CONFLICT
Conflict is a natural and inevitable part of all human social relationships. Conflict occurs at all levels of society-intrapsychic, interpersonal, intra-group, inter-group, intra-national and international (Sandole & Staroste, 1987).
People with different beliefs, values and expectations effectively live in different worlds.
It leads to: more they talk, more they experience frustration and hostility; may result in violent conflict. This course deals with conflict dynamics and cooperative process of conflict management-negotiation, meditation, facilitation, problem solving, and conflict resolution.
CONFLICT RESOLUTION
There are many ways to resolve conflicts – surrendering, running away, overpowering your opponent with violence, filing a lawsuit, etc. The movement toward Alternative Dispute Resolution (ADR), sometimes referred to simply as conflict resolution, grew out of the belief that there are better options than using violence or going to court. Today, the terms ADR and conflict resolution are used somewhat interchangeably and refer to a wide range of processes that encourage nonviolent dispute resolution outside of the traditional court system. The field of conflict resolution also includes efforts in schools and communities to reduce violence and bullying and help young people develop communication and problem solving skills.
ALTERNATIVE DISPUTE RESOLUTION (APR)
ADR can be thought of as a radically innovative set of ways and means and a radically different method for the resolution of conflict imposed on a culture featuring an adversarial and individualistic approach to dispute resolution. ADR innovation is often seen through the “lens” of the traditional adversary system- of course this typically leads to failure, causing its users to reject ADR. When ADR processes are adopted, often adversarial features are added to them, which dilute their effectiveness.
Dispute resolution processes used in the resolution of legal, commercial, and other interpersonal conflicts:
(a) Other than litigation
(b) Other than doing nothing
(c) Other than illegal or violent means
In simple words, alternative Dispute Resolution, or ADR, is a way of resolving disputes without going to court.
Forms of resolving conflict (Alternative Dispute Resolution)
Common forms of conflict resolution include:
(a) Negotiation
(b) Meditation
(c) Conciliation
(d) Arbitration
(e) Adjudication
Negotiation
Negotiation is a discussion among two or more people with the goal of reaching an agreement.
Broadly speaking, negotiation is an interaction of influences. Such interactions, for example, include the process of resolving disputes, agreeing upon courses of action, bargaining for individual or collective advantage, or crafting outcomes to satisfy various interests. Negotiation is thus a form of alternative dispute resolution.
Negotiation involves two basic elements: the process and the substance. The process refers to how the parties negotiate the context of the negotiation, the parties to the negotiation, the relationships among these parties, the communication between these parties and the tactics used by the parties. The substance refers to what the parties negotiate over, the agenda the issues, the options, and the agreements reached at the end.
Forms of Negotiation
There are various types of negotiation.
(a) Assisted (Facilitated) Negotiation
(b) Unassisted (simple) Negotiation
Simple negotiation
In this type of negotiation only participants are the disputants.
Assisted (or facilitated) negotiation
In assisted negotiation the disputants are joined by others
Meditation
Mediation is a voluntary and confidential process in which a neutral third-party facilitator helps people discuss difficult issues and negotiate an agreement. Basic steps in the process include gathering information, framing the issues, developing options, negotiating, and formalizing agreements. Parties in mediation create their own solutions and the mediator does not have any decision-making power over the outcome.
Conciliation
Conciliation is the least intrusive of third-party processes. A neutral person agreeable to all parties is selected to serve as conciliator. The conciliator serves as a go-between. Typically the conciliator meets separately with each party in attempts to persuade the parties to proceed with each other. Thus, the conciliator’s primary role is to reestablish or improve communication between the parties.
When the parties are too angry to speak with each other, a conciliator may be all that is needed.
Arbitration
Arbitration is a process in which a third-party neutral, after reviewing evidence and listening to arguments from both sides, issues a decision to settle the case. Arbitration is often used in commercial and labor/management disputes.
Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.
Three types of disputes are resolved through adjudication:
(a) Disputes between private parties, such as individuals or corporations.
(b) Disputes between private parties and public officials.
(c) Disputes between public officials or public bodies.
Parties to Conflict
Disputants
In the interpersonal conflict, those who have incompatible goals are called disputants. Disputants may be individuals, groups, corporations, congregations, communities, nations, or any collective of people.
Agents
One who acts on behalf of a disputant is called an agent. Or a representative who acts on behalf of other persons or organizations is called an agent.
Advocate
An advocate is a kind of agent. The one who speaks on behalf of another, especially in a legal context is called an agent. Implicit in the concept is the notion that the represented lacks the knowledge, skill, ability, or standing to speak for themselves. Common advocates include lawyers, activists, and public relations consultants.
INTERDEPENDENT RELATIONSHIP
Contrient interdependence
Defined – meeting one party’s goals is seen to harm the other party’s goals.
Zero-sum situations are those seen by the parties as perfectly contrient – the more one party is benefited the more the other is harmed. In other words, benefit “sums to zero.”
Promotive interdependence
Interdependence may also be positive (known as “promotive interdependence”).
Defined – meeting one party’s goals is seen to promote the other party’s goals.
Virtually all conflicts combine promotive and contrient interdependence.
An interpersonal conflict in which both the promotive and contrient aspects of interdependence are recognized is known as a “mixed-motive” situation.
