Term Paper on "Conflict Resolution or ADR Legal Psychological"

Term Paper 7 pages (1906 words) Sources: 4 Style: APA

[EXCERPT] . . . .

Resolution

ALTERNATIVE DISPUTE RESOLUTION: LEGAL and PSYCHOLOGICAL

ASPECTS

The objective of this work is to examine the legal and psychological aspects of the different forms of alternative dispute resolution (ADR): negotiation, arbitration, mediation, summary jury trial. This work will answer the question of which types of cases this is best suited for and which cases are viewed as the best form of conflict resolution to prevent litigation and why.

Alternative Dispute Resolution is a process by which a third party offers assistance to those involved in a dispute in reaching a resolution that is agreeable to both parties and does through various techniques. ADR is the answer to conflict through cost avoidance, delays and the unpredictability associated with the "traditional adjudicatory processes while at the same time improving workplace communication and morale.

BACKGROUND

The Administrative Dispute Resolution Act (ADRA) required each federal agency to adopt a policy on ADR use in 1990 and ADRA was "reenacted as the Administrative Dispute Resolution Act of 1996 (ADR Act). The Equal Employment Opportunity Commission (EEOC) required all federal agencies to establish or make available an ADR program during the pre-complaint and formal compliant stages of the EEO process." (Equal Employment Opportunity Commission, nd) Furthermore, EEOC's regulation 29 C.F.R. Section 1615.603 requires agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible in, and throughout, the administrative process." (Equal Employment Opportunity Commission, nd) This is a good example of workplace conflict resolution processes and in this case specifically in the Federal Sector.

I. MEDIATION

One form of Alternative Dispute Resolution (ADR) that is offered by the EEOC "as an alternative to the traditional investigative or litigation process. Mediation is a process of an informal nature and involves negotiation of a conflict until resolved between the parties in a voluntary manner where discrimination is alleged. Advantages of mediation are stated to include the following:

Free: Mediation is available to the parties at no cost;

Fair and Neutral: Mediation allows both parties to have equal say in the process and terms of settlement. No guilt or innocence is determined in the process.

Saves Time & Money: Mediation allows time to be saved and monetary savings are realized as well;

Confidential: the mediation agreement includes the signing of a confidentially agreement by all parties. The information disclosed during mediation is not revealed to any outside of those in the mediation and the other EEOC investigative or legal staff.

Avoids Litigation: Lengthy litigation is avoided and mediation costs much less than a lawsuit with the uncertainties of judicial outcomes that are faced in litigation.

Communication Improved: Mediation provides a neutral and confidential setting where both parties can openly discuss their views on the underlying dispute, which leads to "mutually satisfactory resolutions."

Unique conflict resolution design: Assistance of a third party in reaching voluntary agreements that are mutually beneficial and may result in resolution of all important issues and not only the underling legal dispute.

Win-Win: Everyone is a winner in alternative dispute resolution (ADR) or mediation resolution techniques.

It has been shown in case study findings in an independent survey that of those who have participated in Alternative Dispute Resolution (ADR) mediation that 96% of all respondents and 91% of all claimants would utilize the mediation process again should the need arise and if it were a possible means for resolution.

II. DIFFERENT TYPES of ALTERNATIVE DISPUTE RESOLUTION

Different types of Alternative Dispute Resolution are used throughout the court system. For example, the New York State Unified Court System has Alternative Dispute Resolution in: (1) Family Court; (2) Criminal Court; (3) Supreme Court; and (4) Civil Court systems. Types of Alternative Dispute Resolution (ADR) used for bringing about resolution to disputes between parties include those as follows:

1) Binding Arbitration: This process involves "the presentation of a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of a binding decision. Unless arranged otherwise, the parties usually have the ability to decide who the individuals are that serve as arbitrators."

