September 2004
Approaches to Dispute Resolution
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Mari Fitzduff talks about ways to persuade parties that peace is in their best interest. |
A frame is essentially a lens through which individuals perceive, interpret, and respond to a particular situation. Process or conflict-management frames are the assumptions people make about the right or best way to approach a dispute, whether through negotiation, arbitration, protest, or military action. One factor that significantly influences process frames is whether parties approach their dispute in terms of interests, needs, rights, or power. These frames indicate various ways to resolve a dispute: reconciling the interests or needs of the parties, assessing who is right, or determining who is more powerful.
Interests are the needs, desires, concerns, and fears that underlie people's positions. [1]
Human needs, on the other hand, are the physical and non-physical elements needed for human survival, growth and development. These needs include individual and collective security, identity, recognition, belongingness, personal fulfillment, and the capacity for self-determination.
Rights are independent standards of fairness or legitimacy that are either socially recognized or formally established in law or contract. Such standards include reciprocity, precedent, equality, and seniority.
Finally, power can be understood as the ability to coerce someone into doing something he would not otherwise do. Exercising power is typically a matter of imposing costs on the other side or threatening to do so, whether through acts of aggression or withholding the benefits that derive from a relationship. [2]
Reconciling interests involves discovering parties' deep-seated concerns, devising creative solutions, and making trade-offs and concessions in cases where their interests are opposed. Insofar as they frame the problem in terms of interests, parties are likely to see their dispute as a mutual problem that they must work together to solve. Some common procedures for reconciling interests are negotiation and mediation.
Not all negotiations or mediations focus on reconciling interests. Some negotiations focus on determining who is right, such as when lawyers argue about whose case has greater merit. Others focus on who is more powerful, such as when parties exchange threats or counter-threats. Often, negotiations involve a mix of all three approaches. There are attempts to satisfy interests, some discussion of rights, and some references to relative power.
The nature of the process used to resolve a dispute depends, to a large extent, on the way in which the conflict is framed. For example, because reaching agreement based on rights is often difficult, parties typically turn to a third party to decide who is right. One very common rights-based procedure is adjudication. Disputants present arguments and evidence to a third party who hands down a binding decision. Public adjudication is provided by courts and administrative agencies, while private adjudication is provided by arbitrators or private judges.
In addition, there are power-based negotiations, which involve an exchange of threats, and power contests, in which parties take actions to see who will prevail.
The dispute resolution procedures associated with the different ways of framing conflict all involve transaction costs and possible benefits. Such costs include the time, money, and emotional energy devoted to the dispute as well as the opportunities that are lost. [3] Benefits include the parties' mutual satisfaction with the result, the positive long-term effects on the parties' relationship, and the production of lasting solutions. In Getting Disputes Resolved, William Ury, Jeanne Brett, and Stephen Goldberg contend that reconciling interests typically costs less and yields better results than determining who is right or more powerful. This is because a focus on interests can help to uncover hidden problems and resolve the issues underlying the dispute more effectively than can the other two approaches. It can also help parties to identify the issues that are of most concern to each side. By trading off issues of lesser concern for those of great concern, both parties can gain from the resolution of the dispute. [4]
In contrast, focusing on who is right or more powerful usually imposes higher costs on one or both parties. Because there are different rights at stake in a particular case, reaching agreement can often be difficult, especially where the outcome will determine who gets what. Also, when the emphasis is on winning and losing, relationships are likely to become more adversarial. Opponents who frame their conflict in terms of rights or power typically interact in a legalistic, accusatory atmosphere where it is difficult for them to really listen to those from the other side and gain an understanding of their perspective. Parties express their grievances, proclaim their rights, and use whatever power they have to defend their positions. Such interactions rarely involve collaboration and tend to reinforce already rigid positions and negative perceptions of the other side. [5]
Although both rights and power approaches can strain the relationship, focusing on standards of fairness is typically less costly than getting caught up in threats and counter-threats. [6] A power contest typically costs more in resources used and opportunities lost. For example, strikes, hostile corporate takeovers, and violence cost more than arbitration or litigation. Because destroying the opposition may become the objective of a power contest, determining who is more powerful is typically most costly and least effective. Thus, the goal of dispute systems design is to create a system in which most disputes are resolved by reconciling interests; if that is impossible, turning to rights, and only using power contests as a very last resort. [7]
There are cases when determining rights or power is necessary. For example, a party may be unwilling to negotiate if they think they can win outright through a rights-based adjudication or a power contest. There are also times when perceptions about who is right or who is more powerful are so different that the parties cannot establish a range within which to negotiate. A rights procedure may then be needed to clarify the boundary within which a resolution may be sought. Finally, there are cases where resolving a question of public importance is possible only through a rights contest (a trial) or a power contest (e.g., a strike or legislative battle). [8] For example, Brown v. Board of Education was needed to authoritatively resolve the issue of school segregation in the United States.
