel some unease or discomfort in conflict, they engage confidently and lead toward resolution. Conflict Woozies o They either get a knot in their stomach that causes them to be too passive or a little flash of anger that causes them to be too aggressive. In fact, they might switch between too aggressive and too passive in the same encounter. In general, they do pretty well in conflict, and they respond in ways that feel like they will lead to resolution. However, they are often confused and frustrated when their responses unintentionally escalate conflicts. Conflict Chickens o They run from conflict almost every time. They avoid confrontation and conflict to the point that they fail to engage even when doing so will quickly resolve the

situation. Their failure to engage often leads to escalation rather than de-escalation because the issues causing the conflict remain unresolved. -

Conflict Coercers o They are on the other end of the spectrum from Conflict Chickens. They often dive into conflict and push for resolution in a way that inflames rather than calms the situation. They sometimes think they have resolved a conflict when they drive people to be quiet, give up or walk away.

Neighbourhood tree disputes -

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What is involved in a tree dispute between neighbours? o Fruit or leaves clogging up gutters? o Branches growing over the boundary fence? o Dead trees causing damage to fences, gardens etc o Destruction of trees In Victoria, neighbourhood tree disputes are so common that the state's main resolution body receives 10 calls a day from bickering neighbours. http://lawreform.vic.gov.au/all-projects/neighbourhood-tree-disputes (watch Neighbourhood Tree Disputes video 7:19 min)

What were some of the approaches to resolving the tree disputes? -

Abatement Writing to or speaking with the neighbor Engaging an arborist to assess the tree Participate in free mediation at Dispute Settlement Centre Victoria Go to Court

Intro to ADR Conflict resolution: ADR -

A term used to describe the processes that may be used to manage resolve or determine disputes or reach agreements. These processes do not involve traditional adversarial trials or hearings BUT the ADR process can be used within or outside courts and tribunals May produce outcomes that are binding or non-binding Usually involve a third party but can be adjudicatory or non-adjudicatory

Types of ADR processes -

Negotiation Mediation Conferencing Collaborative practice Early neutral evaluation/ case appraisal Expert determination Arbitration Hybrid processes Multi-stage processes Online Traditional/Customary law dispute resolution

A dispute pathway

Figure 1- Source: Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009) p 4

Family dispute resolution

Figure 2- Source: Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009) p 5.

Objectives of ADR -

Resolve disputes effectively and efficiently Provide a process that is fair and accessible Preserve relationships Provide a process that achieves acceptable outcome and sustainable outcomes Effective use of resources

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Resolve disputes in a way that is effective & efficient o Measures of effectiveness and efficiency vary but can include costs  to the parties, service providers, community o The speed of resolution o The durability or enforceability of the outcomes o Where ADR does not completely resolve the dispute, it narrows the issues Preserve relationships o Promote understanding between parties o Contribute to their empowerment and recognition o Also to contribute to broader societal gaols such as community development, human rights, justice and security Uses a process which is fair o Fairness in procedure is fundamental o All forms of ADR should aim to achieve fairness in procedure o Procedures are viewed as fairer when participants have more control over the process o Dignitary process features are important. What are these?  A belief that the disputant is treated with respect  A belief that the dispute is treated with seriousness Process is accessible o Barriers to participation are reduced (eg cost) o Parties understand their role in the process and the reasons for the outcome Process achieves acceptable outcomes o At the conclusion of the process there should be no need to resort to another forum or process o The process should promote certainty and encourage compliance o The notion of what is ‘acceptable’ varies:  EG: Particular responsibilities apply to family/child mediators with respect to the best interests of the children

ADR v Traditional adversarial dispute resolution -

ADR Issues defined by the parties Solutions designed by the parties Fact-based Less need for legal representation Choice of decision-maker Less-formal Maintain relationships

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Determination of a dispute Winning a case

Traditional - Issues defined by the parties or law - Solutions designed by third parties - Law-based - High cost of legal representation - Power imbalances - Urgent interim action - Coercive power of estate Difference - Resolution of a dispute - Obtaining the best outcome

Approaches to dispute resolution Facilitate -

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Involves a third party often with no advisory or determinative role, providing assistance in managing the process of dispute resolution. The dispute resolution practitioner assists the parties identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole of the dispute Examples o Negotiation, facilitation, conferencing and mediation

Advisory -

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Involves a third party who investigates the dispute and provides advice on the facts and possible outcomes. The dispute resolution practitioner appraises the dispute and provides advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these may be achieved. Examples? o Expert appraisal, case appraisal, conciliation, mini-trial and early neutral evaluation

