Dispute Processing and Conflict Resolution

Theory, Practice and Policy

Carrie Menkel-Meadow

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351943543
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Pace e sviluppo globale

This insightful volume is essential for a clearer understanding of dispute resolution. After examining the historical and intellectual foundations of dispute processing, Carrie Menkel-Meadow turns her attention to the future of conflict resolution.

Part One
History and Theoretical Forebears: The Purposes and Sources of Process Pluralism

[1]
Mothers and Fathers of Invention: The Intellectual Founders of ADR

I.Introduction

When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976.¹ For others, the publication of Roger Fisher and William Ury's Getting to Yes,² signaled an interest in a changed paradigm for engaging in legal negotiations.³ Some may associate ADR's nascency with early practical efforts to institutionalize "warmer"⁴ methods of disputing. Calling on these methods, the civil rights movement, the consumer movement, and local empowerment efforts⁵ all attempted to increase community participation and involvement in issues that were linked to larger social concerns. Yet, as we date most of the modern "ADR movement"⁶ to the 1970s and 1980s, we may be failing to pay enough serious attention to earlier "intellectual" founders of ADR-those who provided the key ideas, concepts or organizing frameworks⁷ from which we have built our modern movement of theories, practices, policies, and institutions. In this essay, I hope to remind us of who went before, and which of their ideas helped generate our current understandings of our field. I also will examine which of these ideas, theories, and concepts continue robustly to influence our practices and which might need to be modified in light of current conditions.

I will explicate some of the key concepts that form the cornerstone of our conceptions of "appropriate dispute resolution" and trace them to their intellectual sources. I do this because I think it is important to elaborate a "jurisprudence of ADR," both to justify and explain the special "morality" and "logic" of different processes of dispute resolution and to prepare us better to defend what we are trying to accomplish against continuing critiques of what is often perceived as a less 'just" way of resolving disputes and settling cases.⁸ The relation of dispute processes to the larger project of explicating a theory of law in jurisprudential terms remains to be completed.⁹ Ours has been an eclectic field intellectually, and we have used, borrowed, and elaborated on ideas that have come to us from many different fields, not only from law and legal theory, but from anthropology, sociology, international relations, social and cognitive psychology, game theory and economics, and most recently, political theory. Like any new field, we can ask if we have an intellectual core or canon of our own, whether we need one, or whether we are, in fact, stronger or more robust because we do straddle so many different fields. As one who believes deeply in multi-disciplinaiy study and multi-causal explanations of social behavior, I think our field of "ADR" or conflict resolution is richer for its multiple sources of insights and sensitivity to the interactive effects of law and legal institutions with other social institutions. If our field's purpose is to provide fair, just, and more harmonious solutions to human problems, then we will not easily be cabined to teachings from law and legal theory alone.

The key concepts (and their intellectual elaborators¹⁰) that inform our efforts to create more flexible and varied processes for dispute handling¹¹ and more tailored, just or efficient solutions to problems include "the nature and function of conflict" that we learn from Georg Simmel,¹² Lewis Coser,¹³ Morton Deutsch,¹⁴ and Mary Parker Follett¹⁵ via sociology, social psychology, social work, business and public administration. Also encompassed in a broader view of conflict are "the social and cultural contexts of disputing," as elaborated by Laura Nader and other anthropologists and socio-legal scholars.¹⁶ The functional and moral variations of different dispute processes are developed by Lon Fuller,¹⁷whom I have dubbed the "jurisprude of ADR,"¹⁸ and Soia Mentschikoff.¹⁹ Differences in the "quality of outcomes" produced by different processes have been studied and theorized by Vilfredo Pareto,²⁰ George Homans,²¹ and more recently, Robert Axelrod.²² The social psychology of strategic processes and decision making are explored by game theorists and decision scientists, like Howard Raiffa²³ and social and cognitive psychologists.²⁴ The structure of and effectiveness of institutionalization of different processes was initially described by Henry Hart and Albert Sacks²⁵ and the "legal process" theorists of the 1950s and now informs the work of a number of scholars, focused on a "new" legal process²⁶ approach to dispute resolution and problem solving, including modern democratic discourse theorists (Jurgen Habermas,²⁷ Amy Gutmann and Dennis Thompson²⁸) and their application to a variety of new dispute resolution processes.²⁹ My purposes in briefly reviewing the major intellectual contributions of this widely diverse and somewhat arbitrary group of social theorists and empiricists to our field is to illuminate where we have come from so we can both understand and remember our philosophical roots and so we can extend their theories and examine their applicability to today's concerns about fair and just treatments of disputes and conflicts, at individual, group, nation-state, and international levels.

