Lockdown Dispute Resolution 101 #13: Learning from the art of mediation – analysing conflict and disputes

The prevention, management and resolution of disputes in lockdown calls not only for an understanding of dispute resolution knowledge, skills and techniques – and of the art of mediation. It also calls for an appreciation of the nature and causes of conflict and disputes, and ways in which conflict and disputes might be appropriately analysed.

In the last Lockdown Dispute Resolution 101 post we defined the terms ‘conflict’ and ‘dispute’ and explored how in dispute resolution theory, disputes are commonly understood to be a concrete manifestation of conflict. In this post we focus on developing a deeper awareness of the nature of conflict and disputes. This leads us to some key questions we can ask in lockdown in order to better respond to conflict and disputes.

Many disciplines, for example the disciplines that make up sociology, investigate, research and analyse the nature and dimensions of conflict and disputesSociology image 1.  However, this knowledge is not usually something we learn at school or through other public education avenues. There is a strong argument for a broader public education project on dispute resolution knowledge and skills. This is because everyone in communities – both domestic and global – at some point has to deal with conflict and disputes and their consequences.

Conflict and disputes are natural and everyday phenomena encountered in homes, communities, boardrooms, parliaments and war zones around the world.

They are played out vicariously in the news media, television, theatre and computer games. Interestingly, disputes and conflict are not absent from non-human animals’ behaviours as well.

Fighting gorillas image

No matter who the participants are, conflicts and disputes all involve a level of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. These incompatibilities can lead to disagreement and disagreement can lead to a struggle where each side pursues its own preferences in ways not acceptable to the other. At this stage conflict has become a dispute.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. The best approach is to prevent disputes from eventuating from conflict. The preferred option if a dispute does arise is, of course, to resolve it. This is not always possible, especially in lockdown. However often, if we adopt strategies from the art of mediation, we can steer a middle path – which is to manage the dispute so that although it may not be completely resolved, the parties involved can live with the situation, and continue their relationship with each other, whatever that might look like.

As we noted in post #12, while the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon. Some commentators refer to three potential aspects to a dispute – the cognitive, the emotional and the behavioural.

DNA image

The cognitive component involves the perceptions, beliefs and understandings of people in dispute. People have a range of subjective perceptions that their needs are not being met because of – what they perceive to be – the incompatible and unreasonable activities of others. For example, in a post-separation parenting situation a parent waiting for their children to be returned after visiting the other parent may perceive that parent to be inconsiderate and unreasonable for not getting the children home on time.

The second dimension is the emotional – which involves the subjective feelings of people in dispute situations, including those directed at others. For example, the waiting parent is upset, frustrated or angry because every week there are delays in returning the children, or because they are now going to be late in getting the children to their sport commitment.

Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and are 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 dispute 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. In the above example, the parent might remonstrate the recalcitrant party, seek legal advice or attempt to get the parenting arrangements changed.

Cognitive emotional behavioural

The dimensions of conflict and disputes may overlap, but also they 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).

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. 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.  These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion.

For example, after the breakdown of a relationship, a spouse might be in shock (‘I don’t know why this happened’) or denial (‘They’re just going through a phase, everything will be fine’) – and this means it is not easy to negotiate or make appropriate decisions about things like parenting arrangements or the division of matrimonial property. The grief and loss process may have to be managed before negotiations can be effective. Once a person has reached the ‘acceptance’ stage of the grieving process in relation to conflict or a dispute they are more able to create new meanings for their lives. This is when people are best able to participate authentically in dispute resolution processes such as mediation.

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. This can be founded on 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. This is an area where a mediator or conciliator can bring value through their third-party intervention in a dispute. They are able to acknowledge Ruby’s beliefs and understand their significance for her perceptions and behaviour – and as a result of this acknowledgement Ruby may be assisted through the dispute process.

Perception 1Perceptions and subjectivity are therefore important factors in conflict and disputes.  However, conflict situations with the potential to turn into concrete disputes may not do so because they exist only in the perception of one or both parties and not in actual reality – for example two employees perceive themselves to be competitive rivals for one position whereas neither is realistically in line for it. This can be referred to as pseudo conflict in which parties’ perceptions or expectations are false or based on incorrect fears or unjustified apprehensions. False conflicts are based on stereotypes about others in terms of their personal or group attributes, for example about management or unions, or about refugees and security officials, and these can be accentuated by continuing ignorance or withholding of information, or by rumours, confirmation biases and wilful blindness.  There may be little basis to the conflict in reality but it is played out by one or more parties as if there was. With both pseudo conflict and false conflict, the sharing of correct information, the provision of an explanation, or righting a misperception or a misunderstanding can help to resolve the situation.

Key questions to ask ourselves in lockdown to analyse disputes

A deeper understanding of conflict and disputes can inform some key questions we need to ask to analyse a dispute in lockdown. Using our dispute resolution agency means we need to adopt structured and intentional approaches to dealing adequately with a dispute rather than operating merely on gut-feeling.

Question mark 1

Here are some questions to help us to think methodically through the elements of a dispute in lockdown:

  1. Who are the relevant people involved in the dispute?
  2. Why are they in dispute?
  3. Why have past attempts at resolving the dispute failed?
  4. On a scale of 1-10 how is each party coping with the dispute (and the conflict underlying the dispute)?
  5. What are the parties’ positions?
  6. What are the parties’ underlying interests, needs, fears and concerns?
  7. What would life look like if the dispute continues unresolved?
  8. What are some possible options for resolution?
  9. Which ones are realistic?
  10. What ‘package’ of options could optimally satisfy each party?

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #14: Learning from the art of mediation – mediators functions relating to conflict.

Highlighting Works of some of the ADR Research Network Members

See here a sample of the works on conflict and dispute resolution in Australia – many of which are authored by current members of the ADR Research Network:

Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (Thomson Reuters, 2nd ed, 2009)

David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 4th ed, 2018)

Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 6th ed, 2020)

Peter Condliffe, Conflict Management: A Practical Guide (LexisNexis, 6th ed, 2019)

Michael King et al, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)

Michael Mills, Commercial Dispute Resolution: A Practitioners’ Guide to Successful ADR (Thomson Reuters, 2018)

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis, 2017) Chapter 5. See also, Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) Chapters 1 and 4.

Sociology circle image: Pinterest

Fighting gorillas image: Africa Adventure Safari

DNA image: Science Mag

Cognitive Emotional Behavioural image: Victorian State Government

Perception image: Psychology Today

Question mark image: Clipart Library

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

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

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