Litigation, arbitration, mediation, mini-trial — choosing from the menu of dispute resolution processes can be difficult. Ertel argues that, instead of choosing from available options, managers should consider building their own. Each dispute has its own history and characteristics that will dictate the most appropriate resolution process and settlement. In this article, he elaborates a series of steps for developing this process. By thoroughly understanding the nature of the conflict, managers can prescribe remedies and lead their organizations toward a solution of mutual gain.
1. Based on their experience with labor-management disputes in the coal industry, Ury et al. have come up with a useful and somewhat different checklist of steps that should be included in systems for managing recurring conflicts within an organization. See:
W. Ury, J. Brett, and S. Goldberg, Getting Disputes Resolved (San Francisco: Jossey-Bass, 1988).
2. This diagnostic approach to designing a dispute resolution process is based in part on the Circle Chart described in:
R. Fisher and W. Ury, Getting to Yes (Boston: Houghton Mifflin, 1981), pp. 68–71.
3. The seven elements of the framework have been described in different forms in a variety of published and unpublished papers. The use of this framework for designing alternatives to litigation is, to my knowledge, original to this essay. For a brief definition, see:
R. Fisher, “Negotiating Inside Out,” Negotiation Journal 5 (1989): 33–41.
4. O.M. Fiss, “Against Settlement,” Yale Law Journal 93 (1984): 1073–1090.
5. These inquiries have evolved from a related set of considerations outlined in
S. Goldberg, E. Green, and F. Sander, Dispute Resolution (Boston: Litde, Brown & Co., 1985), pp. 545–548;
H. Raiffa, The Art and Science of Negotiation (Cambridge, Massachusetts: Belknap Press, 1982), pp. 14–19; and other works that attempt to identify the “ADR potential” of a dispute or to produce a classification scheme for disputes.
6. Raiffa (1982);
M. Raker, “The Application of Decision Analysis and Computer Modeling to the Settlement of Complex Litigation” (Cambridge, Massachusetts: ILP Symposium, MIT, 1987).
7. D. Lax and J. Sebenius, The Manager as Negotiator (New York: The Free Press, 1986), pp. 88–116.
8. R. Fisher, “He Who Pays the Piper,” Harvard Business Review, March–April 1985, pp. 150–159;
P. Mode and D. Siemer, “The Litigation Partner and the Settlement Partner,” Litigation, Summer 1986, pp. 33–35.
9. S. Shavell, “Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs,” Journal of Legal Studies 11 (1982): 55–81;
J.C. Coffee, Jr., “Understanding the Plaintiffs Attorney: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions,” Columbia Law Review 86 (1986): 669–727.