Goals of Dispute Interventions
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[edit] The problem
In case of disputes there isn't a general best solution to solve them. The choice for a dispute intervention merely depends on two things:
- What do disputants want to achieve with the dispute?
When people have a dispute about something it often occurs that each of the parties just want to get his or her right. They often don't care about the other party and each party only wants to win. In this case disputes are often solved by a judge in court. The result of this kind of dispute intervention is that one party wins and the other party loses. There are however also parties who don't only care about winning the dispute. They have other interests like for example the fact that both parties still have to work together in the future. A dispute between the both of them isn't very helpful in this case. A better way to solve such kind of dispute would be mediation. Intergrative mediation is a good way to solve a dispute in cases where parties have other intersts at stake than only the fact that they want to win or be right. The result of mediation will be a win-win situation for both parties instead of a win-lose situation of a court procedure.
- What is their attitude towards the problem?
The choice for a certain kind of dispute intervention also depends on the style a person has to handle a dispute. On the basis of the conflict management Grid (Blake & Mouton, 1964) there are five different manners in which people behave during a dispute namely fighting, avoiding, giving in, compromising and problem solving. The difference between all is that in certain styles people look more at themselves and in other styles they look more at the other party to solve the problem (Giebels E., Euwema M., Conflictmanagement; Analyse, diagnostiek en interventie, Wesepe, Utrecht, oktober 2005, p. 57-58). A person who has a fighting conflictstyle will look at himself. This means that he wants to win the dipute even if this means that this is harmfull in the long run to himself and to others. A person with this conflictstyle will easier take the road to court. A person who has a problemsolving style on the other hand will first look at mediation as a dispute intevention because he wants to create a win-win sitution in which he enlarges the pie.
According to what has been said above. A proper dispute intervention isn't always easy to choose and depends mostly on the conflictstyle of parties and their goals and interests.
[edit] Interests
The needs, wishes and fears of the disputants, or as an economist would call them, their preferences, are central to dispute resolution. The disputants will use the dispute resolution system to advance these interests. A dispute may be described as a pool of interests from both parties. To effectively organise this pool of interests it is often necessary to use a determined method approach. A very successful and known method is the one of integrative mediation (Fisher, Ury & Patton 2000). The well known Harvard Method is the most important variant of integrative mediation. The integrative method has logic and can be very useful to reveal the real intersts of the parties. All the interests of conflicts are divided in different layers and catogories. How further a neutral person can pull the layers of interests, the better he gets an overview of all interests. It is from great importance that a neutral person with the help of questions tries to discover the parties' interests. This is relevant for the final goal. The approach of the integrative method encloses with the discovery of the interests. This are the four important steps/principles of the method discribed in the book Getting to YES (page.15):
- The first step is to separate the people from the problem. Focus on the relationship of the parties. Aim for a clear communication between parties and focus on purposeful things.
- The second step is to aim at the interests, not on positions. With the interests I mean the mutual interests of the parties. As the mutual interests will be known by both parties, it will be easier to focus on those interests to gain mutual profit. A direct cause of this will mean a change of incentives.
- The third step is to create options to resolute the problem with the mutual interest(s). This is a creative process. Parties can brainstorm together and generate all kinds of options without directly criticize these ideas.
- Try to use objective criteria. In spite of the mutual interests, there will always be conflicting interests in a dispute. During the distribution, parties will also compete over interests. It is wise to use criteria coming from, for example the law.
These steps will bring parties closer to a Win-win solutions and will advance interests for both parties. The following categories of interests have been distinguished
[edit] Substantive Interests
Substantive interest include both tangible things such as rights and intagible things such as basic human needs like respect.
- Substantive interests are usually the first interests people focus on when they try to resolve a problem with the help of a judge, lawyer or mediator. These interests relate directly to the legal dispute itself. You can think of questions about legal liability, payment of compensation for personel injury or payment of damages for a breach of contract. They only relate to the facts and the law. An example: someone who had a car accident, that happened because someone else was drunk and ignored the red lights, is mainly concerned about the fact that he wants the other person to be liable for his damages. In other words he wants compensation in the form of money. Substantive interests are also the main interests lawyers focus on while handling a case. They only involve the case itself.
