Reaching Resolution

A Guide to Designing
Public Sector
Dispute Resolution Systems

Ministry of Attorney General

Justice Services Branch
Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems

Contents
FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

PART 1: Dispute Resolution Systems and Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PART 2: Steps in the Design Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STEP 1 – The Design Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Identify the Design Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Develop the Mandate of the Design Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. Workplan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STEP 2 – Organizational Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. The Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Current System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Potential Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STEP 3 – Guiding Principles and Project Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Policy Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STEP 4 – Examine Key Design Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Dispute Resolution Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Rights-Based or Interest-Based Approach to Mediation . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Selecting the Right Dispute Resolution Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. Selecting Cases for Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
E. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
F. The Dispute Resolution Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
G. The Role of the Dispute Resolution Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
H. Power Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I. Outcomes and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STEP 5 – Training and Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

STEP 6 – Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

STEP 7 – Evaluation and Performance Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Why Evaluate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Evaluation Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. What to Evaluate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
D. Choosing the Evaluator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONTACT INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Forward
The Dispute Resolution Office
It is undeniable that mediation and other dispute resolution techniques are important tools. The
Ministry of Attorney General established the Dispute Resolution Office (DRO) in 1996 with a
view to developing and implementing the widest possible range of dispute resolution options in
the court system and in government generally. To this end, the DRO provides advice and
information, develops dispute resolution policy and programs, conducts research into dispute
resolution-related issues, and acts as a liaison between dispute resolution resources both inside
and outside of government. The DRO exists to help people use mediation and other dispute
resolution processes better and more often.

How to Use Dispute Resolution Processes

in Your Organization
As knowledge of the benefits of dispute resolution techniques grows—namely, savings of time
and money, party satisfaction, and procedural streamlining—so, too, has the need for advice and
guidance on how to design processes to achieve those benefits. Since its inception, the DRO
has seen the number of public bodies interested in dispute resolution options increase
dramatically. Many such bodies seek to strengthen already existing dispute resolution
mechanisms. Others are looking to build a dispute resolution system from scratch or are simply
assessing the potential usefulness of such a system.

In response to the demand for information about public sector dispute resolution design, the
DRO has developed this guide. While it is not an exhaustive resource, it is a useful starting
point for agencies or organizations interested in the use of mediation or other collaborative
approaches to conflict.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 1

Part 1:
Dispute Resolution Systems and Design

What is an Alternative Dispute Resolution System?

Simply put, a dispute resolution system is the mechanism used by an organization to resolve
conflicts. Sometimes this process is an explicit, formalized one. For example, some
environmental regulatory agencies manage disputes according to an established complaint
cycle. Other times, disputes are managed informally on a case-by-case basis.

Clearly, a well planned and articulated dispute resolution system is not only preferable but
crucial to the efficient functioning to most public agencies or bodies. A strong system is one in
which processes for dealing with disputes are organized along a continuum. At one end are
dispute resolution options which afford disputants the most control over the process and the
outcome (e.g. negotiation and mediation). At the other end are options in which disputants
exercise little control over the process and the outcome is imposed (e.g. adjudication).

Dispute resolution design attempts to tailor the conflict resolution options to the specific needs
of an organization, including the volume and frequency of disputes with which it is faced. Any
organization can benefit from considering dispute resolution design since even undertaking an
initial assessment of whether a dispute resolution system is appropriate raises awareness of the
organization's structure and functioning.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 2

Part 2:
Steps in the Design Process
Overview:
There are a number of overarching principles that the DRO incorporates into any design process.
These are:

1. Access: that appropriate options for preventing conflicts and resolving them at every stage
of a dispute be available and easily accessible.
2. Community Participation: that conflict resolution resources exist within various
communities and that these communities, in appropriate circumstances, assume an active
role in resolving disputes.
3. Individual Satisfaction: that dispute resolution options maximize individual involvement
and satisfaction with the process.
4. Equality: that dispute resolution processes be structured to balance power inequities
between the parties.
5. Quality of Resolutions: that settlements be fair and equitable and that the parties
honour them.
6. Efficiency: that dispute resolution options:
(a) be well-matched to the dispute,
(b) be cost-effective, and
(c) minimize delay in reaching resolution.
7. Awareness:
(a) that the public be aware of alternative dispute resolution options;
(b) that individuals understand how co-operative approaches to dispute resolution
work.

STEP 1 – The Design Process

A. What is a Design Team?
Designing a dispute resolution system is not always a complicated task, and a design team
consisting of just a couple of people may suffice. However, for many government
organizations a more elaborate design team is required. Members should be selected on the
basis of their knowledge of the organization, the disputes it faces, and general principles of
dispute resolution design. In addition, they should also have adequate time and enthusiasm
to bring to the project.

Design team members may be drawn from both internal and external sources. Possible
internal stakeholders include:
• decision makers within the current dispute resolution process
(e.g. tribunal members)

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 3

 • decision makers within the organization (e.g. senior executive)
• legal specialists
• human resources specialists
• program managers
• system administrators
• policy specialists
• relevant employees
• union representatives

Possible external stakeholders include:

• disputants from regulated sectors
• organizations representing disputants (e.g. professional bodies,
advocacy groups)
• contractors
• dispute resolution design consultants

In the end, conflict management systems will be more effective if they are designed with, not
for, those who use or are affected by them. This has not been the traditional approach, but it
is strongly recommended. While it can add time and complexity to the task of designing the
system, this approach has two important implications. First, those who use the system can
provide a great deal of practical information about what will and will not work. Second,
stakeholders who have participated in the design ultimately own the design, with the result
that there is better buy-in, significantly reducing the number of potential implementation
problems.

Resources and time permitting, engaging external stakeholders should go beyond a simple
public consultation stage and embrace an active collaborative process. A collaborative
process is not simply submitting public feedback and responding to the concerns raised. In
a collaborative process, stakeholders work directly with the agency in building or improving
the agency's dispute resolution system.

There are many other advantages of engaging the users of a dispute resolution system in its
establishment or renovation. Collaborative design processes are useful for building trust
among diverse communities. Second, such processes can help to ensure that issues,
especially those which cut across jurisdictional lines, are dealt with in a comprehensive way.
This, in turn, will not only improve the quality of dispute resolution options but ensure public
resources are used in the most efficient way possible. Third, directly involving stakeholders
in the design process provides an excellent educational opportunity since they will return
and report their progress to their constituencies. Finally, it is an effective way to establish or
to improve ongoing relationships. As people work through differences to reach a
collaborative approach to dispute resolution design, hopefully, they will develop a greater
sense of understanding and camaraderie, which will forge a stronger base for future
cooperation.
Particular attention should be paid to those stakeholders who seem resistant to the
introduction of changes. Including them on the design team may prove an effective way to
offer reassurance. The more they participate in designing the ultimate dispute resolution
system, the more likely they will embrace the new changes.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 4

B. Develop the Mandate of the Design Team
Once the organization has chosen the design team, it is vital that participants understand
their role, as well as the role of the other members of the team. For example, it is important
to clarify whether team members are speaking only for themselves or as representatives of a
larger body. Equally important is the need to identify those with decision-making authority. If
the team cant make decisions, then provision for a reporting mechanism must be made.

