Help in Resolving Disputes, Often Illusory

From a State Attorney General Consumer Office: I appreciate the opportunity to respond to your concerns…You may be interested to know that consumer complaints are a valuable source of information for our office and may suggest patterns of conduct that may warrant investigation… our office does try to point consumers to resources where possible…Please feel free to contact our office with any consumer related concerns in the future. Wow, this reads well and sounds hopeful. In test example, no assistance.

From a US Senate Office: Thank you for reaching out to share your thoughts with me. Listening…is important to me, and your input helps me better represent our state…Constituent outreach informs my policy agenda and voting decisions…Please know I am dedicated to making this state and America better places to learn, work, and thrive…Providing residents with excellent customer service is an incredibly important part of my job. My team and I are here to assist you with any challenges you may have with federal agencies and to listen to your concerns. This sounds great. Evidently a spin. In test example, no assistance.

Radio and TV Consumer Help: Most major TV stations sponsor some sort of consumer complaint resolution program. They often get over 150 complaints per week. They promise results like consumer help is the dedicated consumer investigative unit, led by consumer reporter X. The team investigates fraud, scams, and billing disputes, and vows to review every single submission they receive to help locals get their resolution. If you need to submit a dispute that you have been unable to resolve directly with a business or institution, you can file a case directly through the…They usually highlight resolved case per week.  Number of staff fluctuates. What a great service? In test example, no assistance. It is mostly PR for the station.

Better Business Bureau (BBB) Consumer Assistance: Advantages of Dispute Resolution

• Lower Cost: DR services generally cost less than more formal options. The customer usually pays nothing or a small fee for dispute resolution services.

• Speedy: Conciliation can usually settle a problem in a couple of weeks - sometimes in a day or two.

• Informal: DR allows for informality. You are free to have a lawyer assist you, but most people do not use one in DR proceedings. Hearings are held in a relaxed setting and courtroom rules of evidence do not apply.

• Empowering: DR offers you a chance to state your own case. In conciliation and mediation, you create your own agreements.

• Convenient: BBBs will try to schedule mediation sessions and arbitration hearings at the parties' convenience. This reads perfectly and sounds promising. In test example, no assistance.

Introduction

In most jurisdictions throughout the United States, on the surface there seems to be a lot of ways to resolves disputes. In actuality, these dispute systems seem to be illusory, performative, and possibly, only public relations?

If an entity desires to offer a dispute resolution service, be sure it is one of substance; that is effectively analyzes and resolves the dispute.

If not, trust in the system or the entity is never gained and in fact trust in the whole system is eroded. People do not want the perception of resolution; They want resolution.

Examples:

IRS: A is having issues with IRS over a six year old filing. A worked on this issue with the IRS for two years but received only bureaucratic letters in return. Three consecutive times, A contacted some outside entity that advertised on TV that they could assist with IRS issues.   They charged an initial $5,000. In each case, they failed. A did get their $5,000 back but the problem remained. A then contracted with HR Block who figured it out within two weeks.  Evidently, one of A’s contractors had submitted a 1099 and then submitted an amended 1099. IRS counted both.

A Relevant Concommitant Example: The illusion of available assistance can be found in many aspects of our society. “A” is an older woman living comfortably in a three-bedroom home that her husband and family built decades ago. She reared all 4 of her children in this home. Now, they have started their own families. She owed no mortgage so she could live okay on just Social Security.

Suddenly three “affordable” three-bedroom homes were built directly across the street.   (This neighborhood was known as “poor” where often affordable government housing is built.) People moved in with plenty of children. These children began harassing “the old hag” across the street. A had never bothered these folks and A simply wanted to live a quiet life. That was not to be. The harassing escalated to throwing rocks at A while she was in her front yard.

One might think the police could help but not really. After a multiplicity of calls, the police advised A to simply stay out of her front yard. Incredible?

A then turned to the Senior Help Centers run by nonprofits and the government. They referred her to the police and lawyers. If A had needed help to learn how to knit, meditate, yoga, these agencies could have been of help.

In the Maslow’s theory of needs, safety is of high priority directly after food and water.   Learning to knit might bit into the highest category of self-actualization after one had the basics.

In this scenario, no one assisted A in one of life’s basic needs. A felt her only option was to relocate. She sold her family home and move to another safer part of the city.