- Substantive interests on the other hand also contain basic human needs like for example:
- security
- financial welfare
- the feeling of belonging to a group
- acknowledgement
- being able to have self control
However basic this needs might be, they are often missed during the problem solving. We often think that disputes are only about money but during negotiations about a certain amount of money there can be more at stake that meets the eye. For example: In a divorce case a woman can claim that she needs a thousand euro's a month from her former husband. Maybe this man doesn't have this kind of money and the woman really doens't need as much as she claims. Maybe she only wants this amount because the wants to have the feeling of acknowledgement. If she can get this feeling in another way from her former husband maybe she will accept a lower amount of money. So although these kinds of basis human needs are often forgotten during problem solving they are very important because they can make the difference in solving a dispute. As long as one party thinks that the other one is infringing his substantive interests there won't be much progress in solving the problem.
In practice a dispute doesn't only excists of substantive interests alone. A dispute often also contains other interests like procedural interests and relationship interests. A mediator will help parties to discover those other interests in order to let the parties think about a good solution for the problem that will be in eachothers best interest.
[edit] Procedural Interests
For most people procedural justice means fairness and transparency of the process by which decisions are made. Procedural justice however has a relation with restorative justice. Restorative Justice offers a fundamentally different framework for understanding and responding to crime and victimization. In restorative justice it is very important that in case of a crime parties share their feelings about what has happened. A victim can tell the offender, during a victim-offender mediation, how he experienced the crime. What the crime has done to him and what he thinks the offender should do to compromise his loss. The offender on the other hand can tell the victim why he has done it and how he feels about it afterwards. In practice most victims find this a very helpfull way to cope with what has happened mainly because of the fact that they got the opportunity to speak and the fact that they play a role themselves in the negotiations about what a proper punishment would be Umbreit Mark S., Restorative Justice Through Victim-Offender Mediation: a Multi-Site Assessment. This element of beeing able to let others hear you voice is also seen in procedural justice. One of the procedural interests, as we will see below, namely is voice/participation.
[edit] Transparency:
Transparency means that people should be able to see how the decision was made. The decision therefore can’t be made behind closed doors because then we wouldn’t know on which base the decision was made. This is why primarily decisions are made in open court.
[edit] Fairness:
Fairness of the process by which decisions are made is a bit more difficult to explain. According to studies people don’t find the outcome of a procedure the most important element of a fair procedure. There are four other elements that matter more to them. These are their procedural interests.
- Voice/ Participation:
What people find very important in a fair procedure is the fact that they can participate in the procedure. People just want to tell their story even if this means that the outcome will be less positive to them. For example in victim-offender mediation (http://en.wikipedia.org/wiki/Restorative_Justice) you can see this element quite clearly. Victims value the opportunity to speak even if this means that this will not lead to a higher punishment of the offender.
- Respect:
Studies also show that people find it very important that they are treated with respect during a procedure. For example when a judge treats you in a disrespective manner during the procedure, you don’t feel that he takes you serious as a person. If that’s the case you most likely won’t see the procedure as fair.
- Neutrality:
People also want the decision-maker to be neutral. This means that he has to be honest and impartial. He has to base his decision on the facts and he can’t let his personal opinion get in the way of making a decision.
- Trustworthiness:
This last element means that people want to feel that they have been treated honestly. They want that the decision-maker takes a good look at their interests. When he then finally comes to a decision he also has to motivate why he took that decision, so people can understand it. Studies show that the element of trustworthiness is the most important element of what people consider a fair procedure. (Tyler Tom R., Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, Available at http://heinonline.org/, p. 871-904)
[edit] Relationship Interests
In a conflict one of the most important interests often is the relationship interest. This is especially the case when disputants still have to work together in the future or when disputants are family. In both cases you want the relationship to be stable because of the fact that eventually you have to stay or work together. According to the getting to YES highlights arguing over positions therefore endangers an ongoing relationship. When disputants go to court for solving their dispute this will not do much good to the relationship because one party wins and the other one loses. Mediation therefore will be a better alternative because you try to solve the problem together by enlarging the pie and create a win-win situation. When this is the case the relationship will not become worse but may even become better.