Effective communication between members of the design team lies at the heart of ensuring
that the team acts with a common purpose. Members of the team bring different experience
and knowledge with them to the table. Some may be very knowledgeable about dispute
resolution. Others may possess extensive information about the organization and its history.
Allowing team members to educate one another so that everyone is working with the same
basic information ensures that the team best capitalize on its full potential.

C. Workplan
The next step for the design team is to create a work plan outlining specific tasks, deadlines
and the people responsible for those targets. Such a plan provides focus to the design
project and helps to ensure that the project does not get bogged down.

STEP 2 - Organizational Assessment

While it is tempting to jump immediately to consideration of Organizational
various dispute resolution options, the first step in the design Assessment
process is to analyze the current dispute resolution environment.
This exercise will highlight the strengths and weaknesses of any  The Organization’s
existing dispute resolution systems and provide insight into the Mission and Structure
kinds of dispute resolution options best suited to help fulfill the
organization's mandate. The development of goals and objectives  The Disputes
to support and guide a design project are dealt with at this stage.
 The Current System
A. The Organization  Potential Barriers
It is important that everyone involved in the design process
to Change
shares a common understanding of the mission and culture of
the organization. Questions to consider include:

• What is the organization's mission and structure?

• What is the organization's legislative or administrative framework—are there any
legislated requirements?
• What is the decision-making structure?
• What is the organization's communication structure?
• What are the existing strengths of the organization that might support an effective
dispute resolution system?
• What staff and other resources are available to design and implement a new dispute
resolution system?

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 5

B. The Disputes
A significant portion of the initial assessment should be devoted to a "conflict inventory"—an
analysis of the disputes faced by the agency or public body and how these relate to the
body's mandate. This analysis is critical to the development of an appropriate dispute
resolution system. The design team should consider the following:

(1) Nature of the Disputes

• Are the disputes external (e.g. the body is a public complaints commission) or
internal (e.g. the dispute resolution system is intended to mend a troubled work
environment)?
• Are the disputes about fact or law?
• Do they involve disagreements over technical issues or interpersonal interactions?
• When and where do the disputes arise?
• Are there typical disputes?
• Is precedent important in the resolution of disputes?
• Is confidentiality important to the parties?
• Are the disputes time-sensitive?

The answers to these questions will greatly impact the design process. For example, if
the purpose of the agency is to resolve external disputes, such as a human rights body or
a public complaints commission, then it is more likely to establish a sophisticated array
of dispute resolution options. On the other hand, if the disputes are internal, then
perhaps a less formal mechanism, with an emphasis on improving the organization's
communication structure would be most suitable.

The roots of disputes are equally influential for the design team. Consider a government
body that is faced with public resistance to land-use decisions based on environmental
concerns. Assume that the public agency is responsible for building a pipeline, and the
public fears that owl habitant will be detrimentally affected by the planned project.
Factual information about owl habitat and nesting areas is at the heart of finding a
workable resolution. Such fact-driven disputes may lend themselves to dispute
resolution techniques such as joint fact-finding sessions.

In contrast, if the dispute is interpersonal, an apology might be the necessary first step to
resolution. Unaddressed emotional needs may block other dispute resolution
techniques.

(2) Number
• How many disputes does the organization experience?
• Which disputes are most prevalent?
• How frequent are disputes?
• Does the volume of disputes fluctuate over time?

Again, the answers to these questions will influence the design of a dispute resolution
system. If few complaints arise, then an organization may choose to focus on improving
how those disputes are addressed rather than using its resources to try to prevent
disputes in the first place.

An analysis of the frequency of conflicts may provide valuable insight with respect to
structural roots of conflict or bring to light any important facts. For example, if the level
of conflict suddenly spikes after the implementation of a new policy, it may be a sign that

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 6

 the organization is engaged in healthy growth; it may be the result of poor
communication and training in implementing the new policy; or it may be that some
aspect of the policy unintentionally creates conflict. If the latter is the case, then
modifying the policy may be the solution rather than developing a particular dispute
resolution process.

(3) Disputants
• Who are the parties to a typical dispute?
• Do the same parties appear time and again?
• Are they sophisticated users of the system?
• Are they normally represented by lawyers or advocates?
• Is the preservation of ongoing relationships important?
• Is there an actual or perceived imbalance of power between disputants?
• Are they individuals or organizations?
• Does the agency have an ongoing relationship with the parties?
• Does the agency always serve the same pool of disputants?

Any dispute resolution system must carefully consider the needs and expectations of its
users. If the users of the system are unrepresented members of the general public, then
the dispute resolution options should be straightforward and easy to use. This is less
important if the users are professional advocates or lawyers.

If ongoing relationships are at stake, then dispute resolution options that are weighted to
party control of both procedure and outcome are likely preferable. Parties that actively
participate in crafting a solution to a given conflict are more likely to abide by that
agreement and are more likely to be satisfied with it than those on whom a solution is
imposed by a third party.

C. Current System
• If there is one, what is the current process for resolving disputes?
• Is there legislation that prescribes any aspect of the process?
• Are there written policies and guidelines that govern the process?
• How is the system tracked?
• How much does it cost?
• Do disputants, staff or other stakeholders express dissatisfaction with the process?
If so, how do they express that dissatisfaction, and what are their concerns?
• What are the strengths of the current system? What makes them work?

Of course, it is not sensible to begin a new design project without first taking stock of what
is already present. If there is an existing dispute resolution system, then building on its
strengths whilst attempting to correct its weaknesses will be an important task for the
design team. Mandatory elements of the system, such as those required by legislation or
policy will need to be taken into account.

Furthermore, as public bodies come under increasing budgetary pressure, pragmatic

decisions will need to be made about how to ensure the best value for the organization. For
example, if the resources of an organization are being sapped by the sheer volume of
disputes, the design team may wish to consider both ways to prevent those disputes from
formulating in the first place and establishing early dispute resolution options before
positions become entrenched.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 7

D. Potential Barriers
Planning for possible resistance is also a necessary part of the design process. Change is
often met with suspicion or fear, even if it represents an innovation. Identifying the nature
and sources of such resistance makes it easier to address.

