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MANIPAL UNIVERSITY JAIPUR

Faculty Of Law
School Of Law
Subject: INTRODUCTION TO CONFLICT MANAGEMENT
Faculty coordinators: Ms. Raneeta Pal & Ms. Vibha Bandhu

READING MATERIAL

MODULE-3

METHODS OF CONFLICT RESOLUTION

3.1 MEANING & SCOPE OF NEGOTIATION

Negotiation has been defined as any form of direct or indirect communication whereby
parties who have opposing interests discuss the form of any joint action which they might
take to manage and ultimately resolve the dispute between them. Negotiations may be used to
resolve an already-existing problem or to lay the groundwork for a future relationship
between two or more parties.

Negotiation has also been characterized as the “preeminent mode of dispute resolution, which
is hardly surprising given its presence in virtually all aspects of everyday life, whether at the
individual, institutional, national or global levels. Each negotiation is unique, differing from
one another in terms of subject matter, the number of participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can
also be applied within the context of other dispute resolution processes, such as mediation
and litigation settlement conferences.

Negotiation is:

 Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process. Parties may participate directly in the negotiations or they may choose to be
 represented by someone else, such as a family member, friend, a lawyer or other
professional.
 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They
can range from two individuals seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
 Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation
is reached by the parties together without recourse to a third-party neutral.
 Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the
subject matter, timing and location of negotiations. Further matters such as
confidentiality, the number of negotiating sessions the parties commit to, and which
documents may be used, can also be addressed.
 Confidential: The parties have the option of negotiating publicly or privately.
Flexible: The scope of a negotiation depends on the choice of the parties. The parties
can determine not only the topic or the topics that will be the subject of the
negotiations, but also whether they will adopt a positional-based bargaining approach
or an interest-based approach.

3.2 SCOPE & IMPORTANCE OF NEGOTIATION

The history of negotiation can be traced back to the times of Monarch era where Kings used
to negotiate at the time of ongoing Wars in order to prevent the bloodshed in war. After the
two great World Wars in the 20th century the negotiation rounds resulted into the creation of
League of Nations followed by United Nations.The scope of negotiation has increased over
the time. The major objective behind negotiation is that the parties involved wishes to settle
the dispute outside the court. The litigation process has its own disadvantages such as: bulky
paperwork, excessive time, delays in process, costly- expensive and unfavorable
decision.Because of such reasons alternative dispute resolution gained fame and with increase
in fame of negotiation the demand for experienced negotiators also increased. Negotiation is
considered to be alternative dispute resolution as an informal process which helps the parties
to resolve that differences through mutual understanding and agreement. The importance of
negotiation can’t be overstated. Negotiation holds the key to getting ahead in the workplace,
resolving conflicts, and creating value in contracts. When disputes arise in business and
personal relationships, it’s easy to avoid conflict in an effort to save the relationship.
Nonetheless, it is possible to turn tense disputes into productive negotiations and maintain
strong relationships. The importance of negotiation skills in these instances is paramount. It’s
not just dispute resolution that highlights the importance of negotiation, however. The right
approach to negotiation can improve the situation of multiple parties.

3.3 RESOLVING CONFLICT THROUGH NEGOTIATION

The Five Modes of Responding to Conflict

It is useful to categorize the various responses we have to conflict in terms of two

dimensions:

1. how important or unimportant it is to satisfy our needs and

2. how important or unimportant it is to satisfy the other person's needs.

Answering this questions results in the following five modes of conflict resolution. None is
these is "right"

or "wrong". There are situations where any would be appropriate. For example, if we are cut
off driving to

work, we may decide "avoidance" is the best option. Other times "avoidance" may be a poor
alternative.

Similarly, collaboration may be appropriate sometimes but not at other times.

Competition: Distributive (win-lose) bargaining

Satisfying your needs is important; satisfying the other's needs isn't important to you

Collaboration: Integrative (win-win)

Satisfying both your needs and the other's needs is important

Compromising:

Satisfying both your needs and the other's are moderately important

Avoiding:

you are indifferent about satisfying either your needs or the other's needs: no action is likely

Accommodating:
simply yield (it doesn't matter to you and it matters to the other person)

In general, most successful negotiators start off assuming collaborative (integrative) or win-
win

negotiation. Most good negotiators will try for a win-win or aim at a situation where both
sides feel they won. Negotiations tend to go much better if both sides perceive they are in a
win-win situation or both sides approach the negotiation wanting to "create value" or satisfy
both their own needs and the other's needs.

