Conflict Diagnosis and Alternative Dispute Resolution

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ISBN: 9780130981097 | 0130981095
Cover: Hardcover
Copyright: 1/1/2004

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Now in paperback, this book addresses the rapidly evolving field of Alternative Dispute Resolution in a manner ahead of its time. Taking a cross-disciplinary approach, it explains the cognitive, social, organizational and developmental psychology theories that influence ADR and its approaches. From mediation to arbitration to hybrid processes, it helps students understand the strengths and weaknesses of the many varieties of ADR, and why various approaches succeed or fail. This edition includes streamlined coverage of conflict diagnosis, increased treatment of non-adversarial, facilitative forms of dispute resolution, and the latest legal and ethical trends impacting the field.For human resources personnel, dispute resolution system designers, trainers and ombuds, as well as ADR neutrals and neutrals-in-training

PART I INTRODUCTION

(90)

1 Basic Definitions

(10)

Interpersonal Conflict

(6)

Basic Attributes of Conflict

(5)

Parties to Conflict

(1)

What to Make of This Chapter

(1)

Exercises, Projects, and "Thought Experiments"

(1)

Recommended Readings

(1)

2 Dispute Resolution Processes: An Introduction

(15)

Forms of Dispute Resolution

(8)

Negotiation and Adjudication

(6)

Mixed, or Hybrid, Dispute Resolution Processes

(1)

A Summary of Dispute Resolution Processes

(2)

Exercises, Projects, and "Thought Experiments"

(3)

Recommended Readings

(1)

3 Of Artisans, Invisible Veils, and Philosophical Maps: Our Preconceptions About Conflict and How They Shortchange Us

(21)

Artisanship and the Craft Metaphor

(7)

Cultural Influences on the Blueprint and Toolbox

(4)

The Invisibility of the Dominant Blueprint

(1)

Conflict as Battle

(6)

The Influence of Ambiguity

(1)

Lawyers and the American Legal System

(5)

Good and Bad Conflict

(4)

Perspectives on "Good" and "Bad" Conflict

(2)

An Evaluation of Interpersonal Conflict Depends on How It Is Handled

(1)

Exercises, Projects, and "Thought Experiments"

(1)

Recommended Readings

(2)

4 Conflict Diagnosis

(13)

Who Needs to Know About Conflict Diagnosis?

(3)

Conflict Diagnosis for Conflict Gamers and Conflict Phobics

(3)

Conflict Diagnosis for Conflict Professionals

(1)

Conflict Diagnosis and Alternative Dispute Resolution

(5)

Summary

(1)

Exercises, Projects, and "Thought Experiments"

(1)

Recommended Readings

(1)

5 Recurrent Themes in Conflict Diagnosis

(29)

The Seven Steps of Social Behavior

(14)

Step 1: Social Stimulus

(1)

Step 2: Stimulus Reception

(2)

Step 3: Stimulus Interpretation

(4)

Step 4: Disputant Generates Options for Responding

(1)

Step 5: Disputant Weighs the Options

(4)

Step 6: Disputant Chooses an Option

(1)

Step 7: Disputant Acts, Creating a New Social Stimulus

(1)

Summary: The Seven Steps of Social Behavior

(2)

The Ten Themes of Conflict Diagnosis

(7)

Theme 1: Behavior Makes Sense

(1)

Theme 2: Each Individual's Interpretation of Reality Is Subjective

(1)

Theme 3: Use of Conflict to Form Perception

(1)

Theme 4: Perceptual Biases Are Unconscious

(1)

Theme 5: Perceptual Biases Feed Conflict

(1)

Theme 6: The Pleasure Principle

(1)

Theme 7: Subjectivity of Expectations About Results

(1)

Theme 8: Complexity and Inconsistency of Motivation

(1)

Theme 9: Actual and Intended Results of Action May Differ

(1)

Theme 10: The Self-Fulfilling Nature of Conflict

(1)

Putting the Themes Together

(1)

Conclusions: Themes of Conflict Diagnosis

(2)

Exercises, Projects, and "Thought Experiments"

(2)

Recommended Readings

(1)

PART II THE STEPS OF CONFLICT DIAGNOSIS

(212)

6 Step 1. Describe the Conflict

(11)

Exercises, Projects, and "Thought Experiments"

102

(1)

7 Step 2. Identify the Sources of the Conflict

103

(23)

Resource Conflicts

105

(5)

Data-Type Conflicts

110

(1)

Preferences and Nuisances

111

(1)