II. The Social Function of Conflict: Constructive and Creative Conflict

In the law, we tend to call our field "dispute resolution," which connotes its origins in cases and disputes³⁰ or "trouble cases.'' as the legal anthropologists call it. In fact, dispute resolution is situated in a broader intellectual space of the sociology or philosophy of the role of conflict.³¹ While many in the ADR field think of conflict as a problematic aspect of human life, requiring "resolution" or "management," many social theorists prefer to see conflict as variable: sometimes "destructive," but sometimes "constructive" or even creative, ever an opportunity for learning md growth. The sociologists Georg Simmel and Lewis Coser argued that conflict can be a very positive social force that prevents stagnation, stimulates curiosity and learning, "airing" of problems, and the search for new solutions at both individual and social levels. Conflict can help forge identity and cohesiveness (especially when threatened from without) and can help identify what is really important. Working with both individual and social conflicts helps articulate and test what norms and rules should be applied to situations³² and successful "negotiation" through conflict makes both individuals and groups stronger by demonstrating survival and flexibility skills and permitting continuity. Building on this work, which treats conflict not as a "negative" but as a "variable," social psychologist Morton Deutsch, among others, has developed a taxonomy of different kinds of conflicts, allowing us to see that with variability of structure and function, there can also be variability of approaches to conflict handling. Social psychological models of conflict categorize on the basis of type of dispute³³ and on the perceptions or relations of the parties (i.e., do the parties see things the same way or differently, are there multiple parties, other constituents, is there an on-going relation, is the conflict manifest or latent, direct or misattributed).³⁴

Even before these discussions of the social function of conflict, Mary Parker Follett, one of the leading "mothers,"³⁵ of invention in ADR talked about "constructive conflict" in the context of organizational and labor disputes. Serving as the inspiration for many early practitioners of recent ADR,³⁶ Mary Parker Follett trained as a political scientist, then used her knowledge first in social work and then in organizational management and international affairs. She lectured frequently in personnel management contexts and was interested in how groups, using principles of democratic governance, could work together and produce better outcomes than hierarchically produced orders. Participation, constructive conflict, creativity, circular responses, and integrative behavior—the principles to which Follett devoted her life—are the touchstones of much of what we teach and hope to accomplish in good dispute resolution environments. Follett often spoke enthusiastically about the functions of conflict, and in one of my favorite passages, she says:

As conflict— difference—is here in the world, as we cannot avoid it, we should, I think use it. Instead of condemning it, we should set it to work for us. Why not? What does the mechanical engineer do with friction? Of course, his chief job is to eliminate friction, but it is true that he also capitalizes friction. The transmission of power by belts depends on friction between the belt and the pulley .... The music of the violin we get by friction .... We talk of the friction of mind on mind as a good thing. So in business too, we have to know when to try to eliminate friction and when to try to capitalize it, when to see what work we can make it do. That is what I wish to consider here, whether we can set conflict to work and make it do something for us.³⁷

For Follett, there were three ways conflict was dealt with: domination, compromise, or integration. She urged integration as a process where new solutions would emerge from parties trying to meet their desires without the compromise of having to give up something.³⁸ It is her story we often tell when we describe integrative solutions, when she was one of two readers in a library, arguing about an open window. She wanted the window closed because of a draft; the other patron wanted fresh air; the solution was to open a window in another room for indirect air to circulate.³⁹ In h...