Motives to intervene in conflicts
From MicroJustice
Contents |
[edit] The Issue
There are many reasons to care for the setting in which other people deal with conflicts and to be involved in Dispute Resolution System Design. These motives will influence the designer and the design itself.
[edit] Motives
[edit] Costs of Conflict for the Parties
The following costs can be distinguished:
- Costs of escalation and violence to disputants and third parties. Threats, physical force, harming others, coercion, disorder, low commitment to decision implementations, more grievances and reduced productivity (Wall 1995).
- Costs of time spent solving the dispute. The opportunity costs of time.
- Expenses for dispute resolution professionals, such as mediators, lawyers, arbiters, judges, or juries
- Costs of uncertainty
- Damage to otherwise productive relationships. Attitudes towards opponents generally become more negative (Bergman & Volkema 1989; Wall 1995).
- Emotional costs: stress, anger, hurt feelings, feelings of hostility, social-emotional separation, anxiety and stress (Wall 1995). This can lead to personal frustration, low job satisfaction and reduced performance.
[edit] Making Conflict Productive
But conflicts are not only costly.
- At low levels of intensity, disputants may also find conflict stimulating, or even exciting.
- At moderate levels, conflict is necessary to improve efficiency and the quality of decisions (Cosier & Dalton 1990).
Most commentators warn that confrontation without conflict is often a better means to achieve this, however (Wall 1995). Conflicts escalate easily.
[edit] Failure to Control Conflict by the Parties
Because of the costs, people will normally settle their conflicts. There are many reasons, however, why they fail to do so. *Economists give the following explanations for this: differences in perceptions of stakes, or of the probability of winning; differences in attitudes towards risk; sheer hostility or malevolence (Hirschleifer 2001: 170).
- Negotiation theorists have found that once in a conflict, disputants find it difficult to coordinate their actions. The parties to a conflict may experience strong emotions and are likely to suffer from cognitive biases. As a consequence, disputants will not always be able to coordinate the way they will treat the conflict (Mnookin and Ross 1995; Lewicki et al. 2003). Anger or fear may block them to find a rational way out of the conflict. Several cognitive barriers to conflict resolution have been discovered (Arrow et al. 1995). Disputants suffer from overconfidence as to their own position. They tend to interpret the actions of the other party in a negative way, and have a too positive view of their own behavior. Proposals by one party, may be distrusted by the other party. *Moreover, the dependence of the parties on each other may cause problems. In a dispute, at least one disputant needs the other party to achieve his objectives. Without dependence, there would be no dispute. The Palestinians, wishing to establish their own state, are dependent on the Israeli’s for the delivery of territory. If the needs of the disputant could equally be met by an outside option, there would be no dispute. In most disputes, the parties are mutually dependent. But the dependence may be asymmetrical. Israel perceives the present situation as not ideal, because its people cannot live in safety. For the Palestinians, the status quo is much worse, however. Because of this asymmetry, Israel has less to gain from an agreement than the Palestinians, and it can use this advantage strategically.
[edit] Failure to Choose a Procedure to Solve the Conflict
If the parties can not solve the conflict themselves, this does not yet show that they need a system to deal with the conflict. In theory, they could agree to disagree, and jointly design a process how to solve the conflict, for instance by lettin a neutral decide the issue. There are reasons to believe, however, that this is very difficult once the conflict is there (Barendrecht & De Vries 2004). Mediators and arbitrators have trouble getting clients, unless the parties have to use their services because of a contractually agreed dispute resolution clauser, or a referral by a court or another influential person. Disputants seldomly agree about the way to conduct a civil procedure. This failure to agree on how to solve a conflict can be explained by:
- Overconfidence
- Distrust of the proposals of the other party: reactive devaluation
- Strategic considerations. By sticking to the status quo, the party that is relatively better off in the status quo can try to extract concessions from the other party. This is also an impediment to agreeing to a mechanism for speedy and neutral resolution of the conflict. The stronger party then gives up its strategic advantage.
Example: In a personal injury case, the liability insurer is usually a repeat player sitting on the money. He has less to gain from a speedy resolution than a plaintiff who is likely to be risk averse and in need of money. Personal injury litigation is often lengthy and costly. Still, insurers do not offer their opponents a speedy and neutral procedure.
[edit] Access to Justice
This explains that there is a need for a 'default system': a mechanism to solve conflicts that disputants cannot solve themselves and in which they can also not agree how to solve the conflict, for instance with the help of others. Legal systems provide access to court, and also legal aid: help offered to disputants in order to find their way in the legal system. So another motive to deal with disputes is that a default system has to be designed. Observers increasingly see access to institutions that uphold legal rights as a key factor enhancing development (Kauffmann 2003). Organizations such as the World Bank press countries to grant their citizens legal protection of their interests (World Development Report 2005).
[edit] Offer a Service
Another reason to be concerned with the design of dispute resolution systems is to make a living. Dispute resolution professionals such as judges, experts, mediators, or lawyers may be concerned with the systems in which they work.
[edit] Third Party Interests
Maintaining calm, safety, avoiding violence, not hurting good name of institution, are among the reasons why third parties may have reason to intervene, or even to set up a dispute resolution system themselves. These are some of the reasons why there is a role for ‘The Third Side’ to manage conflict (Ury 2000). But why would the third side intervene? Conflicts tend to exist for too long, and they may escalate, which is not only costly for the disputants, but potentially also for the wider community.
[edit] Failure to Intervene by Third Parties
Another issue to consider is whether third party interventions will have to be designed deliberately. In smaller groups – such as a village, but also in a nationwide community of politicians of limited scope – conflict management will tend to evolve spontaneously. Third parties with sufficient standing in the eyes of the parties will have reason to intervene. Disputants will suffer reputation damage if they do not accept intervention. This setting up of systems will tend to happen in situations where reputation matters. In situations where the social distance does not create external pressure to restrain the costs of conflict, convincing the parties to make use of these alternative dispute resolution mechanisms has proven to be hard (Barendrecht & De Vries 2004). This is where governments have to come in, and offer their citizens a dispute resolution system. Courts are part of this system, but interventions by social workers, police or other government institutions are part of the system as well.
But nowadays, most people are dependent on many more others, who often are located on a much bigger social distance. Who will have sufficient reason to intervene in a dispute between a buyer of a financial product and the provider? Or in a conflict about the consequences of a car accident between claimant and insurer? Intervention is costly and free rider problems will occur: everybody in the community waits for others to do the job of intervening. Even if third parties intervene, they may suffer from a lack of legitimacy in the eyes of the parties. Moreover, the party with the strategic advantage may calculate that keeping this advantage outweighs the damage to reputation that it will suffer by not accepting the third party intervention. Israel is a case in point.
[edit] Recommendations
From this analysis, the following recommendations for an effective dispute resolution system can be derived. An effective system:
- Minimizes the costs of conflict.
- Does not suppress conflict, because at moderate levels conflict can be productive, although it may be preferable to look for confrontation without conflict.
- Lowers the cognitive and strategic barriers to conflict resolution.
- Sets a default system, independent of the choice of disputants, because the parties are not always likely to choose a way to deal with the conflict or to let it be decided. Purely voluntary schemes will not work.
- Provides access to justice, in particular for the disputant that has more reason to be dissatisfied with the status quo than his opponent.
- Takes into account that dispute resolution professionals will want to make a living and profit and may have incentives that are not in line with the interests of diputants (possibility of market failure).
- Contains conflicts, and lets the costs be borne by the parties, preferably not by others.
- Operates in particular in situations where third parties have insufficient reasons to intervene or disputants have insufficient reasons to accept their interventions.
