Conflict and disputes as lawyers’ business: cognitive, emotional and behavioural dimensions

This is a further (edited) excerpt from Chapter 5 of our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we discuss the nature and dimensions of conflict and disputes – particularly from the perspective that conflict and disputes are the core business of lawyering. We look forward to your comments and responses. Rachael and Laurence

Many disciplines investigate, research and analyse the nature and dimensions of conflict and disputes, from anthropology to sociology, and from psychology to political science.[1] The nature and dimensions of conflict are not, however, topics afforded significant attention within the traditions of law and legal practice. This is cause for surprise since a major part of law’s project involves dealing with conflict and disputes and their consequences, and there is significance in how legal events and interventions themselves impact on their scope, intensity and manageability. This Chapter suggests that conflict and disputes are the business of law and of lawyers, and their configuration should be as much the focus of the legal profession’s exercise of its expertise as bodily anatomy is to that of the medical profession.

The non-legal disciplines inform us that conflict and disputes are natural and everyday phenomena[2] encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. They are played out vicariously in the news media and in television and in theatre and computer games and are not absent from non-human animals’ behaviours as well.[3] Whether between individuals, corporations or nation states conflicts and disputes all assume some degree of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. The incompatibilities can lead to disagreement and disagreement can lead to some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. The struggle can be verbal, as in hostile publications or political polemics; tactical, such as the formation of alliances or engagement of lawyers; or activist, such as trade embargoes or armed hostilities.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. While conflicts may commence as underlying feelings of uncertainty and unease over the prospective activities of others they can escalate into something more overt and significant. To take a topical example, there could be underlying tensions among farmers, exploration companies, government officials and politicians over properties targeted for coal-seam gas prospecting licenses.[4] This situation of covert conflict could endure for years in a relatively static state, despite occasional skirmishes from one side or the other, until there is a precipitating event which brings it into the open. The underlying conflict could evolve where one or other party takes public actions which raise contentious issues – for example government provides a licence for gas exploration against the wishes of a resistant farmer. Here there is overt behaviour which creates expectations of loss for the farmer in relation to the economic viability, environmental bio-security or the very existence of the family farm for future generations. The situation would evolve into a dispute when the licensed exploration company attempts to access the property and is obstructed by a protesting community group. The dispute could escalate where the latter are prohibited from their resistance activities by court order. There are now manifest issues requiring dispute management, namely the lawfulness of the prospecting corporation’s access to the farm, alleged non-compliance with the terms and conditions under which prospecting can occur, and the legalities of the protesting groups’ behaviour.

While the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon.[5] This knowledge is important for lawyering. Some commentators refer to three potential aspects to any conflict – the cognitive, the emotional and the behavioural.[6]

The first, cognitive, involves the perceptions, beliefs and understandings of those in conflict. Here parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others – for example a parent waiting for their children to be returned after an access visit perceives the other parent to be inconsiderate and believes they children’s interests are not best served by having access. The second is the emotional dimension, which involves the subjective feelings of people in conflict situations, including those directed at others involved in the conflict – for example the waiting party is upset, frustrated or angry over continual delays in returning the children. Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in conflict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met – the parent in the above example remonstrates with the recalcitrant party, seeks legal advice or attempts to amend the contact arrangements.

The dimensions of conflicts and disputes need not coincide with one another. Thus, a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to specific outcomes (behaviour) without attempting to change their perceptions (cognitive) about the conflict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.[7] Processes, such as facilitation and mediation, attempt in varying degrees to deal with all three dimensions of conflict.[8]

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Thus, where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.[9] These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. For a spouse in shock (‘I don’t know how this happened’) or denial (‘They’re just going through a phase, everything will be fine’) after the breakdown of a relationship it is not easy to negotiate or make appropriate decisions, for example in relation to the division of matrimonial property.[10] The grief and loss process may have to be managed before the respective party can say with conviction, ‘I just want to get on with my life and dividing up the property will help with that’. Once a person has reached the ‘acceptance’ stage of the grieving process they are more able to create new meanings for their lives, and to participate authentically in dispute resolution processes.[11]

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect, based on life experiences, on what others have told them or on their professional advice. For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. However, a conciliator or other intervener who acknowledges Ruby’s beliefs and understands their significance for her perceptions and behaviour may be able to assist her through the conflict process.