Alternative Dispute Resolution (ADR) in Pakistan
Various alternative dispute resolution (ADR) techniques are used in Pakistan. Some of the relevant
Laws/provisions dealing with ADR are as follows:
1. Section 89-A of the Civil Procedure Code, 1908 (as amended in 2002) read with Order X Rule 1-A
(Deals with alternative dispute resolution)
2. The small Claims and Minor Offences Courts Ordinance, 2002
3. Sections 102-106of the Local Government Ordinance, 2001
4. Sections 10 and 12 of the Family Courts Act, 1964
5. The Arbitration Act, 1940
6. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
7. Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal of provincial
Governments are at dispute with one another)
Recent Initiatives regarding ADR in Pakistan
a. Code Of Civil Procedure (CPC) which is the primary procedural law for civil matters in Pakistan, has been amended (under AJP) for providing enabling mechanism for Court Annexed ADR in Pakistan (Section 89-A)
b. Small Claims and Minor Offences Ordinance 2002 has been promulgated for providing exclusive forum (at the district level) for facilitating the resolution of smaller disputes. This law also provides ADR mechanism for facilitating the resolution and settlement of disputes within the framework of the formal court system. This could be transformed into an excellent forum for addressing disputes in the emerging justice sector in Pakistan;
c. Under the Access to Justice Program, the review of Arbitration Act represents a significant policy action. This review needs to be undertaken and capacity building initiatives put in place to promote effective arbitration regime in Pakistan.
d. A new local government system has been introduced in Pakistan, establishing elected local governments at the level of Union Council, Tehsil (Sub District Level) and the District level. The institution of Musalihat Anjwnan (literally meaning conciliation forums) has been provided at the level of Union Councils for dispute resolution through ADR (including conciliation, mediation and arbitration). The finalization of the rules of Business for these bodies is essential to popularize the use of ADR.
The conference will explore the opportunities to promote and encourage use of ADR and highlight its importance in strengthening good governance.
Advantages of ADR
• Less formal
• Less costly and
• Less time-consuming than going to court.
• Results are specific to your needs
Factors that Distinguish Dispute Resolution Processes
Dispute resolution processes are distinguished from each other on the following bases:
• Who decides the outcome?
• Who participates in the process?
• Under what auspices is the process provided?
Negotiation: dialogue or communication between the disputants aimed at settling interpersonal conflict.
Adjudication: process in which neutral third party renders binding decision in interpersonal conflict.
Using Conflict Diagnosis Ideas to Understand the ADR Movement
ADR as Movement (in USA and in India)
Some forms of ADR, such as religion-based or community-based mediation and commercial arbitration, have been around for centuries. In USA, mediation and other forms of ADR have been used for legal disputes since about 1970 and became mainstream in the late 1980s and 1990s.
Efficiency and radical perspectives on ADR
Efficiency perspective
In this root of the ADR tree, ADR is seen primarily through the prism of efficiency.
ADR is useful for cutting costs, speeding settlements, and avoiding overburdening the courts. From this perspective, the type of ADR used is less important than the availability and use of ADR in any form.
Radical perspective
Radical wing of ADR takes a very different perspective. ADR is useful for improving the resolution of conflicts, allocating resources among disputants, improving disputant relationships and reforming overall cultural attitudes about conflict resolution.
Prevalence of efficiency perspective
Economic forces tend to support ADR to save time, money, and court resources. The efficiency wing has been more influential, and because this wing cares less about the form of ADR used, certain looseness with ADR terminology is rampant.
Traditional culture has influenced the development of language about ADR.
Quality of ADR
Though saving time and money are important goals, if the process is flawed, long-term efficiency is lost, and so the quality of dispute resolution process and outcome must be considered.
There is little evidence that this longer-term assessment of long-term efficiency and effectiveness is taking place. Assessments of the quality of ADR are confounded by the lack of empirical research to adequately discriminate among forms of ADR.
Conflict diagnosis ideas will also help researchers and policy makers to design better studies and to interpret studies more effectively.
The ADR Revolution
“Efficiency wing” adopts ADR to save time and money, divert cases out of litigation “Radical wing” adopts ADR to attain better conflict resolution.
BATNA
BATNA is a term coined by Roger Fisher and William Ury in l981. It stands for “best alternative to a negotiated agreement.” It is always useful to increase one’s BATNA, as it increases negotiating power. Good negotiators use it for the better results of negotiation. If a negotiator is well aware of how desperately the other party wants to come to a settlement, the negotiator may use the opportunity according to his/her terms and conditions.
Therefore making your BATNA as strong as possible before negotiating, and then making that BATNA known to your opponent; strengthen your negotiating position.
In an interpersonal conflict, does the exercise of power in the other two power domains, personal and environmental, have any relevance? The answer is yes. Sometimes, a disputant finds that using negotiation to meet his or her interests and needs is not as useful as getting those goals attained some other way. The best of all available ATNAs for any given disputant is referred to as the Best
Alternative to Negotiated Agreement, or BATNA.
Knowing, the BATNA protects a disputant, and the team, from irrational action. Trying to resolve a conflict without knowing the BATNA put the team in the untenable position of not knowing whether to negotiate or to stop negotiating. Many disputants deal with this pressure to act irrationally by developing a bottom line. If the negotiation leads to deal that’s as good as the bottom line, the negotiators will settle; otherwise they won’t.
Knowing the BATNA also helps a disputant and the team to act with efficiency. The team chooses to negotiate only if there appear to be potential benefits to negotiating, stays in negotiation only as long as it appears to be potentially beneficial, and gains a clear idea of what to do in the event that negotiation does not lead to settlement. There is less wasted time, money, effort and trauma.
Why strategies of change fail (ADR failure)
Following are the four reasons of why strategies of change fail:
(a) Resistance and lack of support from others
(b) Application of existing (traditional) ways and means, rather than innovative solutions
(c) Lack of proficiency in using innovative tools
(d) Support by social structures of traditional ways to resolve disputes
