Challenging situations are common in the workplace, and no matter where you are in the organizational hierarchy, you may feel intimidated approaching them.
You can overcome challenging circumstances or conflicts by applying some of the techniques found in the best negotiation skills training courses that Stitt Feld Handy Group and other top firms have to offer.
1.) Emotional Control
Difficult individuals often thrive on their negative emotional impulses in the workplace and in debates. Thankfully, these impulses can be thwarted with your own controlled emotions.
A negotiator who responds to huge emotional swings with similar behaviour likely to go flying off the rails. Controlled and measured responses effectively counter any angry impulses.
Step back a bit from the situation and ask why this person is acting in this manner. Did they have a negative prior experience with someone else, or are they assuming something that is untrue?
For example, if you suspect or know that the party was hurt by someone in a similar negotiation in the past, it can win you favour to acknowledge their feelings or to empathize with them.
By flipping the expectations in a heated argument, savvy negotiators can see anger, frustration, and belligerence as the impulses of anxiety or insecurity that they often are. This understanding can then be used as a vital tool for negotiating the terms you want.
2.) Eye Contact and Body Language
Powerful body language is one of the fundamental techniques that the best negotiation skills training courses will refer to time and time again.
Consistent eye contact shows a willingness to pay attention to the needs of the other person while asserting confidence.
It can also provide valuable inferences as to what the other party is feeling. For example, an individual may break eye contact when they hear something they don’t like or enhance eye contact at vital decision points in the conversation.
3.) Empathy
Empathy requires an understanding of the other party’s place in the negotiation, including what they seek, their belief of where they stand in the organization, and where they derive from emotionally.
Empathy is needed for both employees and managers to successfully resolve difficult situations. Having empathy allows you to stand in the other party’s shoes and understand their challenges and frustrations. Demonstrating it can be equally important in a challenging circumstance.
4.) Commitment to a Decision
There’s a fine line between a willingness to be flexible and a commitment to a decision. Effective negotiation requires a delicate balance of these two considerations.
The best negotiation skills training courses teach business professionals when to commit to finalize a position. Business leaders need to be able to detect this.
You will have to find an endpoint eventually, but there are risks if that commitment occurs too soon before the other party has had a chance to air their concerns. This skill requires meticulous practice.
5.) Communication of Personal Ethics
In a challenging debate, the other party needs to know who you are and what you stand for, to ensure that your agreed decision reflects your core beliefs as well as theirs.
If they detect ethical ambiguity, they can exploit that to their advantage, forcing you to consider opening up a compromise that is not in your best interests.
If you have a strong ethical foundation that you communicate adequately, the other party will hit against a brick wall when it comes to the terms on which you simply won’t compromise. The above techniques will help any negotiator tackle a challenging business prospect or a difficult opponent.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
As tempting as it may be to send out a detailed email regarding a difficult topic in the workplace, it’s often far better to have a face to face meeting in a majority of circumstances.
Email certainly has its uses but isn’t particularly effective for challenging conversations, such as discussions relating to conflicts or personal performance issues.
Difficult conversations training programs will often emphasize the importance of face to face meetings for any challenging topics that need to be discussed. These advantages can go a long way in helping you manage any potential difficult conversations or conflicts in the workplace:
Allows you to demonstrate sincerity and body language
It’s hard to demonstrate how serious you are regarding any challenging topic through the written word alone.
Although you can clarify specifics through email and use it as a form of record keeping, meeting in person allows you to demonstrate your sincerity with the message you are trying to communicate.
The other party will also see the honesty in your body language and your points will be received much more effectively. On the other hand, you will also be able to see their body language and verbal responses to what you are communicating, which can tell you much more than a simple email reply.
Your coworkers will appreciate it and respect you more
It’s too easy to fire off an email after a few minutes of writing out your feelings; doing this too often can give the impression that you aren’t serious about being involved in the workplace and dealing with difficult situations head-on.
Your coworkers will sincerely appreciate it if you invite them for a face to face meeting, particularly for a challenging topic, as it shows that you are serious about what you are communicating and that you are willing to spend the time needed to work out any issue of concern.
Build relationships in your workplace
It’s difficult to build authentic relationships with your coworkers if they only know you from memos and emails.
Having meetings in person helps to build a real sense of community and gives employees the opportunity to know you on a more personal level – which can go a long way in building and maintaining a positive and motivated environment.
When discussing serious or challenging topics, face to face meetings give executives the opportunity to demonstrate their leadership and commitment to problem resolution, even when their schedules are busy and time is limited.
Develop two-way communication
Workplace communications regarding challenging topics are often one-sided and neglect what can be highly valuable insights from employees.
Face to face meetings give employees the chance to reply directly and air out their concerns, and they allow two-way communication to develop, which is essential to a healthy workplace.
During these meetings, employees can share valid insights or suggestions and pass them directly to supervisors and those who can make positive changes to the corporate culture to benefit everyone.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
Difficult people in any organization can be a source of conflict, stress and an energy drain. However, many of the personality characteristics that make people difficult are simple human nature.
Often, transferring to a new job or firing a person is not feasible. Many organizations have to interact with a range of difficult people externally, from customers to other businesses. We often have to coexist with difficult people, but it does not mean that we have to suffer each interaction.
Below are 5 effective strategies for dealing with difficult people in the workplace. The dealing with difficult people training programs that we offer can further expound on these strategies for any organization that may be struggling with interpersonal conflicts.
Choose Your Battles Wisely
It’s so much easier to avoid circumstances in which you may have to negotiate or argue with someone with a challenging personality. This doesn’t mean that you should avoid conflict altogether of course, but if you don’t have anything valuable at stake, it’s always better to avoid a confrontation.
For example, debates about issues that aren’t relevant to work, personality conflicts, cultural differences, or political opinions aren’t worth getting into any sort of argument about.
