Catherine Morris

Ways to Address Conflicts or Process Disputes
Negotiation
Mediation
Conciliation
Facilitation
Adjudication (including courts and arbitration)
Case Management in Courts and Tribunals
Conflict Transformation
Non-binding Arbitration
Facilitated Policy Dialogue or Shared Decision Making
Ombudsman
Nonviolent Direct Action
Peacebuilding
Reconciliation
Restorative Justice
Conflict Resolution and Peacebuilding: A Selected Bibliography

Ways to Address Conflicts or Process Disputes

The ways people or groups process or resolve disputes – or attempt to make decisions – are, generally speaking, either consensual, adjudicative or legislative in nature, although some so-called "hybrid" processes combine features of these approaches.

Consensual dispute resolution means that the disputants themselves decide the process and the outcome. Consensual dispute resolution processes include negotiation, facilitation, mediation (including public policy negotiation.)
Adjudicative dispute resolution means that a third-party makes a binding decision for the parties. Adjudicative approaches include arbitration and court adjudication.
Legislative approaches to dispute resolution focus on rule-making by a group, organization, formal legislative body, or ruler. Disputes over the interpretation or application of rules may be resolved through consensual or adjudicative means, and in some cases through coercion or force.

Another way to think about the ways to address conflict or resolve disputes is to consider the basis on which decisions are made:

Power-based approaches:
■ authoritarian or authority-based approaches;
■ competition (the more powerful person or group wins).
Rights- or entitlement-based approaches:
■ court adjudication;
■ arbitration;
■ rights based mediation (decisions based on rights or entitlements).
Interest-based approaches:
■ integrative, interest-based or "win-win" negotiation (also called "problem-solving" negotiation, "value creating" negotiation, or "all gain" negotiation, cited below);
■ interest-based mediation.
Relational approaches (which also consider interests, rights, ethics and power):
■ relationship building;
■ "narrative" and, "deliberative" and other "dialogical" approaches to negotiation and mediation;
■ restorative justice and reconciliation;
■ other "transformative" approaches to peacebuilding;

Conflict resolution, negotiation or decision-making processes can also be classified as "distributive" or "integrative":

Distributive approaches:
■ problems are seen as "zero sum";
■ resources are imagined as fixed: "divide the pie";
■ "value claiming";
■ haggling or "splitting the difference."
Integrative approaches:
■ problems are seen as having more potential solutions than are immediately obvious;
■ resources are seen as expandable: the goal is to "expand the pie" before dividing it;
■ parties attempt to create more potential solutions and processes are thus said to be "value creating";
■ parties attempt to accommodate as many interests of each of the parties as possible;
■ the so-called "win-win" or "all gain" approach.

Dispute Processing Alternatives

It is usual within the field of conflict resolution to classify dispute processing options into categories such as negotiation, mediation, facilitation, ombuds processes, arbitration, adjudication, and direct action. The following rather formalistic classifications of dispute processing methods hide the fact that the boundaries between these processes are blurred. Placing the processes on a continuum (in this case from negotiation to direct action) illuminates the conceptual boundaries and some of the shifting features of these processes. In a court-based dispute resolution system, sometimes these processes are part of a "case management" system.

Negotiation
Negotiation is a process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict. See bibliography on negotiation. See also the definition of mediation, below. Negotiators may use a variety of approaches. "Power negotiation" involves a negotiator's understanding and strategic use of various sources of power to achieve a negotiator's bargaining goals. Interest-based negotiation Fisher, Ury and Patton 1991) attempts to reach solutions that meet the interests of all parties. An assumption of interest-based negotiation is that a variety of interests or motivations may underlie parties' positions. The goal of the interest-based approach is to satisfy those interests rather than bargain over bargaining positions. This style of negotiation may also be called "problem-solving" negotiation, "all gain" negotiation or "value creating" negotiation (Mnookin et al 2000). Some approaches to negotiation use game theory, including "tit-for-tat" approaches which use strategic combinations of cooperation and aggression. See the bibliography on game theory.

