In every business it is natural that disagreements will arise. These disagreements can be between the company and its clients, among business partners, or employees. The way a company chooses to handle a dispute can impact customer satisfaction and its employee productivity (it can also affect the bottom line).
The Stitt Feld Handy Group offers various comprehensive courses in alternative dispute resolution. Alternative dispute resolution, also known as “ADR”, includes forms of conflict management that are completed outside of litigation. Types of alternative dispute resolution include negotiation, mediation and arbitration (can also include a company’s own conflict management strategy).
By receiving alternative dispute resolution training, you will be able to improve your communication skills. Improved communication allows for the effective management of disagreements that may arise. After having received alternative dispute resolution training you will be able to:
1. Recognize when conflict occurs. When you are trained in alternative dispute resolution, you will readily be able to identify the conflict at its inception. As poor communication is often at the root of a disagreement, your training will allow you to recognize the impact that the communication problems have on the situation. One of the things that separate a good business from a struggling business is not whether or not they have disputes, but how they handle them when they do have them.
2. Learn to not take the dispute personally. One of the hallmarks of a good dispute resolver is the ability to separate the personal strain that has arisen as a result of the disagreement from addressing the problem itself. Learning how to do this will allow you to remain even-tempered and to communicate positively and professionally in difficult situations.
3. Apply the tools to tackle disagreements. Once you have the communication tools to resolve disputes, you will be able to use them in various situations. You will be able to apply your new communication skills in a variety of situations that include tough negotiations with suppliers, termination situations, and making difficult business decisions that are important to your company’s survival.
4. Develop plans for handling conflict. Once you know how to approach an uncomfortable situation within your company, you will be able to implement a plan on how to work with your colleagues towards resolving disagreements as soon as they arise. Improving your communication and conflict management skills will allow you to address the problems of conflict at an early stage in a coordinated and professional way. If the problems of conflict are not addressed in an efficient manner, then the greater the likelihood that the problem will fester and may require resolution through litigation.
5. Understand the high cost of unresolved disputes. The impact of poor communication can be more extensive than a prolonged dispute. An unresolved disagreement can be very costly to your business and your personal relationships. It is very likely that disruptions to your employees’ productivity, bad publicity, and potentially high legal fees could ensue. If you are conscious of these possible consequences, you will be motivated to improve your conflict resolution strategy and to learn the necessary skills to implement it.
If you are looking to improve your conflict management and communication skills, the Stitt Feld Handy Group offers comprehensive alternative dispute resolution courses to business people, entrepreneurs, human resources managers, and other professionals.
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’ve all heard them: “I’m sorry to tell you this, and don’t worry, but . . . ”. Or, “I’m sure you’ll look back on this and think it was the best thing that ever happened.” I’m sure this kind of comment didn’t sound or feel true to you, whether you heard it or felt compelled to say it. In these types of situations–dismissals, performance problems, re-organizations, etc., the challenge is to deliver the message while maintaining the best possible relationship. Here are some ideas about making this two-pronged task easier.
First, to have a hard conversation successfully, the organization needs to have created an atmosphere of respect for staff in previous situations. If the organization has not demonstrated respect for staff consistently, a challenging situation will be met with skepticism even from the “best” staff, while those who feel more at risk are likely to feel suspicion and hostility, and react accordingly. The keystones of respect for communicating with staff in a workplace are honesty, clarity of expectations, consistency of treatment, and fairness in policy and decision-making.
Second, the message should be clear and free of assumptions about reactions. Often the person delivering a tough message fears a bad reaction, and so apologizes or “sugar coats” in advance, to try to head off problems that haven’t occurred. For instance, a manager might tell an employee not to worry when a performance management regime is being instituted. But trying to anticipate and head off reactions can feel like controlling or patronizing behaviour and therefore manifest a strong reaction.
Third, your message will not likely be as much of a surprise as you may have thought. People understand they are not doing well, and may react in a variety of destructive ways. Some of those ways may be part of the root of their performance issues, such as defensiveness about making mistakes and therefore not taking any chances, fear of failure or success, lack of respect for themselves or others. If the situation is not a surprise, pointing out the error can create a challenge to a person’s self esteem, self-respect or commitment because it feels like a personal attack rather than a work performance correction. Your comments should clearly point out the difference.
However, being clear does not mean being harsh: it means dealing with the performance. The adage “Separate the people from the problem: be hard on the problem, soft on the people” is a good guide. As an example, listen to the difference between: John, you are a poor employee so I am going to start you on a performance management regime and you better shape up or you’ll be gone; and: John, your work performance has not been at an adequate standard; I am going to review with you a performance management regime, which is intended to create every reasonable opportunity to get your work up to a proper standard so you can continue to be employed here.
In summary: focus your message on the issue rather than the person, make the message clear, fulfill your organizational goals without apology for them (if you don’t believe in them why aren’t you working to change them or why are you working for that organization?) and do so with respect and concern for the impact on the people involved. Then the relationship can be maintained and take its proper place in the situation, supporting the work and communication between people in the workplace.