RESISTANCE CAN FLOW FROM . . . MAY SOUND LIKE . . .

Fear of the unknown “It will be worse than what we already have.”
Investment in status quo/fear of loss of power “That would never work with our disputes.”
Inertia “We already do that.”
Reform fatigue/bunker mentality “Here we go again. We’ve tried that, it doesn’t work.”
Organizational culture “We cannot settle a dispute without discovery.”
Personal options about dispute resolution “Mediation is just a fad.”

Other barriers to change may lie in objective circumstances. The organization may be
strapped for resources or lack the leadership required to spearhead change.

STEP 3 - Guiding Principles and Project Objectives

A. Principles
The first substantive task of the design team is to develop guiding
principles and objectives for the project. The organizational Principles
assessment, described above in
Step 2, should assist in this task. Fairness
•
Guiding principles are the values the organization wishes to include Accountability
in dispute resolution system under review. They may include things •
like: Options
•
Fairness – People using the system must be and perceive Consistency
themselves to be treated fairly. with Law
•
Accountability – The system must provide quality outcomes and be Public Interest
accountable to statutory authority. •
Public Confidence
Options – The dispute resolution system must retain the availability •
of and access to existing adjudicative process while offering Self Determination
alternative approaches to resolving disputes. •
Flexibility
Law – Processes and outcomes must be consistent with the law as •
articulated by the courts or as set out in legislation. Informed Decisions
•
Public Interest – The system must be able to deal with any public Coordination
interest aspect of disputes. •
Quality
Public Confidence – The system must have the support of those
who use it.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 8

 Self-determination – The dispute resolution process should provide participants with the
opportunity to make informed, uncoerced and voluntary decisions.

Flexibility – The system must take into account the needs of a multicultural or otherwise
diverse client base.

Informed Decisions – Where participation in processes is voluntary, parties should be given

sufficient information and guidance to enable them to make an informed decision as to
whether and how to participate in the process.

Coordination – The delivery of the dispute resolution process should be coordinated with all
other agency or ministry functions.

Quality – Standards for training, service delivery and professional performance should be of
the highest level and guaranteed by regular evaluations and assessments.

B. Objectives
Dispute resolution processes should be applied only where they can be effective, and they
should not be overburdened with expectations. Possible objectives include:

SUBSTANTIVE OBJECTIVES PROCEDURAL OBJECTIVES

. . .describe what the dispute . . . describe how the dispute resolution system
resolution system should do. will operate.

• earlier resolution of disputes • using collaborative dispute resolution techniques

• managing conflict toward resolution not

• faster resolution of disputes
adjudication, where appropriate

• a simplified process • recognizing and addressing power imbalances

• staffing by individuals well-trained to deal with

• reduced costs for parties
cases in a collaborative manner
• dealing with disputes in a more sensitive or
• reduced costs for the agency
humane manner
• increased access

• dispute resolution
• enhanced privancy and confidentiality

Ultimately, the success of the project will be measured against these objectives and
guiding principles.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 9

C. Policy Values
A number of fundamental policy values underlie the DRO's Policy Values
approach to dispute resolution design:  Collaborative
Collaborative problem solving – Most existing public dispute Problem Solving
resolution systems are predicated on a rights-based model rather
than an interest-based one such as mediation. (For further  Managing to
information about the difference between rights-based and Resolution
interest-based mediation, please refer to page 12.) Experience
has demonstrated that interest-based approaches, with their  Dispute Prevention
emphasis on collaborative problem solving and facilitated
negotiation, provide simpler, less expensive, "user-friendly"  Integrated and
dispute resolution for many cases. This is not to suggest, Comprehensive
however, that mediation or other collaborative dispute resolution
processes are universally appropriate or that they should displace
rights-based adjudicative processes. Rather, the DRO views
mediation and other collaborative processes as a helpful adjunct to, not a replacement for,
existing processes.

Managing to resolution – The traditional approach to dispute resolution has been to place
all disputes on a procedural track aimed towards adjudication, relying on the fact that most
will resolve before actually reaching the hearing. In other words, even though most cases
settle, they are still managed and administered as if they will be adjudicated. An alternative
approach is to recognize that settlement is the norm not adjudication and, thus, to design
systems and create policy to support settlement at every stage of case administration.
Adopting this latter approach facilitates earlier settlements by expressly managing for and
towards resolution.

Dispute prevention – Ideally, a comprehensive dispute resolution system design should

include mechanisms to prevent disputes. As well, incentives to resolution and disincentives
to dispute can be built into most systems.

Integrated and comprehensive dispute resolution policy umbrella – Beyond managing

disputes to resolution rather than adjudication, it is helpful to analyze the entire organization
in order to support and maximize the effectiveness of dispute resolution processes in
general. The focus is not just on how to resolve disputes once they reach whatever formal
dispute resolution process is in place, but approaching the resolution of disputes at every
level in a collaborative fashion, thus changing the culture of the organization. This may
mean, for example, training regulatory staff to use a collaborative approach to solve
problems in their day-to-day work. As commentator Alan Reid wisely noted:

Bringing ADR into administrative law involves more than just simply engrafting
upon the mandate of an agency additional statutory powers authorizing mediation
and arbitration. It requires thinking deeply about regulation, government, law and
administration.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 10

STEP 4 - Examine Key Design Issues
A. Dispute Resolution Processes
One or more of the following processes might be part of a dispute resolution system:

Negotiation is any form of unfacilitated communication in which opposing parties discuss

steps they could take to resolve a dispute between them. Negotiation can occur directly
between the parties or indirectly through agents acting on behalf of the parties, such as
lawyers.

Mediation is a non-binding process in which a neutral, impartial third party with no

decision-making authority attempts to facilitate a settlement between disputing parties.
Mediation is generally a private dispute resolution process.

Conciliation can range from a approach that is essentially mediation with a more
interventionist third party or shuttle negotiations where the third party neutral shuttles
between the disputants who are unwilling to meet in person.

Facilitation includes the use of techniques to improve the flow of information in a meeting
between parties to a dispute, or in a decision-making meeting.

Joint fact finding involves disputants choosing a neutral fact finder who investigates,
reviews documents, and interviews witnesses to determine the facts in a dispute.

Negotiated rule making or "reg-neg" brings together representatives of various stakeholders

to negotiate the body of a proposed rule or regulation. This method is used extensively in
the U.S.