A surprising number of interpersonal conflicts result from these types of irrelevant disagreements in which relationships are needlessly damaged and people lose sight of the bigger picture.
Look at Underlying Causes
Whether it is an employee who is easily irritated or a boss that has become unreasonably demanding, there is always an underlying cause that is resulting in the behavior.
Although it doesn’t excuse unacceptable behavior, it can be helpful to try to understand why someone may be difficult to deal with, especially if it is a recent behavior change that you may have noticed.
Show Them Their Mistakes
Difficult people often like to put the spotlight on others, focusing on their mistakes or shortcomings while minimizing or overlooking their own. One strategy for dealing with them is to show them where they have also been making mistakes and possibly contributing to the things they are unhappy with.
This strategy won’t work on everyone, but some difficult people are willing to admit their own mistakes once they realize that they have actually made them.
Use Humour to Diffuse the Situation
Humour can be a powerful tool to diffuse conflicts with difficult people and change the tone of a conversation to be more productive.
Humour is very situational, but referencing an inside joke, or self-deprecating humour in a tense situation can go a long way in easing things up, clearing heads and illuminating any unnecessary. Be careful to avoid sarcasm or mean-spirited humour.
Take Control of the Conversation
Many difficult people like to focus on one point over and over, talking about what’s wrong or complaining about their struggles, especially if you let them do it.
One strategy is to take control of the conversation and talk about what’s right or simply change the topic altogether if it’s not important. There are plenty of ways to start this type of transition such as, “Oh I forgot to mention” or “By the way.”
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
We all know some people who just seem to be naturally good at negotiating – whether it’s persuading their boss to give them a raise, getting an upgrade on the plane or negotiating a great deal on their renovations or a new car.
Should the rest of us just give up and leave negotiating to these lucky few who seem to have been born with an innate talent?
No! Like anything, negotiating is a skill that can be learned. Yes, some people might have a natural aptitude for it, but anyone can become a better negotiator with the right training. Negotiation isn’t a mystical art; it’s a practical skill that everyone can get better at.
Here are four myths about negotiating, which might make you feel a bit better about the skills you already have, and help you realize that you can improve!
It’s all about the money, money, money…
When we think about negotiating, we tend to associate it with getting the best price on a car, or the salesman we have all met who pushes for the hard sell. Negotiation isn’t always about money; we all do it, every day! For example, managers are negotiating constantly. The end goal isn’t about money; it’s about getting the best out of their team.
It’s all about the hard sell…
In most situations, this is far from the truth. As a negotiator, you need to be an excellent listener, and have great people skills – these are the traits you also need to be a great manager. Think about some of the situations you encounter in your daily work life – resolving conflicts within your team, and making sure you get the right people, with the right skills, to do the right tasks. That’s not about hard selling; it’s about getting to know people, listening to them, and persuading them as to the right course of action for the team and the organization.
It’s just about personality and charm…
Many of us think that you need to have an innate confidence and charm to be a good negotiator. This simply isn’t true. Being a good negotiator isn’t all about you – it’s about reading other people and understanding what motivates them. Sometimes the outcome won’t necessarily be what you were aiming for at the start. This doesn’t mean you are a bad negotiator. As long as the outcome meets your underlying goals, your negotiation has been a success!
You can’t learn how to negotiate…
Hopefully, from reading so far, you’ve already realized that this is not true. Anyone can learn how to be better at negotiating. Preparing, understanding what you want to achieve, and listening to other points of view are all essential to negotiation, and can help you get the result that is best for you, and for the people you work and live with.
Luckily, there are lots of training courses to help you become better at negotiating, and that will dispel the myth that good negotiators are born rather than made. You already have the foundation in place; why not see how much you can improve?
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
Have you ever had a meeting that you knew would be a disaster? Gone into a conversation with a colleague sure that it would end badly? Started a conversation with a family member pretty certain it would not end well?
If you are thinking any of these things, your conversations can often lead to a common result: an ineffective conversation where your goals aren’t met and things go as badly as you expected. This could be a result of a something that people are often missing when they are about to have difficult conversations and that is the power of positive thinking.
Positive thinking can be used in many aspects of life to great benefit. Entering a situation with a positive attitude can be helpful in many ways. Difficult conversations are no exception; going in with a positive attitude will often put you in a much more likely position to succeed rather than going in assuming everything will go wrong. By going in with the attitude that “this conversation will be beneficial” “this meeting will be productive” etc. people are often able to see the results they are looking for in difficult conversations for these three reasons, and more:
1 – You are more likely to understand the other person’s perspective
If you go into a conversation assuming the best you are much more likely to be able to understand where the other person is coming from, as opposed to viewing them as “the opposition” or someone who is “wrong”. By opening yourself up to understanding the other person’s perspective, you make it more likely that they will hear your perspective and make it more likely that the conversation will be a success.
2 – You are more likely to have a positive conversation
Going into a conversation assuming it will be bad leads us to do things that actually cause the bad result to occur. Think about the tone that you take when you know a conversation will be bad – it’s often more negative, more dismissive and less engaging. The reason for this is obvious – you know the conversation won’t go well and you don’t want to fully invest in it and you protect yourself against the bad result. Now think about your tone in conversations that you think will go well – you’re often happy, upbeat and engaged. This tone serves to help the conversation go better and progress in a positive manner, and you often enjoy the conversation and leave the conversation happy with how it went and in a positive mood.
3 – You are more likely to be open to positive solutions
If you think a conversation will be bad, your primary focus is often on ending the conversation and getting out of the conversation as soon as possible. You therefore might spend a lot of our mental energy thinking about how to end the conversation as quickly and painlessly as possible. This goes against the goal of trying to find good workable long-term solutions which often involve working together with the other party. Therefore, trying to end a conversation as quickly as possible because we have negative expectations may, in fact, cause us to miss out on the positive outcomes we often want.
