CONFLICT MANAGEMENT SYSTEM DESIGN

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CONFLICT MANAGEMENT SYSTEM DESIGN
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A 1990 survey revealed that

• 62 of respondents indicated they would be more
  willing to take legal action regarding employment
  discrimination than they had been 5 years before.
• 78 believed that some, most or all employers
  engaged in some kind of discrimination in hiring
  or promotion.

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Between 1970
and 1989

• Federal Civil caseload increased by 125 BUT
• Employment Discrimination case filings increased
  by 2,166

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Between 1991
and 1993.

• The EEOC reported
• a 22 increase in charges of employment
  discrimination.

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In SEXUAL
HARASSMENT CASES
Between 1992
and 1993.

• Judge and jury awards
• increased 98 to 25.2 million.

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In
SEXUAL HARASSMENT
CASES
Between 1992 and 1998,

• Annual monetary benefits increased
• from 12.7 million to 34.5 million

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TIME SPENT

• It takes an average of 2 years for the EEOC to
  investigate a claim.
• The median time between the date a lawsuit is
  filed and the commencement of a civil trial is
  2.5 years.
• Benefits from cases
• handled by the EEOC increased from 12.7 million
  to 34.5 million.

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A 1997 Survey of over 530 corporations in the
Fortune 1000 category revealed

• 90 view ADR as a critical cost-control
  technique.
• 88 reported using mediation in the previous 3
  years
• 23 used grievance procedures for nonunion
  employment dispute resolution.

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Among corporations that developed collaborative
conflict management systems

• Brown and Root reported an 80 reduction in
  outside litigation costs.
• NCR reported a 50 reduction in litigation costs
  and
• a drop of pending lawsuits from 263 in 1984 to
  28 in 1993.

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WHY ADOPT A CONFLICT MANAGEMENT SYSTEM?

• Cost reduction
• Quicker resolution at an earlier stage
• Privacy
• An interest based solution
• Underlying issues can be addressed

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WHY ADOPT A CONFLICT MANAGEMENT SYSTEM?

• Increased communication and trust
• Fewer charges are filed with government agencies
• Diversity
• Cultural change is fostered.

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TYPES OF PROGRAMS

• Ad hoc
• Formal policy

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EXAMPLES/COMPONENTS

• A conflict management person, committee or
  department.

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EXAMPLES/COMPONENTS

• Ombudsperson.

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EXAMPLES/COMPONENTS

• Voluntary or mandatory policies on mediation or
  arbitration.

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EXAMPLES/COMPONENTS

• Panels of external or internal third party
  neutrals.

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EXAMPLES/COMPONENTS

• Peer review panel.

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EXAMPLES/COMPONENTS

• Neutral fact-finding providing
• a nonbinding report.

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THE PLAN SHOULD ALSO INCLUDE

• Policies for cost sharing with employees.
• Conflict management training for all employees.
• A system for feedback.

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DESIGNING A PROGRAM

• The best programs probably include a
• combination of components.

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DESIGNING A PROGRAM

• BEFORE DESIGNING A PROGRAM
• Determine your needs.

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DETERMINE YOUR NEEDS

• Is your organization large enough to justify
  creating a system?
• Will this conflict management system fit with the
  organizations culture?
• Does the level of conflict justify a conflict
  management system?

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DESIGNING A PROGRAM

• AFTER DESIGNING A PROGRAM AND AGAIN AFTER ITS
  IMPLEMENTATION
• Determine if the plan is cost effective.
• Consider the price for
• Developing
• Implementing
• Maintaining

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STEPS FOR DESIGNING A PROGRAM

• Form a committee that is representative of the
  workforce.
• Identify specific problems and needs.
• Design the program.

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STEPS FOR DESIGNING A PROGRAM

• Try a pilot program.
• Evaluate the results.
• Publicize the program and educate the workforce
  about it.

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STEPS FOR DESIGNING A PROGRAM

• Implement the program.
• Collect feedback, evaluate the information, and
  make necessary revisions to the program.

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• IS
• YOUR
• PROGRAM
• FAIR?

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LEGAL CONCERNS ASSOCIATED WITH MANDATORY
ARBITRATION

• Avoidance of high costs

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Arbitration can save parties 70-80 of the cost
of litigating these cases. Ed Anderson,
National Arbitration ForumArbitration still
costs less than litigation. The Wall Street
Journal
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A four-year survey of
litigation cost versus
arbitration/mediation
cost showed

• Arbitration cost was half the cost of traditional
  litigation.
• Mediation was one-third the cost of traditional
  litigation

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COST OF LITIGATION

• Court Filing Fees 100-250
• Cost of Judges Services 0

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COST OF ARBITRATION

• AAA Fees
• Employer-promulgated plans 500
• Individually negotiated agreement
• 500 for claims up to 10,000
• Ranging to several thousand dollars for claims in
  the millions
• Cost of Arbitrators Services
• 150-300 per hour or
• 600-1000 per day

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LEGAL CONCERNS ASSOCIATED WITH MANDATORY
ARBITRATION

• Lack of participation in selecting the neutral.
• Confidentiality.
• Elimination of remedies.

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LEGAL CONCERNS ASSOCIATED WITH MANDATORY
ARBITRATION

• Adequate notice.
• Procedural limitations.
• Curbs on discovery
• Time limits for the hearing.

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CONSIDERATIONS

• Should agreement with the policy be a condition
  of employment?
• Should the decision to mediate/arbitrate be made
  only after a dispute arises?
• Should a new program apply only to new employees?

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CONSIDERATIONS

• What effect will the plan have on morale?
• If plan is perceived as being fair, will
  complaints increase?

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Keep in mind..

• If your plan is challenged in court, for whatever
  reason, there may be no cost saving.

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A California Court
recently observed

• We spend too much time trying to make sense
  out of arbitration agreements

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A California Court
recently observed

• Oftentimes the remedy is worse than the
  disease.