Conflict Theory (Week 12) PDF

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Summary

This document broadly notes the conflict theory presented in LLB103 from FDH (2020) and other prescribed reads. It is examinable content, particularly Furlong's Rights/Interest/Power (‘RIP’) Model. Though it is equally useful to know Tillet and French's, as well as Astor and Mayer's works for taxon...

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Week Twelve: Conflict and Disputes in Conflict Theory FRH Chapter 12

Defining conflict and dispute and the differences between a problem, a dispute and conflict: In the field of conflict theory and alternative DR, the words ‘problem’, ‘dispute’ and ‘conflict’ have particular meanings. This is different to our common usage of these words, where they may be treated as synonymous. Tillett and French provide specific definition for these terms. They are adopted henceforth.

Definition: ‘Problem’ A problem involves ‘any question or matter involving doubt, uncertainty or difficulty’ (FDH, 2020, 361c citing Butler). It represents a gay between a current situation. And desired situation. According to Tillett and French, ‘a problem can be resolved by management: by agreement in how something can or should be done’ (Tillett and French at 8)

Example: A ‘Problem’ in Motion James and Rachel want to have a coffee together, but James is busy that morning and Rachel does not like drinking coffee after midday. The problem might be managed by meeting for coffee the next morning or meeting up thy afternoon with Rachel enjoying a peppermint tea.

Definition: ‘Dispute’ ‘A dispute arises when two or more people or groups perceive that their interests, needs or goals are incompatible and they seek to maximise fulfilment of their own interests it needs, or achievement if their own goals (often at the expense of others)’ (Tillett and French 8).

Example: A ‘Dispute’ in Motion John had a large tree on his property, with branches that overhand into Lisa’s property. The tree has sentimental value for John, and he does not want any part of it cut down. Lisa contacts a solicitor to see whether she can cut off the branches of the tree that overlap onto her property. The leaves from the tree are constantly landing on her swimming pool.

Definition: ‘Conflict’ ‘A conflict arises when two or more people or groups perceive that their values or needs are incompatible - whether or not they propose, at present or in the future, to take any action on the basis of those values or needs.’ (Tillett and French at 8).

Example: A ‘Conflict’ in Motion Mark and Apt are father and son. Mark believes that people should jot smoke because it is bad for their health and affects the comfort of surrounding people. Pat is a smoker and believes that what he decides to do with his own body is his personal choice. If other people are uncomfortable with smoke. They can move to a different location. Both father and son are respectful of the other’s stance on smoking.

The Difference Between a ‘Conflict’ and ‘Dispute’ Burton specifically sees the difference between conflict and dispute as relating to the intractability of the issues (Burton, 1996, cited by FDH 2020, 362). Conflicts are entrenched disagreements where neither of the parties is willing or able to negotiate or compromise; whilst the disputes are usually a shorter term phenomenon where accommodation between the parties is possible. Yarn sees conflict as a state of opposing interests, needs, and values, whereas disputes are an action or process undertaken

in an attempt to resolve conflict. This means that ‘a conflict can exist without dispute, but a dispute cannot exist without a conflict’. (Yarn, 1999, 115). Conflict is broader than a dispute. Parties will generally be in conflict based on their position, interests, thoughts and beliefs before any action towards a dispute has been taken (FDH, 2020, 362). Parties could be in conflict would realising it (Ibid).

Dual Typology of Conflict: Latent and Manifest Conflict theory ascribes to two typologies of conflict for differential diagnoses of conflict management or resolution: 1. Latent Conflict 2. Manifest Conflict

Latent Conflict Latent conflict is where a situation has the characteristics of an underlying dispute for or risk conflict, but the potential is yet to be triggered (FDH, 2020, 363). Latent conflict and manifest conflict can offer some distinguishing points from manifest conflict to guide action (Pondy, 1972, 296). A spotted latent conflict should employ prophylactic or preventative measures/action, to np it in the bud, or proactively discharge the conflict be addressing/precluding it. Latent conflict = bubbling underneath, yet to be triggered. It is conflict in waiting.