We will focus on the two most problematic types: Collaborative (integrative)

and Competitive (Distributive).

Of the two the more important is Collaborative since most of your negotiation and conflict
resolution in your personal and professional life will (or should) be of this nature. This is
because most negotiation involves situations where we want or need an on-going relationship
with the other person. While it is important to develop skills in "competitive" bargaining (eg.
when buying a car), or skills that allow us to satisfy our concerns while ignoring the other's
goals, this approach has many negative consequences for both our personal lives and for our
professional careers especially if we are to have an on-going relationship with the other
person..

The key to successful negotiation is to shift the situation to a "win-win" even if it looks like a
"win-lose" situation.Almost all negotiation have at least some elements of win-win.
Successful negotiations often depend on finding thewin-win aspects in any situation. Only
shift to a win-lose mode if all else fails.

Reducing Conflict that Already Exists

Organizations also take steps to reduce conflict. The following list suggests some of these
ways:

 physical separation

 hierarchy (the boss decides)

 bureaucratic approaches (rules, procedures)

 integrators and third-party intervention

 negotiation
 rotating members

 interdependent tasks and superordinate goals ("We are all in this together...")

 intergroup and interpersonal training

The Two Most Important Kinds of Bargaining: Distributive (win-lose) vs. Integrative

(win-win)

All bargaining situations can be divided into two categories:

Distributive (also called competitive, zero sum, win-lose or claiming value).

In this kind of bargaining, one side "wins" and one side "loses." In this situation there are
fixed resources to

be divided so that the more one gets, the less the other gets. In this situation, one person's
interests oppose

the others. In many "buying" situations, the more the other person gets of your money, the
less you have

left. The dominant concern in this type of bargaining is usually maximizing one's own
interests. Dominant

strategies in this mode include manipulation, forcing, and withholding information. This
version is also called

"claiming value" since the goal in this type of situation is to increase your own value and
decrease your

opponent's.

Integrative (collaborative, win-win or creating value).

In this kind of bargaining, there is a variable amount of resources to be divided and both sides
can "win." The dominant concern here is to maximize joint outcomes. An example is
resolving a different opinion about where you and a friend want to go to dinner. Another
example is a performance appraisal situation with a subordinate or resolving a situation of a
subordinate who keeps coming in late to work. Dominant strategies in this mode include
cooperation, sharing information, and mutual problem solving. This type is also called
"creating value" since the goal here is to have both sides leave the negotiating feeling they
had greater value than before. It needs to be emphasized that many situations contain
elements of both distributive and integrative bargaining.. For example, in negotiating a price
with a customer, to some degree your interests oppose the customer (you want a higher price;
he wants a lower one) but to some degree you want your interests to coincide (you want both
your customer and you to satisfy both of your interests-you want to be happy; you want your
customer to be happy). The options can be seen in the table below:

Top

Integrative or Win-Win Bargaining: The Critical Points

 Plan and have a concrete strategy: Be clear on what is important to you

 Separate people from the problem

 Emphasize win-win solutions:

 Focus on interests, not positions

 Create Options for Mutual Gain: Generate a variety of possibilities before deciding what to
do

 Aim for an outcome be based on some objective standard

 Consider the other party's situation:

 Know your BATNA (Best Alternative to a Negotiated Alternative)

 Pay a lot of attention to the flow of negotiation

 Take the Intangibles into account

 Use Active Listening Skills

3.4 OUTCOMES OF NEGOTIATIONS

  Win-Lose

Frequently in a win-lose scenarios, both sides have attempted to win, without much regard for
the outcome of the other party. Both parties may have come into the negotiation with a
desired goal and a "walk away" point. In a win-lose scenario, one party falls within this target
range (or even exceeds it) and the other party falls below their target range.