There are many benefits in life to entering a situation with a positive attitude and hopefully the next time you think you are going to have a challenging conversation you are able to stop ahead of time, try to go in with a positive attitude and then get the result you are looking for.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
I recently had the pleasure of meeting Mr. Woubshet Ayele, Secretary General of the Ethiopian Arbitration and Conciliation Centre (the “EACC”). Mr. Ayele is a former member of Ethiopia’s High Court judiciary and an experienced general practitioner. He held various legal positions with both the Ethiopian Ministry of Justice and as in-house counsel for a large private corporation before founding the EACC in 2004. He is also one of the founders of Ethio-Parents School, one of the best elementary schools, high schools, and college preparatory schools in the country.
The EACC was established as a non-profit organization under Ethiopia’s Civil Code in August of 2004. One of the primary objectives of the organization is to promote and facilitate the use of alternative dispute resolution in Ethiopia. Other objectives of the organization include:
Litigation in Ethiopia can be both emotionally and financially draining, with disputes dragging on for years and the cost of legal redress rising with the progress of the case. The EACC endeavors to address these shortcomings, which unfortunately clog the formal legal system. Arbitration and mediation allow parties to have direct involvement in the resolution of their cases and encourage them to settle their disputes within a reasonable period, without incurring unnecessary costs.
Ethiopia is a nation of diverse languages, religions, and cultures. Each group has its own traditional methods of resolving family, civil, and criminal conflicts. These dispute resolution mechanisms involve an elder of the community investigating and facilitating the resolution of disputes. The majority of these conflicts are settled, as the fear of social isolation that may otherwise ensue is a strong motivating factor. In a country where 85% of the population lives in rural areas, survival often depends on belonging to a community. Traditional methods of dispute resolution also exist in urban areas where prominent leaders may be called upon to assist with dispute resolution.
One of the EACC’s objectives is to support traditional dispute resolution methods. The population that lives in remote rural areas and other marginalized social groups are unlikely to have access to the courts because of the costs involved in both litigation and travel. The EACC hopes that encouraging and strengthening traditional dispute resolution mechanisms will help to increase access to justice for many Ethiopians.
To date, the EACC has organized three mediation training sessions for Ethiopian professionals. The first session took place in January 2005, the second in March 2005, and the third and most recent training session took place in December 2005.
This third session was delivered by Allan Stitt and Frank Handy of the Stitt Feld Handy Group, and a colleague, Rick Russell. This program provided general mediation training to 90 professionals from various organizations, including the Ministry of Labour and Social Affairs, the Confederation of Ethiopian Trade Unions, the Civil Engineers’ Association, the Consulting Engineers’ Association, the Ethiopian Women Lawyers’ Association, and employees of other GOs and NGOs. Following the completion of this general skills course, the Stitt Feld Handy Group provided specialized training in family, labour, construction, and commercial dispute resolution skills. A total of 130 professionals who had received general mediation skills training participated in the specialized training. However, Mr. Ayele noted that in his opinion, there are still not enough trained mediators in Ethiopia. The Stitt Feld Handy Group will be returning to Ethiopia in March of 2007 to deliver a further “train-the-trainer” course so that other groups can be taught mediation.
A number of different organizations have supported the EACC. The Canadian International Development Agency (CIDA) gave a substantial amount of funding for the establishment of the Centre and two years of project support. The Centre has received funding from the French government for mediation training, to strengthen the EACC library and documentation centre, and for a pilot project that would require the High Court to refer a certain number of cases to the EACC for mediation. The EACC hopes that this program will raise awareness of ADR both within the judiciary and among members of the public. Initiative Africa is also one of the institutions that has supported the EACC’s projects. Mr. Mesfin Gebreyes Oda, an Ethiopian businessman, has also given financial support to EACC since the Center’s inception.
CIDA Canada, the French Embassy, the Netherlands Embassy, and SIDA Sweden, have signed a memorandum of understanding to form a consortium that will support the EACC’s ADR initiatives for 5 years, from 2007 to 2011.
Within Ethiopia the EACC has entered into Cooperation Agreements with the Bar Association, the Women Lawyers’ Association, the Employers’ Federation, the Civil Engineers’ Association, and the Consultants’ and Architects’ Association. The EACC has committed to provide ADR training to these groups and in return they have agreed to use ADR to resolve internal disputes.
Ethiopia’s Civil Code provides for arbitration and mediation; however, there is currently no umbrella law that institutionalizes ADR within Ethiopia. The EACC took the initiative, in collaboration with the Supreme Court and the Ministry of Justice, to draft a law on ADR which, if accepted in its proposed form, would institutionalize ADR within Ethiopia’s legal system.
Mr. Ayele spent two weeks in November, 2006 at the Stitt Feld Handy Group’s office in Toronto learning about the operation of an ADR organization. He was also able to observe several ADR Chambers mediations during his visit. In his opinion, the types of ADR processes used in Canada could be easily implemented in the Ethiopian context, with some modifications to ensure that a culturally sensitive approach is maintained. He expressed his gratitude toward the members of the firm and is looking forward to hosting them in Ethiopia for the upcoming train-the-trainer mediation workshop next March.
Nayla Mitha is a Toronto-based mediator, lawyer, negotiator, facilitator, and trainer with the Stitt Feld Handy Group. The Stitt Feld Handy Group has trained over 16,000 people in its workshops, currently conducted in North America, Europe, Asia, Africa, and Australia. The Group conducts workshops for the public in joint venture with various universities including the University of Windsor, the University of Notre Dame, The College of Law (UK), and La Trobe University (Australia). The Group also designs and conducts customized workshops for both the private and public sector.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
When a person learns how to negotiate in their work environment, those skills can carry over into their personal life. One way that conflict resolution skills can help a person outside of the office is in family negotiations. Whether with a spouse, child, parent, sibling, or a combination of family members, conversations can often be tense and frustrating. If you follow the following simple guidelines, however, and utilize your conflict resolution skills, you can improve your family negotiations.