Manifest Conflict Manifest conflict is where at least one party takes action in respect of their incompatible needs or wants; viewed in this way, a dispute may be seen as a manifestation of conflict (FDH, 2020, 363). Manifest conflict = direct conflict, currently underway. It is conflict that is currently unfolding. Usually one party triggers, and it causes a dispute from a perceived conflict.

Deeper Meaning: the ‘Perceived Incompatibility’ Catalysing Conflict Another important idea that arises out of the above definition of conflicts is a ‘perceived incompatibility’ (Fisher, 2006, 176). This means that conflict can arise when values or needs are objectively incompatible, but also when (at least) one party perceived them to be incompatible (FDH, 2020, 363). This introduces a subjective component to the existence of conflict or a disputes as humans view the world in different ways, it stands to reason that humans will view conflict indifferent ways (Ibid). It is not uncommon for individuals or groups who are in conflict with each other to define the nature of that conflict quite differently. If conflict is a subjective, perceived phenomenon, then there is the potential for conflict, even if considered objectively, there is no incompatibility of values, needs or principles.

Law and Lawyers: Conflict and Disputes Mostly a client will present to a lawyer with a dispute. The very fact that a client has made contact with a lawyer suggests that they are looking to fulfil their own interests or needs (FDH, 2020, 363). For a perceived conflict with their rights/interests/powers. The reality is that there are many different

forms of conflict (what Tillett refers to as the Location of conflict) [in Ch 1]. These may be summarised as: 1. 2. 3. 4.

Interpersonal conflict: Conflict that occurs between two or more individuals Intrapersonal conflict: Conflict that arises within the individual Intergroup conflict: Conflict that occurs between two or more groups Intragroup conflict: Conflict that occurs within members of a group.

The ‘Models’ of Conflict: A number of models of conflict exist to help explain the complex concept of conflict. For example, the Deutsch Model of conflict highlights the idea that conflict can be false, latent or actual (Deutsch, 1973, 1985, cited in FDH, 2020, 634). Morton Deutsch examined approaches to conflict exploring whether people actually had conflicting interests or not, and whether people exhibited compatible or incompatible behaviour on the basis of those interests. Tillett and French argue that conflict is essentially based on perception rather than reality and feelings rather than facts. The importance of Larry perception to the state of conflict cannot be underestimated and is an important dynamic in how lawyers asses and analyse conflict and disputes (FDH, 2020, 365).

Perception vs Reality Of note adove: Tillett and French note that conflict is essentially based on perceptions (rather than reality) and feelings (rather than facts). Do you agree with this analysis?

Models of Conflict: The Deutsch Model

The Duffy Model

I prefer the Duffy model, particularly in a legal context. Examples of conflict: • Actual • False • Latent • Non-conflict

Example:

In different fact sets, assume James and his brothers need to use the one family car to get to a party: Actual conflict

They both need to use the car at the same time, travelling to different places, no public transport available. This is an actual conflict; they are at cross-purposes for the resource and utility of the car. Latent conflict

Have not thought about how we are getting to a party yet. Both assume that the car is free for them to use. Both are wrong. But, it may unfold as a false conflict, actual conflict, or nonconflict, depending on the circumstance. False conflict

They are arguing about use of the car, which is immaterial because they are both going to the same party (or place generally). It is false because no conflict actually exists upon deeper examination, if we assume transportation to the destination is the only possible conflict. Non-conflict:

Both parties know we they going to different parties, and alternative transport is available. James catches bus, Simon takes the car. Sources of Conflict: For lawyers, the ability to analyse the cause of a conflict or dispute can be a helpful first step in analysing a client’s legal situation and the elements of it requiring legal advice and action. Moore uses a diagram called the ‘Circle of Conflict’ to group different categories of conflicts [find the circle] (Moore, 2014, 110). The causes of conflict are too subtle and ubiquitous to be fully explained by a simple diagram, but many conflicts have common underlying features. Moore’s circle is most useful in devising the type of intervention to employ when conflict arises. Moore summarises his findings thusly: The circle contains nine potential major causes it drivers of conflicts and opportunities for collaboration, other than issues, needs, interests, option, understandings, and agreements. These other factors are: 1. 2. 3. 4. 5. 6. 7. 8.