Relationship interests are:
- A good relationship between the negotiator and the parties.
This includes the negotiator's relationship both with those across the table and with others who can influence the negotiation. It is important that parties have a good feeling about the negotiator, because when this isn't the case it can lead to a bad negotiation. This on its turn can harm the relationship between parties even more.
- A good ongoing relationship that the negotiator has with himself.
A negotiator has to take into account that the way in which he acts can influence the outcome of a negotiation. He therefore has to watch out for the fact that his behaviour can lead to a negative outcome.
- A good relationship between the parties themselves.
When parties really listen to each others interests and try to enlarge the pie by looking at a win-win solution, this will lead to a positive outcome of the dispute. It will possibly also lead to an improvement of the relationship between the fighting parties.
[edit] Enforcing Rights
[edit] Legal Perspective
From the legal perspective, rights can be enforced in a dispute resolution procedure. Rights can be based on the constitution or on natural rights. Further explanation?
[edit] Economic Perspective
From the economic perspective:
- Protection of property rights and enforcement of contracts are necessary to protect investments
- Allocating residual rights of control over a good or a business to one person in a relationship may be a good approach. It solves the problem that it is hard to monitor the conduct of another person.
[edit] Issues
[edit] How do Interests and Rights Relate?
There seem to be two competing views. Disputes are about interests or they are about rights. Can these views be reconciled? Allocating rights is a way to protect interests. A right can be seen as a generalized form of an interest. Reformulating interests in terms of rights increases the odds that the interests will be protected, in or outside courts.
[edit] Consequences of Translating Interests into Rights
In the process of abstraction, the particular needs, wishes, and fears of the disputants may disappear. Translating interests into rights, such as the right to damages, may have as secondary effect that the situation of the plaintiff and its needs disappear from the focus. The range of solutions that can be claimed under legal rules is usually restricted. The legal discussion concentrates on the availability of one solution. Is the claim for damages granted or not? An essential way to resolve disputes is broadening the scope of available solutions. Why use the concept of rights at all? One possible answer is that disputing in terms of rights saves costs. Abstracting from individual differences, provides economies of scale: granting a right to a group of persons, in a category of situations, saves time. But when rights are contested, a discussion in terms of rights turns the debate into an argument over positions. Discussing issues in terms of rights is also a way to promote equal treatment of like cases.
[edit] What Are the Most Important Interests Disputants Try to Protect?
[edit] Common Legal Problems and Justice Needs
See legal problems.
[edit] Disputes and Interdepence
Why conflicts? Interdepence theory (Kelley & Thibaut 1978) says interdependence creates conflicts, especially in combination with divergent goals (in particular in distributive relationships) and different perceptions. In this situation conflict seems assured, unless one party is highly benevolent or resources are abundant (Wall 1995). The closer and safer people feel, the more apt they are to raise annoying issues (Ephross & Vassil 1993). Past events in a relationship may influence the interaction, because they cause stereotyping etc. (Wall 1995). Bilateral monopoly in bargaining theory. Hold-up problem in economic theory. Two parties, unequal in bargaining power (Galanter , Kritzer 2003). Relative costs of impasse (2003).
[edit] Recommendations
Tyler Tom R., Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, Available at http://heinonline.org/, p. 871-904
Fisher R., Ury W., Patton B., Excellent onderhandelen: Een praktische gids voor het best mogelijke resultaat in elke onderhandeling, Uitgeverij Business Contact, Amsterdam/ Antwerpen, eenendertigste, herziene druk, juli 2007, hoofdstuk 3, p. 71-92
Moore C.W., The Mediation Process, Jossey-Bass, San Francisco, 2nd edition, 1996
