Systems design means process precision, but emphasizes culture, value, and results

BY MELANIE LEWIS

Editor’s Note: The Corporate ProtocolCommission of the CPR Institute, lastyear asked CPR members whether theyhave installed early case assessmentpractices. The inquiry was part of thecommission’s work targetedat finding ways to makemore efficient use of alterna-tive dispute resolution tech-niques. Melanie Lewis, cor-porate manager for conflictmanagement of Coca-ColaEnterprises Inc., respondedin detail about the company’sconflict management systemsdevelopment. Lewis adapts her answersbelow.

* * *

Coca-Cola Enterprises Inc., of Atlanta, hasimplemented a conflict management sys-tem for workplace issues and employmentdisputes called “Solutions.” It covers non-bargaining employees and includes a broadrange of disputes: all legal and equitableclaims; disagreements on interpretation orthe system’s scope; disputes concerning anissue relating to employment or termina-tion; other matters concerning the em-ployment relationship including, for ex-ample, allegations of discrimination (race,sex, religion, national origin, age, veteranstatus, sexual orientation or disability), ha-

rassment, sexual harassment, workers’compensation retaliation, retaliation forusing the conflict management system,defamation, infliction of emotional dis-tress, and personal injury, unless coveredby workers compensation.

Solutions excludes from coverage cer-tain types of disputes, such asErisa and unemploymentcompensation claims; claimsfor workers’ compensationbenefits, and other claims ex-pressly excluded from arbitra-tion by statute.

An employee covered bySolutions asserts a conflict orlegal dispute as defined in the

rules through one of the options:

• Talk, involving direct negotiationsamong disputants;

• Support, which includes human re-sources, management officials, the em-ployee assistance program, the ombudsoffice, security, and the ethics andcompliance hotline;

• Internal and external mediation, and • Arbitration.

An employee may choose among theoptions to raise and address an employ-ment dispute in any order–that is, the pro-gram is not stepped or linear.

Solutions is an alternative to the courtsystem, so a legal dispute would be re-solved either in external mediation or arbi-tration, rather than in litigation. The sys-tem covers 35,000 employees across five ofthe company’s six business units.

Here, in outline form, are the stepsneeded for starting, developing, using, and

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 25 NO. 7 JULY/AUGUST 2007DIGEST

CORPORATE ADR

Systems Design Means Process Precision, But Emphasizes Culture, Value, and Results

(continued on page 117)

The author, an attorney, is corporate manager forconflict management at Atlanta’s Coca-ColaEnterprises Inc., which markets, produces andbottles soft drinks for the Coca-Cola Co., as wellas distributing Dr Pepper and other brands.

AlternativesTO THE HIGH COST OF LITIGATION

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

CORPORATE ADRThe issue: What does a comprehensiveinternal dispute resolution system look like?The problems: Is it current? Is it responsive?Is it effective?The perspective: Melanie Lewis, of Atlanta,describes how Coca-Cola Enterprises Inc.assesses its conflict resolution needs, as wellas how it implements, operates, and moni-tors its program–including provisions toredesign for new developments ....13

CPR NEWSThe events: Details on the CorporateLeadership Award dinner in October; thisfall’s CPR Awards for Excellence in ADR;and CPR’s renewed product liability efforts. The perspective: A synopsis of the 2007CPR Spring Meeting sessions in Paris,including information on corporate ADRsystems, and ADR use in France andEastern Europe ............................Page 114

MEDIATION ADVOCACYThe issue: Party participation in mediatorselection.The problem: If the other side says “go aheadand pick,” it probably means they thinktheir argument will prevail. Which probablymeans they are overestimating their case.And which probably means that their com-mitment to a mediated resolution is low.The rule: Jeff Kichaven, of Los Angeles,writes that participating actively in selectionheightens commitment to the process--andthe likelihood of resolution ..........Page 115

ADR BRIEFThe issue: Contracting for judicial review inarbitration.The problem: The federal circuits are spliton whether parties can expand the role ofcourts in examining awards. What’s next? The U.S. Supreme Court willtake on the issue this fall. The argumentspro and con in Hall Street Associates LLC v.Mattel Inc. are examined ..............Page 119

DEPARTMENTSCPR News ..................................Page 114Subscription Info ..............Page 114 & 128ADR Brief ....................................Page 119Cartoon by Chase ........................Page 120

VOL. 25 NO. 7 JULY/AUGUST 2007 ALTERNATIVES 117


improving systematic conflict managementsystems from Coca-Cola Enterprises’ expe-rience, including the most significant bar-riers faced in each step.

