Hilary Smith

Professor Juliana Birkhoff

Conflict Resolution 501

3 December 2013

Identifications:

  1. ADR – Alternative Dispute Resolution (ADR) is an informal negotiation system for resolving disputes before initiating formal, legal action. The form ADR takes varies across cultures and regions, but may include processes of negotiation, mediation, and arbitration. There is no one theorist for whom ADR is attributed, however, Frank Sander, Roger Fisher, and William Ury all contributed to the movement. ADR is important to conflict analysis and resolution (CAR) because it provides a culture-specific forum in which to resolve conflict. ADR is different from formal legal proceedings in that ADR does not necessarily follow the same adversarial patterns and zero-sum results of legal disputes. It is possible to pursue a mutually satisfying agreement in ADR, which helps produce an amicable post conflict environment capable of preventing outbreaks of future conflicts.
  2. Loss aversion and status quo barrier in negotiation: First theorized by both psychology professor Amoz Tversky and economist Daniel Kahneman, loss aversion and status quo barriers are where negotiators value what they already have more than what do not. Valuing more highly the status quo over potential, but not-yet-achieved, bargains leads to aversion to loss. Negotiators will more often stick to the status quo than risk losing it for a better deal. This often leads to stalemates in negotiation and also underscores the importance of framing options to counteract this effect, typically by emphasizing losses sustained by doing nothing and understanding the benefit of taking risks. This is important to CAR because it educates negotiators on how to advance their options in a way more amenable to their counterpart, as well as be aware of their own biases to loss aversion that leads to stalemate in negotiation.
  3. Reactive devaluation in negotiation: Another characteristic of negotiation, reactive devaluation is where, according to leading theorist Lee Ross, agreements, deals, or packages that are offered lose some of their appeal to negotiators, particularly if it is offered by an opponent. Adversaries devalue deals made by their opponent, possibly due to the assumption of a deal from an opponent must be good for the opponent and bad for them. This is important to CAR because it gives insight into how to better conduct negotiations and avoid hitting a wall in difficult negotiations. They can avoid reactive devaluation by having a third party present the offer or employ some other method in order to decrease this negative reaction.
  4. Circum-negotiation: Pioneered by Harold Saunders, circum negotiation is a type of pre-negotiation process that is designed to create the events, environment, and relationships that can sustain negotiation. It aims to transform relationships and resolve conflict at its root. This is often applied in situations where parties are less willing to negotiate, particularly if Burton’s basic human needs are not being met. Circum-negotiation is important to CAR because many conflicts involve these basic human needs that Burton says are non-negotiable. What Saunders does is suggest a process designed to cultivate a transformative political process that can change relationships and open a dialogue that can address the root of conflict.
  5. Problem solving workshops – First theorized by John Burton, problem solving workshops are small-group dialogues through which opposing sides in a conflict may discuss, understand, and resolve unmet basic human needs that, according to Burton, comprise the root cause of most conflicts. These basic human needs include identity, personal development, security, and recognition. Problem solving workshops are very small, analytical forums through which parties may explore these non-negotiable needs and work to resolve them to thereby better prevent future conflict. These are important to CAR because these workshops provided a ground-breaking, new approach to coercive diplomacy, which is often applied, but rarely successful, method of resolving intractable or long term conflict.

 

Quotations: identify the author and brief overall idea. Describe why important in conflict resolution theory, practice, or research. 100-150 words.

  1. Jaw, jaw is better than war, war.

Winston Churchill said this in describing the preferred method of resolving a conflict, negotiation over coercion. This quote presents a simplistic, black-and-white choice in conflict resolution: one can either negotiate or coerce. However, negotiation and coercion are much more connected. The threat of force coercion brings lends power to the negotiating table, and negotiations can also aid or more clearly define the threat of coercion. This quote, unfortunately, leaves out other possibilities that have exploded in the field, including dialogues, problem-solving workshops, mediation, negotiation, ADR, adjudication, and arbitration. Regardless, this quote is important in CAR because it places negotiation as a preferred and viable option to coercion and war. I would also argue that, while it does not typically connote methods other than negotiation for conflict resolution, it does open the door to thinking about resolving conflicts through methods like negotiation. The field of conflict resolution developed after this quote was given and possibly was aided by the credence Churchill gave to talking as an effective means of conflict resolution.

 

  1. One’s own culture provides the “lens” through which we view and bring into focus our world; the “logic” (known as common sense) by which we order it; the grammar by which it makes sense.

