The Nature of Conflict and Dispute Resolution

The Nature of Conflict

Introduction to Negotiation and Dispute Resolution

  • Course Structure

    • Incorporates experiential learning through roleplays and assessments.

    • Assessment 1: Mediation Video Analysis: Observe and analyze industry-standard mediation videos.

    • Assessment 2: Reflective Journal: Reflect on experiences from roleplays.

    • Exam: Invigilated problem-based exam.

The Concept of Conflict

Definition of Conflict

  • Conflict Defined:

    • A collision of values, interests, or intentions among individuals or groups.

    • Emerges when basic needs or wants are not met (interests vs. positions).

    • The presence of perceived threats from other individuals or groups (Condliffe).

    • Can involve real or imagined misunderstandings; includes interpersonal and intrapersonal conflicts.

    • Must be sufficiently unpacked in dispute resolution processes.

    • Conflict is characterized as inevitable and common (Deutz, 1986).

    • Statistics: 75% of conflicts resolve without outside intervention, while 15% resolve with a third party’s help (Peacock, Bonjakov, and Okerstrom, 2007).

Impact of Conflict

  • Positive Aspects:

    • Can enrich lives and serve as a motivator for social change and interaction (e.g., Mabo case).

    • Provides a means for entertainment and social structure.

  • Negative Aspects:

    • Can cause significant financial, psychological, and social damage.

  • Active Players in Conflict:

    • Role of individuals in responding to conflict and managing perceptions to reach potential outcomes.

Causes of Conflict

  • Factors Influencing Conflict:

    • Distinctions arise from perceptions, interpretations, expressions, and intentions of individuals involved.

    • Perception: Filters that shape how individuals view the world, creating meanings based on personal backgrounds.

    • Interpretation Factors: Age, personality, upbringing, education, cultural influences, past experiences, religions, and health.

    • Subjectivity of Truth: Acknowledges that truth can stem from individual memory and perception.

Understanding Conflicts and Disputes

Felstiner's Framework

  • Distinction between Conflict and Dispute:

    • Conflict: Occurs when a disagreement is perceived and expressed, unfolding as a process (from perception to claim).

    • Dispute: A social construct representing how individuals respond to conflict when formal intervention is sought.

Social Nature of Conflict

  • Subjectivity:

    • Conflict is defined individually, leading to variations over different contexts and cultures.

    • Recognizes that perceptions of conflicts may evolve based on new information, emotional states, and social feedback.

    • Legal Aspect: Most conflicts remain informal, and only a small fraction progress to legal disputes.

Transformation of Conflict

  • Naming:

    • Recognition of Injury: Transforming unrecognized injuries into acknowledged harms, facilitating grievance expression.

  • Blaming:

    • Assigning responsibility to individuals or groups, framing experiences as wrongful, thus justifying grievances.

  • Claiming:

    • Involves articulating grievances and seeking remedies, with disputes arising if claims are dismissed.

Most Conflicts Never Become Disputes

  • Barriers to Grievance Articulation:

    • Cultural norms, self-blame, and feelings of futility inhibit expression of injuries.

    • Access to Legal Resolution: Predominantly available only to those with resources and confidence.

    • Justice Policy Implications: Highlights the necessity for improved access to dispute resolution systems and designs.

Responding to Conflict

Levels of Response

  • Ideal Response Level: Speak directly with the other party to establish goodwill.

  • Incident Level: Intervening successfully by openly discussing issues with the parties involved.

  • Misunderstanding Level: Clarifying misunderstandings through effective communication.

  • Tension Level: Involves utilizing an impartial mediator to assist in negotiations.

  • Crisis Level: Seeking formal dispute resolution methods (Alternative Dispute Resolution [ADR] or litigation).

Thomas-Kilmann Conflict Response Styles

  • Response Styles: Individuals can respond to conflict through various styles:

    • Lumping It: Ignoring or putting up with conflict.

    • Avoiding: Delaying confrontation or using secrecy.

    • Compromise: Negotiating satisfactory solutions through trade-offs.

    • Competition: Engaging in win-lose scenarios, leveraging power dynamics.

    • Accommodation: Submitting to others’ demands or compliance.

    • Collaboration: Focusing on problem-solving for integrative, win-win outcomes.

Introducing Negotiation and Dispute Resolution

Definition of ADR

  • Alternative Dispute Resolution (ADR):

    • Broadly interpreted as processes involving an impartial third party assisting in resolving disputes without resorting to judicial determination.

    • Significance of the Term: Shifted from simply alternative to also meaning appropriate dispute resolution (Sourdin, 2012).

    • Describes methods operating both within and outside of traditional court environments and designed to be less adversarial.

Types of ADR

Facilitative ADR

  • Involves a practitioner assisting parties in identifying issues, generating options, and reaching agreements.

    • Examples: Mediation, conciliation, and facilitated negotiation.

Advisory ADR

  • Practitioners appraise disputes and provide legal advice on the matters at hand.

    • Examples: Case appraisal, early neutral evaluation, and advisory conciliation.

Determinative ADR

  • Involves evaluating disputes formally, including evidential hearings, leading to binding determinations.

    • Examples: Arbitration, expert determination, and adjudication.

    • Shift in litigation approaches; no longer viewed as the sole or best means of resolution.