Mediation
Mediation is a process in which an impartial third party helps disputants resolve a dispute or plan a transaction, but does not have the power to impose a binding solution (LeBaron Duryea 2001, 121). Mediators use a variety of processes. Some mediators use "interest-based" approaches (Fisher, Ury and Patton 1991), while others use "rights-based" approaches. Some mediators are "facilitative," providing only process assistance for negotiation and using interest-based approaches. Facilitative, interest-based mediation is taught widely in North America for the purposes of community, family and commercial mediation and tends to foster the avoidance of mediator recommendations or suggestions in order to preserve mediator neutrality and to encourage party control of outcomes. Other mediators, including many labour mediators and commercial mediators, may use an "evaluative" sty le, providing suggestions or recommendations (for comparison see Waldman, 1997, 1998). Evaluative, rights-based mediation processes are similar to adjudicative processes such as non-binding arbitration. Other mediators may be "activist," intervening to ensure all parties are represented and that power balances are addressed (Forester 1994; Forester and Stitzel, 1989), but activist mediators do not necessarily make specific recommendations. Other mediators consider themselves to be "transformative" mediators, working less toward settlements and more toward transformation of relationships (Bush and Folger 1994; Folger and Bush, 2001; Lederach 1995). Still others foster "narrative" mediation processes in which the mediator is more of a joint participant with the parties in the joint creation of new possibilities for the future (Cobb, 1994; Winslade and Monk 2000). There is considerable debate in the field of conflict resolution about these differing approaches and styles of mediation. Many mediators are familiar with all these approaches and design mediation processes to suit the particular parties and the situation (Waldman 1997, 1998).

A typical approach to mediation (and negotiation) taught in North America involves an interest-based problem-solving approach in which the needs and interests underlying parties' positions are identified with a view to developing solutions that address and accommodate as many of those needs and interests as possible. (See Fisher, Ury and Patton, 1991). Also, attempts are made to meet party needs by exploring available resources to test whether a perceived "zero-sum" or "fixed pie" can be expanded. A staged model emphasizing face-to-face mediation is common, involving introduction and commitment to the process; identification of issues and generation of an agenda; exploration of the parties positions for underlying interests; design or solutions; and formal agreement. See bibliography on mediation. Recently, the over-reliance on the interest-based problem-solving approach has been critiqued by pr oponents of transformative, narrative and deliberative approaches which emphasize the transformation of relationships.

Conciliation
Many authors distinguish carefully between "mediation" and "conciliation," but there is no universal consensus as to precise definitions of each of these terms. The term "conciliation" has often been used interchangeably with "mediation." In Canada, the term "conciliation" generally refers to a process of dispute resolution in which "parties in dispute usually are not present in the same room. The conciliator communicates with each side separately using "shuttle diplomacy." The term "mediation," by contrast, is generally used in Canada to describe third-party intervention in which the parties negotiate face to face. The distinction between "mediation" and "conciliation" often breaks down, since in "mediation" separate caucuses are often held with the parties, whereas in "conciliation" some face-to-face meetings may be held. Conciliation also has a place within the arbitration processes of some jurisdictions. For comparison, see the entry on reconciliation.

Facilitation
Facilitation is a process by which a third party helps to coordinate the activities of a group, acts as a process facilitator during meetings, or helps a group prevent or manage tension and move productively toward decisions. The facilitation role can be placed on a continuum from simple group coordination and meeting management to intensive multi-party dispute mediation.

Reconciliation
Definition and description in progress. See the bibliography on reconciliation and transitional justice.

Reparations
Description and bibliography in progress.

Restorative Justice
The United Nations Economic and Social Council (ECOSOC) pdf file has defined restorative justice as "an evolving response to crime that respects the dignity and equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities..." which "... provides an opportunity for victims to obtain reparation, feel safer and seek closure; allows offenders to gain insight into the causes and effects of their behaviour and to take responsibility in a meaningful way; and, enables communities to understand the underlying causes of crime, to promote community well-being and to prevent crime..." Processes for restorative justice include mediation, conciliation, conferencing and sentencing circles. See the bibliography on restorative justice. See a Tutorial: Introduction to Restorative Justice at Restorative Justice Online.

Conflict Transformation
Please see John Paul Lederach's short essay on "Conflict Transformation" which describes the process of conflict transformation less in terms processes and skills and more in terms of constructive social change, the "building of right relationships and social structures through a radical respect for human rights, and nonviolence as way of life." See Lederach 1995. This view of conflict transformation differs from the "transformative mediation" approach of Baruch Bush and Joseph Folger which approaches focuses more at the interpersonal level, aiming less at settments and more at individual transformation through the processes of emplowerment and recognition (Bush and Folger 1994; Folger and Bush. See also the definition of mediation.