Shared decision making is a consensus based approach to dispute resolution in which

those with authority to make a decision and those who will be affected by that decision are
jointly empowered to seek an outcome that accommodates the interests of all concerned.

Neutral evaluation is a process in which parties obtain from an experienced (and possibly
expert) neutral third party a non-binding, reasoned evaluation of their case on its merits. The
opinion or assessment is expected to have persuasive value, especially because the neutral
third party is jointly selected.

Settlement conferences, case conferences and pre-trial conferences are case

management processes that involve an informal dialogue between a tribunal member or
members, legal counsel and/or the parties, leading up to a hearing. They tend to focus on
either settlement or hearing. Objectives can include settlement of the dispute, expediting the
disposition of the action, discouraging wasteful pre-trial activities, and improving efficiency
of the hearing through more thorough preparation.

Med-Arb, short for mediation-arbitration, is a process in which one person acts first as a
mediator and then as an arbitrator. If the initial mediation is unsuccessful, the mediator
becomes an arbitrator and makes a binding decision.

Arbitration is a dispute resolution process in which disputes are submitted to a neutral

adjudicator through presentation of evidence and arguments. The arbitrator is empowered to

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 11

 render a binding decision. Arbitration is generally a private, voluntary method of
adjudication; however, government sometimes requires that certain disputes be submitted to
arbitration (e.g., residential tenancy disputes). Also, a contract may provide that disputes will
be resolved by arbitration rather than litigation.

Adjudication refers to any dispute resolution process in which a neutral third party hears
each party's evidence and arguments and renders a decision that is binding on them. This
includes arbitration and litigation.

B. Rights-Based or Interest-Based Approach to Mediation

As mediation is one of the most commonly used dispute resolution tools, it is worth noting
that there are different styles of mediation. The first is a rights-based mediation in which the
dispute is analyzed in terms of opposing rights and duties. In this model, the mediator
provides direction to the parties about appropriate settlement terms, but the focus of the
sessions is still to identify who is right or wrong.

Interest-based mediation, in contrast, involves framing the dispute not in terms of legal
rights but rather in terms of the parties' underlying concerns, goals, and needs. These are
the reasons behind the bargaining position of a party. The job of the mediator in this model
is to help the parties avoid getting locked into inflexible positions while identifying the real
issues and desires motivating a parties' bargaining stance. Positions, what parties say they
want in a mediation session, and the underlying interests motivating those positions are
often very divergent. For example, in a family mediation where the custodial parent wishes
to relocate to a different city to take up a new job, the non-custodial parent's opening
position may simply be an abject refusal. The underlying interest may be the desire to play a
meaningful role in the children's lives. Clearly, taking the dispute to the level of the parties'
deepest needs and desires creates more room to craft a creative solution.

Not only is interest-based approach attractive due to the increased range of potential
solutions, but also because it does not generate losers and winners. As a result of its
consensual nature, it is an invaluable tool for agencies that are seeking to increase party
satisfaction rates and more enduring agreements.

Generally, the DRO promotes the use of interest-based mediation. Its strength is its ability to
uncover and address the true roots of conflict, resulting in resolutions that are more
satisfying to the parties. However, in some circumstances, a more evaluative approach may
be appropriate, particularly where resolutions must conform to statutory standards. This is
discussed in greater detail below, in Section F.

C. Selecting the Right Dispute Resolution Processes

While there are no universal rules, certain kinds of disputes lend themselves to certain kinds
of dispute resolution methods. This section discusses why one dispute resolution technique
may be chosen over another.

Beginning with the least involved dispute resolution options, negotiations are well suited to
disputes that are uncomplicated or to disputes where the parties enjoy similar degrees of
power. Thus, when two levels of government disagree about the funding levels of a cost-
share program, the natural starting point is negotiation, something which would likely not
take place if the dispute involved an individual and the state.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 12

 Mediation and conciliation are particularly useful in disputes in which an ongoing
relationship is important. Mediation can be a very effective process for resolving disputes
about tenancy or employment matters. It is less formal and therefore less intimidating than
litigation, and it delivers a resolution grounded in consensus. Consensual solutions offer the
advantages of increased party satisfaction and individual buy-in to the solution, thereby
reducing the risk of the dispute resurfacing in the future. Mediation is also likely more
timely and less expensive than adjudication, with corresponding benefits to both families
and governments alike.

Neutral evaluation is often used in tandem with mediation. It is particularly useful when
the parties are close to reaching an agreement but where unrealistic expectations are
creating a stumbling block. Unrealistic expectations on the part of the disputants may arise
in any conflict but may prove to be a special challenge for those bodies whose purpose is to
resolve disputes of unrepresented people. For example, many human rights commissions
are built around the notion that disputants will not have lawyers until a complaint is referred
to a hearing. Thus, for the bulk of the complaint process, parties are unlikely to have
received independent advice from a neutral party. To compound the problem, parties often
have had no previous experience with administrative tribunals and so may have no idea as to
typical settlement terms. In such situations, a neutral evaluation session conducted by an
impartial third party expert may prove invaluable as a "reality check." After the neutral
evaluation session, parties often resolve the dispute by negotiation or mediation.

If an organization deals frequently with factual disputes, then joint fact finding may be an
important option to build into any dispute resolution system. Disputes that involve asset
valuation provide a good illustration. Consider a public body that wishes to expropriate
private property for a public project such as a highway. A factual determination of what the
land value will always be at issue. Rather than engaging in a battle of the experts, it may
save time and resources for both parties to agree on the person to carry out the property
assessment at the beginning. It may also be an important way to build trust between the
parties early on in the process and to balance power between an individual and a
government.

Negotiated rule making is useful in developing regulatory legislation. For example,

American law makers have used this dispute resolution tool extensively in drafting
environmental standards legislation. The idea is that such laws are proactive rather than
reactive—appropriate standards should act to prevent disputes from arising in the first place.
However, in order to make such legislation meaningful, it must be based on something more
than the bargaining sessions between polluters and regulators. Hence, the importance of
negotiated rule making which expands participation in environmental regulation to other key
stakeholders, such as NGO's, community groups, and other interested parties through the
collaborative development of the regulatory scheme.