Notice that win-lose outcomes occur when the losing side can be pushed below their “walk
away” point. This can happen when the losing side doesn’t know what their best alternative is
to reaching an outcome in the negotiation, or where they keep negotiating against their own
interest. Many other factors, like coercion and asymmetric information can also lead to win-
lose outcomes.

 Lose-Lose

In a Lose-Lose scenario either both parties concede bargaining positions outside their target
ranges. If the negotiators fail to reach an agreement, both parties may end up in worse
positions than when they started the negotiations, this is often included as a lose-lose
outcome.If one or both parties can’t walk away from a negotiation, but are unwilling to make
concessions, both will be forced to deal with the poor consequences of not reaching an
agreement. Alternatively, both parties could be too quick to make concessions, reaching a
compromise that is fair, but detrimental to both sides. Likewise, if both parties are mistaken
about the benefits of what the other side is offering, they may reach an agreement they later
come to regret.

 Win-Win

In a Win-Win scenario, both parties end up, at minimum, within their target ranges. This
could simply be reaching a fair middle ground that both parties benefit from, or it could mean
finding a creative new solution that improves the position of both parties.

If both parties come to the table with goals that are mutually compatible, there is a good
chance that the negotiation can result in a win for both sides. Of course, there is nothing that
prevents a negotiator from trying to press an advantage and push the other side into a losing
position, but there is a risk in that case that the other side will walk away from the
negotiation.
Win-win results are the most stable outcomes of negotiations; since both parties are happy
with the result, they have little reason to back out at a later time. Both parties have an
incentive to negotiate with each other again, laying the foundation for a mutually beneficial
working relationship.

 A Little Game Theory

In game theory (the application of mathematical modeling to competition and decision

making), some competitions, or games, are called “zero-sum”. In zero-sum games, one player
can only benefit to the equal detriment of another payer. An example of this is dividing a
finite resource; every increase in a player’s stockpile must be taken from another player’s
stockpile. Since the resource can only be passed between the players, any change from equal
division will be a win-lose situation.

Not all games are zero-sum. In fact, many negotiations in the real world, even competitive
ones, can be resolved in a way that lets both parties come out ahead. These non-zero-sum
games are what allows for cooperation, market economies, and pro-social activities.

3.5 MEDIATION

Mediation is a process wherein the parties meet with a mutually selected impartial and neutral
person who assists them in the negotiation of their differences.

Mediation leaves the decision power totally and strictly with the parties. The mediator does
not decide what is "fair" or "right," does not assess blame nor render an opinion on the merits
or chances of success if the case were litigated. Rather, the mediator acts as a catalyst
between opposing interests attempting to bring them together by defining issues and
eliminating obstacles to communication, while moderating and guiding the process to avoid
confrontation and ill will. The mediator will, however, seek concessions from each side
during the mediation process.

Facilitative Mediation In the 1960’s and 1970’s, there was only one type of mediation being
taught and practiced, which is now being called “Facilitative Mediation”. In facilitative
mediation, the mediator structures a process to assist the parties in reaching a mutually
agreeable resolution. The mediator asks questions; validates and normalizes parties’ points of
view; searches for interests underneath the positions taken by parties; and assists the parties
in finding and analyzing options for resolution. The facilitative mediator does not make
recommendations to the parties, give his or her own advice or opinion as to the outcome of
the case, or predict what a court would do in the case. The mediator is in charge of the
process, while the parties are in charge of the outcome.

Facilitative mediators want to ensure that parties come to agreements based on information
and understanding. They predominantly hold joint sessions with all parties present so that the
parties can hear each other’s points of view, but hold caucuses regularly. They want the
parties to have the major influence on decisions made, rather than the parties’ attorneys.

Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the
volunteer mediators were not required to have substantive expertise concerning the area of
the dispute, and in which most often there were no attorneys present. The volunteer mediators
came from all backgrounds. These things are still true today, but in addition many
professional mediators, with and without substantive expertise, also practice facilitative
mediation.

Evaluative Mediation Evaluative mediation is a process modeled on settlement conferences

held by judges. An evaluative mediator assists the parties in reaching resolution by pointing
out the weaknesses of their cases, and predicting what a judge or jury would be likely to do.
An evaluative mediator might make formal or informal recommendations to the parties as to
the outcome of the issues. Evaluative mediators are concerned with the legal rights of the
parties rather than needs and interests, and evaluate based on legal concepts of fairness.
Evaluative mediators meet most often in separate meetings with the parties and their
attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their
legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling
in mediation. The evaluative mediator structures the process, and directly influences the
outcome of mediation.