Adjudication (including courts, tribunals and binding arbitration) and case management
"Adjudication" is a term that can include decision making by a judge in a court, by an administrative tribunal or quasi-judicial tribunal, a specially appointed commission, or by an arbitrator. An adjudicator determines the outcome of a dispute by making a decision for the parties that is final, binding and enforceable. The parties present their case to the adjudicator (or tribunal, commission or arbitrator) whose role is to weigh the evidence and make a decision that is final, binding and enforceable. Adjudication processes are determinative in nature.

Arbitration differs from courts and quasi-judicial tribunals in a number of respects. For example, many arbitrations are voluntary in that both parties agree to submit the dispute to arbitration, and the parties often agree on the selection of the arbitrator and the procedural rules. Generally, rules of evidence and procedure are more relaxed than the rules of court. Arbitration can also be ordered by a court or be compelled by a statute. In such cases, the arbitrator is usually appointed by a judge or government official. An arbitrator has limited jurisdiction that is strictly determined by the construction of the relevant arbitration agreement or statute.

During the early 1970s, the "rent-a-judge" concept was initiated in the US in which retired judges hired themselves out as private arbitrators. In Canada, a number of arbitrators are retired judges, although arbitrators may come from a variety of occupations, such as law, engineering, real estate valuation, or construction. They are often sought for their substantive expertise in a particular area. See bibliography on arbitration.

In Canada, the climate for both international and domestic arbitration was made considerably more welcoming through significant legislative changes in the mid-1980s based on the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UN Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. Legislation based on the UNCITRAL Model Law has been enacted in Australia, Bahrain, Belarus, Bermuda, Bulgaria, Canada, Croatia, Cyprus, Egypt, Germany, Greece, Guatemala, Hong Kong Special Administrative Region of China, Hungary, India, Iran, Ireland, Kenya, Lithuania, Macau Special Administrative Region of China, Madagascar, Malta, Mexico, New Zealand, Nigeria, Oman, Peru, Republic of Korea, Russian Federation, Singapore, Sri Lanka, Tunisia, Ukraine, within the United Kingdom (Scotlan d), within the United States (California, Connecticut, Oregon and Texas), and Zimbabwe.

Court or tribunal "case management" systems within the courts or administrative tribunals often (but do not always) feature ADR, including judicial mediation, referrals or incentives to use court-based or private mediators, or other ADR options. Case management systems are a movement away from party- or lawyer-directed progress of individual cases through the courts. In common-law systems without contemporary case-management programs, the vast majority of court cases do settle before trial, but the concern has been that cases often settle quite late in the proceedings, often just before trial. Cases often settle too late to reassign the judge to another hearing. This results in waste of judicial time. In a "case management" approach (sometimes called "caseflow management"), the court or tribunal takes responsibility and initiatives to facilitate prompt, economical and fair processing of cases from commencement to final disposition. An imp ortant purpose of a case management system is to eliminate delay as a party tactic. Another important purpose is the exercise of discipline by the courts so as to limit procrastination by parties or their lawyers by forcing good prepar ation and effective settlement strategies early in the case. The principles of ca se management include the parties' right to a judicial determination, plus access to va rious early opportunities for negotiated settlements that satisfy the interests of the parties to the point that they do not require judicial enforcement or further litigation. Case management systems also usually include creating standards such as early court intervention and control over case progress, time standards for various stages of litigation, differentiated management of certain kinds of cases, strategies to effect settlement before trial dates are set, effective pre-trial and scheduling practices, firm trial dates, monitoring of judicial case loads, use of information systems to monitor the status of cases, limiting of case adjournments, and identifying the substantive issues at issue at an early stage in the dispute so as more accurately predict and possibly reduce trial time. There is a growing body of experience with case management, which indicates that the most satisfactory case management systems are designed and developed in a participatory way that incorporates ideas and secures commitment and support of the judiciary, court administration and the bar. (See shared decision making.) To be successful, case management systems must also have adequate resources and provide ongoing training, including computer training, to those involved in case management. Effective case management systems also provide effective methods of enforcing time limits and other components of the case management system. See the bibliography on caseflow managem ent in courts and tribunals. Also see the bibliography on designing systems for conflict management.

Non-binding arbitration
In non-binding arbitration, the disputing parties put their case before an impartial third party who renders an opinion or recommendation, which the parties may choose to accept or not. Thus, the process is adjudicative, or determinative but not binding or enforceable. In a "mini-trial," counsel for the disputing parties, and possibly the parties themselves, appear before a judge or expert lawyer who hears the case for both sides and renders an opinion as to what a judge might award in the case. In a "summary jury trial," an informal "jury" is convened to make non-binding findings of fact or recommendations to the parties. Sometimes experts are asked to provide a "neutral case evaluation" to help the parties resolve a dispute. Non-binding methods such as these can be an effective way to expedite settlement during the course of litigation. If the resulting rec ommendation does not result in settlement, the parties usually go on to trial.