Settlement conferences, case conferences, and pre-trial conferences can be very helpful
to agencies with quasi-judicial adjudicative functions, especially for that portion of the
caseload which is more complicated than normal, or for decision-making bodies with very
large caseloads. These case management tools can be used to identify those cases which
are likely to be responsive to early settlement processes. Factors to consider in applying
case management options include the number of parties, issues, and the presence of highly
technical matters.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 13

 Pre-trial conferences hasten the dispute resolution process by providing the opportunity
to come to an agreed set of facts, to narrow issues, and to settle key procedural questions
like appropriate time limits for the presentation of witnesses and the length of the hearing.
Large-scale pay equity cases before human rights tribunals provide a concrete example of
where pre-trial conferences would be useful.

Research reveals that settlement conferences are a useful tool for public bodies whose
mandate is regulatory in nature. For example, a provincial energy board used settlement
conferences when deciding how to tie natural gas rates to environmental costs and benefits.
The board reported that holding settlement conferences was particularly well suited to these
kinds of multi-party disputes.

Arbitration is another common dispute resolution mechanism. It is often used in disputes

that would normally go to court. The advantages of arbitration lie in its flexibility: typically it
takes less time than waiting for a court date. It allows parties to choose an adjudicator that
has special knowledge over the subject matter of the dispute and to agree on the procedure
to be followed. Another advantage is that the dispute remains private, and finally, the award
may be easier to enforce on an international level than an order of a domestic court. Typical
examples of disputes which are arbitrated are labour and international commercial conflicts.
In both examples, timeliness of resolution is a crucial point.

Finally, adjudication, particularly court decisions, remains an important dispute resolution

option. Author John Wade compares litigation to surgery, noting that while both options
have been criticized for overuse, they remain essential techniques. As one example,
adjudication may be necessary in areas that are devoid of precedent. In such cases,
negotiations or other dispute resolution techniques may fail since there are no objective
guidelines around which to structure talks. Aboriginal land claims are one example. In
these disputes, evolving jurisprudence seems to drive negotiations.

D. Selecting Cases for Dispute Resolution

(1) General
There are a number of ways conflicts enter non-adjudicative dispute resolution streams:

Voluntary – In a purely voluntary system, parties choose whether or not to participate in

non-adjudicative processes. In many cases, a purely voluntary process does not attract
sufficient participants to have a measurable effect on the system. While parties are
typically very satisfied with collaborative approaches to dispute resolution, inertia or
distrust of the unknown may prevent them from trying out such alternatives. Where
agencies adopt a purely voluntary system, they should consider strategies for promoting
the use of their collaborative processes.

Mandatory – In a mandatory regime, there is a presumption that parties in each case

must attempt to settle the dispute using a non-adjudicative process before being given
access to the time consuming and expensive adjudicative system. Studies have shown
that mandatory mediation produces comparable settlement and satisfaction rates as
voluntary mediation. Furthermore, requiring participation increases party experience
and, therefore, knowledge about the benefits of using collaborative dispute resolution
processes. As well, there are potential cost savings both in terms of economies of scale
and earlier settlement rates.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 14

 A number of implications flow from the decision to implement mandatory dispute
resolution. For example, the consequences of non-compliance will need to be addressed.
In addition, issues of quality control and evaluation of such a program are important.
Finally, consideration must be given to the degree of coercion to be employed. Most
mandatory dispute resolution systems contemplate exemptions. Jurisdictions that have
adopted mandatory mediation in family disputes may screen out cases involving violence
or mental illness, for instance.

Mandatory by order of tribunal – Tribunals can be given the power to order parties to
mediation or other dispute resolution processes. This type of power fits well with a
closely case managed system, where the tribunal provides oversight and direction for
each case and so has more knowledge about how the case might best be resolved.

Party driven – In a party driven process, one party to the dispute can compel the other
parties to participate in the non-adjudicative process. This is a process unique to B.C.,
where the "Notice to Mediate", as it is called, is available for most civil, non-family
actions in Supreme Court. To date, it has not been used outside the court process but
remains an option to consider for organizations that want to go beyond a voluntary
model but are not prepared to embrace a fully mandatory one.

(2) When Disputes are Ill-suited for Non Adjudicative Dispute Resolution
In the enthusiasm for conciliatory processes like mediation, it is easy to overlook the fact
that some disputes are still best resolved by adjudication. Factors that may indicate the
necessity of an adjudicated decision include:
• The dispute involves a decision over which a statutory decision-maker had no
discretion. In some cases, in the presence of certain factors, a statutory decision
maker is required to make a certain decision. On an appeal of that decision,
mediation, for example, is pointless since there is no negotiable issue.
• A legal precedent is needed to govern similar cases in the future. However, many
tribunals are not bound by precedent and so this factor may not apply.
• An issue of law, public policy or interpretation needs to be clarified on the record.
The tribunal may desire an elaboration of a particular issue of law or policy and, in
some cases, a hearing may be seen as the best way to accomplish that.
• Public access or participation in the decision or resolution is desirable and cannot be
accomplished in the non-adjudicative process. It should be noted, however, the
collaborative dispute resolution has been used very successfully in many multi-
stakeholder processes involving broad stakeholder participation.
• People who are not parties to the dispute might be prejudiced by the outcome. One
of the tenets of collaborative decision making is that the interests of those affected by
the outcome should be represented at the table. If that is not possible, a hearing may
be required.
• The constitutional validity of an act or law is challenged. Obviously, a tribunal is not
going to submit questions of constitutional validity to a collaborative decision making
process. However, getting parties around a table discussing their interests in the
substance of the dispute can sometimes forestall constitutional or other challenges
that may be being used in a tactical way.
• The case is genuinely frivolous or opportunistic—tribunals will not want to waste
resources on attempting to settle with parties bringing truly frivolous or vexatious
cases, particularly if the hearing process allows for some type of summary
determination and dismissal.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 15

 • A party is acting in bad faith such as attempting to use non-adjudicative process to
cause delay and expense to the other parties.
• There is fear of violence between the parties. The safety of the participants must be
ensured in any dispute resolution process.
• The conflict involves both parties with a history of high personal conflict and low
resources since the extended conflict underlies an inability to negotiate and the small
resources offer little incentive;
• The disputants thrive on negative intimacy meaning that a dispute has taken on its
own meaning in their lives and thus any settlement will represent a loss; and
• One of the parties is not emotionally ready such as in family matters where one party
has moved through the grieving process much earlier than the other. The person
surprised by the separation may be devastated and further angered by the fact that
the other spouse seems so untouched. This raw emotional response may block
negotiations or mediation.

(3) Timing of Dispute Resolution

Research suggests that the earlier dispute resolution tools are applied to a conflict, the
greater the likelihood of reaching agreement. Higher settlement rates are attributed, in
part, to the ability to reach disputants early enough to avoid polarization of the issues.
When conflicts are left to fester, parties may become entrenched in their positions,
making settlement more difficult.