The people or parties involved; Their histories, relationships, and interactions; Their emotions; Their communications; The information available or not available to them that is relevant to try to resolve the dispute; The available procedures used by the parties to try and resolve the dispute; The parties’ possession and use of power and influence to influence outcomes; A range of structural factors that create limits or parameters in which a dispute may or even can be resolved; and 9. Benefits, values, and attitudes. These are areas where dividers or connectors may be present (Moore, 2014, 116).

Overleaf is an illustration:

Lawyers as Managers of Conflicts and Disputes: What role do lawyers then play with respect to conflict and disputes? To a large proportion of the public lawyers are seen as a means to an end. Often people contact solicitors because they want something from another person/group/company, or they want to stop another person from acting in a way that is detrimental to them (FDH, 2020, 366). They contact a solicitor due to their expertise in the relevant area of law. At its most basic, clients often present to a lawyer with the following concern: 

‘if an opposing party does not do what I want them to do, can the law force them to act in accordance with my wishes?’

Fundamentally, the solicitor undertakes conflict resolution and conflict management. These two concepts are subtly different:

Conflict resolution: This concept refers to the termination of a conflict by going to the root of the problem. In the words of Burton: ‘Conflict resolution, as opposed to mere management or settlement, points to an outcome that, in the view of the parties involved, is a permanent solution to the problem... conflict resolution deals with the total human being, encompassing personal and cultural differences, and deals with this person in the total society, encompassing social differences (Burton, 1989, 2).’ Conflict management: This involves implementing strategies to limit the negative aspects of conflict and to increase the positives of conflict. This may lead to an outcome that the parties see as a whole solution, even though the underlying conflict continues to exist. ——- If a lawyer is able to help a client resolve their conflict, then that is a best-case scenario. Condliffe notes that some conflicts just cannot be resolved and, in some circumstances, generating or escalating a conflict may be in the best interests of an individual or group (Condliffe, 2016, 2). He therefore prefers the term ‘conflict management’ with the acknowledgement that conflict management is usually aimed at trying to resolve a conflict (FDH, 2020, 368).

Explaining the role of lawyers in resolving disputes: In Chapter 14 we consider the substance of a lawyer’s role in dispute resolution further. That Chapter is about alternative dispute resolution. In Ch 14 particularly, the DR spectrum and how a lawyer can advise and support a client in dispute by making them aware of the range of different forums available for dispute resolution and conflict management (FDH, 2020, 369). When a lawyer outlines and explains these different forums to a client, they empower them to make informed and rational decisions about how their conflict might be managed or their dispute resolved (FDH, 2020, 369). Two preliminary aspects of the lawyer‘s role prior to advising a client about engaging in a DR process. The first is the role of the lawyer in analysing conflicts and disputes as a precursor to diagnosing an appropriate process for the management of a conflict (or for the resolution of a dispute). The second is the important role of the lawyer as an effective communicator, particular Tim term of explaining dispute resolution environments to clients and giving effective advice about conflict management and dispute resolution (FDH, 2020, 369).

Analysing Conflict and Disputes An important component of the role of lawyers in dispute resolution contexts is the analysis of conflict and disputes as a precursor to providing considered advice about how best to manage a conflict or dispute. There are many wars to understand conflict and to analyse it. Furlong identifies

eight conflict analysis models which he says are useful because they ‘represent a wide range of different ways to approach and look at conflict’, with each model bringing ‘a different and potentially useful angle on the problem’. (Furlong, 2005, 19-24) Furlong summarises the eight models as follows: 1. The circle of conflict looks at different causes or ‘drivers’ to conflict 2. The triangle of satisfaction specifically looks at different types of interests and takes that assessment to a significantly deeper and more functional level 3. The boundary model looks at conflict form a unique perspective, giving insight into the almost invisible world of managing boundaries, a daily occurrence for all of us 4. The Interest/rights/power model is foundational to the field of negotiation and conflict resolution and helps be categorising the various processes we use to manage conflict along with the consequences of using each of those processes. 5. The dynamics of trust model tackles the critical issue of how trust is created, how trust is eroded, and how lack of trust impacts the resolution process 6. The dimensions model looks broadly at three different ‘layers’ or areas where we can focus out work, and how those three areas affect the resolution and recurrence of conflict 7. The social style model looks at conflict through the ubiquitous personality lens and brings clear directions on Amazon’s and resolving communications and interpersonal style issues 8. The moving beyond model looks at the emotional process people go through when trying to let go of conflict and move on, a critical process for achieving resolution

