Alternative Dispute Resolution (ADR) has left its early stages and is now coming into full maturity in the U.S. courts and, more recently, outside of them. In 2004, Marc Galanter’s groundbreaking research noted that trials were vanishing rapidly from the US court system: 11.5% of filed federal cases ended in trial in 1962, but fell to 1.8 percent in 2002, due mostly to ADR and negotiated settlements (p. 459). Trials in state courts have similarly declined.
The reality is that ADR has ceased to become the ‘alternative’ and has become the standard method of resolution. No one wants to engage in costly, prolonged, and unpleasant litigation, especially if parties may continue to have some kind of ongoing contact. Common examples are family law matters, business-to-business disputes, neighborhood disputes and employment claims.
Scholars, attorneys and parties have long noted that the biggest benefits of ADR occur when the concepts of dispute prevention and early resolution are infused throughout organizations and in society as a whole. Yet the infusion of ADR principles into organizations is a relatively recent and rapidly growing phenomenon, As ADR has evolved, it has become common practice to integrate conflict management principles into decision-making and dispute resolution mechanisms. The aim is twofold: First, to prevent those disputes which can reasonably be prevented; and second, to efficiently resolve those disputes that cannot be avoided.
In order to accomplish these goals, organizations are increasingly hiring full-time Ombudsmen. The term Ombudsmen is originally Swedish, and is gender-neutral in that language. In order to make the term gender-neutral in English, some prefer to use the term Ombuds or Ombudsperson, but all are technically correct. An Ombuds is a conflict management expert who works as an in-house resource on the prevention and early resolution of disputes that occur within organizations (i.e. employment disputes), outside organizations (i.e. with customers, clients, vendors, etc.) or both.
The Ombuds role is quite dynamic. It can include everything from conducting trainings to ward off common workplace complaints such as sexual harassment or discrimination; to coaching managers and employees to improve their communication and conflict management skills. It may even require the design of early resolution programs for formal or informal disputes; and or the (re)shaping of corporate culture to reduce conflict and increase mission achievement. The presence of organizational Ombudsmen is on the rise in the U.S. and internationally, as the benefit of the services they provide is usually quite cost effective in mid-sized and large organizations. Smaller organizations may pool the services of an Ombudsman or use them on an on-call basis.
In addition to the growth of the organizational Ombuds, there is a clear trend toward the design of integrated conflict management systems (ICMS) in organizations. ICMS takes the concept of interest-based dispute resolution and integrates related processes such as conflict coaching, peer review, or other processes as a method of prevention and resolution throughout the organization, for formal and informal disputes, at every stage of a dispute’s lifecycle. A fascinating trend that has garnered growing attention is the use of technology to efficiently reduce high volumes of claims.
Organizations such as eBay and the Better Business Bureau have long used online dispute filing and resolution systems. Even public agencies such as the Fulton County (Georgia) tax assessor’s Board of Appeals (https://fultoncountyboa.modria.com/) have moved towards an online system for resolution. Any time there is a high volume of relatively low-value disputes, it is likely that an internet-based system may be a more efficient means of recording, processing, and even resolving disputes than undertaking court action.
Lastly, managers and organizational leaders are increasingly being trained in the concepts and skills of collaboration and conflict management so as to avoid disputes when possible and resolve them early should they arise . Managers are learning how to build and maintain effective teams, manage conflict during mergers and acquisitions, reduce employee turnover and increase engagement, coach under-performers to improve, proactively manage relationships with regulators and political networks, and effectively represent the organization in mediation and arbitration for employment disputes.
The clear trend in organizational conflict management is away from resolving disputes through court-ordered ADR processes (although that is still happening frequently!) and toward the prevention and resolution of everyday conflicts, many of which would not be amenable to court action anyway (e.g. shaping organizational culture or resolving disputes over non-legal matters). As this trend continues, the demand for ADR and its related skills will continue to grow and become infused in the everyday work of organizations.
By Susan Raines