1. Manage Expectations: When negotiating with family, it is important to keep the goals of the discussion in mind. You should enter the negotiation with a plan to come to a resolution that benefits all parties, not to try to convince everyone to agree to your terms. Begin the discussion by explaining the goals of the negotiation, and expressing your desire to come to a solution that is workable for all parties.
2. Keep Emotions in Check: It is difficult to separate emotions from a business negotiation, but it can be far more difficult during a family discussion. As complicated as it may be, you will greatly improve your chances of success if you refrain from getting angry or upset. Avoid using language that is intended to hurt someone’s feelings, and keep the conversation moving toward resolution.
3. Listen: Sometimes, members of a family need to vent their frustrations and verbalize their feelings. So long as the discussion stays on topic and no one becomes upset and/or angry, it is important to allow this process to happen. Listen to the concerns that your family members have and try to address them during the negotiation.
4. Keep an Air of Neutrality: A large part of communication between people is unspoken. When you are engaging in a negotiation with a family member or multiple members of your family, you need to maintain a neutral and a welcoming body language. If you give off a closed-off impression at the outset, your family will be less likely to actively engage in the negotiation with hopes of resolution. Along the same lines, you should try to have the discussion in a neutral setting. Avoid making a family member feel as though they are being ambushed, targeted, or pressured.
5. Stay Focused: It is crucial to try to focus on the task at hand, especially in family negotiations. With families, there can be complicated backstories and histories between parties, spanning decades. Although you will want all participants to feel as though their concerns are being heard, you need to try to keep the negotiation focused on the current situation. Don’t allow anyone to bring up unrelated past grievances, and don’t allow yourself to do so either.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
Abstract
One way or another, individual and organizational resources will be spent on conflict. This paper outlines a variety of ways in which conflict can be dealt with in the most effective, most efficient, and the most economical manner.
A spectrum of conflict resolution options will be reviewed and analyzed. Each option will be considered in light of when it is most appropriately employed, as well as, potential benefits and perceived drawbacks.
Problem Statement
Conflict is a major part of life. For many, conflict resolution can be stressful, costly and time-consuming. In Ontario, the decision of Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288 (CanLII) has proven that not attempting to resolve conflict create even more cost, time-consumption, and stress.
Recognizing that conflict is inevitable, what are the most effective, most efficient, and least expensive ways to manage conflict?
Background
Conflict can be defined as “the result of the differences which make individuals unique and the different expectations individuals bring to life.” (2004, Fiadjoe) In the simplest of terms, conflict arises when one party takes issue with something that another party says or does.
Conflicts that involve legal rights, or a justiciable problem – defined as “a matter experienced by a respondent which raised legal issues, whether or not it was recognised by the respondent as being ‘legal‘ and whether or not any action taken by the respondent to deal with it involved the use of any part of the civil justice system” – are known as disputes. (2001, Genn and Paterson)
Unlike legal disputes, conflicts that arise out of non-legal matters are often recognized as disagreements, quarrels, or differences of opinion. While these types of conflicts may not initially appear to have legal repercussions, if they are not handled properly, they have the very real potential to become disputes.
Conflict, whether in the form of disagreements or disputes, can be costly. Depending on the matter, the cost of conflict may include economic losses, lost productivity, relationship breakdown, and (of course) the cost of litigation. (1998, Stitt)
Given the enormous price tag associated with conflict, individuals and organizations have, for some time, been seeking novel ways to resolve conflict. Alternative Dispute Resolution (ADR) is a spectrum of processes, other than litigation, that can be used to resolve disputes. (1998, Stitt)
Over the last several years, as ADR has become more mainstream, the use of the word “alternative” in Alternative Dispute Resolution has been called into question. Proposed replacements for the “alternative” in ADR include Appropriate, Amicable, Accelerated, or Additional. (2017, Lloyd) Acronyms such as IDR, Innovative Dispute Resolution, and BDR, Better Dispute Resolution, have also been suggested. (2005, Street) No matter what terminology or acronym is preferred, its intention is to reflect “a holistic concept of a consensus-oriented approach to dealing with potential and actual disputes. The concept encompasses dispute avoidance, dispute management and dispute resolution.” (2005, Street)
Another recent innovation in ADR has been Online Dispute Resolution (ODR). Parties can go online and use a virtual mediator that can help them resolve their disputes in a cost effective and productive manner. The parties can confidentially submit their numbers from anywhere in the world, and if there is a deal to be made the virtual mediator will help them make it. If there is no deal to be made the parties will be informed of that and would not be charged for the service. (2007, Winkler)
While ADR has not traditionally included dispute avoidance, resolving problems before they become legal matters has been shown to have numerous benefits. Not least of these benefits is the prevention of litigation. When the cost of taking a routine civil case through a three-day trial in Ontario is about $60,000, it is not surprising that corporations are investing in conflict prevention. (2007, Winkler)
Meanwhile, other organizations continue to choose the legal system to resolve their disputes. In Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288 (CanLII), the defendants refused to mediate based on their belief that they had a sufficiently strong position so as not to warrant any attempt at settlement. The Court disagreed. Although the case was adjudicated in a jurisdiction that did not have a mandatory mediation program, the Court found that the defendants’ refusal to mediate was unreasonable and affixed costs accordingly. The following excerpt clarifies the Court’s reasoning:
[56] The present case is not one of those circumstances where a plaintiff was trying to shake down an insurer by demanding mediation of a wholly unmeritorious case. To the contrary, it is a case where the insurer took a tough and uncompromising stance. That, of course, is a defendant’s prerogative. Defendants do not have to settle. But if reasonable opportunities to mediate are spurned, that can be a relevant factor when fixing costs.
