Managing People III

Dispute Resolution
Problem Prevention
Different Ways to Solve Problems

Corporations (nonprofit and for profit) will sometimes have a disagreement (dispute) come up. These disputes can be small (a problem with an employee about how much overtime pay they should get) or huge (the government is disputing whether you are legally a nonprofit).

Not every negotiation or mediation has to be a fight. Positively dealing with disputes and conflicts as soon as possible is very important for the well being of the nonprofit. The basic idea is to talk openly to find a solution that both sides can agree on, which satisfies everyone's concerns, needs and interests.

For an overview of approaches to alternative dispute resolution tools and conflict management, see the Association for Conflict Resolution
http://www.acrnet.org/about/CRFAQ.htm#whatisCR

The order in which alternative dispute resolution processes are used is very important. In order to keep costs down and get a decision more quickly, a suggested order would be:

Try to agree on a solution to the problem.
If you can't agree on a solution, bring in a mediator to assist.
If mediation does not work, consider arbitration.
As a last resort, take legal action and go to court.

Any discussion should begin with defining terms so that each side correctly understands the other side. Below are terms usually used in resolving a dispute.

Try to agree on a solution to the problem:

Voluntary
The people involved in a dispute choose to take part in an alternative dispute resolution process. There are no legal penalties for deciding not to voluntarily participate.

Negotiation
The people sit down and talk to each other (with or without attorneys) and try to discuss and find a solution that both sides can agree on.

If you can't agree on a solution, bring in a mediator to assist:

Mediation
The people sit down and talk to each other with another person (mediator) who is neutral (not on either side of the disagreement). The mediator helps both sides discuss and find a solution that both can agree on. The mediator does not have the power to make a decision about the dispute.

Neutral
An individual who is not affected by the outcome of a dispute and does not agree with either side of the disagreement is neutral. Mediators and arbitrators are neutrals.

Evaluation
The facts of the dispute are given to a neutral person who gives his or her opinion of what the likely outcome (decision) would be if it went to trial.

Conciliation
A neutral person works informally with the disputing individuals, separately or together, when they are having trouble discussing the dispute alone. The neutral person tries to lower emotions and tension, improve communications so the disputing individuals understand each other's point of view and explore possible solutions.

If mediation does not work, consider arbitration:

Arbitration
The dispute and evidence are presented to a person or a group of people who are neutral (not on either side of the disagreement) for a decision, which is called an award. An arbitration award may be either binding or non-binding (see definitions below). The people involved must accept the award because they agreed to do so before the arbitration or because of current laws.

Binding
The decision (resolution) of a dispute cannot be appealed because of current laws. (Arbitration can be binding or non-binding. Mediation is never binding.)

Non-binding
The decision of an alternative dispute resolution that allows (but does not require) an appeal is considered non-binding.

As a last resort, take legal action and go to court:

Adjudication
The dispute is resolved after a trial by the decision of a judge or a judge and jury. In court, both sides have a chance to describe their facts and talk about the current laws they think will prove their side.

Private Judging
Disputing individuals may decide to hire a retired judge to perform a private trial and give a binding decision on the dispute. The private judge handles a non-jury trial as if he/she was an active judge of the court. Decisions made by the private judge may be appealed to higher courts.

Alternative Resolutions:

Alternative Dispute Resolution (ADR)
The dispute is resolved in a different way than going to court, such as meeting with an arbitrator or a mediator.

Mandatory
A person is legally forced to take part in an alternative dispute resolution process because of a contract, a court order or a court rule.

Court Annexed
Alternative dispute resolution programs that are operated, funded or sponsored by a court.

This is a complicated subject and site users should not try to resolve a dispute based solely on the information they find on this site. You should work with specialists in each area such as an attorney, an arbitrator or a mediator.

The sites below provide general information about alternative dispute resolution and resources on arbitration, mediation and other methods of conflict management.

American Arbitration Association
www.adr.org

ADR Resources site by Stephen R. Marsh
http://adrr.com/

American Bar Association Section on Dispute Resolution publication: What You Need to Know About Dispute Resolution: The Guide to Dispute Resolution Processes
http://www.abanet.org/dispute/processguide.html

http://www.abanet.org/dispute/draftbrochure.pdf

The Conflict Resolution Information Source
http://www.crinfo.org/

Executive Summary of the Uniform Mediation Act
http://www.pon.harvard.edu/guests/uma/

Return to the First Page of Managing People I

Opening Considerations
Establishing the Employment Relationship
Administering the Ongoing Employment Relationship
Terminating Employment Relationship

Return to the Second Page of Managing People II

Duties of Employees/Board/Volunteers
Managing Conflicts (Volunteers, Board and Staff)
Running Effective Meetings
Conflict of Interest