Thus, focusing on rights or power can sometimes accomplish what interest-based procedures cannot. The problem is that rights and power procedures are often used where they are not necessary. Rights and power should be a last resort rather than a first resort. An effective dispute resolution system might be viewed a pyramid: most disputes are resolved through reconciling interests, some through determining who is right, and the fewest through determining who is more powerful. [9] [Insert pyramid diagram here- taken from p. 19 in Getting Disputes Resolved]
Interests v. Needs
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Silke Hansen recommends that mediators focus on parties' needs to come up with the widest range of possible solutions. |
While some conflict theorists blend the concepts of interests and needs together, human needs theorists such as John Burton and Herbert Kelman distinguish between the two. They maintain that while interests are tangible things, such as land, money, or jobs that can be traded and compromised, needs are intangible things, such as identity, security, and recognition, that are not for trading. Conflicts between ethnic groups, for example, are almost always needs-based conflicts in which one group feels that its identity, security, or the recognition of the value of its culture is being denied. One common framing problem is the assumption that a conflict is caused by a conflict of interests, when it is really a conflict of fundamental needs (or a conflict of interests and needs taken together). In many cases, this occurs because issues surrounding needs are hidden underneath the more visible conflict over interests. Where human needs are at stake, reconciling interests will not make the conflict go away.
This is particularly apparent, perhaps, in the Israeli-Palestinian conflict. The Palestinians feel they are being denied their legitimate national identity, while the Israelis feel a need to prevent the formation of a Palestinian state because they see such a state as a threat to Israeli security. However, much of the effort to resolve that conflict has been based on compromises over tangible things such as land. Such efforts do little to address parties' underlying needs for identity, security and recognition.
The goal of many dispute resolution approaches, such as mediation, negotiation, or arbitration, is the settlement of conflict. However, those who frame a conflict in terms of human needs recognize that there are certain issues that are nonnegotiable. Unlike interests, needs cannot be bargained for, traded, or suppressed. When social conflicts are caused by the denial of parties' essential needs, needs theorists argue that the victims will fight indefinitely for their achievement and will not give up until that goal is attained. If this is true, it easily explains why needs conflicts tend to be so intractable.
However, unlike many interest-based conflicts, needs conflicts do not have to be win-lose. The reasons they seem to be is that they are often confused with interest conflicts. Yet unlike land or water or money, which are often in short supply, needs do not run out. The provision of security to one group does not deny security to another. Rather, needs tend to be mutually reinforcing. If one group stops threatening the other, the first will, most likely, stop threatening them.
In order to resolve conflicts rooted in human needs, parties need to turn away from traditional negotiation models. Indeed, human needs theorists point out that if agreements focus solely on material interests and ignore the underlying needs of adversaries, they may not be stable in the long run. [10] If fundamental needs remain unmet, violent conflict is likely to resurface, even if it is no longer manifest.
For parties who approach their conflict in terms of human needs, problem solving workshops often prove extremely useful. In these workshops, scholars help disputants to jointly analyze the fundamental sources of conflict, focusing on unmet human needs such as identity and security. Workshops help to create a setting in which adversaries can interact in more productive ways. Rather than reaching a settlement based on interests, the two central objectives of problem solving workshops are the analysis of conflict and its ultimate resolution. From these workshops emerge new ideas to help participants restructure their societies and ensure that all parties' fundamental needs are met.
References:
[1] William Ury, Jeanne Brett, and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, (San Francisco: Jossey-Bass Publishers, 1988), 5.
[2] ibid., 8.
[3] ibid., 11.
[4] ibid., 13-4.
[5] Herbert C. Kelman, "Interactive Problem-solving: A Social-psychological Approach to Conflict Resolution," pp. 199-215 in Conflict: Readings in Management and Resolution, eds. John Burton and Frank Dukes, (New York: St. Martin's Press, 1990), 206.
[6] Ury, Brett, and Goldberg, 14.
[7] ibid., 15.
[8] ibid., 16-7.
[9] ibid., 18.
[10] Christopher Mitchell and Michael Banks, Handbook of Conflict Resolution: The Analytical Problem-solving Approach, (New York: Pinter, 1996), 3.
Resources:
Use the following to cite this article:
Maiese, Michelle. "Interests, Rights, Power and Needs Frames." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2004 <http://www.beyondintractability.org/essay/interests-rights-power-needs-frames>.