[57] It was, in my view, unreasonable for the insurer to decline mediation in this case. That should be reflected in the disposition of costs. Had a mediation occurred in 2015 or even in 2017, substantial costs could have been avoided.
While conflict may be inevitable, there are ways in which conflict can be prevented, or addressed, in order to maximize relationships and integrity while mitigating against the loss of financial and temporal resources. In the following section, the effective, efficient, and economical options for conflict resolution will be explored
Solution
Historically, the legal professional has been attributed the responsibility of resolving conflict. According to the Former US Chief Justice Warren Burger:
The obligation of the legal profession is to serve as the healers of human conflicts. To fulfil this traditional obligation of our profession means that we should provide the mechanisms that can produce an acceptable result in the shortest possible time with the least possible expense and with a minimum of stress on the participants. That is what a system of justice is all about. (1982, Burger)
Although it is said that lawyers are the healers of human conflict, it can equally be said that individuals and corporations also have a role to play in the prevention, management, and resolution of conflict. Where justice was once a concept exclusive to the courtroom, ensuring a just conflict resolution process now lies, in part, with the stakeholders.
Insurance providers, banks, health care organizations, hospitality companies, police services, and many other organizations are awaking the importance of effectively, efficiently, and economically managing conflict. Be it internal conflict, such as that among employees or between employees and management, or external conflict, such as that between an organization and its clients, having the right conflict protocol in place can save time, money, and stress for everyone involved.
ADR Chambers and the Stitt Feld Handy Group offer a wide-range of conflict solutions that are designed to provide the right process, at the right time, for the right price. These conflict solutions broadly fall under the categories of: (a) Preventative ADR; (b) Facilitative ADR; (c) Advisory ADR; and, (d) Determinative ADR, starting from the least interventionist processes and progressing to most interventionist processes.
Overview of Conflict Solutions and Services
Preventative ADR
Preventative ADR is considered the least interventionist approach to conflict because it equips organizations and individuals with the tools to self-manage conflict. Preventive ADR can be described as conflict avoidance processes that provide efficient and systematic management of disputes.(2008, Law Reform) Used effectively, Preventative ADR strategies can reduce, or eliminate, the need for third party intervention.
Conflict Resolution Training – One of the most successful Preventative ADR services offered by ADR Chambers is Conflict Resolution Training. Through the Stitt Feld Handy Group, a division of ADR Chambers, experienced and engaging Instructors teach the art of effective conflict resolution. Some training programs are offered directly to the public, while others are customized to the needs of a specific group or business.
Training programs offered by Stitt Feld Handy Group include: Alternative Dispute Resolution; Negotiation; Mediation; Dealing With Difficult People; Having Difficult Conversations;
Workplace Coaching, among others.
ADR Systems Design – For organizations that have problems managing disputes, or for those that wish to avoid escalating disputes, ADR Systems Design assists in the development and implementation of an appropriate dispute resolution process tailored to the business.
Coaching – Working with individuals or teams, ADR Chambers’ Coaches provide a variety of coaching services with a focus on workplace coaching. Whether the goal is to achieve a higher level of performance, develop specific skills, resolve conflicts more effectively, or increase employee satisfaction, coaching can assist to transform the culture of a distressed workplace. By reducing workplace distress, conflict becomes less likely to evolve into a stressful, costly, and time-consuming dispute.
The best time to employ Preventative ADR processes is before disagreements become disputes. Preventing unnecessary disputes can: result in enormous monetary savings, avoid relationship break-downs and, enhance trust and confidence between individuals.(2008, Law Reform) By implementing Preventative ADR solutions, organizations can increase the structure and transparency of their dispute resolution process, which can lead to increased satisfaction with their conflict resolution approach.
Preventative ADR processes are not only beneficial during times of peace. In fact organizations that experience frequent disputes can reduce the time spent, the money spent, and the productivity lost by implementing Preventative ADR strategies even when there are already ongoing disputes.
It should be noted that implementing Preventative ADR solutions does not typically limit statutory rights to seek legal redress. (1998, Stitt) However, should a dispute escalate, the existence of Preventative ADR solutions may constitute favourable evidence that a disputant took steps to prevent conflict from becoming litigation.
As much as it may sound cliché Preventative ADR solutions are appropriate at any time and at any place. Regardless of when or where these solutions are implemented, individuals and organizations will benefit. No matter the situation it helps an organization to put processes in place that will prevent or help with potential issues.
While some may find that the initial investment of time and money is significant for Preventative ADR processes, the return on this investment will offset these upfront costs. Whether the investment is in conflict resolution training, an ADR system or one-on-one coaching, Preventative ADR promises to aid in the effective, efficient, and economical resolution of conflict.
Facilitative ADR
Facilitative ADR processes engage a neutral third party (the facilitator) to assist with the management of the dispute resolution process. The facilitator assists the parties in their attempt to reach a mutually acceptable agreement. This process is slightly more interventionist that Preventative ADR processes, because there is an outside party brought in to the dispute. (2008, Law Reform)
This type of Facilitative ADR process is commonly known as mediation. Although mediation can take many forms, there are two main styles: evaluative and facilitative.
Evaluative mediators are sometimes referred to as “rights-based mediators”. This term comes from the idea that mediators focus on the disputants’ legal rights. The truth is that the term “rights-based” is somewhat misleading as a distinction. Facilitative mediators can also spend time focusing on legal rights and the consequences of not reaching an agreement.