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.
PODCAST on XLLEGAL
Link to podcast: https://exellegal.com/handling-difficult-people-with-jason-stitt/
Jason Stitt shares his expertise and advice about handling difficult people. Jason’s a “recovering” lawyer, mediator, and trainer who provides training in dispute resolution, negotiation and dealing with difficult people through the Stitt Feld Handy Group.
Topics discussed include:
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.
by Carmel Haynes
The legal fraternity in Barbados is being encouraged to look for a less litigious way of settling legal disputes.
Through a four-day workshop on alternative dispute resolution, members of the judiciary and local Bar Association are being sensitised to the integration of mediation into the civil justice system.
Natalie Johnson, acting programme director in the Justice Improvement Programme secretariat, which is sponsoring the course, said the sessions were a culmination of three years of planning. She added that the project, which started last year, would extend over the next three years and was aimed at introducing alternative dispute resolution into the judicial sector.
Workshop leader Allan Stitt, president of Canadian mediation consultants Stitt Feld Handy Group, advocated the alternative dispute resolution process as a way of avoiding the court process, which can be expensive, time-consuming and public.
He offered mediation as way to work out disputes creatively, providing for more of a “win-win situation” as opposed to a “win-lose or lose-lose, which litigation can be”.
Yesterday and Friday, judges and magistrates were provided with a better understanding of the mediation process through a short advanced course on assisting in negotiation more effectively.
Tomorrow and Tuesday, the workshop will include discussion on the issues surrounding mediation, and interactive mediation demonstrations.
Stitt said some lawyers had reservations about mediation because early settlements reduced their fees, but he added that others appreciated the benefits it provided for their clients.
The Toronto-based mediator added that the public would be introduced to negotiation and mediation practices for resolving conflicts in the home, or workplace through a workshop being organized for January.
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.
An article in TIME Magazine, entitled “How Your Siblings Make You Who You Are”, explains how brothers and sisters affect your negotiation style and skills. My sister actually brought this piece to my attention, when she attempted to use it to take credit for my career in ADR. The article states that on average, siblings between the ages of 3 and 7 engage in some kind of conflict 3.5 times an hour. There is a lot of learning that occurs in this process, particularly about how conflicts, once begun, can be settled. Studies have shown that children who practice the best conflict resolution skills at home carry those abilities into the classroom… and presumably into the workplace later on in life. The theory is that unlike your friends, you’re stuck with your siblings and it is that permanence that makes them so valuable as a rehearsal tool for negotiations later on in life. Peace is made when one child offers a toy or breaks into a giggle… and somewhere in there, the foundation is laid for the joke that breaks the office silence or the husband that poses a nonchalant question to his wife to signal that a fight is over. Having now read the article, I wholeheartedly agree that my sister provided me with very thorough dispute resolution training as a child (and vice versa) and I’m happy to give credit where it is due! (See TIME Magazine, Canadian Edition, July 10, 2006.)
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.
Whenever there are unresolved conflicts in the workplace, it eventually affects the external stakeholders, employees, and managers. Workplace conflicts must be handled quickly and effectively. In some cases, this can be challenging because most people simply want to sweep the problem under the rug so that they can get on with work. This can sometimes lead to ethical issues arising with the handling of conflicts. We wouldn’t advise you to do this, as sweeping the issues away usually makes the situation worse.
When Does an Ethical Conflict Occur?
There may be ethical conflicts between the stakeholder and the customers. As an example, suppose a company wants to increase production and they start to neglect the quality of the product. With the decreased quality of the product customers see that the product they have relied on is no longer reliable. The customers in turn believe that the company is acting unethically, taking advantage of their reputation and misleading customers. The customers then start to lose faith in the company.
An ethical conflict can also occur when there is a disagreement between employees. This can happen if two employees are up for a promotion and both employees take credit for work done. There is a fine line of how far the employees may go to convince the superior that their work is better than that of their co-worker. They may cross an ethical line in this behavior. Setting up a competitive situation like this could even lead to potential sabotage of a co-worker’s work to allow the saboteur to look better in comparison.
Alternative Dispute Resolution Process
Ethical differences are not always clear and wrong versus right. Effectively dealing with ethical workplace conflicts is a balancing of the interests of all of the parties involved. Both employees may have a right to the promotion based on their work performance, however; only one person can receive it. When this occurs, the decision-maker will have to use proven effective methods for dealing with ethical workplace disputes.
Here are some questions managers may want to ask themselves:
• Which of the employees will be most likely to set goals that are in line with the objectives of management?
• Which one can effectively work alongside stakeholders, suppliers, customers and other important business entities?
• Which employee would other employees see as an effective leader?
• Which employee has the most respect among the other employees and which will they tend to follow?
