The Business Case for ADR

Edith B. Primm, Esq. Margaret UngerThe Justice Center of Atlanta, Inc. Kedleston Conflict Management LLC

GSA Conflict Management SummitJune 16, 2020

Chicago, Ilinois

To Mediate or Not?

Why the 21st Century Workplace Needs ADR/Mediation

ADR: Alternative Dispute Resolution:

Alternatives to: Counseling Investigations Hearings Litigation Grievances ULP’s Arbitrations * Ignoring the problem

What is the Dx (condition)

for Which

ADR

is the Rx?

CONFLICT !!

Conflict What is it? Why the analysis of a particular conflict

is important to its resolution?

What is Conflict? A conflict exists when one person’s

attempt to reach his or her goals interferes with another person’s attempt to do the same.

The Structure of Conflict Interdependency Number of interested parties Constituent representation Negotiator authority Critical urgency Communication channels

The Structure of Conflict Interdependency

How much do the parties need each other? High --> cost of not resolving is also high Low --> “watchful waiting” may be

appropriate No --> no conflict

The Structure of Conflict Number of interested parties

How many distinct parties -- individuals or groups -- have an interest in how the conflict is resolved?

More involved --> more difficult

The Structure of Conflict Constituent representation

Do the parties in the conflict represent other people who are not directly involved in the process of resolving the conflict?

The Structure of Conflict Negotiator authority

Parties consist of more than one individual?

Negotiator authority high --> resolution is easier

Negotiator authority low --> slower and more difficult

The Structure of Conflict Critical urgency

Decision must be made now? Is their time to talk, gather information? Greater the critical urgency, the less likely

a consensual solution

The Structure of Conflict Communication channels

Face to face? Through technology?

Reaction to Conflict? Following are 10 statements about

conflict. React to each statement in terms of how strongly you AGREE with the statement.

10 = Very Strong AGREEMENT

1 = NOT Strong at all

Reaction to Conflict?1.It doesn’t bother me to question a situation or seek a

more favorable position.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?2. I have nothing to lose in seeking a better deal if I do it

in a reasonable way.

Very Strong NOT StrongAGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?3. Conflict is a fact of life and I work hard to resolve it.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?4. Conflict is positive because it makes me examine my

ideas carefully.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?5. In resolving conflict, I try to consider the needs of the

other person.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?6. Conflict often produces better solutions to problems.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?7. Conflict stimulates my thinking and sharpens my

judgment.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?8. Working with conflict has taught me that compromise

is not a sign of weakness.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?9. Satisfactorily resolved, conflict often strengthens

relationships.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

Reaction to Conflict?10. Conflict is a way to test one’s own point of view.

Very Strong NOT Strong

AGREEMENT Agreement at all

10 9 8 7 6 5 4 3 2 1

What Are Your Scores?

Reaction to Conflict? 80 = realistic attitude toward conflict and seem

willing to work to resolve it

50 - 79 = appear to be dealing fairly well, but need to work toward a more positive approach

49 = first understand why, and then work to learn techniques of conflict resolution

SOURCES OF CONFLICT

3 General Categories Often Identified:

Miscommunication

Organizational Structure

Personal

SOURCES OF CONFLICT• Failure to Deliver on a Promise

• Lack of Quality or Competence

• Different Perceptions,Values, Styles

• Standing on Principle

• Competing for Scarce Resources

• Expressing Inner Conflict Outwardly

Self-Actualization

EsteemLove

SafetyPhysiological

BASIC HUMAN NEEDSA. Maslow

WHAT HAPPENS TO PEOPLE IN

CONFLICT?

Physiologically?

Psychologically?

WHAT HAPPENS TO PEOPLE IN

CONFLICT?

Physiologically: rise in blood pressure; headaches; insomnia; gastro-intestinal problems; loss or gain of weight; negative changes in blood chemistry; weakening of the immune system; susceptibility to illness; increase in use of sick days; etc.

Psychologically: irritability; anger; depression; difficulty with social, professional, and intimate, relationships; feelings of isolation; fearful for financial security; obsession with situation, and an inability to focus on the job, etc.

DYNAMICS OF CONFLICT

Feelings Intensify

Positions Harden

Dehumanizing Occurs

Desire to Punish Emerges

Communication Deteriorates

Relationships: the First and Often Most Serious Casualty of Unresolved Conflict

It [Mediation] can directly address relationship issues, a hostage taken by continued conflict.