Facilitative mediators are sometimes referred to as “interest-based” because these mediators focus on the disputants’ underlying interests or goals. Another purpose of Facilitative mediations is to attempt to facilitate communication between the parties in a mediation. As with evaluative mediation, this term may be misleading, as many mediators of all styles try to focus on the disputants’ interests and needs when evaluating the dispute and determining what the parties may want to agree to. (2016, Process of Mediation)
Traditional Mediation
ADR Chambers has an extensive list of professional mediators, including retired judges, lawyers, and industry experts, available to assist in the resolution of disputes. Mediators typically bill by the hour, but most have discounted half and full-day rates.
Roster Rate Mediation
A cost-effective and time-saving alternative to traditional mediation is Roster Rate Mediation. Roster Rate Mediation is a process based on that outlined for mandatory mediation sessions in the Ontario Rules of Civil Procedure. For a fixed fee, specific to each mediator, parties are entitled to thirty (30) minutes each of mediator preparation time and up to three (3) hours of in-person mediation services. Roster Rate Mediation offers parties a facilitated negotiation session with a skilled mediator while controlling the cost and time they are willing to invest in the process.
Telephone Mediation
Unlike Traditional Mediation and Roster Rate Mediation, Phone Mediation is conducted over the telephone rather than in-person. For parties with smaller amounts in dispute, or for disputes where it is not convenient for everyone to attend in person, Phone Mediation offers a ninety-minute dispute resolution alternative by teleconference for a flat fee.
eVideo Mediation
Similar to Phone Mediation, eVideo Mediation offers out-of-town parties the ability to conduct settlement discussions without the time and cost consequences of travelling to participate in-person. With eVideo Mediation, parties have the ability to see and hear each other in real time as they would at a Traditional Mediation. Private discussions with the mediator can take place in virtual private rooms and parties can present and share documents electronically.
Facilitative ADR is often employed when a disagreement has devolved into a legal dispute. This allows parties to work together with a meditator to attempt to resolve a dispute that has arisen. Parties may also wish to proactively employ a Facilitative ADR process before a legal dispute has arisen. In other words, Facilitative ADR may be appropriate in any situation where the parties wish to capitalize on one, or all, of the following benefits:
When disputants want a process that is less expensive and less time consuming than traditional litigation, Facilitative ADR processes can be an excellent alternative. While most litigation matters settle out of court, the parties may do so “on the courthouse steps” after many hours and thousands of dollars already having been spent preparing for trial. By using the Facilitative ADR processes, the time and money earmarked for litigation can be redistributed in elsewhere.
Unlike determinative processes, such as arbitration or litigation, with Facilitative ADR processes the outcome is decided by those in the conflict, rather than by an outside third party. Parties may find that having the decision-making autonomy to settle their own disputes can lead to better overall outcomes and a greater sense of self-determination.
Facilitative ADR processes allow for parties to “air their dirty laundry” without the risk of what is disclosed becoming part of a public record. A key tenet of Facilitative ADR processes is that of confidentiality. As such, everything that is discussed in a Facilitative ADR process is without prejudice to potential future litigation. Additionally, because the parties control the process they can also determine in advance the extent to which information shared will remain confidential.
Because parties in Facilitative ADR processes determine their own solutions, the resulting agreements tend to be more durable than decisions imposed by a third-party. During the process of negotiating the solutions, parties become invested in the agreement and, as such, parties are more likely to abide by an agreement in which they had input in creating.
Parties often find the legal system intimidating, rigid and unnatural. Unlike in a courtroom, Facilitative ADR processes encourage the parties to speak openly with one another in a more relaxed atmosphere. By avoiding the stress of formal court procedures, parties may be more inclined to speak freely about their point of view and listen more thoughtfully to the opposing party’s point of view.
For the above-noted reasons, Facilitative ADR processes have been gaining popularity in all types of disputes including; family disputes, corporate disputes and community disputes.
Facilitative ADR is not appropriate when there is a real risk of harm to one of more of the parties. In order to be effective, Facilitative ADR processes must not pose any risk of harm to the parties. In some instances, the parties may face the risk of harm as a result of the less formal nature of Facilitative ADR process. For instance, in a family dispute where there has been a history of violence and intimidation, traditional Facilitative ADR processes may not be appropriate. There remains the possibility that Facilitative ADR processes may be appropriate in these cases, but only if there are safeguards put in place. These safeguards may include such things as the parties being in separate rooms throughout the mediation; staggered arrival and departure times; the use of a support person; or conducting the process so that the parties do not have to be in direct contact with one another such as shuttle mediation, telephone mediation, or eVideo mediation.
Another reason that is cited where Facilitative ADR processes may not be appropriate is that the dispute may raise questions of law that have not been previously considered by the Court. In such cases, parties may wish to pursue litigation in order to establish a legal precedent on which they, and others, can rely upon. In these cases it can often remain beneficial for the parties to engage Facilitative ADR because there may be resolutions to the dispute that can be reached that would be better for the parties than a court decision. It is also possible that the parties believe they want the precedent set by court, however the uncertainty of the case may make this a dispute that is better to try to settle.
A final reason that Facilitative ADR processes may not be considered appropriate is that one party believes that the facts and the law very clearly favour one position over another. While it a party with a strong legal and factual position may not want to contemplate settlement, the risk is that the Court may not agree with the strength of the party’s position. As mentioned above, in the case of Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288 (CanLII), the defendants refused to mediate because they believed the facts and the law favoured their position. In that case the Court disagreed with the defendants and because they had declined to participate in a Facilitative ADR process, the plaintiffs received a significant costs award. Additionally, if a party truly does have a strong case they may be able to convince the other party of this in a Facilitated mediation. If they are able to convince the other party that their case is strong the resolution might be one that is similar to what they would have received in court, without needing to go through the additional expenses of moving forward with a trial.
While there are some situations in which Facilitative ADR processes are not appropriate, these processes are currently underutilized in Canada. (2016, Process of Mediation) At ADR Chambers, our professionals offer Facilitative ADR processes that are cost-effective, efficient and undeniably beneficial in a variety of disputes.