Determinative -

Involves a third party investigating the dispute which may include a formal hearing and the making of a determination which is potentially enforceable. The dispute resolution practitioner evaluates the dispute and makes a determination The process may include the hearing of formal evidence from the parties Examples? o Arbitration, expert determination and private judging

Restorative -

Focuses on promoting understanding by one party (usually a perpetrator) on the effects of their actions on another party (usually the victim) Hybrid The dispute resolution practitioner plays multiple roles first using one process (eg mediation) and then applying another process (eg arbitration) Examples? o Mediation & Arbitration

Party power & Autonomy

Appropriate or alternative -

ADR is increasingly being referred to as ‘appropriate’ dispute resolution. WHY? Recognition that these processes may not merely be an alternative to litigation but may in fact be the best approach to resolving the dispute See further: New Directions for the Victorian Justice System 2004–2014: Attorney- General’s Justice Statement (2004) 33.

Approaches to ADR: Distributive v Integrative -

https://www.youtube.com/watch?v=oz5clyWOOIc (3:23 min) These approaches will be explored further in Session 2

ADRAC (Australian Dispute Resolution Advisory Council) -

ADRAC (Australian Dispute Resolution Advisory Council): www.adrac.org.au o Voluntary independent council o Developed a charter to provide thought leadership in exploring, developing and promoting DR in Australia o Provides annual reports, submissions, articles and resources o Heritage lies in the work of NADRAC (National ADR Advisory Council) – the ADR advisor to the Commonwealth Attorney General on matters relating to ADR. o It was dissolved in 2011 but many of its reports are still referred to and available on AG website: https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx

Session 2- Facilitative ADR Processes -

Chapters 2 & 3

Facilitative ADR -

Is a term given to a group of ADR processes that rely on the skills of the parties and practitioners to support the parties address conflict and generate win-win outcomes. The focus is on the parties developing options and solutions, not having them imposed or suggested by others. This approach to ADR is characterised by significant party-autonomy o Negotiation o Mediation o Conferencing

Negotiation Definition -

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Negotiation is a process where the parties involved modify their demands to achieve a mutually acceptable compromise (Kennedy et al. 1984) The essence of negotiation is that there is no third party whose role is to act as facilitator or umpire in the communications between the parties as they attempt to resolve their dispute (Astor and Chinkin 2002). It is the most cost-effective and efficient method of resolving disputes between parties. It is the most common form of dispute resolution process

Types of negotiation -

Two types o Direct negotiation o Indirect negotiation

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Direct negotiation – conducted between the parties themselves. Indirect negotiation – conducted through the parties’ representatives such as agents or lawyers. The representatives: o act on behalf of the parties o may have authority to reach agreement on their behalf. The negotiation process may involve the assistance of a dispute resolution practitioner (‘facilitator’). The facilitator has no advisory or determinative role over the content of the negotiation, but may have advise on or determine the process.

Harvard Negotiation Project (“PON”)

Six guidelines for ‘getting to yes’ 1. Separate the people from the problem o Exploring the other side’s perceptions openly and avoid the tendency to blame. o Negotiate hard but don’t be hard on the otherperson 2. Focus on interests not positions o Draw out the interests underlying your counterpart’s positions by asking questions, such as, “Why is this issue important to you?” o By identifying what interests are motivating the other party, and sharing your own interests, you can open up opportunities to explore tradeoffs across issues 3. Lean to manage emotions o “Freed from the burden of unexpressed emotions,” write the authors in Getting to Yes, “people will become more likely to work on the problem.” 4. Express appreciation o Fisher stressed the importance of expressing appreciation as a means of breaking through impasse. o Seek merit in the other party’s perspective 5. Put a positive spin on your message o Communicating in a positive way is a much more effective means of getting to yes than blaming and criticizing. 6. Escape the cycle of action and reaction o Avoid the common negotiation trap of action and reaction: “If the other side announces a firm position, you may be tempted to criticize and reject it. If they criticize your proposal,” o To head off this vicious cycle, Fisher, Ury, and Patton introduce a negotiation skill they call negotiation jujitsu, which involves avoiding escalation by refusing to react.

Negotiation Types Distributive negotiation- the fixed pie -

There is a limited or finite amount of what is being distributed or divided The proportions to be distributed are variable: one party gains when the other loses Each party enters the negotiation with the aim of trying to claim as much value as possible

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Characterised by adversarial approaches and competitive behaviours Each party must compromise Distributive negotiation is used where the focus is on a single or “one-off” transaction

Strategies in distributive negotiations: https://www.youtube.com/watch?v=q8jIBs1rjNI (6:38 min) -

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Identifying Characteristics o Opening offer o Adoption of negotiating style: avoid, submit, compromise, compete o Making of concessions o Tactical behaviours that can include withholding information, intimidation, aggression, deception, omission and modification Disadvantages o The tactics and strategies that are used are often not supportive of any continuing relationship. o Therefore distributive negotiation is often unhelpful where: o a continuing relationship is involved; o a fixed value is not in issue; o all parties seek an agreed outcome.