Mediators Negotiate and Negotiators Mediate

VCASE Newsletter, Spring 2004

Art Stewart/Coordinator of Mediation

Virginia Department of Education

Puzzling Question………

Why do we resist CONFLICT RESOLUTION CONFLICT RESOLUTION PROCESSESPROCESSES in the face of the evidence thatconflict, unresolved, uses up valuable and scare resources of:

TIMEEMOTIONMONEYPERSONNEL

JCA’S LIST OF BARRIERS FOR THE

INDIVIDUAL

Ego; avoidance& denial; fear; anger; lack of experience; lack of knowledge; lack of role models for managing conflict; aversion to responsibility & risk-taking; desire to punish; unwillingness to look at both sides; need to control; different styles of communication; lack of trust; resistance to change; lethargy; easier to blame others than to resolve issues

JCA’S LIST OF BARRIERS FOR

ORGANIZATIONS

Scarcity of resources; corporate culture doesn’t Support a variety of methods of conflict resolution;Lack of top-down support; unwillingness to commit resources; MISCONCEPTION: to participate is tocapitulate; ignorance of the QUANTIFIABLE & NON-QUANTIFIABLE COST of on-going conflict; inertia & resistance to change; avoidance; aversion to responsibility and risk-taking; political and personal turf wars; power struggles, etc.

Three Ways to Resolve Conflict

Power Contests

Rights Contests

Interest Reconciliation

A Popular Mainstream Legal Book During the ’80’s

The Process is the Punishment

by Malcolm Feely

Highlighting that having one’s rights declared through litigation is

often not worth going through the aggravation and cost of the legal

process.

ADVERSARIAL PROCESS Characteristics

Win/Lose

Right/Wrong

Oriented to the Past

Third Party Decides

Relationships often

Strained

Costly in Time, Emotion,

Money

Power and Rights Processes are

Inherently Adversarial

Mother led commando raid in Jordan tosnatch daughter from ex-husband

We realize that the peace we enjoyis the absence of war rather than thepresence of

CONFIDENCEUNDERSTANDING

andGENEROUS CONDUCT

Journalist Raymond Swing

The Quality of Peace

TO DO DIFFERENTLY:

YOU MUST

SEE DIFFERENTLY

NON-ADVERSARIAL PROCESS Characteristics

Win/Win

Problem-Solving

Oriented to the Future

Third Party does not Decide

Relationships often Improved

Less Costly in Time, Emotion, Money

Interest Reconciliation is Inherently Non-Adversarial

The Business Case for ADR Legal & Political Evidence

Economic Evidence

The Leadership Challenge to Change the Workplace Culture

The Business Case for ADR

Legal & Political Evidence

Judge Griffin Bell Former Attorney General of the United States

1977-1979

Professor Frank SanderHarvard Law School 1959-2008

The Two Founders of Modern Mediation in the United States

1977

Former Chief Justice of the United States

Warren BurgerThe entire legal profession-lawyers, judges,and law teachers- has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be Healers of Conflicts. For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.

1984 State of the Judiciary Address

The Justice Center of Atlanta

(JCA)

• JCA Opened in 1978

• 80,000 Cases Sent to JCA to be Mediated

• Over 50,000 Persons Trained by JCA

• 70 Mediators/Independent Contractors

• Agencies of the Federal Government/ Largest Customers Outside of Courts

Reasons for Explosion of Claims in the Federal Sector in the 1990’s

• The 1991 Amendments to the 1964 Civil Rights Act:

-- Compensatory damages for the first time available in the federal sector &-- Jury trials now allowed

• The Passage of the Landmark Legislation:The Americans with Disabilities Act

1997 GAO Report on Employers Experiences with ADR in the Workplace

The EEOC & ADR’s HISTORY

The Administrative Conference of the United States (ACUS) Oct. 1993

* hosted a one day invitation only conference at EEOC for 150 federal managers;

* Justice Center of Atlanta was hired to coordinate;

* Former Assistant Secretary of the Navy, Barbara Pope Special Assistant to Senator John Glenn, Doris Clanton Former Chief of Staff of the White House, Jack Watson

Two Major Results from that ACUS conference 1. US Postal Service became very interested in ADR and REDRESS was born in 1994 2. Many federal agencies introduced in depth to ADR

1993 Invitation Only Meeting of All Federal Agencies/Mediation’s Application in Discrimination Disputes

USPS pilot project with JCA to get out from under court ordered supervision of a settlement of North Florida 1994-1997;

1994-1997 USPS/REDRESS in 5 Southeastern States: GA, FLA, AL,MS,TN;

1998 as a result of mediation’s success in the SE with JCA, REDRESS goes nationwide for EEO cases at USPS;

■ 1999 EEOC Amends 29 C.F.R. 1614 and makes some form of ADR mandatory in all federal agencies available at least at the pre-complaint and complaint stages

The Business Case for ADR

Economic Evidence

…Our efforts have been recognized at the very highest level*** Of NGB. We are close to $1,000,000.00 in savings to NGB. It only gets better from here!