• Which employee will be more inclined to establish ethical standards from the start?
• Which employee has the most leadership potential?
The best way to deal with a conflict at work is to make sure that you can prevent them from occurring. This requires that you have a defined set of core values; code of ethics; ethical leadership, and strong compliance participation. When disagreements or conflicts do occur, there should be a clear process in place to effectively resolve the situation.
Here are some things to remember:
1. Identify the conflict
2. Identify and consider possible ways to resolve the matter
3. Get help from someone else if you are unable to effectively resolve the matter
4. Decide what is to be done and stick by your decision
Alternative Dispute Resolution Training
Conflict resolution of any type but especially in the workplace can be difficult and exhausting. However, dealing with difficult people and having difficult conversations is part of the alternative dispute resolution process. Training is essential to ensuring that you know how to deal with these issues as they arise, make a effective plans and follow through on them.
The Stitt Feld Handy Group provides three levels of conflict resolution training and many customized options.
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 often hear about random acts of kindness and something inside of us wants to see the kind person benefit in some way. It only seems fair. Some of us even act on this and try to do something nice for the person who was kind, especially if they’ve done something nice for us. Reciprocity is a fairly universal value. People who receive something, tend to give something in return.
This is also true in negotiation. Random acts of kindness are often reciprocated. Some negotiators make a habit of giving the other side ‘gifts’ in the middle of a negotiation to try to improve the relationship and to trigger conscious or unconscious reciprocity. That is not to suggest that it’s always a good idea to give things away in negotiation, yet there are situations where the favour may be returned to you with even greater value.
Most people think that the negotiation ends when the two sides shake hands or sign an agreement. The deal is done and they should stop negotiating. The truth is that there’s a lot more to negotiate.
First, most negotiations need implementation, and it’s a rare situation where there aren’t things we need to negotiate after we shake hands. If you’ve negotiated in an ethical way and preserved the relationship, you should be in good shape to deal with implementation.
Second, there are opportunities for all parties, if we continue to explore ways to sweeten the deal. Once you have an agreement, you can still discuss ways to improve it, as long as you do it in a way that doesn’t look like you are trying to get out of the original deal. Having such discussions is known as trying to make the deal ‘Pareto superior’ or ‘Pareto optimal’.
When we negotiate, we often keep information confidential and focus purely on the dollars. While that may help us meet our minimum needs, it may prevent us from coming up with the most creative and high value options.
With the safety of a deal in hand, parties are often more comfortable disclosing more information and exploring other ideas. That exploration may allow us to make the deal better for both of us. If we can’t improve the deal, we still have the one we’ve made to fall back on. The deal we’ve made is binding unless we both agree to change it. There is value, therefore, in disclosing information and discussing further ideas to see if you can improve on the deal you’ve already reached.
There are lots of negotiation tricks out there. Some people like to have the tallest chair, or sit at the head of the table, or have more people on their side of the table, or make you face out the window so you’ll be distracted.
These tactics often backfire by creating negative pushback. As a different approach, try to make them feel superior while negotiating a really good deal for yourself.
We are all emotional, to a degree. Some of us show our emotions outwardly while others keep emotions in check. Many people think that effective negotiators hide and stifle emotions and that a show of emotion is a show of weakness. We disagree. There’s nothing wrong with being passionate about something. That can sometimes cause the other person to respond positively to your passion.
Even if you’re upset, it’s not necessarily bad to show that you’re upset. There is an honesty and fire in strong emotions that might strike a chord. One of our clients got angry during a pitch to a buyer. Instead of getting upset, the buyer was thrilled to see a pitch from someone who genuinely cared. Our client got the job.
Most people prefer it when the other side makes the first offer. We’re afraid that if we make the first offer, we may give away the farm. Or, that our offer may seem unreasonable to the other side and they will walk away.
Effective negotiators make offers that limit the likelihood of either of those scenarios playing out. For example, when they make first offers, they don’t present them as ultimatums, but rather as options to be discussed. Also, they try to base their offer on an objective, fair standard.
There can also be benefits to making the first offer. People who put the first offer on the table set the parameters of the negotiation. That first offer can establish a helpful precedent for how future offers should be made and communicated.
In addition, making a first offer can speed things up. Negotiators often go through a long drawn-out ‘dance’ where both sides are waiting for the other to make the first offer. The person who makes the first offer breaks the ice and allows the negotiation to move forward.
Most people assume that it is not possible to negotiate with retailers. When we see a price in a store, we assume that the price is final. In a lot of cases there is no ability to negotiate the price. However, in certain situations there may be an opportunity to negotiate.
The trick is to ask, and ask nicely, which few people actually do. The retailer can always say no. There was a study from the University of Pennsylvania where business students experimented with trying to negotiate the price of items for sale in retail stores. They were amazed to learn that, in many cases, they received significantly better prices simply by asking.
