The Story Of The Bootless Coal Miner: Interest-Based Conflict Resolutions Save Time, Money And Relationships

In healthy conflict resolution systems, conflicts are resolved early based on the interests and needs of the parties. Envision a widely based "process triangle." In a healthy system, most disputes are resolved at the bottom of the triangle using interest-based resolutions. Disputes only move up the triangle to rights-based resolutions (the middle) or power-based resolutions (the apex) if the other processes fail to work. Ideally, only a few conflicts, represented by the narrow apex of the triangle, are resolved by the exercise of power.

Interest-based negotiations include direct negotiations between the disputing parties, facilitated negotiations (for instance, when a third-party is invited in to provide a missing piece of data, information or perspective), and mediation. The focus is on the parties’ underlying interests and needs.

Rights-based resolutions typically take the form of binding arbitration or judicial decisions. The results may only partially reflect the parties’ interest and needs because the dispute has now been recast into terms of a collective bargaining agreement or other contract or rights recognized by statute or common law. Moreover, the rights-based neutral may not have the authority to resolve the dispute as the parties wish. For instance, a particular court may not have jurisdiction to order specific performance or the unwinding of a complicated transaction involving a number of people.

Power-based resolutions include war, labor strikes, domestic violence and abortion clinic violence. In some circumstances, like war and domestic violence, power is used simply because the power of one party overwhelms the power of the other party. In other circumstances, like wildcat labor strikes, power is often used because the other dispute resolution systems are ineffectual or perceived as unfair. Pro-life advocates have often resorted to clinic violence because the outcome in the courts (rights-based resolution) has been adverse. They feel no other option to violence exists other than "lumping it".

In Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (Jossey-Bass, Inc. 1988), Ury, Brett and Goldberg report on the dispute resolution systems they studied in coal mines. The governing labor contract provided a four-step grievance process. At step 1 the miner presented his dispute to his immediate foreman. If the miner was not satisfied with the foreman’s decision, he moved to step 2. The mine committee then talked to the mine manager or superintendent. They tried to resolve the matter within 5 days of the foreman’s decision. At step 3, the district-level union field representative and the employer’s representative tried to resolve the conflict. At step 4, an arbitrator resolved the dispute by a final and binding decision. This system involved three interest-based processes and one right-based process.

At the high strike mines, the process triangle was upside-down. More disputes were handled by power-based resolutions than by rights-based or interest-based resolutions. The studies showed that more disputes were handled at steps 3 and 4. The authors found that little trust existed at the lower level processes between the parties and they prepared for negotiations as if they were adversarial proceedings. Steps 1 and 2 were unfortunately seen as pro forma. They had to be exhausted before anything meaningful to the miners might happen. Over time, the miners had learned that steps 1 and 2 rarely resulted in an outcome favorable to the miners. And the miners lacked confidence in the step 4 arbitration procedure. They did not feel the arbitrators were competent or unbiased. In addition, arbitration between upper level labor and management representatives turned the miner with the dispute into a passive spectator. The miners believed, however, that wildcat strikes got management’s attention and results favorable to the miners. Id. at 89-96.

The authors gave the following example to illustrate the dysfunctional dispute resolution system they saw at high-strike mines: A miner came to the mine to find that his work boots had disappeared from his storage basket. After each shift, each miner took off his work clothes and stored them in an open basket that was then suspended from the bathhouse ceiling by a rope and pulley. The bootless miner reported the theft to the foreman. The foreman refused to replace the boots and told the miner to go home. He reasoned that the mine regulations (rights-based analysis) did not require the employer to replace the boots. The miner knew this result would cause him to lose a day’s pay. Angry, the miner called a wildcat strike. Union solidarity compelled the other miners to follow the bootless miner out of the mine. The cost to all the parties of this power-based resolution system was extremely high. The mine lost production. The miners lost pay. And the relationship between the managers and the miners deteriorated further. Id. at 3-4. One mine suffered so many wildcat strikes, that management had decided to shut it down. The closure would have resulted in a permanent loss of jobs in the community.

An interest-based resolution to the boots dispute is obvious. The foreman should have agree to buy a new pair of boots and to loan the miner a pair of boots for that shift. The cost, in retrospect, of this solution is miniscule. So what went wrong?

Disputes tend to move up the "process triangle" when parties (1) lack interest-based procedures, (2) lack motivation to use them, (3) lack the skill to use them, (4) lack the resources to make interest-based resolutions work effectively, and when (5) obstacles in the relationships, the organization and the environment exist to the use of interest-based procedures. Id. at 31-39.

While interest-based resolution systems will not resolve all conflicts, they should be the first step in resolving most disputes. If one interest-based process does not work (i.e. direct negotiations between the parties) then another, like mediation, may work. Moreover, a healthy dispute resolution system should provide "loop-backs" to interest-based processes. For instance, I am currently involved in a large disputed insurance claim involving 124 environmental sites and asbestos losses. The parties agreed to use non-binding early-neutral evaluation (facilitated negotiations) as a step towards resolving the dispute. After receiving the early neutral’s evaluation of the disputed legal issues, the parties contemplated a round of negotiations or mediation. If those interest-based negotiations failed, the parties contemplated another early neutral evaluation, this time focussed on a non-binding evaluation of the disputed facts. The parties then contemplated another round of negotiations or mediation. If this process again failed to resolve the claim, the parties could proceed to the rights-based determination process offered by the claims referee, with a right of review by the circuit court and rights of appeal to the appellate courts of Missouri. Even in the context of these rights-based proceedings, the parties could "loop-back" to negotiations or mediation.

In short, three types of dispute resolution systems exist. One identifies and reconciles underlying interests. The next decides who is right. The third determines who has more power. Ury, Brett & Goldberg suggest that advancing up through the "process triangle" is more costly at each step. Interest-based resolutions tend to save time, money and the risk of escalating emotions, as well as the destruction of valued relationships. Id. at 169-70. People cannot avoid conflict, but they can make better choices about resolving it.

© Paula M. Young, St. Louis, MO 2001.