The Rights/Interest/Power (‘RIP’) Model: The interests/rights/power model is most apposite for lawyers (FDH, 2020, 370). This model does not analyse the content of the dispute itself, but rather looks at conflict in terms of the basic elements of interests, rights and power, assessing which approach is best for a particular dispute ([[Furlong, 2005, 22]]). It is important for future lawyers who wish to become good conflict managers to understand these three components of conflict management.

Interests and Interest-Based Approaches Interests have to do with a person’s needs and desires, and why they want something (Spencer, 2020, 370). Interests-based approaches to disputes try to: ‘…reconcile or find a solution that meets the interests of the parties.’ Interests refer to the parties’ needs hopes and fears. Interest-based approaches are, or tend to be more consensual, and succeed when both parties get enough of their interests met to agree on a solution (Furlong, 2005, 110). ‘Interests’ can be contrasted with positions. A position describes what a party wants, but an interest describes why a party wants something. Example: Interest-based Approaches (Strengths) Examples of interest-based approaches include most forms of negotiation, mediation and joint problem solving (Furlong, 2020, 110). Interest-based approaches have many strengths:      

They are collaborative; They often involve creative problem solving and solutions in settlement; Can result in tailored, durable and unique solutions; Are problem-solving oriented (yet not in an adversarial manner); They build and strengthen relationships; and Can achieve mutually beneficial outcomes for all parties involved in the dispute (Furlong, 2005, 110-4).

Weaknesses of such approaches include:  They can be energy intensive and time-consuming; are less consistent with legal remedies;

 

A resolution is not always achieved; and Some legal professionals see such approaches (incorrectly) are ‘soft’ or ‘touchy-feely’. (Furlong, 2005, 110-4) [dialectic issue – that professional issue is a fiction] Refer to Interest-based negotiation and facilitative mediation

Rights? Rights concern what a person is entitled to, usually under a legal source. Rights-based approaches to disputes are ‘characterised by petites asserting or focusing on the superiority of one party’s right over the rights of the other parties’ (Furlong, 2005, 110). Rights come from many legal sources, including caselaw, statutes, conventions, trusts, deeds and contracts (FDH, 2020, 371). Rights-based Processes ‘Rights-based processes tend to be adversarial, and focus on promoting one’s own rights while minimising and de-legitimising the other parties’ rights.’ (Furlong, 2005, 110). Commonly used processes that enact a rights-based approach include litigation, arbitration, adjudication, and adversarial forms of negotiation or formal investigation (FDH, 2020, 371). A rights-based approach can have the following benefits: - A fair, consistent standard is applied to everyone Faster outcomes, in that the solution to most situations is already spelled out - Rights-based positions have some external legitimacy - Rights-based solutions can be seen as ‘objective’ (Furlong, 2005, 110)

Power? Power is the capacity to get things done and the ability to exercise control over people, events and situations (Alexander, Howieson, Fox, 2015, 142). Power is about advantage and superiority of position (FDH, 2020, 371). Power-based approaches to disputes are ‘characterised by parties bringing to bear all the resources they have at their disposal against the other party in an attempt to win. Typically, power-based processes are highly adversarial, and are sometimes applied in spite of the rights of the parties’ (Furlong, 2005, 110). Threats, intimidation and unilateral decision-making are examples or power-based approaches. Power-based approaches can also result in fast outcomes, as no consultation is required; and for one left there is the advantage of getting everything they want (FDH, 2020, 372). However, these benefits and strengths are far outweighed by the weaknesses or power-based approaches which include (Furlong, 2005, 114): they can be seen as oppressive, and stir up resistance - Not only do they result in win/lose outcomes but often lose/lose outcomes - They can significantly damage relationships - The solutions are not necessarily durable - More and more power is needed over time to get the same result - They can be considered manifestly unfair, if not oppressive, particularly by the losing party (Furlong, 2005, 114) They are also more formal, more expensive, more time-consu...