Fax from Bill Galeazzi, HR DirectorNGB Western Personnel Center 1993

….For nearly 100 mediations during the length of the pilot….we were able to demonstrate to our leaders that mediation could increase our current 55% settlement rate to at least 70%and probably 80%.

The 15% increase translates to a cost avoidance to the department of approximately $8 million on an annual basis.

Letter of August 25, 1997Kenneth Friedman, Directorof Strategic Planning and Assessment

1997 in the Southeast Region (Florida, Georgia, Alabama, Mississippi, and Tennessee) REDRESS saved $1,000,000.00

1997-1999 in the Southeast REDRESS saved $48,000,000.00

In 1999 formal complaints were reduced by 25%

September 21, 1999 Letter from Alan BameSE Area ADR Coordinator/USPS REDRESS

…After six months of effort [mediations conducted by JCA], the Department of State had reduced the EEO backlog by 50% and by the end of our first year, the backlog was eliminated. The Department went from 76/78 place in processing EEO complaints to first place in a year…

July 20, 2004 Letter from Barbara Spyridon Pope,Assistant Secretary, Office of Civil Rights

Note High Watermark On BuildingHurricane Katrina

Downtown Gulfport, Mississippi

Mediation Works for Some Katrina LawsuitsAllstate Insurance Co.

250,000 Homes Damaged in Louisiana/Mississippi Our clients want to get on with their lives, get their businesses back in business and get their homes rebuilt.

Plaintiffs’ Attorney

Atlanta Journal-Constitution 10/26/2006

The Importance of “ADR First” to

The Air Force and Private Contractors

…As before, we think it is important that the business leaders of both organizations sign the pledge to emphasize that effective dispute resolution is first and foremost a business process with direct impact on business relationships and the bottom line…

Mary L. Walker2008 Letter to Outside, Private CompaniesSeeking Voluntary Recommitment to“ADR First”

“ADR First” Renewed Voluntary Commitments by USAF &

Civilian Contractors in 2008

Partial List Renewing This Commitment in Writing:

• Aerospace Corporation• FedEx Corporation• General Dynamics Corporation• General Electric Company, Inc.• Honeywell International, Inc.• Johnson Controls, Inc.• Lockheed Martin Corporation• Raytheon corporation• United Technologies Corporation• The Boeing Company• Booz Allen Hamilton• Northrop Grumman Corporation

Mary Walker SAF/GC

Air Force Mediation Results for 2008 EEO and Workplace Disputes

2,216 of 3,225 disputes settled by Mediation (69%)

AVERAGE PROCESSING TIME: 29 Days

vs.

AVERAGE EEO PROCESSING TIME: 369 Days

2008 Report on the ADR program by Acting General Counsel,Robert Maguire, to the SAF

March 2009

Savings Estimated by the USAF for The First 5 Years of the “ADR First” Program

$ 41. 8 million$ 41. 8 million in contractor claims. This calculation is based on adding up the difference between the amounts contractors claimed and the amounts the Air Force ended up paying as a result of ADR resolutions.

USAF was also able to reduce the resolution time for

large contract claims from 5 years to 1 AVOIDING the additional expense not only of litigation, but also the expense associated with distraction from the mission caused by such litigation.

2008 Report on the ADR program by Acting General Counsel,Robert Maguire, to the SAF

March 2009

VHA FY 2008 EEO COST (Source: EEO Pilot May1, 2008-February 28, 2009)

* Reimbursement to ORM: $28,729,000.000* Other VHA EEO Related Costs:$4,601,569.00

Under Reimbursement Category:

Counselor Contact= $2,956.00Procedural Review= $4,034.00Amendment Decision= $2,787.00Investigation= $8,386.00

Total Cost to Process (1) EEO Complaint

$18,163.00

Other Category: OEDCA,Judgment Fund, Settlement Fees (comp. Damages, attorneys fees, etc.)