Another Example of Illusory Assistant Jobs: Many people have lost their jobs, sometimes due to downsizing or re-organization. A lost her job of 12 years due to the corporation going through “downsizing.” As is typical, the corporation offered her “job assistance.”  She, as many, thought this assistance would actually help her find another job. The “for profit” was paid by the corporation to accomplish this “job assistance.” What did they do?   They offered resume writing guidance, practice interviewing, meditation, stress relieving workshop. They offered personality testing, workstyle instruments. At one session, the job seekers were asked to lay their heads on the school test to rest! (Remember kindergarten nap time?) A was simply searching for a job with a fair wage, commiserate with her high school education diploma. She was not searching for a CEO job. In summary, all of this so-called job assistance did not help her find another job. The city and state also offered job assistance but to no avail.

A wound up finding no job and essentially retired.

Another Relevant Example - Illusory Security: At a DC neighborhood mall at any time one can see up to a dozen security officers. Are the shoppers secure? Maybe not, because most of them are sleeping or focused on their phones.

At this same mall on a busy Saturday morning, a motorcycle sped through the block on the sidewalk past two police cars. Did the police notice or do anything? No, they were on their computers and phones.

Military base training example: I used to deliver negotiation training to this military base between troop deployments. Security seemed to have been tight. Upon entering, the guard demanded in a commanding voice that he wanted to examine my backpack. Anticipating this, I had unzipped one of the pockets. He barely glanced and barked, Go forth! Of course, my backpack had 18 zippers.   

What Does an Effective Dispute Resolution System Look Like?

First, what is the goal? The goal is to settle, to resolve a conflict or dispute to possibly the satisfaction of all parties or at the least, the parties are better off after the process than before the process.

Second, there must be a step-by-step process that is most likely to lead to a resolution.

Step 1 - Planning: The entity delivering the DR process needs to do some planning ahead of time, especially about the process, the resources, and the end result.

Step 2 - Introduction: All parties need to be identified as well as their role. The DR process is described and the goals of all parties determined.

Step 3 - Gathering the Facts: This is a vital step. Often the facts can be gathered through the parties. Possibly fact gathering can also be augmented by photos and videos and other evidence. All parties need to substantially agree on the facts. An example, this document has been validly signed by all parties.

Step 4 - Perspectives: Many folks confused perspectives and facts. An effective DR process should not. Perspective are basically opinions, how each party sees or views the situation.   These perspectives should be listened to and valued. Don’t waste time trying to get agreement.

Step 5 - Issue Identification:  This is part of the DR process that many forget or skip over.   Don’t. Ask each party, what are the issues? Record them on a whiteboard or chalkboard.   There is no need to seek agreement. If possible, have the parties signify their issue priorities.

Step 6 -Option generation and selection: The generation is the challenging chore since most adults have lost their childhood creativity. This needs to be stimulated; that is, thinking outside and inside the box.

Step 7 - Resolution or Settlement:  Many parties want to speed through this stage since they are so relieved that they have reached it. Go slowly and this is the time to pay attention to details. All parties should walk away with the same exact sense of the agreement in written form.

Step 8 - Follow-Up:  Most DR systems lack this. An effective DR system has an active, not passive, follow-up to ensure agreement compliance.

Escalating dispute resolution intervention. The problem with most DR systems is they have no teeth. They politely ask each party to participate and if the party, does not, that is the end. An effective DR system has an ascending involvement model. Maybe the first step is voluntary negotiation, then voluntary facilitation, then voluntary or mandatory mediation and finally possibly binding arbitration. A DR system is effective often if it is incorporated into the rules, regs, bylaws etc. either of employment, workplace, partnership, HOA, community group, et al.

Conclusion

Americans' trust in institutions is at a low ebb. Possibly 87% do not trust. One ingredient of that mistrust is illusory, performative, PR programs; that is, services that do not deliver.

If an entity is going to have a dispute resolution assistance program, it must be one of substance. It must deliver for all parties. It must have teeth. It must produce results.

A great example was the Columbus, Ohio, Night Prosecutor’s Mediation Program during the 1970’s. This was initially experimentally funded by the United States Department of Justice LEAA (Law Enforcement Assistance Administration) program. The genesis of the program can be found in a judicial ruling that if a person alleged all of the elements of a crime, it must be filed. This resulted in a huge influx of criminal charges. Relief was necessary. Relief became the mediation of criminal charges. The prosecutor’s office sent the mediation notices. Recipients paid attention to them. Recipients attended the mediations.  Recipients reached mediated agreements and followed through on their promises. If they did not, the reality was that criminal charges could be filed. Is there a mandatory nature to this?  Yes. The program did deliver.

Resources:

See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.

Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465.  Publisher: McGraw Hill Higher Education

The Conflict Resolution Training Program, Leader’s Manual,  ISBN:  0-7879-6077-2.  Prudence Bowman Kestner and Larry Ray

Mediation Manual, Prudence Bowman Kestner and Larry Ray, self-published.

School Conflict Manager Manual.  Prudence Bowman Kestner and Larry Ray, self-published.