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Assisted Dispute Resolution

by UofL Ombuds Office last modified Jan 22, 2009 01:12 PM

What is the purpose of assisted dispute resolution and how can it help?

The purpose of assisted dispute resolution is, with the explicit permission of those involved, to help people involved in a dispute to engage in problem-solving conversation with one another with the assistance of an ombuds person. In essence, this conversation amounts to an "assisted negotiation" between the parties. Assisted dispute resolution can loosen the "deadlocks" which often prevent resolution and promote understanding, cooperation, and joint problem-solving between disputing parties.

What are the advantages of assisted dispute resolution?

Unlike other forms of dispute resolution (e.g., filing a grievance, going to court, formal mediation, or even asking an expert to decide how a dispute will be resolved) assisted dispute resolution:

  1. is informal
  2. is confidential
  3. gives the individuals most directly affected by the dispute maximum input in arriving at a solution, and 
  4. promotes greater understanding between people in disputes, which gives it a much greater probability of "healing" relationships. 

Is assisted dispute resolution really confidential?

Yes. Except under very limited circumstances. The Ombuds Office cannot guarantee confidentiality when:

  1. an Ombuds Office staff member witnesses a crime or
  2. an Ombuds Office staff member is told by a user of the Office about the intent of an individual to harm him/herself or another person.

Note: When there is a legal subpoena requiring that the Ombuds Office testify or turn over records, the office will ask University counsel to seek to "quash" the subpoena and prevent ombuds testimony.

What happens in assisted dispute resolution?

Assisted dispute resolution functions as a "controlled conversation." In the beginning, participants often interact with the ombuds person directly, as the other party listens. In virtually all successful assisted dispute resolution, the parties talk about the concerns which brought them to this process and what they hope this process will help them accomplish. The ombuds person asks questions to identify the underlying interests of both parties and to identify the specific issues that need to be resolved for this process to be successful. Ombuds persons ateempt to "re-frame" the problems so to focus on the genuine concerns of both parties. Next, the parties generate various alternatives designed to resolve the specific concerns of both parties. They then "fine-tune" their agreement(s) until they are satisfied that the agreement(s) resolve their concerns. Finally, the mediator then types an agreement and gives it to each party to sign, date, and give to the other.

What can you do to help assisted dispute resolution succeed?

Remember that your goal is to gain the cooperation of the other party in resolving the dispute, for the lack of cooperation between you led to the need for mediation in the first place. So, behave in ways that you think will result in a desire to cooperate with you, rather than resist you.

Talk honestly about your real concerns while at the same time treating the other person with person. Honesty and respect can help both parities avoid eliciting defensiveness from the other person and so becoming deadlocked in unproductive discussion. 

Listen carefully to the concerns of the other party so that you can demonstrate that you understand them. 

Adhere to a principal ground rules of this process: "No interrupting" and "No deliberate ’button-pushing.’"

Keep the content of the discussions confidential unless you and the other party agree to share its contents with a specific person or persons.

Stay self-focused, rather than talking about other concerns or about other people who are not a part of the process. 

For additional information, see Eliciting Resistance VS Gaining Cooperation (pdf)

When does assisted dispute resolution have the best chance to succeed?

  1. the parties are concerned about both the content of their dispute and preserving their relationship, when both parties talk honestly and respectfully about the dispute which led them to this process,
  2. disputes have been present for a shorter--rather than a longer--period of time,
  3. the parties believe a negotiated agreement would probably provide a better outcome than their next best alternative,
  4. neither party insists that the other should be punished,
  5. when hostilities are moderate or low, and
  6. it is voluntary for both parties. 

What causes assisted dispute resolution to fail?

If disputants engage in behaviors which elicit the other party's resistance,  assisted dispute resolution is likely to fail. For more information, see Eliciting Resistance VS Gaining Cooperation (pdf). Also, Fisher and Ury, authors of the classic book on negotiation, Getting To Yes (Penguin Books, 1981) say many disputants make the mistake of assuming that "solving the other guy's problem is the other guy's problem." If disputants ignore the interests of the other party when the ombuds person ask them to generate problem solving options, then assisted dispute resoulution is also likely to fail.

When is assisted dispute resolution NOT appropriate?

Usually, mediation is not appropriate when:
  • there is physical violence (or the imminent threat of physical violence),
  • abusive or harassing behavior is present AND the person engaging in these behaviors refuses to stop,
  • neither party cares about preserving the relationship,
  • there is no ongoing relationship between the parties (usually),
  • one or both parties insist/s on punishment as the only appropriate resolution,
  • the parties want to resolve a "values" dispute by persuading the other person to change his/her academic, work-related, or personal values.
  • one or both parties lacks the authority to make agreements,
  • one or more participants are drunk, stoned, or otherwise impaired,
  • criminal law or a code of professional conduct has been violated (usually).
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