Dennis J. D. Sandole and Hugo van der Merwe penned this in Conflict Resolution Theory and Practice: Integration and Application. The overall idea is that culture matters in how we view and engage with conflict. Culture provides a way of seeing whether or not something is a conflict, how we behave it in, our expectations for it or its resolution are, how we go about engaging with an adversary, etc. This is important to CAR because it brings a focus on the often underestimated cultural element that helps explain conflict. Especially in the field of International relations, where political and economic factors are given salience, refocusing on the powerful effect culture has on how conflict is viewed and resolved leads to a better analysis and understanding of it, which can then lead to better resolution. It also helps us understand that culture is a masking element that allows us to understand our opponents in general but not accurately. If we blame behavior on another’s culture, we often avoid doing the hard work of understanding why that behavior is manifest. Culture colors not only how we engage in conflict but also how we view others in conflict, and both must be acknowledged to better resolve conflict.

 

  1. It seems extraordinary how many intense hours I spent cooped up in the small study at the end of the back hall at Aspen. Some of the most unpleasant experiences of my life occurred during these days—and of cures, one of the most gratifying achievements came at the end of it.

President Jimmy Carter said this of the Camp David Accords he mediated between the President of Egypt, Anwar al Sadat, and the Prime Minister of Israel, Menachim Begin. The overall idea is that negotiations are long, arduous, and without much promise of achievement or hope. However, when they do produce agreements, they are much more worth the pain of achieving that gain, especially in light of the cost of degenerating into coercive war to resolve the conflict. This is important to conflict resolution practice because this was the first peace agreement signed between parties in the seemingly intractable Israeli-Arab-Palestinian conflict. This conflict is considered the most complex and unsolvable of modern conflicts. However, Jimmy Carter, as an amateur mediator, applied mediation and negotiation tactics to assist these regional leaders in finding enough common ground to agree on a peace agreement. It also underscores the intense effort and focus needed to accomplish peace agreements in CAR. Finally, it is worthwhile to note that for these negotiations, the public eye was not allowed into the process. Each side was at liberty to freely talk and negotiate, through President Carter their mediator, and reach an agreement faster. Had it been in the public eye, negotiators would need to consider their audience and constituents in every intermediary move and the process to get to an end agreement or resolution would have been harder or even impossible.

 

Short answers:

  1. What is the difference between distributional/adversarial/positional bargaining and integrative/interest-based/problem-solving negotiation?

Positional bargaining focuses on dividing a pie or distributing finite resources and often takes a competitive or adversarial outlook. Interest-based bargaining focuses on uncovering the interests of parties involved in order to expand the pie of potential solutions or create options that meet those needs. It uncovers interests and solutions that solve problems more completely or in an integrated fashion. It focuses on the interests of the parties rather than the positions they adopt. In interest-based negotiation, the more needs unearthed reveals the more possible solutions because many needs are mutual between parties. An example of positional bargaining is the Israeli and Iranian positions on the Iranian nuclear program. Israel’s position is to end the Iranian nuclear program completely and the Iranian position favors keeping it. If the root interests were uncovered, interest-based bargaining might be uncovered and new solutions explored. Some of these interests include the Israeli interest in feeling secure with its neighbors and possibly an interest to have superior strike capability as a deterrent. Iranian interests might include dignity at being allowed the same nuclear privileges as other countries like Japan, power plants for its populace, and also a sense of security in the region. With positional bargaining, only one or two options are available, but with interest-based bargaining, several avenues open up, each designed to meet the needs of that interest. This makes for more satisfactory ends to negotiation, as the real need is addressed rather than the single option or position one side adopted in isolation.

 

  1. In Menkel-Meadow, Lon Fuller argues that negotiation, mediation, arbitration, and adjudication each have their own structures, procedures, and moralities. Why is this an important concept?

Negotiation, mediation, arbitration, and adjudication are all different and have unique structures, procedures, and moralities according to Lon Fuller. This is an important concept because each method is a tool that can be adapted to different needs in different conflict situations. Each takes a successively closer step to legal action and in so doing, each step takes more power out of the hands of the parties and places it in the power of a third party. Negotiation does not use a mediator and can take an adversarial approach or an interest-based approach depending on the skill or prerogative of the negotiators. Negotiation is good for when a mediator cannot be decided on, when parties feel comfortable working without a mediator, or when parties prefer taking a decidedly adversarial role. Mediation involves a third party and takes many forms. However, the results of mediation are almost always an increase in communication, collaboration, and problem-solving, and parties maintain control over the outcome of the dispute. Arbitration is where a mutually agreed on third party hears the cases of each side and delivers a typically binding solution for the conflict. Adjudication initiates the process litigation, which is costly, parties lose control of the dispute and its outcome, and the approach is adversarial. However, adjudication seeks to systematically apply laws and produce precedents that can assist in future cases. All these processes are important to CAR because they offer different tools for better resolving various conflicts.