Price isn’t the only thing you can negotiate when you shop. You may be able to negotiate terms of payment, shipping fees, and a ‘throw in’ or another non-financial benefit. You’ll never know what is possible unless you ask.
Do you have to sacrifice your ethics to be an effective negotiator? The answer is not at all. Some people believe that you have to mislead the other person to be an effective negotiator, which is just not true.
The most effective negotiators have learned the techniques that allow them to be honest and ethical while still being able to negotiate the best deal. There are ethical and effective approaches to all negotiation problems. Those who sacrifice their ethics become infamous and distrusted. People won’t want to negotiate with them and their careers end up being short-lived and stressful.
Does the environment surrounding your negotiations seem a bit chilly? We focus a lot on what we say during a negotiation, and not nearly enough on how we communicate our message. This is because we think more about the substance of what we’re negotiating and ignore the process. A friendly and open attitude toward someone else often causes them to be friendly and open to us. If you’re both open and friendly, your relationship will improve and you will be more likely to work out a good deal.
When we want to persuade someone, we often tell them why we’re right and they’re wrong. The problem with this approach is that others rarely believe they’re wrong, and they certainly don’t like being put down. Instead of that approach, show them you’re open to their ideas and try to explore different options with them. If you have good information, use it tactfully to educate and persuade, not to prove the other party wrong.
Salespeople are always negotiating with customers. What’s the biggest mistake they make when they’re trying to sell something? They talk about what they think their customers want rather than listening to what their customers have to say.
Customers and clients give us lots of clues about their needs and interests. We need to focus on listening to this information. The best salespeople don’t presume they know what their customers want. Instead, they ask lots of questions about the client’s goals, listen to the answers, ask clarifying questions, and only then provide potential solutions.
How much are you leaving on the table in your negotiations? What deals aren’t you making? Do others appear to know more about negotiation than you? No matter how much natural ability you have, you can improve your negotiation skills by learning new techniques.
Have you ever wondered why professional athletes still need coaches? The athletes are very skilled, yet they know that they can still get better results with coaching. If you learn one technique at a negotiation course that gets you a better result, wouldn’t that training be worth it? If you can improve your negotiation results by even five per cent in one year, you will have paid for the training.
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: INTRODUCTION – MEDIATION IN AMATEUR SPORTS DISPUTES
Conflicts in high performance amateur sport (“HPS”) are tense emotionally-charged disputes for athletes, coaches, and the national and international sports organizations (“NSO”s and “ISO”s) involved. Such conflicts raise intriguing challenges for the mediators and arbitrators charged with handling them. High performance level sports disputes are a volatile mix of high-stakes win/lose issues, multiple parties, intensely competitive personalities, rigid criteria from multiple sources, and numerous process challenges (such as timelines sometimes measured in hours, and parties spread all around the globe).
Mediation has proven to be a successful tool in both managing and resolving these challenging disputes, often in creative ways that have maintained and even improved relationships. Crucial to achieving those successes is the ability of good mediators to adapt to and deal with the peculiar challenges noted above.
Focusing on the experiences of the Sport Dispute Resolution Centre of Canada (“SDRCC”), mediations of HPS disputes are reviewed.
II: TYPES OF NATIONAL LEVEL AMATEUR SPORTS DISPUTES
To understand the challenges involved, it helps to understand the four main types of dispute that arise in national level HPS in Canada (and many other countries), which include:
FUNDING DISPUTES
Broadly speaking, carding (funding) disputes are complaints about the allocation of government funding and services, which may arise in other forms in other countries, but doubtless still arise. In Canada, Sport Canada (the government department responsible for national sports initiatives) issues a set number of “cards” each year to each NSO (e.g., Swimming Canada, Skate Canada, etc.) The NSO must then distribute the cards to its own high performance athletes in accordance with the NSO’s preset carding selection criteria. The number of cards an NSO receives in a given year is fixed and cannot generally be expanded.
Each card represents a package of concrete benefits, including a monthly income, tuition remission, and access to federal resources such as physiotherapy and training. It also represents a highly prestigious status in the sport. A “carded athlete” is either at the top tier of the sport or on his/her way there in a developmental stage.
Carding conflicts arise when one athlete complains that:
TEAM SELECTION DISPUTES
Team Selection disputes involve one or more athletes claiming they were wrongly excluded from a given national team. Again, the basis of the complaint is usually that:
DOPING ALLEGATION DISPUTES
Doping Allegation Disputes arise from violations of applicable anti-doping codes by athletes, coaches, medical professionals, sport officials or related individuals. Most countries have a national body responsible for administering the World Anti-Doping Agency (“WADA”) Code (“WADC”) or their national equivalent. In Canada, the Canadian Centre for Ethics in Sport (“CCES”) administers the Canadian Anti-Doping Program (“CADP”), which is modelled on the WADC. Violations include the presence of prohibited substances or metabolites thereof in an athlete’s sample, trafficking, use/ attempted use or possession of a prohibited substance or method, administration to an athlete of a prohibited substance or method, and various forms of sample testing avoidance, refusal, or tampering.