For quasi judicial adjudicative agencies, a balance must be struck between providing an
early opportunity for collaborative resolution and ensuring that the agency has sufficient
information to screen out frivolous complaints. Some commentators point out that
pre-investigation mediation may be unfair and unnecessary if the complaint is
unfounded. On the other hand, if the agency waits too long, the benefits of early
settlement may be lost.

One possibility is to provide information about the agency's dispute resolution processes
as early as possible (e.g. at formalization of a complaint) rather than to provide the
services themselves. The advantage of this option is that it is timely and may help avoid
entrenched and defensive positions while at the same time making no assumptions
about the merits of the conflict.

E. Confidentiality
Confidentiality is fundamental to some DR processes. In particular, mediation, where the
parties are more likely to engage in a frank discussion of their interests - and be open to
considering a range of solutions—if they can be sure that the information shared will not
become evidence in an adjudicative proceeding. There are three issues to consider in
developing policy or legislation around confidentiality: compellability, non-disclosure, and
freedom of information legislation.

Compellability – Parties may want to ensure that no one who attended the mediation or
other DR process can be compelled to give evidence in subsequent proceedings (for
example, court proceedings or hearings by a tribunal).

Non-Disclosure – Parties also want to ensure that parties cannot disclose information
shared during the mediation in subsequent proceedings.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 16

 Freedom of Information – All information held by provincial government bodies is
subject to the Freedom of Information and Protection of Privacy Act (FOIPPA). This
includes information produced by or for a consensual DR process. Statutory
confidentiality provisions cannot protect information from disclosure under the Act,
unless the statute expressly states that FOIPPA does not apply. In addition, types of
exemptions are provided for under FOIPPA, including exemptions that prohibit
disclosures harmful to: the financial or economic interests of a public body, the business
in interests of a third party, or personal privacy. The exemptions in the Act do not appear
to recognize the privacy interests of non-profit organizations.

Although information released under FOIPPA may become public, it will continue to be
subject to any non-compellability and non-disclosure provisions in the legislation. In other
words, just because information is released to a person or organization under FOIPPA, that
does not mean it can be used in any other process.

Confidentiality is protected in a number of ways:

Legislation – Some administrative tribunals have confidentiality provisions providing

which include non-disclosure provisions, as well as non-compellability provisions.
Legislation occasionally exempts the application of the FOIPPA, although such
exemptions are rare and must be justified on public policy grounds.

Agreement – Parties are usually asked to sign an "Agreement to Mediate" which includes
confidentiality provisions.

Common law – The common law, the law developed by judges on a case by case basis,
protects the confidentiality of settlement discussions by the doctrine of settlement
privilege or the "without prejudice rule". This rule of privilege has been applied to protect
the confidentiality of mediation discussions.

F. The Dispute Resolution Provider

Before implementing a dispute resolution system, it is important to identify a source of
reliable, consistent, high quality dispute resolution providers. Providers may include
mediators, adjudicators, or experts to perform neutral evaluation. There are at least three
possible sources.

(1) Agency Staff

Drawing from the agency's own staff is the most cost effective option. It has the added
advantage of developing an internal corps of well-trained dispute resolution providers,
which is especially attractive to organizations faced with a large volume of disputes.
Staff providers also develop subject matter expertise into the disputes experienced by the
agency and, in some cases, may enjoy a relationship of trust or respect with the
disputants upon which they may draw. In addition, there is further flexibility in the sense
that staff need not be solely dedicated to a conflict resolution function.

On the other hand, one potential disadvantage of using staff is that of perceived bias.
First, the performance of staff mediators and their ability to succeed within the
organization may depend on their ability to resolve cases. This might mean that they
pursue settlement too zealously and are not objective about recognizing when the

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 17

 collaborative process should be terminated. Second, disputants may worry that the staff
mediator is on the side of the agency. This may be an issue if the agency is ultimately
responsible for resolving disputes by adjudication. In that case, care must be taken to
separate non-adjudicative and adjudicative functions. In particular, information from
mediations and other collaborative dispute resolution processes must not be permitted
to spill over into an adjudicative stage without the prior consent of the parties.
Other administrative issues to consider include:

• Will existing staff be used, or will new staff be hired?

• Will staff be dedicated solely to a dispute resolution function?
• What will be the minimum training requirements?
• Will the agency fund or provide training for staff?

(2) Board Members

Administrative tribunals or regulatory agencies may wish to use board members who
normally act as decision makers as neutrals in non-binding processes. In particular,
using knowledgeable board members as dispute resolution providers may be suitable if
staff with sufficient expertise is lacking or if the agency is required to make a decision in
every case. Like staff neutrals, board members have the advantage of bringing subject-
matter expertise and familiarity with statutory and policy mandates to the job. Reliance
on board members is not recommended for agencies that have a high turnover rate or
where members do not possess adequate training in dispute resolution.

As with staff mediators, concerns about bias or the perception of bias may need to be
addressed. For example, board members who have previously acted as neutrals in a case
may be barred from sitting as adjudicators if the matter does not settle. Exceptions to
this principle may apply to processes which envision the neutral becoming an arbitrator
(e.g. med-arb) or where parties expressly consent to the board member's dual role.

(3) External Providers

External providers are useful if an organization has only a few disputes or where
particular dispute resolution skills are required. In comparison to staff mediators, they
may enjoy a greater depth of dispute resolution experience, at least initially. They also
provide additional assurance to the appearance of neutrality which may make the parties
feel more comfortable with the process. Further, real or perceived problems regarding
confidentiality do not arise.

The risk of relying on external neutrals is twofold. First, they are often quite expensive:
the cost of a professional mediator for a two to five day hearing may range from $5,000 to
$30,000. Second, private contractors may not be familiar with the specific subject area or
regulatory context of a dispute. This, in turn, may generate distrust as one party may
doubt the ability of the neutral to truly understand "our type of disputes." This problem is
sometimes overcome by the development of specialist neutrals known to have subject-
matter expertise and the particular dispute resolution skills needed in a particular sector.
Labour arbitrators and mediators, for example, are a specialized subset of dispute
resolution professionals.

If external mediators are used, their qualifications and experience will be important.
Existing rosters, such as the B.C. Mediator Roster, with high standards for membership
provide a useful starting point.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 18

 Regardless of the source of dispute resolution providers is used, it is important that there
be a code of conduct and adequate oversight of neutrals. This can include a complaints
process, regular review of written agreements, monitoring settlement rates, and
continuing education requirements.