Cost to Care for One Veteran: $9,077.00

Cost Avoidance for 9 Months of EEO Pilot(May 1, 2008-February 29, 2009)

Workplace Disputes Resolved: 337

Total Cost AVOIDANCE: Using the previously detailed figures: $6,120,931.00

Source: EEO Pilot May 1, 2008-February 28, 2009

ADR Offers Compared to Participations and the Results:

Out of 852 Informal Contacts with EEO Counselors, 821 ADR Offers are Made:

(96%)Out of 821 Offers, 426 Participations Occurred:

(52%)Out of 426 Participations, 248 Resolutions:

(58%)

The Business Case for ADR

The Leadership Challenge to Change the Workplace Culture

Elements of Workplace Culture Or

“How We Live Around Here”

Laws/Regulations/Policies

Language

Fashion

Authorities

Power Relationships

Conflict Management and Dispute Resolution Processes

EEO Process: Potential Negative Impact on Leadership of anOrganization

“…As we stated in our November 1995 testimony, the prospect of having to deal with the lengthy and complex dispute resolution system can have a broader impact. It can affect the willingness of federal managers to deal with conduct and performance issues.”

1997 GAO Report on Employers Experiences with ADR in the Workplace

QUALITY OF INTENSIVE CARE VARIES WIDELY

Although the report named the 13 hospitals, Kraus said that terms of the Federal contract proscribed identifying the hospitals by rank.The study offered evidence supporting the contention of many experts that the most important factor in saving lives of critically ill people is not the technology used but the attitudes of the doctors and nurses.

You’ve got to be careful if you don’t know where you are going, because you

might not get there!Yogi Berra

Leadership Challenge: How You Deal with Conflict = a Clue to the Organization’s Culture

Directions Do Matter

I find the great thing in this world is

not so much where we stand as the

direction in which we are moving.

Justice Oliver Wendell Holmes, Jr.

Two Reasons We Are Not So Good At Negotiating

1. We don’t now when we are ahead; and

2. We don’t know when to quit!

Former Senator from Maine Successfully Mediated the Northern Ireland Accords

The Good Friday Agreement/April 10, 1998

The Hon. George Mitchell

“The test of a first rate intelligence is the ability to holdtwo opposed ideas in mind at the same time and stillretain the ability to function. ”

F. Scott Fitzgerald

Important Mindset for Negotiators

& Mediators

History, despite its wrenching pain, cannot be unlived, and if faced with courage, need not be lived again.

Maya Angelou President Clinton’s First Inauguration

Language’s Power to Heal or to Hurt

Words should not be walls. Words are gestures. Words are offerings. I have tried to use [words] not against the human condition, but for humankind…not to separate people, but to bring them together.

Elie Weisel Nobel Peace Prize Winner 1986

Sticks and stones may break my bones, but names will never harm me! [Really?]

Unknown Author

Persuasive Language Skills LISTEN!

Interests, Needs-not just Positions/Wants Feelings New Facts Commonality

Listen to understand--not just to reply!

“Seek first to understand, then to be understood”The 7 Habits of Highly Effective People

Stephen Covey

“…to listen unfailingly to an opponent’s point of view, indeed even to recognize that he or she has a point ofview, is a powerful mechanism for resolution”.

America Without ViolenceMichael N. Nagler (1982)

The Power of the Ability to Listen

ADR Goes to WarUsing ADR Techniques in the Expeditionary Using ADR Techniques in the Expeditionary

and Operational Settingand Operational Setting

Presented byPresented byBrigadier General Charlie Dunlap, USAFBrigadier General Charlie Dunlap, USAF

May 2004May 2004

Example

Offering options can remedy “disputes”…

Operation Iraqi Freedom

Example

Somalia

The Healing Bonds BetweenWounded Warriors

An Organization’s Culture

Efforts Beyond Medical to Heal Wounded Veterans

FSU’sEntrepreneurialBoot Camp ForPost 9-11Wounded Vets

VA’s NationalVeterans’ SummerSports Clinic PilotProgram

The Major Challenge for GSA Do You Believe the Case for ADR?

If So, Will You Embrace ADR from the Top Down?

Embracing ADR Means Extensive Training of Personnel in ADR Skills

Embracing ADR Means Requiring Your Managers to Attend Mediation Sessions

GSA’s Verdict on ADR is Still Out

What

Will

You

Decide?