Policy dialogue, regulation-negotiation ("reg-neg"), shared decision-making
These terms refer to negotiated approaches to the formulation of public policies or regulations. In "policy dialogue," "reg-neg," and "shared decision-making," representatives of affected parties and sectors of the public (termed "stakeholders") work together with government officials to develop policies or regulations (See Susskind and Cruikshank, 1987; Cormick et al, 1997). These complex interest-based processes utilize impartial process facilitators—often people who are experienced mediators.

These participatory public decision-making processes differ from two conventional approaches to government decision-making. First, in traditional decision-making processes government (or the civil service working under a legislative, regulatory or policy framework) makes decisions based on the advice of selected experts, and with the influence of lobby groups. A second conventional model is more broadly consultative: government consults with a representative group of people through advisory councils, public hearing processes and lobby groups and then independently makes a decision. Public dissatisfaction with these conventional approaches has led to increased demand for participation in public decisions by interest groups (stakeholders). Conflict over public decision making has become a significant concern, especially when it comes to environmental issues.

British Columbia has experimented with public participation processes that invite government to share the decision-making power with groups of citizens using consensus-based, decision-making processes. A leading experiment was the shared decision-making processes of the Commission on Resources and Environment (CORE) in the early 1990s. This ambitious project used regional and local "round-tables" to attempt to build broad consensus among the various stakeholders. In this model of decision-making, government participates as a stakeholder at the negotiating table. The theory underlying this method of public participation is that, to the extent that consensus is reached by the table, government has no reason to do anything other than adopt the consensus decisions of the round-table, since government interests are reflected in the consensus outcome. Thus, while the legitimate authority of government remains intact, the consensus decisions of a representative group in which all interes ts have been accommodated will be irresistible to government policy makers.

The thinking behind shared decision-making is that with this high level of public participation, the quality of information brought to the table will be more balanced and of a higher quality, leading to a better quality decisions. Furthermore, with a decision reached by a process that fosters a high level of consensus, there should be less public conflict about decisions that are made. See bibliography on public policy, environmental and community dispute resolution.

Public Conversations
Description in progress. (See Pearce and Littlejohn, 1997)

Ombudsman
The term "ombudsman" is Swedish in origin and means "representative." The Swedish term is said to be etymologically gender inclusive, but in the English language, the term is often modified as "ombudsperson" or "ombuds" office. There are two major forms of ombudsman offices, a "classical" ombudsman and an "executive" ombudsman. A "classical" ombudsman is an independent high-level public official responsible to the parliament or legislature and appointed by constitutional or legislative provisions to monitor the administrative activities of government (see Owen, 1993). The ombudsman has the power to investigate citizen complaints of maladministration and administrative injustice, but may also act on his or her own motion. The ombudsman may recommend changes to prevent further administrative injustices and may also issue public reports. The ombudsman makes regular reports to the legislature. By contrast, an "executive ombudsman" reports to the chief e xecutive officer of the institution.

Ombudsman offices are found in many institutions or corporations. In an institution with a "classical" ombudsman, the ombuds office is separate from the executive and reports directly to the governing body of the institution, such as the board of directors. An "executive" ombudsman reports to the chief executive officer (CEO). The common characteristics of all types of ombuds offices are impartiality, the power to investigate and the power to recommend changes. To be effective, the ombudsman needs sufficient security of tenure to ensure independence. An ombudsman also needs independent control of a budget sufficient to allow fulfilment of the ombudsman's official mandate. The ombudsman needs strong powers of investigation. Some ombuds offices use mediation and conciliation to address complaints; others focus exclusively on investigation, recommendation and reporting. Some ombudsman offices have a mandate for protection of human rights. Others focus exclusively on administrative fairness and prevention of maladministration. For more information about ombudsman offices worldwide see the site of The Institutional Ombudsman Institute. See the UN Principles relating to the status and functioning of national institutions for protection and promotion of human rights (Paris Principles) - pdf (see Annex I). Also see the bibliography on ombuds offices, the bibliography on human rights and dispute resolution, and the bibliography on designing dispute resolution systems.

Nonviolent direct action
Nonviolent direct action refers to the carefully planned and coordinated actions of people to influence or change policies or laws through nonviolent means, such as public demonstrations and protests, boycotts, lobbying and media campaigns. Techniques used are nonviolent coercion such as sit-ins, blockades, persuasion, arousal of public sympathy for the particular cause, and in some cases civil disobedience. See the bibliography nonviolence, nonviolent direct action and civil disobedience.