G. The Role of the Dispute Resolution Provider

Dispute resolution providers, such as mediators, adjudicators and evaluators are usually
required to be neutral. However, many agencies have public interest mandates or legislated
objectives or standards, which may infringe that neutrality. To illustrate this point, an
environmental appeal board may use mediators to attempt to increase settlement rates. At
the same time, that board may be working within a statutory framework that requires them
to promote sustainability. Such agencies will have to determine how these mandates should
be woven into the dispute resolution processes it offers disputants.

One way is to require the neutral to be more directive or evaluative. To explain, there is a
continuum of styles of mediation. At the facilitative end of the continuum, the mediator tries
to help parties reach a settlement on their own terms without intervening in the substance of
the dispute. At the evaluative end, the mediator asserts a greater degree of control over
possible outcomes, providing information to the parties about appropriate settlement terms.

Consistency is key. Whether the agency mandates its dispute resolution providers to be
strictly neutral or whether the provider is to attempt to shape the dispute resolution process
to conform to the agency's public interest goals, the agency's expectations of its dispute
resolution providers must be clearly articulated. Inconsistent approaches result in
inconsistent outcomes and undermine not only the dispute resolution process but the
agency itself.

This being said, adopting a more directive or evaluative role in collaborative processes, such
as mediation raises difficult issues. For example:

• in a process where the parties do not require the agency's intervention to resolve the
dispute, disputants who are not satisfied with the directive role taken by the neutral
could take their dispute entirely outside the agency's process and therefore remove
themselves from the public policy goals of that agency;
• dispute resolution providers playing a more interventionist role must have sufficient
knowledge, experience and insight with respect to the range of acceptable outcomes
and must act consistently; and
• in contrast to an adjudicative process, if a dispute resolution provider is incorrect in his
interpretation of the acceptable outcomes and steers parties to a particular outcome on
the basis of faulty information, the parties may have no recourse.

It is debatable whether public funds should be used to support a dispute resolution system
that does not reflect and promote its mandate. There are alternatives. Agencies may choose
to exercise their supervisory roles not through the vehicle of the mediator but rather by
approving settlements or by streaming cases involving significant public policy issues to
more adjudicative processes.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 19

H. Power Imbalance
All disputes are characterized by some degree of power imbalance. A power difference may
arise when:

• there is an inequality of age, race, class, sexual orientation, financial resources,

or gender;
• only one party has a lawyer;
• one party is more emotionally vulnerable;
• one party is more anxious to settle;
• gender or culture-specific socialization patterns exist;
• the parties are in a pre-existing relationship marked by an existing power differential
(e.g. employer/employee, doctor/patient); or
• where self blame is present (some types of victimization, such as sexual harassment,
are characterized by self blame).

Some commentators believe that only formal adjudicative processes are able to protect the
weaker party to a dispute. The DRO believes that the real issue is not about adjudication but
about fairness. Where power differentials become so great as to render consensual dispute
resolution processes meaningless, those processes either should not be employed or, if they
are, the dispute resolution provider has an obligation to end the session. While power
balances are sometimes difficult to recognize or predict and can shift in the course of a
dispute, experienced dispute resolution providers in carefully designed dispute resolution
systems can address this potential problem by employing strategies such as:

• dealing with parties separately (e.g. shuttle negotiations or caucusing)

• allowing parties to bring advocates or other support people to the process
• funding lawyers or advocates
• providing sufficient information to allow parties to make an informed choice
about participating in the process and in arriving at fair settlements
• training dispute resolution providers about power imbalances
• allowing a "cooling off period", that is, enough time for the parties to consider
their agreement before committing themselves to the settlement
• requiring or encouraging parties to seek independent legal advice on settlements
• allowing the parties to opt out of the dispute resolution process without penalty
• allowing the dispute resolution provider to terminate the mediation if there is
gross inequality
• providing that agencies must approve settlements.

I. Outcomes and Enforcement

(1) Outcomes
One of the advantages of a collaborative approach to disputes is that resolutions can be
tailored to the parties' needs. In this way, a broader range of solutions is available compared
to traditional adjudicative processes. However, as mentioned earlier in the discussion about
the role of the dispute resolution provider, one possible constraint on outcomes may be
legislative or policy mandates.

At a minimum, agencies should ensure that settlement terms are committed to writing and
signed. In addition, for long-term planning purposes, agencies may also wish to oblige
parties to file their agreements with them (perhaps anonymously to protect confidentiality),

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 20

 or simply to record whether or not an agreement was reached. Agencies with public interest
mandates may go further and require that settlements be approved by them.

Of course, not all disputes will be resolved in their entirety or at all. The design plan will
need to address what will happen to these cases. For example, if collaborative approaches
do not result in agreement, then parties may be routed back to an adjudicative track to
resolve the remaining issues.

(2) Enforcement
There are a number of approaches to monitoring and enforcing mediated settlements. The
approach taken by the agency depends on the extent to which it wishes to exercise oversight
over the outcome of the dispute resolution process. Options range from least intrusive to
most intrusive as follows:

Withdrawal – Parties who have reached agreement can simply withdraw their case from
the agency's conflict resolution process.

Parties file settlement – The agency can act as a depository for settlement agreements.
This may raise issues of confidentiality.

Agency order confirming that a settlement is reached – This agency simply records
the bare existence of a settlement via an order and then closes the case.

Agency order reflecting the settlement terms – The agency makes the terms of
settlement public through the vehicle of a formal order. As well, the agency's
enforcement powers will be engaged by any breach of the agreement.

Settlement approval – The agency takes an active supervisory role by approving terms
of settlement.

The less intrusive enforcement options such as withdrawal are well suited to public bodies
that do not have a strong public interest mandate and which encounter few conflicts. Such
bodies are unlikely to be constrained by statutory or policy considerations and consequently
have less of an interest in fulfilling a supervisory role.

Agencies in which dispute resolution is a primary function may be more inclined to track
typical settlement terms. However, a distinction must be drawn between those agencies that
are designed to influence behaviours or exert moral suasion and those whose principal task
is simply to manage and resolve large volumes of disputes as effectively as possible.