 

  1. Lawrence Susskind argues that the courts are rarely suited to resolve environmental disputes. Why not? Which reasons are unique to environmental disputes?

According to Susskind, courts are rarely suited to resolve environmental disputes because they are adversarial in nature and they are not set up to deal as easily with the multiplicity of parties that stake claims in an environmental dispute. Additionally, litigation does not necessarily seek out other affected parties in a conflict. Rather, the onus is on the parties involved to bring the case to the court. This does not work well for environmental disputes, because the environment affects large cross sections of people, many of whom may not have the skill, resources, or knowledge of their need to represent themselves in court. In general, environmental conflicts involve several parties, including ones that are under-represented or even unaware of their involvement in a dispute, like children in the rising generation. Court cases allow for a defendant and a prosecutor, simplifying conflict to dyadic relationships. This format does not allow for the complexity of an environmental dispute to be satisfactorily heard and resolved. Additionally, because parties in an environmental dispute typically remain in the community where the conflict takes place, using methods that build up community, like mediation, rather than dividing it, like litigation, are preferable.

 

Essay:

  1. Kriesberg summarizes the determinants of mediator roles from empirical research and experience. Using a current conflict situation or an historical conflict situation, explain how the cultural setting, the institutional context, the characteristics of the conflict, and the characteristics of the mediator shaped the intermediary’s role.

The Good Friday Accords of Northern Ireland (NI) worked with political parties inside NI and the British and Irish governments to reach a cease-fire and disarmament agreement to the 30 years of open conflict known as the Troubles. These negotiations were mediated by American senator George Mitchell. The cultural setting, institutional context, conflict characteristics, and characteristics of Mitchell all helped shape his role as the intermediary for these accords.

The cultural setting this conflict developed in is western European with a tradition of following constitutions, laws, common law, and other institutions. It also had a long and painful heritage of colonialism, which produced a divided society defined along religious and national lines. Colonialism also produced a long history of perceived injustices. These grievances led to violence, which then led to tit for tat terrorism and violence during the height of the Troubles. The heritage of respect for the rule of law that came from the western European tradition shaped the mediator’s role because NI parties eventually valued negotiation as a means to resolve their conflict. However, as mediator, George Mitchell had a long, uphill process, filled with setbacks because the society was so bitterly divided, hurt, and untrusting of the other side.

The institutional context of NI during the 1990s when the Good Friday Accords were being negotiated included political parties, the dominant ones only representing constituents from one side of the divided society, most notably the DUP (Democratic Unionist Party) for Protestants and Sinn Fein for the Catholics. There also legal institutions and a willingness for cooperation from the Irish and British governments. These institutions shaped the mediator’s role because Mitchell needed to make sure all the parties were and felt heard in order for all to move forward in the peace process and disarmament negotiations. Each political party needed to be heard, and most of the parties that espoused terrorism needed a political branch who could enter the negotiation and represent the interests of their group without being full-on terrorists. These complex and numerous groups made negotiations more complicated, but also helped ensure that an agreement would be honored by all stake holders in the conflict.

The characteristics of this conflict were some of the hardest to negotiate in. The conflict was intractable, historical, terrorism was in use, and divides in society had cemented over centuries of colonization. These characteristics dictated that the mediator had to be from somewhere other than UK or Ireland, someone whom both sides could trust, and someone with influence who could get parties together and also persuade national governments to support the process. Additionally, because the conflict was so complex and affected many different parties, even within the Protestant and Catholic divide, a lot of patience was needed to listen to all sides in the process. These characteristics shaped what kind of mediator could be chosen for these accords.

The characteristics of Mitchell himself as the mediator fit the needs of this conflict. He was from outside the UK and Ireland and was respected and trusted by both. As the US Special Envoy for NI, he carried with him the influence and clout of the President of the United States, Bill Clinton, who had taken special interest in the resolution of the NI conflict. He had a legal and legislative background that gave him experience in getting parties together behind a single legal document. He was also a young father. This characteristic helped personalize the conflict for Mitchell and galvanized his resolve to reach an agreement. While speaking at a George Mason University event this year, Mitchell shared that when his son was born, he was close to giving up on the process. However, he found out how many other children were born that day in NI. He decided to continue the process, in part for the sake of the future generation. Mitchell had endurance as a mediator that shortly thereafter led to signing and ratifying the Good Friday Accords.

