alternative dispute resolutions

• principled negotiation?


  use of objective criteria to solve a problem
• expert assessment?

  arbitration where the arbitrator is an expert in the field concerned
• mini-trial?

  both parties present their cases to an arbitrator and negotiation is attempted. should negotiation fail, the arbitrator provides a binding decision
• review?

  involves a reconsideration on the manner in which the process was conducted and not the correctness of the decision
• con-opinion?


  conciliation is attempted first, where this fails, an opinion is given.
• administrative dispute resolution?

  involves the resolution of disputes between the organs of state and members of the public
• positional negotiation?

  buyer and seller of a house negotiate price with a series of offer and counter-offers
• Arb-con?


  arbitrator first attempts conciliation and if this fails a binding decision is given
• interest based-negotiation?


  this is where two parties come to an agreement that can mutually benefit both of them
• non-binding fact-finding?

  3rd party determines the fact of a dispute prior to mediation
• advisory arbitration?

  3rd party arbitrator gives their advice, parties may then decide to agree to this or proceed with binding arbitration.
• con-arb?

  3rd party acts as a mediator and if this fails then as arbitrator
• How does a conflict develop into a dispute?

  conflict, power, transformation, power, dispute
• Alternative dispute resolution


  All forms of dispute resolution other than litigation or adjudication through the courts
• How conflict can turn into a dispute

  1. Conflict- arises when parties have a difference in their needs and interests

  2. Power- it is an unstable dynamic between the two parties and flows from the two parties

  3. Transformation- this is where the conflict transforms into something that can be named. E.g. naming, blaming, claiming

  4. Grievance- a formalised expression of conflict that highlights a specific problem or concern and seeks a formal pathway to address and potentially resolve it

  5. Dispute- a grievance becomes a dispute when the conflict that has been manifesting and the grievance is not addressed properly
• Factors that can influence conflicts to escalate

  • Unrealistic expectations
  • Past unresolved disputes
  • Time limitations
  • Poor communication
  • Poor interpersonal skills
• Negotiation


  A process of communication and interaction between parties with different interests or positions, aimed at reaching a mutually acceptable agreement or resolving a dispute
• Types of negotiation techniques

  • Positional
  • Interest-based
  • Principled
• Positional negotiation

  Parties negotiate from a fixed position, through a series of concessions attempt to reach an agreement
• Interest-based negotiation

  Based on the interest and needs of parties, negotiate in a way to optimise the satisfaction of their respective interests or needs
• Principled negotiation

  Make use of rules and negotiation principles to resolve disputes, used to bridge the above two approaches
• Mediation


  Uses an independent 3rd party to assist, facilitates communication and negotiation between disputing parties to help them reach a mutually acceptable agreement
• Mediation can be voluntary or compulsory (in terms of legislation, e.g. the conciliation of labour disputes in terms of the Labour Relations Act)
• Mediation processes

  • Con-arb
  • Non-binding fact-finding
  • Facilitation
  • Arb-con
  • Con-opinion
• Arbitration


  3rd party has a final determination of a dispute, parties in a dispute submit their case to a neutral third party, known as an arbitrator, who makes a binding decision on the issues in dispute
• Arbitration processes


  • Expert assessment
  • Binding fact-finding
  • Advisory arbitration
  • Mini trial
• Ombudsmen


  A watchdog or any independent person who facilitates disputes between parties in an industry or organisation, can either be appointed by statute to protect against administrative injustice or can be privately appointed
• Administrative dispute resolution


  Involves the resolution of disputes between the state, organs of state and the public, done in terms of the principles in the constitution and the PAJA (Promotion of Administrative Justice Act)
• Administrative dispute resolution processes

  • Appeal
  • Review
  • Hearing
• Negotiation


  Can be used as an alternative to, or in conjunction with, other dispute resolution mechanisms, a process by which two or more parties attempt to resolve their opposing interested, basically obtaining what you want from others
• When parties should not negotiate

  • Where the risks are too high, for example if negotiating could result in severe loss
  • When a party has no stake in the outcome, e.g. a party has no interest in the outcome, since they have everything to lose and nothing to gain
  • When a party doesn't have time
  • When the other side acts in bad faith
  • When waiting would improve a party's bargaining position
  • When a party isn't prepared
  • When it would be unethical
• Negotiation skills


  • Creating a conducive environment, that supports the physical environment and is also a suitable emotional environment
  • Listening carefully, as well as taking notice of the non-verbal clues given by the other party
  • Being emotionally neutral, as negative emotion reduce the ability of the negotiator to objectively identify the problems and possible solutions to a dispute
  • Patience
  • Asking open minded questions
  • Reframing
• Reframing


  A skill used to recast a position in such a manner that it focuses the attention on solving the problem in such a ways that it satisfies the interest of both the parties, you can do this by asking why, what if and asking for question, the purpose is to show an interest in understanding the other party in order to identify their concerns and interests
• Negotiation process


  1. Preparation

  2. Opening negotiations

  3. Exchanging information

  4. Exploring options

  5. Agreeing on solutions

  6. Closing the agreement
• Competitive bargaining


  The most aggressive negotiation style, characterised by parties exerting pressure on each other by way of threats, bluffing, disinformation, and sometimes even disruptive behaviour, however it doesn't always have to be that way
• Phases of competitive bargaining

  • Preparation
  • Opening
  • Bargaining
  • Closure
• Failure to close negotiations in competitive bargaining is often rooted in the win-lose nature of the approach
• Negotiation tactics


  • Withholding info
  • Bluffing
  • Threats and warnings
• Bargaining


  1. Towards the end of the opening phase

  2. Signalling willingness to move positions

  3. Making proposals to explore solutions

  4. Packaging proposals in packages to allow for mutual concessions
• Closure


  • Uncertainty
  • Failure rooted in win-lose nature of competitive bargaining
  • Using walkout signal or threats/warnings to remind of consequences of no agreement