Conflict Analysis and Early Warning
Description in progress. See the bibliography on conflict analysis.

For bibliographies on other topics in the field of conflict transformation see Conflict Transformation and Peacebuilding: A Selected Bibliography Table of Contents. The table of contents is also linked below.

References

Bush, Robert A. Baruch, and Joseph Folger. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. San Francisco, CA: Jossey-Bass Publishers, 1994.

Cobb, Sara. "A Narrative Perspective on Mediation: Toward the Materialization of the 'Storytelling' Metaphor." In New Directions in Mediation: Communication Research, 48-63. Thousand Oaks, CA: Sage, 1994.

Cormick, Gerald, Norman Dale, Paul Emond, Glenn Sigurdson, and B. Stuart. Building Consensus for a Sustainable Future: Putting Principles Into Practice. Ottawa, ON: National Round Table on the Environment and Economy, forthcoming, 1997.

Fisher, Roger, and William Ury, with Bruce Patton, ed. Getting to Yes: Negotiating Agreement Without Giving In. Second edition. New York: Penguin Books, 1991.

Folger, Joseph P., and Robert A. Baruch Bush, eds. Designing Mediation: Approaches to Training and Practice within a Transformative Framework. New York : The Institute for the Study of Conflict Transformation, 2001.

Forester, John. "Lawrence Susskind: Activist Mediation and Public Disputes." In When Talk Works: Profiles of Mediators, edited by Deborah M. Kolb and Associates. San Francisco: Jossey Bass, 1994.

Forester, John. The Deliberative Practitioner: Encouraging Participatory Planning Processes Cambridge, Mass: MIT Press, 1999.

Forester, John, and David Stitzel. "Beyond Neutrality: The Possibilities of Activist Mediation in Public Sector Conflicts." Negotiation Journal (1989): 251-59.

Helmick, Raymond, and Rodney L. Petersen, eds. Forgiveness and Reconciliation: Religion, Public Policy and Conflict Transformation. Radnor, PA: Templeton Foundation Press, 2001.

Kolb, Deborah M., and Judith Williams. Everyday Negotiation: Navigating the Hidden Agendas in Bargaining. San Francisco: Jossey-Bass, 2003.

LeBaron, Michelle. Conflict and Culture: A Literature Review and Bibliography. Revised edition. Victoria, BC: Institute for Dispute Resolution, University of Victoria, 2001.

Lederach, John Paul. Preparing for Peace: Conflict Transformation Across Cultures. Syracuse, NY: Syracuse University Press, 1995.

Lederach, John Paul. Building Peace: Sustainable Reconciliation in Divided Societies. Washington, D.C.: United States Institute of Peace Press, 1997.

Mnookin, Robert H., Scott R. Peppet, and Andrew S. Tulumello. Beyond Winning: Negotiating to Create Value in Deals and Disputes. Cambridge, MA: Belknap Press, 2000.

Owen, Stephen. "The Ombudsman: Essential Elements and Common Challenges." In The Ombudsman: Diversity and Development, edited by Linda Reif, Mary Marshall, and Charles Ferris. Edmonton, Alberta: International Ombudsman Institute, 1993.

Pearce, W. Barnett, and Stephen W. Littlejohn. Moral Conflict: When Social Worlds Collide. Newbury Park, CA: Sage Publications, 1997.

Rowe, M. P. "The Ombudsman's Role in a Dispute Resolution System." Negotiation Journal 7(4)(1991): 353-362.

Susskind, L., and J. Cruikshank. Breaking the Impasse: Consensual Approaches to Resolving Public Disputes. New York: Basic Books, 1987.

United Nations ECOSOC. "Basic principles on the use of restorative justice programmes in criminal matters." ECOSOC Res. 2000/14. Adopted 27 July 2000.

Waldman, Ellen A. "The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence." Marquette Law Review 82(1998): 155-170.

Waldman, Ellen A. "Identifying the Role of Social Norms in Mediation: A Multiple Model Approach." Hastings Law Journal 48 (1997): 703-769.

Winslade, John, and Gerald Monk. Narrative Mediation: A New Approach to Conflict Resolution. San Francisco: Jossey-Bass, 2000.

What is Alternative Dispute Resolution (ADR)?
Copyright 1997-2002. Revised May, 2002. Catherine Morris.