Differing Attributions of Causation

111

(1)

Communication Problems

112

(2)

Differences in Conflict Orientation

114

(1)

Structural and Interpersonal Power Conflicts

114

(2)

Identity Conflicts

116

(5)

Loss of Face

116

(1)

Relationship Break-Ups and Identity Conflicts

117

(1)

Men Are from Mars: Separation and Individuation Issues in Identity Conflict

118

(1)

World View and Identity

119

(2)

Values Conflicts

121

(2)

Displaced and Misattributed Conflict

123

(1)

Using Sources of Conflict to Understand and Diagnose Conflict

123

(1)

Exercises, Projects, and "Thought Experiments"

124

(1)

Recommended Readings

125

(1)

8 Step 3. Perform an Interests Analysis

126

(28)

What Is the Purpose of Interests Analysis?

127

(7)

Analyzing Your Team's Interests

128

(2)

Analyzing the Other Disputant's Interests

130

(2)

Analyzing the Interests of Constituents and Stakeholders

132

(1)

Analyzing the Interests of Agents and Advocates

133

(1)

Performing an Interests Analysis: The Conflict Onion and Interest Tree

134

(13)

Positions

135

(1)

Aspirations

136

(1)

Underlying Interests

137

(1)

Principles and Values

138

(2)

Basic Human Needs

140

(6)

Interests Analyses for Members of the Other Team

146

(1)

Summary

147

(1)

Identifying Divergent and Complementary Interests

147

(4)

Exercises, Projects, and "Thought Experiments"

151

(2)

Recommended Readings

153

(1)

9 Step 4. Assess the Character of the Conflict as Constructive or Destructive

154

(23)

Morton Deutsch's Theory of Constructive and Destructive Conflict

155

(19)

Premises of Deutsch's Theory

156

(14)

Implications of Deutsch Theory for Conflict Diagnosis

170

(4)

Exercises, Projects, and "Thought Experiments"

174

(2)

Recommended Readings

176

(1)

10 Step 5. Assess the Levels of Trust and Develop Strategies to Increase or Preserve It

177

(15)

Levels of Trust

178

(6)

Calculus-Based Trust

179

(1)

Knowledge-Based Trust

180

(1)

Identification-Based Trust

181

(3)

Mistrust

184

(1)

Origins of Trust

184

(1)

Effects of Trust

185

(2)

Implications for Conflict Diagnosis

186

(1)

The Business Relationship

187

(3)

Explicit and Detailed Agreements

188

(1)

Formality

188

(1)

Restraint of Emotional Expression

189

(1)

Balanced, Neutral Factfinding and Evaluation

189

(1)

Exercises, Projects, and "Thought Experiments"

190

(1)

Recommended Readings

191

(1)

11 Step 6. Assess the Impediments to Resolving the Conflict

192

(23)

Motivation to Seek Vengeance

193

(1)

Meta-disputes

194

(1)

Mistrust

195

(1)

Vastly Differing Perceptions of Reality

196

(1)

Overcommitment and Entrapment

197

(3)

Lack of Ripeness

200

(1)

Jackpot Syndrome

201

(1)

Loss Aversion

202

(1)

Linkages

202

(1)

Conflicts of Interest Among Team Members

203

(2)

Excluded Stakeholders

205

(1)

Disempowered Disputant

206

(1)

Unpleasant Disputant

207

(1)

Competitive Culture or Subculture

208

(2)

Exercises, Projects, and "Thought Experiments"

210

(4)

Recommended Readings

214

(1)

12 Step 7. Assess the Negotiation Styles and Practices of the Participants

215

(19)

Negotiation Theory and Deutsch's Model

216

(1)

The Dual-Concern Model

217

(13)

Considerations Involved in Using the Five Negotiation Styles

221

(3)

Tactics Used in Integrating

224

(2)

Limitations on the Usefulness of the Dual-Concern Model

226

(2)

Measurement of Negotiation Style Preferences

228

(2)

Implications for Conflict Diagnosticians

230

(1)

Exercises, Projects, and "Thought Experiments"

231

(2)

Recommended Readings

233

(1)

13 Step 8. Assess Power and Alternatives to a Negotiated Agreement

234

(29)

Domains of Power

235

(1)

Kinds of Power in the Relationship Domain

236

(7)

Coercive Power

236

(1)

Reward/Exchange Power

237

(1)

Referent Power

237

(1)

Normative Power

238

(1)

Expert Power

239

(2)

Ecological Power

241

(1)