1. ASSESSMENT

a. Identify the types of conflicts mostcommonly experienced.

b. Identify the methods, approaches, andresources most commonly used withinthe organization to address/resolvethese conflicts.

c. Identify the individuals within the or-ganization who are most often address-ing these conflicts, and gauge the gen-eral effectiveness and satisfaction oftheir work within the organization, ifpossible.

d. Gather benchmark data from othercompanies that use conflict manage-ment systems to learn from their expe-riences—and borrow good ideas.

e. Obtain information regarding develop-ments in the law concerning alternativedispute resolution for workplace dis-putes. Use the legal research to guidethe system’s overall design—the rulesand procedures in particular.

f. Obtain cross-functional, cross-hierar-chical feedback on proposals for addi-tional methods, approaches, or re-sources. Hold confidential focus groupmeetings at varying levels in the hierar-chy and across the company’s opera-tions.

g. Present findings from assessment to se-cure support for design of conflictmanagement system.The barriers or challenges during as-

sessment are: • It may be difficult to get appoint-

ments meet with people and discusstheir experiences. Supporters maybelieve that assessment is a waste oftime and that systems design shouldbegin immediately. Field manage-ment may be suspicious of the in-tent of assessment—that it mayserve as a witch hunt. Others inmanagement may be concernedthat by asking questions about howconflict is handled, new conflictswill emerge, and that it might stir a

hornet’s nest. Employees may beconcerned about being retaliatedagainst for communicating honest-ly. As in every phase of the system’sdevelopment, listen closely to theconcerns and address them.

• It may be difficult to secure supportfor the design of a conflict manage-ment system. It will be helpful topresent the business case. The sys-tem should be designed only if itmakes good business sense. But aswith any proposal for change, pre-pare for reluctance or resistance.Consider issues such as departmen-tal turf, pride of subject matter ex-perts, and questions or concerns re-garding costs/resources. Identify theresistance, uncover important inter-ests, and explore ways to addressthem in the system’s design.

2. DESIGN

a. Use findings from assessment phase toensure that the system addresses theneeds, concerns, and interests of thosefor whom it is built.

b. Identify best practices within the spe-cific dispute resolution field to informthe system’s design.

c. Obtain important ADR legal develop-ments for workplace disputes.

d. Interview corporate leaders company-wide to determine potential needs andgoals for the system.

e. Organize a steering committee ofmembers of the company’s manage-ment to ensure that the system is devel-oped and operated according toagreed-upon goals.

f. Organize volunteer employee taskforces to refine the system’s design. Thetask forces may be formed to developthe system’s operation; communica-tions; training programs; policies, rulesand procedures; implementation; andevaluation. Assimilate, accept, modify,conform and communicate task forcerecommendations to senior manage-ment for final approval.

g. Develop any necessary training pro-grams. They may include conflict skillstraining for employees; conflict skillstraining for managers, and mediationskills training for potential internalmediators.

h. Prepare legal documents that outlinethe system’s scope, intent, rules, poli-cies and procedures. Use sound legaladvice, senior management expecta-tions, task force recommendations, in-ternal and external experiences, andoverall goals for systems design guide-posts.

i. Develop any additional materials andmethods required for system’s opera-tion and communication. Such docu-ments may include: new-hire agree-ments; applicant agreements; frequent-ly asked questions; brochures;summary program descriptions; video-tapes; Intranet Web sites; guidelinesand forms for the internal mediationprogram, and user satisfaction surveys.

j. Identify neutrals providers to conductmediations and arbitrations accordingthe system’s rules and terms.

k. Develop system goals and objectives.The goals and objectives may include:i. Improve Company Culture by:

• promoting open communica-tion within the workplace;

• promoting mutual respect andvaluing differences;

• increasing job satisfaction andemployee morale;

• promoting trust in managementand the company; and

• building and maintaining posi-tive employee relations.

ii. Effectively Address and Resolve Con-flict by:• providing a range of options;• ensuring that employees and

managers regard the system asuseful, effective and easy to ac-cess; and

• ensuring that employees under-stand and are satisfied with thesystem’s options, monitoring,and enforcing policies.

iii. Improve Overall Effectiveness inConflict Resolution by:• providing conflict skills training

to employees and managers;• shifting accountability for con-

flict resolution to all from few;• helping employees create poten-

tial solutions that meet inter-ests, and

• improving satisfaction with set-tlements and agreements.