These personal and environmental characteristics shaped George Mitchell’s role as a mediator in the Northern Ireland Good Friday Accords. The cultural setting gave credence to negotiation as a resolution method while still handicapping it with painful, collective memories of past wrongs. The institutional context provided Mitchell, a career politician, an opportunity to work with political parties in reaching a conclusion on these accords. The hardened nature of the conflict made it very difficult to get through these accords while the skill, influence, and staying power of Mitchell personally helped carry him and the process through to a final agreement.

 

  1. Kriesberg explains that conflicts can have distributive or joint outcomes. He also explains that the paths parties use to reach an outcome shape the outcome. Using a current conflict situation or an historical situation, explain how the path the parties used to pursue the interests shaped the distributive or joint outcome.

Falklands War

According to Kriesberg, conflicts can have distributive or joint outcomes. A distributive outcome is one in which resolution is looked at as a divisible, finite pie. Each side must fight to get the best share or distribution of that pie. Some examples of distributive outcomes are allocating land, oil rights, or other resources at the conclusion of an armed conflict. Joint outcomes are ones in which solutions can be shared or can mutually benefit both parties. These resolutions are more often reached through collaborative, problem-solving discussions in which interests, rather than positions, are discussed and addressed. An example of a joint outcome are when a divorcing couple discusses, not what kind of custody they want with their children, but what types of goals they have with their children and in balancing other demands of life. A couple may find that both need to pursue full time careers but still want to maximize time with their children. This may result in one having the kids during the day while the other works days and the daytime worker taking the kids while the other parent works swing shifts. In this way, both parents get their interests met and the resolution benefits both parties mutually.

It can be rightly inferred that the process used to reach resolution often determines whether the outcome is distributive or joint. A lack of real communication and open sharing of ideas will often result in distributive outcomes, while processes that involve dialogue and open trust more easily result in joint outcomes.

The Falklands War of 1982 between Great Britain and Argentina is an example of how process influences distributive or joint outcomes. In March of that year, a civilian uprising overran the island of South Georgia. Weeks later, an amphibious invasion of the British-protected Falklands by the Argentine military manifested a conflict that led to a resolution process providing distributive outcomes.

The Argentine military invaded the Falklands on 2 April 1982. Argentina had a feeble economy that led to a sense of dissatisfaction in the country. This, coupled with an unstable, new political regime, helped lead to the decision to invade the Falklands as a way to provide an easy victory, boost morale, and consolidate support of the new regime. Argentina had a historic claim most citizens felt predated the British colonization of the islands. Argentine leaders planned the invasion, never anticipating Britain would retaliate.

The British responded to the Falkland invasion in a surprising manner to the Argentine government. Prime Minister Margaret Thatcher took a hardline approach to preserving British territorial integrity and protecting its citizens and interests. A few days after the invasion, submarines, naval ships, and merchant ships were sent south to retake the islands. We can see from the immediacy of this response that not much diplomacy or negotiation was used to resolve this conflict on the British side. Similarly, the complete lack of verbal communication on the part of the Argentine government prior to invasion helped set the tone for this conflict process and its resolution. A bellicose action on the part of the Argentines, seemingly without a proximal cause, helped lead to a bellicose response on the part of the British. Instead of opening a viable dialogue to not just communicate demands, but also listen, actions were taken on both sides that made a joint outcome less and less likely and ensured a distributive outcome for this conflict.

The Falklands War lasted 74 days and resulted in sea, air, and land battles, the loss of 649 Argentine military, 255 British military personnel, and 3 civilians, as well as the loss of expensive naval ships and aircrafts. The British emerged victorious, and so the finite resource, the Falkland Island territory, was distributed back to Great Britain. The resolution of this conflict also led to sustained feelings of antipathy or latent resentment on the part of some Argentines. The loss of the Falklands yet again to what they see as a colonizing power continues to chafe at many Argentines today.

From the way this conflict emerged and was handled, we learn that the path pursued from the beginning of the conflict, one of action rather than words, and positions (each country taking the position of claiming the Falklands) rather than interests, in this case led to a distributive outcome. The Falklands went back to the British. The Argentine government sought to distract their people from the hard economic conditions by winning a quick victory. The Argentines did not enter into any kind of dialogue or diplomacy with Great Britain on their positional claim of the Falklands and they certainly did not negotiate from an interest-based stand point, which may have better helped in addressing their economic situation. Likewise, the British did not enter into meaningful talks with Argentina after the civilian takeover of South Georgia, and no significant talks were initiated before the end of the conflict. The position of keeping the Falklands and the need to save face possibly led to a negotiation process consisting mostly of coercive battles. This bellicose process determined that the outcome would be distributive by default, and possibly joint if the process was consciously changed. The distributive outcome stood, and the Falklands were distributed to the victors.

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