When a doping violation is detected, the infringing party is notified by CCES of the alleged violation and of the procedures leading to an arbitration of the issues at the SDRCC. An interim step, called Resolution Facilitation, has been used by the SDRCC prior to arbitration since 2010, which, as described below, is an unusual procedure that is not quite mediation and not quite pre-arb hearing.
ADMINISTRATIVE ISSUES AT THE NSO LEVEL
A variety of other disputes crop up between an NSO and its many internal and external stakeholders. Typical examples include complaints that NSO policies (such as Athlete Agreements or bylaws) are unfair, that administrative decisions by the NSO (e.g., to change sponsors) were inappropriate or biased, that NSO appointments to various posts (such as a national team coach) were inappropriate, and that NSO staff have acted inappropriately. Disagreements within an NSO Board could also require help, if the board is deadlocked or in a fight between cliques.
Most NSOs have developed their own internal ADR and appeal processes to deal with disputes though with varying degrees of sophisitcation. Historically, NSOs have usually preferred to resolve issues internally within the sport, but in Canada, Sport Canada funding for NSOs in the last decade has been contingent on the NSO building into their processes a right of appeal to an external body, the SDRCC. Such an external appeal was considered beneficial to athletes and the sport because most complaints involve the NSO itself as one of the interested parties, typically defending its own decision. As a result, an NSO’s internal appeal process may not be seen by complainants as fair and unbiased.
II: THE CHALLENGES IN AMATEUR SPORTS DISPUTES
Mediating sports disputes at the SDRCC raises a number of fascinating challenges for mediators in both theory and practice. While some of these challenges crop up in other contexts, rarely do they arise in such a potent combination:
Party-Based Challenges- Competitive parties
Issue-Based Challenges- Win/lose issues, rigid criteria, high stakes
Process Challenges- Urgency, multiple parties, geographic spread, unrepresented parties
Purposive Challenges- Non-negotiable rules- disciplinary cases
III: CASE STUDY: TEAM SELECTION DISPUTES
In a case that involved a midnight deadline, an SDRCC arbitration was scheduled to begin 3 hours after mediation began, and that arbitration would have resulted in a win/lose decision (one athlete would be left off the team). I asked the parties at the very beginning to set aside the rights-based arguments, save them for the arbitration, and instead to focus on seeing if we could find a way to solve their problem. Each party was asked to identify their key goals, with the result that a single major common goal emerged- to maximize the participation of all affected athletes, and to leave no athlete at home, if possible. This goal then became the target for a three stage brainstorming session (generate the ideas, evaluate the ideas, and finally see what parties could commit to).
After thirty minutes of brainstorming options with the parties (revisiting the selection criteria, taking the whole team anyway, having one pay their own way to the competition, applying the criteria in various ways, etc.), we walked through the list of ideas, evaluating them for degree of satisfaction of party interests and for doability. Some options were not palatable as they did not address the goals or concerns of one or more parties. Many were win/lose options in that one or another athlete would be left completely at home. Other options were palatable to all, but were simply not doable because of external constraints on team composition (coming from the international games in question or the ISO). After evaluation of all the options, it became clear that only one route allowed all athletes to go. It was not a perfect solution for all parties (because one athlete would participate only in a team event, not in an individual event as also desired) but it was the only route within the applicable criteria that allowed all affected athletes to go. In the end, the representatives of that athlete agreed to that solution. They wanted the athlete to go (the arbitrator might decide against them), and even if they won at arbitration, they did not want to be responsible for forcing another athlete to stay behind.
While a ‘perfect’ solution was not achieved, a good solution that met everyone’s stated goal was accepted in an atmosphere that had cleared the air of misconceptions and promoted cooperation. In addition, the win/lose result of an arbitration was avoided (a result that might have produced lasting acrimony within the team in question).
Another piece that made this mediation successful was the power of hearing parties’ perspectives and explanations. In particular, the NSO was represented by a number of its board members, and their explanations were invaluable in allowing the parties to embrace a problem-solving approach and come to a mutually agreeable solution. From my perspective, the sincerity and genuineness of the NSO came through in their comments and their tone and approach (which was important as the NSO was viewed initially with suspicion by some parties). The NSO also disclosed hitherto unknown behind-the-scenes efforts that had been made by the NSO to get all of the athletes to the games (calls to the international event organizers; frantic reviews of criteria in search of a loophole, etc.). That information established a tone of good faith for which the athletes expressed appreciation.
Finally, the NSO’s clear explanations of how the complex array of national and international selection criteria fit together helped the parties understand why some options were simply not doable for reasons beyond anyone’s control. That allowed them to agree on the one and only option that met their primary stated goal.