An understanding of the dimensions of disputes, of their potential to escalate and of the loss and grief conflicted parties might be experiencing, provides insights for lawyers into what particular DR process will respond most appropriately to their clients’ needs.[12] Some processes are suited to dealing with substantive needs, such as payment of money or assertion of intellectual property rights, thereby forcing one or both parties to modify their behaviours. Some deal better with the psychological and emotional factors, referred to above, such as shock, anger and frustration over past behaviours and current recalcitrance. Yet others deal with cognitive issues relating to perceived unfairness or powerlessness by providing procedural steps which convey respect and dignity, productive avenues of communication and the maintenance of ongoing relationships. The law has traditionally been inclined to focus on the substantive and procedural needs of clients, whereas some of the processes in the contemporary DR matrix aim to engage as well with the psychological and emotional dimensions.

[1] The term itself derives from Latin, meaning ‘to strike together’.

[2] See John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995) 8-9.

[3] While this is a truism, studies of animals in conflict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Frans de Waal, Our Inner Ape (Granta Books, London, 2005) and Frans de Waal (Stephen Macedo and Josiah Ober (eds)), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009).

[4] On managing these issues see Laurence Boulle, Tina Hunter, Michael Weir, Kate Curnow, ‘Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations:  Developing the Queensland Regulatory Framework’ 17 (2014) The Australasian Journal of Natural Resources Law and Policy 43.

[5] For leading Australian and international texts on conflict and its management see footnote 1 of Chapter 5 of Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017).

[6] See Bernard Mayer, ‘How We Experience Conflict’ and ‘What Causes Conflict’ in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3-4 and 8-10 respectively. See also Laurence Boulle, Mediation: Principles Process Practice (Lexis Nexis, 3rd ed, 2011) 108-9.

[7] See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

[8] See for example, Ray Friedman et al, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

[9]  A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2014).

[10] Or in relation to parenting matters:  Joan B Kelly, ‘Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes’ (2003) 9(1) Journal of Family Studies 37.

[11] See Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211; and Froma Walsh, Strengthening Family Resilience (Guilford Publications, 2015).

[12] See for example, Penny Lakey, ‘An Exploration of Multiparty Dispute Resolution When the Impending Death of a Loved One Creates an Escalation in Family Conflict’ (2007) 10(3) ADR Bulletin 56

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

One thought on “Conflict and disputes as lawyers’ business: cognitive, emotional and behavioural dimensions

  1. Another excellent post. Thank you Rachel and Lawrence.

    It is, perhaps, ironic that lawyers do not reflect upon and seek to engage with and understand the nature and etiology of dispute and conflict. This absence of reflection let alone understanding of the nature of conflict and disputation is emblematic of the “lost boys” that lawyers are in the 21st century. Lawyers are, simply and bluntly, lost and confused as to their role in society let alone the litigation process. Sadly, the answer lies in well established traditions, jurisprudence and discourses.

    Most are now familliar with the entreaty of Lincoln (reflective of mid 19th century North American jurisprudence) to embrace the role of the lawyer as being to assist neighbours to resolve conflict. That entreaty is entirely consistent with the principles established by 19th century western jurisprudence on the role of the lawyer and the duties of the lawyer to the court and the commiunity. And yet those duties, to clearly indentify issues in dispute and to limit and resolve those issues and aid the court (and the community) in “getting to the truth” and applying settled precedent to resolve controversy, appear, at best, neglected in the present age. It is these failings of the legal profession in acting as resolvers of conflict that have, at least in part, led to the emergence and resilience of other forms of dispute resolution such as mediation and arbitration and more proactive and robust court based case management, taking over the role previously left to the legal professional.

    You excellent commentary highlights the need for the legal profession to reflect upon their role as servants of the community and as dispute resolvers. Indeed, without such reflect (perhaps a “back to the future” re embrace of the role of the profession) the lawyer will be increasingly marginalised and irrelevant in the scheme of dispute resolution and societal management of conflict.

    It would almost appear that the legal profession has lost an appreciation of and focus upon their role, increasingly conflating an adversarial system with a combative system In doing so the legal profession runs the risk of loosing not only that which has rendered value to society but of eroding the value of institutions and courts which have been dependant upon the legal profession for their functioning and efficiency and, by doing so, damaging society as a whole and the meaning and place of the rule of law.

    Your argument for a focus upon the nature of conflict is also timely in light of the increasing acknowledgement of the relational rather than transactional nature of disputes (especially in areas of practice such as family law, IT, specialised contractual areas) and where ongoing relationships between disputants must be considered in both the genesis and resolution of disputes.

    Thank you for commencing the discussion. Let us hope that the broad church of dispute resolvers, including lawyers, might take moment to reflect and consider what we do and why and perhaps be guided by the wisdom of the Japanese philosopher Basho “seek not the paths of the ancients; seek that which the ancients sought”. Let us find paths to help and advance society in this modern age and with our diverse modalities of dispute resolution, which understand, respond to and resolve disputes in a sustainable way and aid and preserve relationships and communities rather than fragment and damage them.

    A happy 2017 to all

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