Often a list of arbitrators is provided from which the individuals are able to make a choice of an arbitrators. It is understood by the parties to this case that they will be obligated or bound by the decision arising out of the arbitration proceedings. The third party's decision is stated to generally have "the force of law but does not set a legal precedent. It is usually not reviewable by the courts." (U.S. Office of Personnel Management, nd)

2) Conciliation: This involves a positive relationships being built between the parties to a dispute. In this process, "a third party or conciliator (who may or not be neutral to the interests of the parties) may be used by the parties to help build such relationships." (U.S. Office of Personnel Management, nd) Conciliators may assist through "...establishing communication, clarifying misperceptions, dealing with strong emotions, and building the trust necessary for cooperative problem-solving. Some of the techniques used by conciliators include providing for a neutral meeting place, carrying initial messages between/among the parties, reality testing regarding perceptions or misperceptions, and affirming the parties' abilities to work together. Since a general objective of conciliation is often to promote openness by the parties (to take the risk to begin negotiations), this method allows parties to begin dialogues, get to know each other better, build positive perceptions, and enhance trust. The conciliation method is often used in conjunction with other methods such as facilitation or mediation." (U.S. Office of Personnel Management, nd)

3) Cooperative Problem-Solving: One of the most basic methods used in dispute resolution and is an "informal process" which generally does not require the services of a third party and is conducted wherever the parties involved agree to meet in seeking a resolution to the conflict. (U.S. Office of Personnel Management, nd; paraphrased)

4) Dispute Panels: This process involves clearing up misunderstanding through providing information that is missing or in finding resolutions related to fact or data differences and seeks a manner for conflicting parties to resolve their dispute. The recommendations provided by the panel may be of a procedural nature and as well, there may be sustentative recommendations, which arise from the panel to the dispute. (U.S. Office of Personnel Management, nd; paraphrased)

5) Early Neutral Evaluation: This process uses a natural third party in making the provision of a non-binding evaluation which is generally given in the form of a written instrument and provides those in the dispute an "...objective perspective on the strengths and weaknesses of the cases." (U.S. Office of Personnel Management, nd) This type of process sis particularly valuable when the dispute involves technical or factual issues, which require the examination of an expert.

6) Facilitation: This process is one that includes the utilization of techniques for improvement of communication processes between parties involved in a dispute.. The facilitators role is to work will those involved in the dispute by providing directions of a procedural nature in finding resolution to the dispute. (U.S. Office of Personnel Management, nd; paraphrased)

7) Peer Review: This process is characterized by problem solving where in which a dispute is taken to a group or panel by an employee and their managers in seeking a resolution to a dispute. (U.S. Office of Personnel Management, nd; paraphrased)

8) Ombudsmen: These individuals rely on various techniques in dispute resolution, which include: (1) counseling; (2) mediation; (3) fact-finding; and (4) conciliating. (U.S. Office of Personnel Management, nd; paraphrased)

9) Partnering: This process is used to bring about improvement in various working relationships and generally between the Federal Government and contractors through seeking dispute prevention proactively. (U.S. Office of Personnel Management, nd; paraphrased)

One type of mediation process that is frequently used is the mediation process in relation to the Americans with Disabilities Act (ADA) as "more than ever, employers and employees are turning to mediation and other forms of Alternative Dispute Resolution to resolve equal employment opportunity disputes." (U.S. EEOC, National Council on Disability and U.S. Department of Justice nd) Titles I and II of the ADA and Section 501 of the Rehabilitation Act make it a crime for private employers who employ fifteen or more individuals. Further prohibited are local, state and federal government employers from acts of discrimination against qualified individuals with disabilities with respect to all "terms, conditions, privileges of employment and require "reasonable accommodations' enabling qualified persons with disabilities to hold equal opportunities for employment.. Mediators from the outside have an obligation under Title II which covers state and local governments, as well as Title II of the ADA relating to public accommodations and Section 504 of the Rehabilitation Act relating to government programs and activities, to "provide auxiliary aids, effective communication, and accessible services unless an undue burden or fundamental alteration of the nature of the mediation program would result." (U.S. EEOC, National Council on Disability and U.S. Department of Justice nd) Another type of mediation agreement is the 'Universal Agreement to Mediate' (UAMS) which is an agreement between the… READ MORE

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