Best Practices Learned: Identifying common goals, Brainstorming, Sharing of explanations and perspectives,
IV: CASE STUDY: OTHER HPS DISPUTES
A dispute arose between a national team and its NSO over a variety of NSO policies and procedures that the athletes felt were unfair or inappropriate, including the NSO’s own dispute resolution procedures. After a very fractious attempt to raise the matters internally, leading to a rejection of the concern that polarized the athletes against the NSO Board, the matter was mediated. It was quickly apparent that the combination of multiple competitive personalities on each side of the dispute, and the very adversarial history that led to the mediation could explode in a powder keg of blame and defensiveness. Each side had very strong concerns about the other, and relationships were highly strained.
In hindsight, the single smartest decision in the mediation process was to hold pre-mediation caucuses with each side to explore their goals, the relationships and the consequences of allowing those relationships to continue to deteriorate. In caucus, each side recognized that, although they felt wronged by the other side, and that they were in the right, they needed and wanted to have good relations with the other side going forward. For the athletes, they recognized that the NSO had a great deal of impact on their sports careers (setting events schedules, deciding team selection criteria, allocating funding, choosing uniforms and sponsors etc.) On the NSO side, they recognized that if they could not repair the relationship with their top flight national team, there was going to be stress and strain for 10 years to come (athletes don’t retire en masse; the team would turn over very gradually and any new members would be taught to view the NSO as the enemy also).
With that realization in mind, both sides agreed to focus, not on what happened in the past (where the enmity lay) but on the future (where they shared a common goal of having fair processes and procedures and a better working relationship). All parties maintained that future focus through several mediation sessions and self-managed action items over about 4 months to complete a mutually agreeable set of policies and procedures.
Another piece that helped both minimize defensive responses and promote substantively good and fair criteria was the search for fair and objective standards (legitimacy). Such measures of legitimacy can include comparables, relevant documents and mutually respected experts.
In this case I encouraged the parties to research comparables for the policies from a variety of external sources like other respected federations and model polices (e.g., from Sport Canada), even internationally. Rather than debate the language of a proposed clause in the athlete agreement subjectively, the parties used the external comparables that they found to provide guidance, a starting point for discussions, and to define rational ranges for answers. The facts did the heavy lifting in most cases, which prevented a battle of wills from erupting.
Best Practices Learned: Managing relationships issues early, pre-mediation caucus; Identifying common goals, Focus on future; using objective criteria
V: CONCLUSIONS- A ROLE FOR MEDIATION IN SPORT
The experience at the SDRCC has shown that, while not all HPS disputes can be settled at mediation, mediation often achieves stable win-win settlements in a very timely cost-effective manner. Mediation also adds value even when disputes don’t settle, by improving understanding and respect amongst the parties, which helps to rebuild damaged relationships which may be crucial in a sporting context. A more subtle but important benefit is the simple power of allowing parties to feel heard when so much is at stake for them.
Even for disciplinary cases, facilitated discussions can provide athletes with greater levels of information about the disciplinary process and substance, greater comfort with the process, their rights and obligations, as well as the chance to explain their actions and be heard. Even where disciplinary rules heavily prescribe the flexibility on issues like sanctions, there may still be ways to achieve more optimal results that would be otherwise be possible, giving athletes more control over when sanctions begin (and therefore end), for example. The increased understanding can also enhance athlete cooperation with anti-doping efforts, minimize aggravating offences, and potentially, in some cases, lead to reduced sanctions.
RELATED HIGH PERFORMANCE SPORTS ADR LINKS
Sport Dispute Resolution Centre of Canada
Court of Arbitration for Sport (CAS)
Sport Resolutions UK
Sports Tribunal New Zealand STNZ
World Anti-Doping Agency (WADA)
Canadian Anti-Doping Code (CADP)
United States Anti-Doping Agency
Canadian Centre for Ethics in Sport CCES
Canadian Sport Dispute Resolution Code
Ted Stevens Olympic and Amateur Sports Act, 36 US Code
American Arbitration Association
Sports Lawyers Association
Institute of National Anti-Doping Organizations
Council of Europe, Anti-Doping Convention
International Doping Tests and Management
UNESCO Anti-Doping
IOC Medical Commission
Originally produced as conference material for the 17th Annual ABA ADR Conference, April 16, 2015
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.
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Public and private entities worldwide are increasingly using conflict management and dispute resolution procedures as a standard way of handling a wide variety of costly and disruptive conflicts, from legal or quasi-legal cases to workplace struggles to simple product and service complaints. Practical guidelines for designing and redesigning dispute resolution systems are increasingly necessary if organizations are to adapt effectively.
Broadly framed, the purpose of ADR system design is to develop effective processes to prevent, manage, and resolve claims, conflicts, and disputes. The challenging part in any system design is to determine what will be ‘effective’ in any given situation. Much of what makes a system effective is its ability to satisfy the goals of the stakeholders who are using, administering and affected by the system. One of the key benefits in ADR (Alternative Dispute Resolution) system design is the ability to find effective ways to prevent disputes and to minimize the severity and cost of the disputes that still occur.