Integrative negotiation- expanding the pie: everyone wins something (usually) -

This process referred to as collaborative, merit-based, principled, cooperative or problemsolving negotiation where: There is a focus on interests, needs and objectives, of the parties rather than position; A range of options is generated before an outcome is determined; The issues in the dispute remain the focus, rather than the people.

Principles negotiation -

Expanding on the notion of integrative or interest-based negotiation, Fisher and Ury (‘Getting to Yes’) developed the notion of principled negotiation. Principled negotiation seeks to resolve issues on their merits rather than through a haggling process

https://www.youtube.com/watch?v=RfTalFEeKKE (8:46 min) -

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Key features of principled negotiation o People: separate the people from the problem o Interests: focus on interests not positions o Opinions: generate a variety of possibilities before deciding what to do o Criteria: insist that the result be based on some objective standard Principled negotiation can be facilitated through a negotiator or can be conducted between the parties themselves. Parties have the most freedom to determine the resolution through principled negotiation compared with other forms of ADR

Case study -

Textbook [2.40]:

Alexei purchased a mobile internet package from a telco provider. This included a portable wifi device that would provide wireless access to up to five computers, phones or other devices and a two-year contract with a monthly charge.

The wifi device was “free” provided that a monthly amount was paid that was linked to his mobile phone account. A package containing the wifi device and brief instructions were delivered to his home. When he opened the package and tried to connect via his laptop computer, it would not work. He rang the telco company.

What would happen in a distributive negotiation? -

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Alexei presents a list of demands: if he did not get his money back and compensation for business he had lost, he would cancel all of his contracts and would contact a national media program (ie opening with an exaggerated offer). The telco responds by saying that Alexei had signed a contract and was liable to pay the full amount if he cancelled and that if there was something wrong with the equipment it could be returned, at Alexei’s cost, to be repaired but that this would take up to four weeks. Alexei insists that no concessions should be made by him because his starting point was valid. The telco responds “that is all that I can do” (final offer). Alexei reiterates the threat of “going to the media”.

What would happen in an integrative negotiation? -

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Alexei and the telco the problem and work through some troubleshooting tips. After carefully checking the wifi device, it was clear that it was not connecting to the internet – essentially, the telecommunications network was not available. The telco rep says that she would contact the service technicians and ring Alexei back. When she called back she explained that Alexei was in an area of patchy reception and that this meant that the modem might not be able to access the network in all areas of Alexei replies that he really needed the device to work all over the house as he did most of his work downstairs They then talk about what different options might be available and what Alexei considered to be ‘fair’

Difference -

Distributive model spends more time exchanging offers and counter-offers Integrative model spends more time exploring the problem In the distributive model there is little or no recognition of the underlying interests but rather a focus on demands and negotiating position In the integrative model the options are referenced back to the needs and interests identified earlier in the conversation

Negotiating difficulties & solutions Resistance in negotiations - Stonewalling - Ultimatums - Lying - Bluster - Calculated delays

Techniques to overcome resistance - ‘Park’ difficult issues to build momentum and goodwill - Take a break - Blind bidding - Reality checking - Role reversal - Computers…? - https://www.youtube.com/watch?v=YOZczuvrou4 (10:26 min)

Preparing for negotiation -

Regardless of the type or content of the negotiation, it is important to be prepared. o Set aside time to focus o Make notes o Reality test

Preparing for negotiation: Summary 1. Determine interests o Each negotiator explores their own interests (not positions) o Each negotiator considers the interests of the other party and the interests of any others that may not be present 2. Determine alternatives o What will happen if there is no agreement? o What is your best alternative to a negotiated agreement (BATNA)? o What is your worst alternative to a negotiated agreement (WATNA)? 3. What are the options? o What ideas could be exchanged in the negotiation? o Are there options other than money that might be appealing? EG reputation, maintaining a business relationship. 4. What information is required? o What questions need to be asked to assist reaching agreement? o What are the practicalities? Where will the negotiation take place? What are the time limits? Should it be face to face? 5. How are you going to communicate? o Explore alternative communication strategies 6. Are there any relationship issues? o For example, a lack of trust. Can these issues be overcome? If so, how? 7. Determine outcomes/products of the negotiation o ...