Power and Alienation

241

(1)

Sources of Relationship Power

242

(1)

Context and Power

243

(2)

The BATNA

245

(8)

Assessing the BATNA

246

(3)

Knowing the Other Disputant's BATNA

249

(1)

Litigation and the BATNA; Performing Case Valuation

249

(3)

Drawbacks of BATNA Analysis

252

(1)

Power Imbalance

253

(6)

Group Power Imbalance

255

(1)

Becoming Empowered

256

(1)

Dealing with Power Imbalance

257

(2)

Implications for Conflict Diagnosis

259

(1)

Exercises, Projects, and "Thought Experiments"

260

(2)

Recommended Readings

262

(1)

14 Step 9. Consider Diversity Issues at Play in the Conflict

263

(40)

Definition and Scope

266

(1)

Categories of Diversity Issues

266

(33)

Stereotyping

268

(16)

Culture

284

(9)

Power

293

(6)

Summary: Diversity Issues in Interpersonal Conflict

299

(1)

All Interpersonal Conflicts Are Diversity Conflicts

299

(1)

Conflict Diagnosticians and Diversity

299

(1)

Exercises, Projects, and "Thought Experiments"

300

(2)

Recommended Readings

302

(1)

PART III ALTERNATIVE DISPUTE RESOLUTION PROCESSES

303

(212)

15 Mediation: An Introduction

305

(29)

Basic Definitions

306

(4)

Mediation

306

(2)

Processes Related to Mediation

308

(1)

The Product of Mediation

309

(1)

Uses of Mediation Today

310

(3)

Varieties of Mediation

313

(9)

Triage Mediation

314

(1)

Bargaining-Based Mediation

315

(2)

Therapeutic Mediation

317

(1)

Pure Mediation

318

(2)

Transformative Mediation

320

(2)

Participant Roles In Mediation

322

(8)

Mediator(s)

323

(2)

Disputants and Their Lawyers

325

(2)

Paralegals

327

(1)

Constituents and Dependents

328

(2)

Consultants and Experts

330

(1)

Exercises, Projects, and "Thought Experiments"

330

(2)

Recommended Readings

332

(2)

16 Advantages and Disadvantages of Mediation

334

(26)

Advantages of Mediation

335

(14)

Efficiency Considerations

335

(2)

Conflict Management and Conflict Prevention

337

(1)

Relationship Preservation

338

(2)

Comprehensiveness

340

(3)

Ability to Handle Meta-Disputes

343

(1)

Disputant Quality of Consent, Power, and Autonomy

344

(1)

Psychological Ownership and Quality of Consent

344

(3)

Individual Transformation

347

(1)

Minimization of Conflicts of Interest with Legal Counsel

348

(1)

Advantages of Litigation over Mediation

349

(6)

Guaranteed Outcome

349

(1)

Nature of Enforceability

349

(1)

Legal Precedent

350

(1)

Privacy Issues

351

(1)

Mediation and Low-Power Disputants

351

(4)

Mediation Isn't the Option of Last Resort

355

(1)

Advantages of Negotiation over Mediation

355

(1)

Summary: Advantages and Disadvantages of Mediation

355

(2)

Exercises, Projects, and "Thought Experiments"

357

(2)

Recommended Readings

359

(1)

17 The Process of Mediation

360

(23)

Stages of Mediation

361

(8)

Initial Client Contact

361

(2)

Introductory Stage

363

(1)

Issues Clarification and Communication

364

(2)

Productive Stage

366

(2)

Agreement Consummation

368

(1)

Debriefing and Referral

368

(1)

What Do Mediators Do?

369

(11)

Facilitative Tactics in Mediation

369

(6)

Evaluative Tactics In Mediation

375

(5)

Exercises, Projects, and "Thought Experiments"

380

(2)

Recommended Readings

382

(1)

18 The Law and Ethics of Mediation

383

(42)

Introduction: Why Regulate Mediation?

