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Dispute Resolution in Practice:
Rory Macmillan Dispute Resolution in Practice: Role-Play Exercise ITU/BDT Arab Regional Workshop on Dispute Resolution Bahrain 31 May – 1 June 2004
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Table of contents INTRODUCTION THE MUMTAZ ROLE-PLAY ELEMENTS OF A MEDIATION HOW THE ROLE-PLAY WILL WORK
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Table of contents INTRODUCTION THE MUMTAZ ROLE-PLAY ELEMENTS OF A MEDIATION HOW THE ROLE-PLAY WILL WORK
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Disputes can be a healthy sign but ultimately the key is to ensure they are well resolved
At one level, the presence of disputes evidences activity and sometimes competition in the market However, where they remain unresolved, disputes indicate inefficient use of resources and a sector cost
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What are the regulator’s roles and what tools or resources may be available?
Rule maker Enforcer Adjudicator Mediator Legislative Punitive Judicial Facilitative Ex ante Ex post Ex ante/post
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One of the most valuable dynamic resources is the parties’ own interests
Commercial return on investment Opportunity to grow (or defend) Covering the risk premium Predictable legal/regulatory rights
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The role-play is designed to help gain insight into working with the parties’ incentives
Designed as a mediation Explore the various interests at play Exploit parties’ interests for the sector regulatory policy agenda
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Table of contents INTRODUCTION THE MUMTAZ ROLE-PLAY ELEMENTS OF A MEDIATION HOW THE ROLE-PLAY WILL WORK
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The purpose Explore dynamics and structural issues in dispute resolution Provide a flavour of the various roles, perspectives, interests and incentives Gain insight into problems and solutions
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The context Mumtaz, relatively new to liberalization Market undergoing rapid transition Telecom Authority with regulatory and dispute resolution mandate
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The disputing parties Mumtazcom, a privatized incumbent fixed line operator with a mobile subsidiary (Mumtaz Mobile) and an ISP Mobilkiteer, a successful new entrant which now leads the mobile market
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The official complaint
Mobile termination rates Discrimination Quality of service Other issues in the air
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The issues Commercial, operational, technical Legal, jurisdictional, institutional Policy, power asymmetry, personal
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Adjudicator/mediator
Telecom Authority’s Dispute Resolution Procedure Adjudication/mediator powers The meeting is a (regulatory) mediation
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Table of contents INTRODUCTION THE TOKLAND ROLE-PLAY ELEMENTS OF A MEDIATION HOW THE ROLE-PLAY WILL WORK
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Elements of a mediation
Preparation Opening Exploration Negotiation Conclusion Source: CEDR
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Toy Engines demonstration
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Toy Engines demonstration (contd.)
Mr. Sykes: Owner of Charles Games, a toy trains manufacturer Ms. Lecchi: President of Russell Toys, a toy shop Contract: Charles Games to deliver 100 toy trains to Russell Toys on 1st December, payment against delivery
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Toy Engines demonstration (contd.)
Charles Games delivered 50 trains on 20th December Russell Toys claims it could only sell 20 before Christmas and so lost sales Russell Toys has not paid Charles Games They have hired a mediator…
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Preparation Understanding the parties’ claims Understanding the parties’ interests Understanding the parties’ alternatives
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Opening Establishing process and ground rules
Establishing authority of and confidence in the mediator and rapport with parties Setting a tone and environment conducive to negotiation Opening statements by the parties
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Exploration Focus on interests rather than positions Open-ended questioning, probing for underlying issues and reflecting back Reality testing, BATNA, WATNA and the other parties’ shoes
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Negotiation Finding convergent interests Principled negotiation instead of positional bargaining Beyond the “point of despair”
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Conclusion Identifying and recording points of agreement Ownership of result by the parties Workable and durable
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Table of contents INTRODUCTION THE TOKLAND ROLE-PLAY ELEMENTS OF A MEDIATION HOW THE ROLE-PLAY WILL WORK
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The participants 2 or 3 representatives from Mumtazcom, the fixed line operator 2 or 3 representatives from Mobilkiteer, the mobile company 2 TA-appointed adjudicator/mediators
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Forming your teams Read the briefings carefully Gather with your fellow team members Discuss the facts, interests, strategies and roles
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Information available; identify the issues
Shared and confidential briefings What are the primary claims and defences in dispute? What secondary issues could come up?
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Identify the interests
What are your short-term and long-term interests and how are they prioritized? What are other players’ likely interests and how might they be prioritizing them? Where do interests converge and where do they conflict?
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Identify the choices What are your main choices, your BATNA and your WATNA? What are the other parties’ choices, their BATNA and their WATNA?
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Adopt your strategies What is your strategy to pursue your interests given the choices available? What are your fall-back strategies? What might other parties’ strategies be?
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Guidance during the exercise
Each group will have one or more assistant who can help in case you have questions Generally try to accept the facts as they are stated and run with them If necessary, make some facts up (but be consistent with the overall fact pattern)
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Getting the most out of the exercise
No one approach or solution is correct Assume your character and your interests Remember, it’s a game and we are here to learn!
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QUESTIONS FOR THE WORKSHOP
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Questions at the beginning of the workshop?
What questions are you bringing to this workshop? What challenges are you facing at home that the workshop can help with? What issues would you like addressed?