Agencies with a public interest mandate are more inclined to track settlement terms closely
and publicize them. Thus, bodies entrusted to protect constitutional or quasi-constitutional
rights such as human rights agencies may prefer public orders or settlement approval.
Those in the second category such as commercial arbitration boards are more likely to
choose options that preserve greater confidentiality such as the settlement depository
model.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 21

STEP 5 - Training and Qualifications
A. Training
The importance of training dispute resolution providers cannot be overemphasized. A
comprehensive resource manual developed by the U.S. Department of Justice on alternate
dispute resolution (ADR) program design outlines five types of training:

1. ADR system design training – For those responsible for designing and implementing
the system. The objective is to provide a framework (such as this one) to guide systems
design.
2. ADR awareness training – For executive, senior managers, lawyers, supervisors,
operational staff and clients. The objective is to introduce basic concepts, show the
benefits of ADR and gain support and overcome resistance.
3. ADR methods and skills training – For program managers and staff actively involved in
ADR. The objective is to provide the knowledge and skill in the use of ADR methods
needed to build an effective ADR program.
4. Program specific ADR systems and procedural training –For program managers and
staff actively involved in ADR. The objective is to provide agency specific information to
those who use ADR methods.
5. ADR skills, training (advanced) – For neutral third parties.

While comprehensive training in all five categories may not be required, the list provides
some insight of where training might be beneficial.

Training can be obtained from established programs such as those offered at the Justice
Institute of British Columbia or private trainers. It may also be possible to use mentors.
Pairing less experienced dispute resolution providers with more senior people can be a very
productive way to build skills and confidence.

Regardless of whether training is effected internally or externally, it is important for dispute

resolution providers to have a clear and common understanding of the agency's mandate,
the goals and principles of its dispute resolution process, and their role within that process.
Furthermore, training should be offered to as broad a range of staff as possible in order to
create a collaborative ethos throughout the organization. Initial training should be reinforced
by ongoing opportunities to upgrade and refresh skills and knowledge.

B. Qualifications
All dispute resolution providers should adhere to some minimum qualification standards.
Such standards could be set by the government agency itself or by an established roster or
professional body. There is a large body of literature on dispute resolution qualifications to
guide the design team in this area.

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 22

STEP 6 - Implementation
Pilot projects are an excellent way to begin implementing a dispute resolution design. Trying a
new dispute resolution process on a small scale allows an organization to evaluate its
usefulness. Even if it a dispute resolution process is obviously suitable, a pilot provides an
opportunity to identify and iron out any problems early on. Of course, before undertaking a pilot
project, it is critical to consult with key stakeholders including staff. A pilot project may be
jeopardized by opposition from staff if they perceive that they are being unfairly singled out for
improvement. Thus, establishing a pilot where staff are keen may reduce administrative
obstacles as well as increase its potential for success.

Another idea is to set up an implementation team including staff from the pilot's location. This
allows for fine-tuning of the design option being tested in the pilot and ensures integration with
operational practices. Integration of design and operations is so important because staff are
more likely to oppose a pilot project if they perceive it as simply an additional layer to their
workload.

Another option is to implement the dispute resolution design in stages. The advantage of this
strategy is that it is easier to marshal the resources required for the project over time.

Whatever approach is adopted, there will always be room for continued improvement. As a
result, the agency should develop ways to monitor the success of its design plan and make
changes as needed. A public feedback or complaints process would be an invaluable tool to
that end.

STEP 7 - Evaluation and Performance Measures

A. Why Evaluate?
Evaluation is an integral and ongoing element of any dispute resolution system. There are
several sound reasons for building in an evaluation component to any dispute resolution
design plan. First, subsequent monitoring and evaluation are the only way to ensure that the
program is working effectively. Second, such analysis reveals the strengths and weaknesses
of the program. Its strengths can be used in order to promote public awareness about
dispute resolution generally or about a specific program of an agency or organization. Its
weaknesses, once identified, can be improved. Third, having an organized evaluation aspect
including in the original design process promotes a consistent and proactive approach to
continued improvement in contrast to organizations which conduct one-time reviews in
response to a given problem. Finally, evaluation can serve a basic management purpose by,
for example, identifying bottlenecks in the process and ensuring sufficient staffing levels.

B. Evaluation Plans
Evaluation methods will vary depending on what aspect of the program is at issue.
Organizations implementing a dispute resolution system from scratch will likely wish to
conduct a general assessment. Those wishing to improve or streamline an existing dispute
resolution program may wish to undertake a more focused evaluation, such as determining

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 23

 whether client satisfaction levels have increased since the introduction of mediation.
Whether the goals of the evaluation are general or specific, the following flowchart may be
useful in outlining the basic steps in an evaluation process:

Identify Participants
(e.g., users: dispute resolution providers, clients, lawyers, etc.)

Identify Evaluation Goals

(e.g., to confirm time savings or to reduce backlog)

Identify Performance Measures

(e.g., if GOAL = CONFIRMED TIME SAVINGS
then PERFORMANCE MEASURE = CASE DISPOSITION TIME)

Create the Evaluation Tool

(e.g., determine the sources for data and methodology. Typical sources are dispute resolution
providers, participants, records and interested groups like bar associations. Methodology is either
quantitative/statistical or qualitative/subjective assessments from interviews or surveys.)

Collect and Analyze Data

Discuss Findings
(e.g., tailor to fit audience: written report,
oral briefing or informal memorandum)

Make Necessary Changes

Reaching Resolution A Guide to Designing Public Sector Dispute Resolution Systems 24

C. What to Evaluate?
Typically, designers of a dispute resolution system wish to evaluate some or all of the
following:

• uptake of dispute resolution options by the target population;

• compliance of the program with legal or policy requirements;
• cost savings to both the disputant and to the agency;
• time savings;
• participant satisfaction, including perception of the dispute resolution providers and
generally whether participants felt fairly treated;
• settlement rates; and
• quality of settlements, including whether settlements were more creative, more detailed,
more durable, and whether an ongoing relationship between disputants was maintained
or improved.

D. Choosing the Evaluator

As in the choice of dispute resolution provider, the agency will need to decide between an
internal evaluator and an external one. An external evaluator will lend credibility and
objectivity to the assessment process and likely possesses specialized skills in this field.
The disadvantage is that external assessors are often very expensive. Internal evaluators are
more cost effective and will likely possess a great deal of knowledge about the organization
or program area under study. Care should be taken, however, in choosing an internal
evaluator not to draw a person who is too close to the program area in question. In other
words, it is important to choose an employee with knowledge of the dispute resolution
program but not someone who works directly in it since objectivity is a crucial aspect of any
effective evaluation.

Ministry of Attorney General

Justice Services Branch
Dispute Resolution Office
PO Box 9280 Stn Prov Govt
Victoria, BC V8W 9J7
Tel: (250) 356-8147 • Fax: (250) 387-1189
E-mail: dispute.resolution.office@ag.gov.bc.ca

– JUNE 2003 –
#AG03103

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