384

(6)

Preserving the Essence of Mediation

385

(3)

Ensuring the Effectiveness of Mediation

388

(1)

Protecting Other Rights

389

(1)

Legal Issues in Mediation

390

(31)

Confidentiality

390

(12)

Mandating of Mediation

402

(9)

Provision of Legal Services by Mediators

411

(1)

Behavior of Legal Advocates During Mediation

412

(2)

Mediator Impartiality and Neutrality

414

(3)

Regulation of Mediator Competency

417

(3)

Enforceability of Mediated Agreements

420

(1)

Exercises, Projects, and "Thought Experiments"

421

(2)

Recommended Readings

423

(2)

19 Arbitration

425

(37)

From "People's Court" to "Creeping Legalism": The Dilemma of Modern Arbitration

426

(4)

A Brief History ofArbitration in the United States

426

(4)

Arbitration Between a Rock and a Hard Place

430

(1)

Varieties of Arbitration

430

(2)

Executory and Ad-Hoc Arbitration

430

(1)

Administered and NonadministeredArbitration

431

(1)

Interest and Rights Arbitration

432

(1)

Other Arbitration Varieties

432

(1)

Arbitration and the Conflict Diagnostician

432

(8)

Advantages ofArbitration, Compared to Litigation

436

(1)

Disadvantages ofArbitration, Compared with Litigation

437

(1)

Advantages ofArbitration, Compared with Negotiation

438

(1)

Disadvantages ofArbitration, Compared with Negotiation

439

(1)

Advantages ofArbitration, Compared with Mediation

439

(1)

Disadvantages ofArbitration, Compared with Mediation

440

(1)

Process ofArbitration

440

(7)

Creating the Arbitration Contract

440

(3)

Demanding, Choosing, or Opting for Arbitration

443

(1)

Selecting the Arbitrator or Arbitration Panel

444

(1)

Selecting the Procedural Rules

444

(1)

Preparing for Arbitration

445

(1)

Participating in the Arbitration Hearing

445

(1)

Issuing the Arbitration Award

446

(1)

Enforcing the Award

446

(1)

Law of Arbitration

447

(11)

Before Arbitration

447

(5)

After Arbitration

452

(4)

Choice of Law

456

(2)

Exercises, Projects, and "Thought Experiments"

458

(3)

Recommended Readings

461

(1)

20 Nonbinding Evaluation

462

(14)

Varieties of Nonbinding Evaluation

464

(4)

Nonbinding Arbitration

464

(1)

Minitrial

465

(1)

Summary Jury Trial

466

(1)

Neutral Evaluation

467

(1)

Dispute Review Boards

467

(1)

Advantages and Disadvantages of Nonbinding Evaluation

468

(5)

Compared with Litigation

468

(2)

Compared with Arbitration

470

(1)

Compared with Mediation

471

(1)

Conclusions: Advantages and Disadvantages of Nonbinding Evaluation

472

(1)

Legal Issues in Nonbinding Evaluation

473

(1)

Exercises, Projects, and "Thought Experiments"

474

(1)

Recommended Readings

475

(1)

21 Mixed (Hybrid) and Multimodal Dispute Resolution Processes

476

(39)

Varieties of Mixed, or Hybrid, Processes

477

(11)

Med Arb

477

(3)

Arb-Med

480

(2)

Mediation Windowing

482

(1)

Incentive Arbitration

482

(1)

Minitrial

483

(1)

Ombuds

483

(5)

Multimodal ADR Programs and Processes

488

(22)

Dispute Resolution Systems

488

(4)

Court-Connected ADR

492

(6)

Online ADR

498

(12)

Exercises, Projects, and "Thought Experiments"

510

(2)

Recommended Readings

512

(3)

PART IV PUTTING ITALL TOGETHER

515

(47)

22 Power Tools and Magic Keys: Using Conflict Diagnosis to Manage Legal Disputes and Select ADR Processes

516

(46)

Is Conflict Diagnosis Necessary?

517

(7)

Using Conflict Diagnosis

524

(32)

Choosing Strategies and Tactics for Handling Conflict

524

(10)

Choosing a Dispute Resolution Process and Provider

534

(22)

In Search of Magic Keys to Resolving Conflict

556

(2)

Exercises, Projects, and "Thought Experiments"

558

(3)

Recommended Readings

561

(1)

APPENDIX A Alternative Dispute Resolution Act of 1998

562

(4)

APPENDIX B Alternative Dispute Resolution Act of 1996 (Selected Provisions)

566

(7)

APPENDIX C Uniform Mediation Act (Selected Provisions)

573

(4)

APPENDIX D Federal Arbitration Act (Selected Provisions)

577

(3)

APPENDIX E Federal Statute Concerning the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Selected Provisions)

580

(2)

REFERENCES

582

(9)

TABLE OF LEGAL REFERENCES

591

(2)

WEBSITES

593

(1)

GLOSSARY

594

(13)

INDEX

607

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Conflict Diagnosis and Alternative Dispute Resolution

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Table of Contents

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