Advisory ADR
Advisory ADR processes are those whereby a neutral, third-party facilitates a dispute resolution process, analyzes the positions of the parties and makes recommendations about how the matter is best resolved. (2008, Law Reform) Advisory ADR processes are more interventionist than Facilitative ADR as discussed earlier.
Like Facilitative ADR processes, Advisory ADR processes are typically engaged when a conflict has the potential to become a lawsuit. Advisory ADR processes are also known as evaluative processes because they involve a third party who “evaluates” the positions of the parties.
Ombuds – Typically, the Ombuds process includes an investigation into dispute, an attempt to resolve the dispute in a timely and cost-effective manner and, if no resolution is reached, a recommendation is offered about the best way to resolve the matter. The Ombuds process can also identify systemic and institutional issues that can lead to poor customer service or denial of customer rights. At present, ADR Chambers provides impartial Banking Ombuds services for several of banks in Canada.
Early Neutral Evaluation – Early Neutral Evaluation is a process where a subject-matter legal expert reviews the facts and legal arguments in a matter and provides an assessment of the likely outcome at trial. Evaluators may review briefs, listen to oral submissions and may hear witness testimony. While not determinative, the resulting report provides greater insight into the strengths and weakness of the case and how those strengths and weaknesses may play out in a courtroom.
Workplace Investigations – A growing area of Advisory ADR is Workplace Investigations. With legislative changes increasing the onus upon employers and business operators to ensure organizational safety, businesses must demonstrate that they have impartially investigated employee and customer concerns. (2018, ADR Chambers) The neutral third-parties at ADR Chambers and the Stitt Feld Handy Group are trained to conduct thorough investigations and produce comprehensive written reports relating to workplace disputes. Reports can include findings of fact, conclusions about whether the allegations are substantiated, and recommendations.
Integrity Commissioner – The role of an Integrity Commissioner is to oversee and ensure the ethical conduct of public servants. ADR Chambers has been providing Integrity Commissioner services to a number of Towns, Cities, and Municipalities since 2011. Much like our Workplace Investigators, our Integrity Commissioners have extensive experience conducting investigations and making recommendations.
Fairness Monitoring – Fairness Monitoring is primarily used to support the credibility of procurement procedures for large public sector infrastructure projects. A Fairness Monitor who is independent of the contracting body is appointed to give comfort to those involved in the bidding process that the advertised procurement procedure is followed, that all parties are treated equally during the process, and that any procedural problems, including conflicts of interest, are identified, and cured if possible in a manner that does not prejudice any bidders. Fairness monitors typically review the procurement process and provide advice on its structure, monitor its implementation, attend evaluation meetings and write a final report indicating whether the process was properly managed and fairly implemented.
Advisory ADR processes offer many of the same benefits as Facilitative ADR processes, time and money savings, confidentiality, and the avoidance of formal legal proceedings. Unlike Facilitative ADR processes, the outcome in Advisory ADR processes is rarely completely determined by the parties. Frequently, ADR Advisory processes are used when there is a need for impartiality in the decision making-processes. By employing a neutral third-party to evaluate and recommend resolution options, the responding party in the dispute maintains their credibility and can avoid allegations of bias.
Furthermore, Advisory ADR processes are beneficial when parties want an assessment of the legal merit of the dispute and when a non-binding solution is preferred. With a greater understanding of the risks of litigation, parties can choose their best course of action while considering the importance of maintaining or improving relationships between the disputants. In these cases the parties maintain their autonomy of decision making, but are making a more informed decision.
Despite being beneficial in many cases, Advisory ADR processes may not be appropriate when the parties require a binding and enforceable decision. Conversely, Advisory ADR processes may not be appropriate when Facilitative ADR processes could be employed for a lower cost more self-determined outcome.
Determinative ADR
Determinative ADR processes involve a neutral and independent third-party reviewing the facts, the evidence and the law in order to make a decision. Neutral third-parties who conduct Determinative ADR processes are typically legally trained and are frequently lawyers or former members of the judiciary. Practitioners of Determinative ADR may work independently or as part of a board or tribunal.
Determinative ADR processes share many of the similarities of litigation, and yet differ in many ways. These differences will be explored more below.
Arbitration – Like litigation, arbitration utilizes an adversarial approach whereby the parties present their opposing positions and a neutral third-party renders a decision. Unlike litigation, participation in arbitration is usually voluntary and parties must agree, in writing, to participate. In some instances, legislation mandates parties to participate in arbitration. The process of arbitration may mirror the procedural aspects of litigation or may deviate significantly as there are few procedural or evidentiary rules governing arbitrations.(2016, Dispute Prevention and Resolution Services) At ADR Chambers and the Stitt Feld Handy Group, our arbitrations follow a standardized set of Arbitration Rules. In addition to these rules parties are free to agree to additional rules that they feel would be beneficial to the process.
Expedited Arbitration – ADR Chambers Expedited Arbitration is designed for people who want a fast and inexpensive arbitration. Expedited arbitrations are fixed fee arbitrations, with strict time frames and limitations on the number of documents, length of briefs, and time for the hearing. The process takes less than 90 days from the appointment of the arbitrator to the issuance of the written award, and there’s a maximum of one hearing day. The arbitrator will neither have the discretion to extend timelines, nor increase page limits (or number of documents), except in extraordinary circumstances (as set out in the Expedited Arbitration Rules), or on consent.