(continued on next page)

System Design Precision(continued from front page)

VOL. 25 NO. 7 JULY/AUGUST 2007118 ALTERNATIVES


iv. Contribute to Profitability andShareholder Value by:• reducing employment-related

legal expenses;• reducing employee and man-

agement time spent in conflict;• reducing the number of new

U.S. Equal Employment Op-portunity Commission or U.S.Department of Labor charges,and

• improving employee retentionand lowering absenteeism.

v. Limit Exposure to Negative Publicityand Employment Litigation by:• implementing fair rights-based

litigation alternatives to resolveemployment-related legal dis-putes quickly, individually, andprivately; and

• ensuring that the system’s poli-cies and procedures embraceand respect federal and statelaws, and due process protocols.

Barriers or challenges during designare:

• The conflict management sys-tem will be most successful if itis specifically designed for theunique needs, concerns, culture,and conflicts of an organization.Some time and resources maybe required to develop such atailored system. Some may bereluctant or resistant to investnecessary time and resources,including people and products,to design a system that as of yethas unknown value. Some maybe skeptical about the impact ofthe project or question the re-turn on investment. To counterthese tendencies, communicatecurrent organizational conflictcosts. Use trend reports as sup-port for investment, when ap-plicable. Some may be reluctantto lend their employees to theproject. Communicate the needto involve stakeholders in thedesign—with such involve-ment, the system can be de-signed to embrace the users’unique needs and concerns. Al-so, ultimate acceptance of the

system is improved when em-ployees understand that fellowemployees designed it.

• It may be challenging to balancestakeholder interests. Somegroups may see the conflictmanagement system as an op-portunity to continue or pro-mote goodwill with employeesand, as such, would argue forfairness or even generosity to-ward employees. Other groupsmay see the system as an oppor-tunity to protect the organiza-tion from certain risks of liabili-ty and may argue for rules orterms that will lower the organi-zation’s exposure to certain risks.The best path is to listen for im-portant interests from all stake-holders and embrace as many ofthose interests as possible in thedesign of the system itself.

3. IMPLEMENT

a. Use task force recommendations andleadership feedback as guides to devel-op an effective implementation plan.i. Ensure that communications are ef-

fective in explaining the program,providing adequate legal notice,featuring important benefits, ad-dressing concerns of various con-stituents, and linking to corporateculture.

ii. Build and train local teams to cham-pion and oversee the program’slong-term success in the field.

iii. Create forums for open dialogueencouraging employees to posequestions and raise concerns.

iv. Ensure that the implementationplan addresses unique challengespresented by the business—suchthat meetings and trainings havemaximum attendance and are leastdisruptive to operations.

v. Secure effective means for deliver-ing presentations and trainings.

vi. Test and evaluate the success of theimplementation plan. Make im-provements as necessary.

b. Oversee system’s successful implemen-tation.i. Work with senior and line manage-

ment to negotiate timing and

specifics for implementation—setimplementation calendar.

ii. Identify primary field personnel(primary contact and implementa-tion team members) to ensure suc-cessful implementation.

iii. Hire and engage trainers to delivertrainings as outlined in calendars.

iv. Evaluate employee satisfaction withthe system, the training programs,and the quality of the trainingteam.Barriers or challenges during imple-

mentation are:• It may be challenging to gain

field management’s willing sup-port to implement the system intheir territories. Implementa-tion requires dedication of timeand resources to communicatethe system. Consider ways tocommunicate costs of not im-plementing a system, such asmanagement time spent in con-flict, legal expenses, and poten-tial individual and class litiga-tion, and the benefits of imple-menting, including buildingemployee morale and trust, pro-viding new resources and toolsto employees and managers,and gaining new protectionagainst conflict costs. Partnerwith leaders in the human re-sources and law departments topresent the business case to gen-eral management.

• It may be challenging to over-come trust barriers among em-ployees and managers. Employ-ees may presume that the sys-tem benefits the organizationand not employees–indeed, thatit may take away some of theirrights. Managers may presumethat the system will make iteven more difficult to managetheir people, taking away someof their management power.Presuming that many elementsof fairness and due process pro-tocols have been designed intothe system, such trust barriersmay be addressed and overcomein direct face-to-face meetings.As employees and managers aregiven the opportunity to ask di-rect questions which challenge

System Design Covers(continued from previous page)

c. Prepare and deliver presentations con-cerning the system or training pro-grams to internal stakeholders–the sys-tem’s steering committee, the compa-ny’s diversity council, human resourcesmanagement, the legal department, theorganizational development depart-ment, and division and corporate sen-ior management.

d. Administer, approve and process requestsfor reimbursement under the system’s le-gal benefit, which reimburses employeesfor certain qualifying legal expenses.

e. Engage legal counsel for mediation andarbitration cases when necessary.

f. Maintain cohesiveness with other com-pany programs and departments suchas the ombuds office, the complianceofficer, the Equal Employment Oppor-tunity or affirmative action office, orga-nizational development, human re-sources, legal, security, and employeebenefits.