Evaluative mediation emerged in court-mandated or court-referred mediation. Attorneys

normally work with the court to choose the mediator, and are active participants in the
mediation. The parties are most often present in the mediation, but the mediator may meet
with the attorneys alone as well as with the parties and their attorneys. There is an assumption
in evaluative mediation that the mediator has substantive expertise or legal expertise in the
substantive area of the dispute. Because of the connection between evaluative mediation and
the courts, and because of their comfort level with settlement conferences, most evaluative
mediators are attorneys.

Determinative processes: the dispute resolution practitioner evaluates the dispute (which may
include the hearing of formal evidence from the parties) and makes a determination.
Examples of determinative dispute resolution processes are arbitration and expert
determination.

Hybrid processes: the dispute resolution practitioner plays multiple roles. For example, in
conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions
as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb,
the practitioner first uses one process (mediation) and then a different one (arbitration).

A hybrid dispute resolution process combines two or more traditional dispute resolution
processes into one. The most common hybrid process is med-arb in which the same
individual or dispute resolution forum acts first as a mediator and then if necessary, as an
arbitrator. However commonly, in case of a dispute, more than one type of dispute resolution
procedure is provided for in sequence such as negotiation, then mediation, and finally for
arbitration, and each of these processes is carried out by a different person.

Med-arb or other hybrid processes are generally used where parties believe a given dispute
resolution may require elements of two or more processes and where an individual or forum
is available who has the required skills to enact more than one process, also saving time and
expense.

3.6 DEVELOPMENT OF HYBRID ADR

Med-arb was initially used in the USA while public-sector collective bargaining, particularly
for police and fire departments. In many states, the state legislature has called for a hybrid
system to resolve such disputes peacefully and efficiently. Sam Kagel first coined this
alternate dispute resolution mechanism and the first hybridized the two-methods 'mediation
and arbitration' into one 'Med-Arb' for settling the San Francisco Nurses' Strike in the 1970s.
DIFFERENT FORMS OF HYBRID ADR

 Overlapping Med-Arb

This Med-Arb method involves the use of separate neutral experts, each responsible for one
phase of the process. The arbitrator in this Med-Arb method attends the mediation as an
observer during unqualified exchanges, where only the mediator engages privately with the
parties. The arbitrator attends joint exchanges and reviews the documents but does not have
access to private communication. If the dispute is settled through mediation, the agreement is
made and arbitration is not done. However in case of no satisfactory resolution, the arbitrator
steps in being already aware of the developments in the case.

 Plenary Med-Arb

This Med-Arb method involves a single individual who is prohibited to engage in any private
communication with the parties and his decision is based only on formal communication and
document exchange. This format of disallowing ex parte communications eliminates the
concerns of biasness.

 Optional Withdrawal Med-Arb:

This Med-Arb method involves the use of a single neutral with the disputing parties having
the option to withdraw themselves from the dispute resolution process post the mediation
phase. However, this Optional Withdrawal Med-Arb defeats the main aim of the Med-Arb
process aiming towards resolution of disputes between the parties.

 Arbitration-Mediation

This is the opposite of Med-Arb. It starts with the arbitration, whereby the arbitrator will pass
an arbitral award, which is kept sealed and later proceeds with mediation. If the mediation is
successful, the agreement between the parties governs the resolution of the dispute and the
arbitral award is never unsealed. However, if mediation fails to settle all issues, the arbitral
award is disclosed to the parties to resolve the dispute. The med/arb process is informal,
quick, and cost-saving.
Conclusion

Though the judiciary system or the process of litigation remains to be efficient, trustworthy,
and the most resorted means to secure justice or settle disputes, in the past few decades there
was a need for the re-emergence of certain pre-existed dispute resolution mechanisms. Thus it
can be concluded that hybrid resolution mechanisms and other existing ADR modes are great
assets of the legal system, which has assisted in reducing the burden on the judiciary system.