Med/Arb – Med/Arb is a hybrid process that combines the Facilitative ADR process of mediation with the Determinative ADR process of arbitration. The process commences with a neutral third-party assisting the parties in trying to reach their own resolution. This would be similar to the Facilitative ADR process of a mediation. In the event that the parties are unable to find a solution that works for both of them, the third-party steps into the role of arbitrator and makes a decision. The arbitration in a Med/Arb is often less expensive and faster than a regular arbitration, because the arbitrator is already familiar with the case, having acted as mediator. A Med/Arb also increased the likelihood of settling compared to an Arbitration because there is an experienced Mediator, who is an expert in the field, discussing the case with the parties. This can increase the likelihood that the dispute will be resolved without needing to engage in the Arbitration component of the Med/Arb.
Private Appeals – ADR Chambers offers a final and private appeals service for parties who agree to have a Private Appeal from a trial judgment or an arbitral award. Parties may agree that, rather than proceed to an appeal before an Appellate Court of a province, they will appeal to a sole arbitrator or a panel of three arbitrators from ADR Chambers.
A primary reason parties select Determinative ADR over using the court system is cost. Going to Arbitration instead of going to court can give the parties the same result for a fraction of the cost, which can be beneficial to everyone involved in the dispute.
Determinative ADR processes are also appropriate when the parties want control over the selection of the decision-maker. Unlike the court system, where an adjudicator is assigned, in Determinative ADR processes, the parties select an arbitrator from a group of nominated candidates. The parties’ ability to select an evaluative professional is also beneficial in that a candidate may be chosen for their specialized expertise in the area of the dispute.
Parties in Determinative ADR processes also benefit from the speed and efficiency of these processes. Since private processes are generally quicker, with less documentation to file than in judicial processes, the result ends up being time saving, as well as cost saving.
Finality is another benefit of Determinative ADR processes. Depending on the matter, most arbitrations have a limited right of appeal. Therefore, once a decision is made it is final, binding, and enforceable. However, if the parties want the right of appeal that is something that can be included in the Arbitration agreement, another benefit of having input on the process.
Lastly, Determinative ADR processes allow parties to maintain their privacy and confidentiality. Unlike court decisions, which are publicly available, private processes promise the confidentiality that may be preferred by the parties. (2008, Law Reform)
While there are many occasions when Determinative ADR is appropriate, there are some circumstances when it may not be appropriate. For instance, when there is a risk that evidence may not be accessible without the authority of the judicial process, it may be more appropriate to proceed to litigation (2013, Lavery and Methot).
Additionally, if parties want to preserve specific rights of appeal, Determinative ADR processes may not be the best course of action.
Finally, when the issue in dispute addresses a point of law that have not been adequately explored in the courtroom, the parties may favour litigation in order to establish a case law precedent. This may apply in cases that address new and evolving technologies or novel points of law.
Conclusion
Without question, legal disputes are time-consuming, costly and often ineffective in resolving conflict. Evidence, both anecdotal and empirical, support the use of Alternative Dispute Resolution processes to mitigate the time, money and stress of the judicial process.
Future-focused professionals and organizations recognize that preventing conflict, rather than reacting to conflict, improves relationships, builds trust, and ultimately, reduces the resources necessary to manage legal disputes. The Preventative ADR processes offered by ADR Chambers and the Stitt Feld Handy Group provide individuals and organizations with the skills and methods to resolve conflict at the earliest possible opportunity. While conflict is unavoidable, providing the tools necessary to handle conflict can be a worthwhile investment.
When a conflict has the potential to become, or has become, a legal matter, Facilitative ADR processes offer parties the empowering opportunity to resolve their own dispute with the assistance of a neutral third-party. Satisfaction with the mutually agreed upon outcome will often lead to the durability of the agreement, lessening the time and money spent to enforcement. Furthermore, Facilitative ADR processes are much less formal, much less expensive and much less time-consuming than litigation.
Advisory ADR processes offer parties the benefit of dispute resolution services without the consequences of a binding decision. Advisory ADR processes also offer neutral third-party oversight to ensure that potentially problematic processes, such as government spending and service contracting, are executed with integrity and transparency.
While similar to litigation in their adversarial nature, Determinative ADR processes offers some flexibility in procedure and evidentiary rules. The ability of parties to choose their decision-maker, rather than waiting for one to be appointed, enables parties to select subject-matter experts and may drastically reduce the time and money spent waiting for the matter to be heard. Expediency, cost-containment and confidentiality are all advantages that Determinative ADR processes provide and which cannot be matched in litigation.
At ADR Chambers and the Stitt Feld Handy Group, we have provided conflict prevention, conflict resolution and conflict decision-making processes in a multiplicity of industries including Agriculture, Arts (Fine & Performing), Aviation & Air, Banking, Construction, Health Care, Hospitality, Intellectual Property, Landlord & Tenant, Libel & Slander, Oil & Gas, Public Policy, Sports and many more. Our professionals are subject-matter experts and have been called upon to resolve commercial matters, employment disputes, insurance and accident benefits cases and real estate disputes.
To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.
To gain skills to handle difficult conversations and difficult people with confidence, please visit our Dealing With Difficult People Workshop page to learn more about upcoming in-person and instructor-led online sessions.
References
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Dispute Prevention and Resolution Services. Department of Justice Canada. (2017, July 27). Dispute Resolution Reference Guide – Practice Module 4. Retrieved from URL: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/06.html
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Law Reform Commission of Ireland. (July 2008). Alternative Dispute Resolution. Retrieved from URL: https://www.lawreform.ie/_fileupload/consultation%20papers/cpadr.pdf
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Stitt, Allan J. (1998). Alternative Dispute Resolution for Organizations. Toronto: John Wiley and Sons Canada Ltd.
Street, Sir Laurence. ADR Terminology Responses to NADRAC Discussion Paper (National Alternative Dispute Resolution Advisory Council, 24 June 2005). [As cited in Law Reform Commission of Ireland]
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Workplace Investigations. (2018) ADR Chambers. Retrieved from URL: https://adrchambers.com/investigation/
