Designing Systems and Processes for Managing Disputes

by Nancy H. Rogers, Robert C. Bordone, Frank E.A. Sander, Craig A. McEwen

Overview

Designing Systems and Processes for Managing Disputes features a hands-on, interdisciplinary approach with wide-ranging practical applications. Seven real-life case studies and numerous examples have students designing and implementing a process for resolving and preventing disputes where traditional processes have failed. This is a must-read for students and practitioners alike.

New to the Second Edition:

• A chapter-long focus on facilitation skills for designers
• The addition of a seventh central case study related to processes following the Trayvon Martin shooting in Sanford, Florida
• A new appendix with an overview of mediation for students who have not taken a prior course in mediation
• An interesting new story by a Brazilian judge who used Designing Systems and Processes for Managing Disputes to create new processes to resolve multiple cases, some pending over 20 years, arising from lands taken to create a new national park
• A new question focusing on the issues related to designing court-connected mediation programs
• Updates throughout all chapters and the appendix

Professors and students will benefit from:

• Focus on skills development for dispute systems designers
• A multidisciplinary approach
• Biographies of designers, providing students with a sense of how to get into dispute systems design work
• An appendix assisting students who have no background in dispute resolution, with brief overviews of negotiation, mediation, and arbitration
• Problems and exercises to help students apply their learning
• Examples of complex disputes
• Featured disputes including eBay, a child abuse claims tribunals, court-related mediation, intra-institutional disputes, and community and post-violence conflicts

Product Details

ISBN-13:	9781454880820
Publisher:	Wolters Kluwer Law & Business
Publication date:	12/10/2018
Series:	Aspen Coursebook Series
Edition description:	Second Edition, New Edition
Pages:	512
Product dimensions:	7.00(w) x 10.00(h) x 1.20(d)

Table of Contents

Preface xvii

Acknowledgments xxi

Part 1 Setting the Stage 1

Chapter 1 Introduction 3

A Definitions: Designing, Processes, and Systems 3

B An Owner's Guide to this Book 7

1 For those new to dispute resolution 7

2 Learning what steps to take 7

3 Tapping into accumulated experience; searching for ideas 8

4 Designer practice notes 10

5 Questions and exercises 10

6 Using the book as a reference tool 10

Thoughts Going Forward 11

Chapter 2 Overview of the Design Process 13

A Steps in the Design Process 16

1 Taking design initiative 17

2 Assessing or diagnosing the current situation 19

3 Creating processes and systems 26

4 Implementing the design 29

B Drawing from Other Contexts, but with Caution 32

C Designing Collaboratively 37

Thoughts Going Forward 41

Questions 41

Exercise 42

Part 2 The Planning Process 47

Chapter 3 Taking Design Initiative and Clarifying Roles 49

A Identifying a Problem or Opportunity and Envisioning a Better Way 50

B Deciding to Become Involved 51

1 Whether you would add value 51

2 Whether you would be willing to do it 54

C Gaining Acceptance 55

D Defining the Designer's Role on a Conceptual Level 62

E Securing Agreement on the Details 64

Thoughts Going Forward 65

Questions 65

Exercise 66

Chapter 4 Diagnosing or Assessing Stakeholders, Goals and Interests, and Contexts 69

A Identifying Stakeholders 70

B Identifying Goals and Interests 73

1 Discerning interests after hearing goals 73

2 The parties' process interests 74

3 Short-term and long-term interests 75

4 Designer's dilemma: conflicts among stakeholders' interests 78

C Examining the Context 83

D Cultures, Organizational Structures, and Customary Practices as Crucial Features of Context 85

1 Acknowledging customary practice in the design 87

2 Using the design to change customary practices 88

E Assessment Tools 89

Thoughts Going Forward 96

Questions 97

Exercise 99

Chapter 5 Creating Dispute Management Processes and Systems 103

A Design Concepts 105

B Process and System Innovation, Adaptation, Choice, and Sequencing 113

1 Seeking ways to overcome barriers to reaching agreement 114

2 Seeking ways to reduce expenses and time 118

3 Seeking to create processes that will operate in advance of disputes 120

4 Seeking more man a resolution of a dispute 122

5 Seeking to create a system that sequences a variety of processes 124

6 Exercising creativity in process and system design 128

C A Collaborative Approach to Creating Processes and Systems 130

Thoughts Going Forward 132

Questions 132

Exercise 137

Part 3 Key Planning Issues in more Detail 143

Chapter 6 Selecting, Engaging, and Preparing the Participants in the New Process 145

A Identifying Participants 146

B Choosing Interveners 152

1 What it takes to be selected and accepted as an intervener 152

2 What it takes to be an effective intervener, once accepted 154

C Engaging Participants: How and When 159

D Providing Resources for the Participants 164

Thoughts Going Forward 166

Questions 166

Exercise 169

Chapter 7 Determining the Extent of Confidentiality and Openness in the Processes 173