One of the great dangers, particularly in the private sector, is that dispute resolution processes will be developed that reflect the mandate of the implementing organization but that ignore or minimize core goals/concerns of users and other stakeholders. This would be less of a concern if not for the fact that many private sector organizations can effectively impose their system, so they are not required to seek broad input. Modifying dispute systems without proper design processes, however, can create significant costs, tension, and pushback from stakeholders affected by the systems in question, and limit the usefulness of the system ultimately implemented. Customers using such systems are already in a conflict of some kind, and they become further frustrated with the organization in charge if they feel the system is biased against them. The cost of dealing with dissatisfied customers in an adversarial setting is high on both sides, with one of the primary costs to the organization being the lost time and stress.
ADR Systems come in various forms, each with its own challenges, including:
• Intra-Organizational Systems that apply to stakeholders within a single organization, and over which that organization has full control, such as an internal workplace grievance procedure at a single company.
• Extra-Organizational Systems that apply to stakeholders external to a single organization, but over which that single organization has full control, such as many governmental systems like workers compensation claims procedures.
• Inter-Organizational Systems apply to two or more organizations, with no one organization having unilateral control. Examples include nation-to-nation treaties like NAFTA, or inter-corporate agreements like the CPR Banking Industry DR protocols.
• Trans-Organizational Systems are used by two or more organizations and apply not only to those organizations but to other external stakeholders as well, such as the IDAC system administered by ADR Chambers (e.g. all signatory companies handle client complaints through a single dispute resolution system).
Organizations around the world, both governmental and private sector, are actively incorporating alternative dispute resolution (ADR) processes like mediation, negotiation, coaching, arbitration etc. into their methods for handling claims, conflicts and disputes (Ury et al. 1988; Wildau et al. 1993; Moore 1994; Costantino and Merchant 1996; Stitt 1998; Rowe 1997; SPIDR 2000; Bingham and Pitts 2002; Bertschler 2004; Katz Jameson and Johnson 2004; Bingham et al. 2009).
Having worked on a broad range of system design projects (from legal, to workplace, to contractual issues, and both public and private sector), the Stitt Feld Handy Group has a wealth of experience on which to draw in helping guide organizations through the system design process. There are 5 broad phases of system design, which vary in complexity and importance from one project to another, but which should be part of any system design project. The five phases, which are described in more detail below, include:
• Phase I: Clarify Mandate
• Phase II: Diagnosis
• Phase III: Design
• Phase IV: Implementation
• Phase V: Evaluation, Monitoring and Improvement
This classification is task-based, and in actuality there may be loopbacks or overlaps between the phases. It is not unusual, for example, to be laying the groundwork for Implementation (by lining up possible monitoring processes and personnel) even before the Design is fully approved. An experienced system design professional can help identify what tasks are most appropriate to the system design project in question – which stakeholders to consult, what questions to ask, what design options to consider and why, etc.
In a world of expanding ADR processes, the future of such ADR system design projects involves organizations increasingly a) borrowing from other successful systems to put such processes in place; and b) in ADR mature organizations, refining the systems already in place by ongoing improvement after monitoring and evaluation. The importance of these changes in saving money and generating greater stakeholder satisfaction should not be underestimated. In one case, for example, the implementation of mediation into a grievance procedure saved millions of dollars in system costs by significantly reducing the number grievance arbitrations and related lost time from work. The earlier cases can be resolved, generally the less entrenched parties become in their views, and the more likely that relationships can be salvaged, which is a key factor in avoiding poisoned workplaces.
Flexibility in the system allows it to adjust to the range of conflicts faced. In another corporate example that SFHG worked on, the use of mediation and other interest-based processes was tailored to the company’s circumstances by using HR staff as mediators (to save costs) but using HR staff from a different “neutral” location (to increase the appearance of neutrality and fairness), with the option for using external mediators in certain high sensitivity cases such as sexual harassment (when the need for neutrality was highest and justified the additional cost). Understanding the underlying concerns of the stakeholders helps focus efforts on optimal strategies. In a third project, our consultation with the client revealed that arbitration decisions were both expensive and ultimately hard to enforce. The losing party would return to the workplace and flaunt the decision. Brainstorming ideas with the key stakeholders led to the design of a peer review process that was less costly, incorporated greater knowledge of the context, and had the added benefit of a built in enforcement mechanism (peer pressure when back at work).
With the growing use of ADR processes in a variety of sectors, public and private, comes the need for practical guidance on effective dispute resolution system design. While every system design project is different, a coherent model to approach the design process provides helpful guidance to administrators at organizations contemplating system changes. There is clearly value to be had in reducing the number, duration and severity of conflicts. The question is how to secure that value without creating further costs and challenges, and an experienced ADR system designer can help answer that question.