5. MONITOR/EVALUATE

a. Develop and use tools that track systemperformance and effectiveness.i. Provide regular performance re-

ports to stakeholders concerninguse, satisfaction, expense, and re-sults of all system options.

VOL. 25 NO. 7 JULY/AUGUST 2007 ALTERNATIVES 119


and test the system, and presen-ters respond honestly, fears arequieted and resistance lowers.

4. OPERATE

a. Manage and administer the system.i. Receive requests for mediation and

arbitration. Confer with parties asnecessary, exploring the appropri-ateness of options and the willing-ness of parties to proceed with cer-tain options.

ii. Provide neutral third-party assis-tance to individuals in conflict us-ing a cooperative conflict model.

iii. Administer mediation and arbitra-tion options.

iv. Establish an internal mediationprogram by providing continuingmediation skills training to employ-ees, qualifying training and experi-ence, administering requests for in-ternal mediation, conducting con-vening calls, scheduling mediations,gathering mediator reports and par-ty satisfaction surveys, and provid-ing feedback to internal mediatorsas necessary.

b. Communicate the system’s performanceto covered employees and managersthrough quarterly newsletters.

ii. Ensure consistency in applicationof rules and procedures.

iii. Compile, analyze, prepare, and de-liver reports and measurements thatindicate the system’s health and suc-cess. Such reports should includeemployment litigation expenses, in-cluding outside counsel, experts,and related direct legal expenses,settlements or awards; insurancepremiums; employee turnover; andsatisfaction surveys for system’s op-tions.

b. Monitor developments in law to ensurethat the system remains valid and en-forceable.

6. REDESIGN

a. Ensure that the system is achieving in-tended goals.

b. Stay abreast of new developments inthe law or trade that may warrant or re-quire specific design considerations forthe system.

c. Identify items—for example, communi-cations, rules and procedures, trainingprograms, etc.—requiring amendment,and recommend improvements. �

DOI 10.1002/alt.20186

(For bulk reprints of this article, please call (201) 748-8789.)

(continued on next page)

SUPREME COURT WILL ADDRESSLONG-RUNNING BATTLES OVER ARBITRATION REVIEW

The U.S. Supreme Court returned alterna-tive dispute resolution to its docket thisspring with one of ADR case law’s hottest is-sues: parties’ ability to contract for expand-ed judicial review of arbitration awards.

The case addresses an eternal ADRquestion: Are users comfortable with beingin arbitration? The matter pits Federal Ar-bitration Act restrictions against parties’freedom to contract.

The decision in Hall Street AssociatesLLC v. Mattel Inc., No. 06-989, will be re-flected in every arbitration clause and con-tract that is drafted after it is issued.

An argument date will be set for thisfall. On May 29, the Court granted a cer-tiorari petition on the question of whetherit should limit parties’ ability to contractfor expanded judicial arbitration review.

The case comes from the Ninth U.S.Circuit Court of Appeals. The SupremeCourt took the case to settle a split amongfederal circuit courts.

The case has a long ADR and litigationhistory, and the Ninth Circuit is home to anotorious judicial review decision that is atthe heart of Hall Street Associates–not onlyin terms of issues, but personalities as well.The Morrison & Foerster LLP senior ofcounsel who represents Mattel also repre-sented the plaintiff in Kyocera v. Pruden-tial-Bache Trade Services Inc., 341 F.3d 987

(9th Cir. 2003), a Ninth Circuit en bancdecision holding that parties can’t expandthe basis for a court to review an arbitra-tion award beyond the Federal ArbitrationAct limits.

The Supreme Court dismissed Kyoceraafter it settled without hearing the judicialreview issue. 540 U.S. 1098 (2004). ButHall Street Associates gives the Court achance to bring Kyocera, and the circuitcourts that have followed it, in line withfive circuit courts that permit parties tocontract for expanded review.

Last year, the Ninth Circuit declined apetition for a full-court rehearing en bancof Hall Street Associates. The appeals court

ADR BRIEF • ADR BRIEF • ADR BRIEF

Systems design means process precision, but emphasizes culture, value, and results

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