A Competing Considerations 174

1 Legitimacy 174

2 Strategic considerations 175

3 Fairness 175

4 Desires or requirements to warn 176

5 Questions to ask as a designer 176

B Designing in the Midst of Conflicting Strategic Goals 177

C The U.S. Law Regarding Confidentiality and Openness 180

Thoughts Going Forward 187

Questions 187

Exercise 190

Chapter 8 Seeking Justice, Safety, Reconciliation, Change, Public and Personal Understanding, and Other Goals 193

A Seeking Justice 196

B Seeking Safety 198

C Seeking Change 199

D Seeking Public Understanding 200

E Seeking Personal Understanding 204

F Strengthening Personal Accountability 205

G Seeking Reconciliation 207

H Designing Processes to Serve Non-Resolution Interests 208

Thoughts Going Forward 211

Questions 211

Exercise 213

Chapter 9 Enhancing Relationships 219

A Research and Theory 221

1 Social capital 221

2 Constructive contacts 223

3 Trust and mistrust within negotiations 224

B Practice Implications 224

1 Intervene early 225

2 Encourage constructive interaction among disputants 226

3 Improve communications 232

4 Increase positive interactions within the larger community 233

5 Set boundaries on the need to trust 236

6 Deal with structures that enhance fairness 237

7 Develop new approaches 237

Thoughts Going Forward 237

Questions 238

Exercise 239

Chapter 10 Using Technology 243

A Potential Benefits of Technology in the Work of Process or System Design

B Potential Benefits of Technology in Implementing Systems and Processes 245

C Technology-Introduced Design Problems 247

1 Research 248

2 Fairness and practical considerations 249

3 Privacy, security, and public access 250

D Managing Technology's Problems 250

Thoughts Going Forward 252

Questions 252

Exercise 253

Part 4 Implementing 259

Chapter 11 Implementing 261

A Anticipating the Need for Support and the Possible Resistance 262

B Improving the Climate for Implementation 265

C Using Existing Patterns 268

D Marshaling Resources 270

E Building Leadership 271

F Using a Pilot Program 273

G Taking Successful Innovation to Scale; Institutionalizing It 273

1 Taking successful innovation to scale: anticipating drift from original goals 273

2 Institutionalizing 275

Thoughts Going Forward 278

Questions 278

Exercises 280

Chapter 12 Using Contracts 283

A The "People" Part of Contracting for Process 284

1 Usefulness aside from enforceability 284

2 Resentment of pre-dispute clauses? 286

B Court Enforcement and Contractual Processes 287

C More Versus Less Detail About Procedures 287

Thoughts Going Forward 289

Questions 289

Exercise 290

Chapter 13 Using Law 293

A Changing Law to Change Incentives 295

B Changing Law to Encourage Constructive Contacts 297

C Changing Law to Establish New Processes 298

D Changing Law to Change Culture and Customary Practices 299

E Anticipating the Unintended Consequences of Changing the Law 302

Thoughts Going Forward 304

Questions 305

Exercise 307

Chapter 14 Evaluating and Revising 311

A Why Do Evaluation and for Whom? 313

B What Kinds of Evaluation Approaches Are There? 317

C How Do You Identify the Outcome Criteria for Evaluation? 320

D Why Should You Look at Program Implementation as well as Program Outcomes? 324

E What Questions Should Guide Evaluation Research? 326

F What Data Should You Collect? 328

1 Selecting from the repertoire of data collection techniques 328

2 Measurement and description 330

3 Confidentiality and the ethics (and effects) of data collection 331

G From Whom Do You Collect Data? Sampling and Representativeness 333

H How Do You Make Sense of Your Data? 335

1 Compared to what? 335

2 Causal inference 336

3 Using statistics to analyze and present data 338

I What Resources Do You Need to Do Evaluation Research and Who Should Do It? 339

J When Should You Gather Evaluation Data? 340

K Program Review as an Added Approach to Evaluation 343

Thoughts Going Forward 344

Questions 344

Exercise 344

Part 5 Skills for Designers 347

Chapter 15 Facilitation and Related Skills for Designers 349

A What and Why 350

B Steps of Effective Facilitation 351

1 Preparation and set-up 351

2 Openings and shared norms 358

3 Managing the process, agenda, and relationships 362

4 Providing closure 365

C Skills for Effective Facilitation 366

1 Active listening 366

2 Creativity 370

3 Self-reflection 373

D Special Challenges 374

1 Difficult participant behaviors 374

2 The problem of "neutrality" 376

3 Dealing with inherent power differences 377

4 Co-facilitation 378

5 Facilitating conference calls 379

6 Managing internal voices 380

Thoughts Going Forward 382

Questions 382

Appendices 387

A Designers' Stories 387

B Arbitration Overview 397

C Mediation Overview 409

D Instructing Stakeholders on Overcoming Barriers to Reaching Negotiation Goals 414

E Uniform Mediation Act (2002) 422

F Case Study Sources and Acknowledgments 427

Collected References 431

Index 455