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.
This article originally appeared in the September 14, 2012, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
by Barry Leon & John Siwiec
A distinguishing feature of arbitration is that the procedural rules, whether legislated or set out in arbitral institutions’ rules, only provide a general framework for arbitral proceedings. Unlike court procedural rules, arbitration rules seldom include detailed provisions on such things as exchanging briefs, producing documents, conducting hearings, and whether and how witnesses should be heard.
This absence of detailed provisions may be due in large part to a desire to preserve “party autonomy”, a cornerstone of arbitration that enables parties to tailor their proceedings to fit their dispute. International arbitration organizations have complemented this freedom by issuing soft rules and guidelines to assist arbitrators, counsel and parties to conduct arbitrations efficiently and cost effectively. Examples include the “Rules on the Taking of Evidence in International Arbitration” of the International Bar Association (“IBA Rules”; www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/IBA_Rules_Evidence/Overview.aspx), “Notes on Organizing Arbitral Proceedings” of the United Nations Commission on International Trade Law (UNCITRAL; www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1996Notes_proceedings.html) and “Techniques for Controlling Time and Costs in Arbitration” of the International Chamber of Commerce (ICC; www.iccdrl.com).
Domestic commercial arbitration in Canada, however, is often conducted as if it was taking place in court. Counsel simply agree to apply local rules of court and many arbitrators do not encourage greater procedural flexibility. By taking this approach, parties negate many of arbitration’s advantages.
The good news is that users of arbitration in Canada are increasingly aware of procedures to achieve greater time and cost efficiencies that are available in international arbitration rules and guidelines and in the rules of Canada’s arbitral institutions, such as ADR Institute of Canada and ADR Chambers, and are increasingly taking advantage of them in domestic arbitration.
Seven Tips for Faster, More Cost-Effective Arbitration
There are seven procedural approaches used in international arbitration that can lead to more efficient and cost-effective domestic arbitration in Canada.
1. Early Procedural Hearing: An early procedural hearing is regularly used in international arbitration to identify the primary disputed issues and the procedural steps required for their resolution. Holding an early procedural hearing means that procedures for the arbitration can be settled from the outset, whether by agreement or tribunal order. A preliminary timetable with the shortest and most realistic timing should be established at the procedural hearing. There can be significant saving by simply avoiding time gaps as considerable costs can be incurred each time counsel and arbitrators need to be “re-familiarized” with the dispute.
2. Empowering and Trusting Arbitrators: Parties should encourage their tribunal to be proactive and trust their tribunal to consider the parties’ procedural submissions and that they will act fairly and sensibly. This includes enabling the tribunal to proactively manage the procedure throughout the arbitration by hearing the parties’ positions and then specifying the form, timing, content and length of written submissions, the number of exchanges of briefs, and the conduct of any hearings. A cost-effective approach with a 3-member tribunal can be to empower the presiding arbitrator to determine all or most procedural matters.
3. Limiting Document Production: The IBA Rules provide a helpful guide to document production. The Rules bridge the gap between procedural rules in common law and civil law jurisdictions (where production is often limited to documents relied upon). The Rules require that the requesting party not only be specific in its requests but also demonstrate why a requested document is “material to the outcome” of the dispute. This contrasts with court rules that often require the production of all documents that are “relevant to any matter in issue”.
4. Limiting Oral Discovery: Oral discovery is generally not available in international arbitration and pre-hearing examinations of non-parties are rarely used. In order to promote efficiencies in domestic arbitration, consider limiting oral discoveries to what is really needed and utilizing alternatives such as written interrogatories.
5. Limiting Hearings: Minimizing the length of hearings is valuable in reducing time and costs. Consider approaches such as evenly splitting the hearing time (sometimes called the “chess clock” method). For procedural hearings and motions, consider telephone and video conferencing. Many motions can be argued in writing where email communications directly with the tribunal can save time and reduce costs.
6. Use of Witnesses: Hearing fact and expert witnesses quickly adds to costs, particularly with oral evidence. Techniques used in international arbitration include using witness statements instead of direct examination, and witness conferencing. Minimize the number of experts and reports and consider using a single tribunal appointed expert.
7. Specifications for Awards: Consider agreeing to realistic timing for a tribunal to render an award, the length of the award, and whether written reasons are even required. Institutional arbitration rules and legislation often provide that the parties are free to determine whether the tribunal needs to render a reasoned award.
These seven procedural approaches, commonly used in international arbitration, can lead to faster, more cost-effective domestic arbitration. Users of domestic arbitration should consider these approaches in their next arbitration.
Barry Leon, bleon@perlaw.ca, is a Mediator and Arbitrator at ADR Chambers and Partner and Head of the International Arbitration Group and John Siwiec, jsiwiec@perlaw.ca, is an Associate in the International Arbitration Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. in Ottawa. The firm’s website is www.perlaw.ca.
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.
