Conflict Resolution

by Aled Davies

Approaches to resolving a conflict

There are two main approaches to resolving conflict: adversarial or non-adversarial.

Adversarial approaches

We have been resolving conflicts for generations; our ancestors were experts at it. Their conflicts were slightly different from the conflicts we encounter today, in so far as they were driven by the need for physical resources, such as food, water, territory and survival. The causes were thus objective and largely independent of people’s perceptions. It was simply a case of ‘you’ve got what I need and I’m going to use my superior strength (and this big club) to take it from you.’ The other party either responded with equal aggression or fled to fight another day. This strategy is called a power-based approach and is very much a win/lose or lose/win strategy.

As society became slightly more civilised, someone came up with the bright idea of creating a set of rules that would govern societal behaviour; anyone behaving outside of the rules would be punished. When a conflict or a breach did arise, those in civil society would defer to a higher authority to decide whose rights prevailed and therefore who would carry the burden of punishment. This is called a rights-based approach and represents the rule of law that governs society today. This again is a win/lose or sometimes a lose/lose strategy.

These two approaches are considered to be adversarial approaches to resolving conflict or disputes, as there will always be a winner and a loser.

Litigation

This is the process of settling a dispute in court before a judge, where the focus of the judge (and jury, if there is one) is to listen to the evidence presented to them by the legal representatives of the parties and then decide whose rights should prevail. Litigation is expensive, time consuming and stressful, and until the court has reached its conclusion, there is never any certainty of the outcome.

Arbitration

Arbitration is an adjudicative process of dispute resolution, where an impartial third party listens to the evidence of both parties and then makes a decision that is final and binding at the end of the arbitration hearing. The arbitration process, while structured, is not as rigidly restricted by formal procedures and rules as a courtroom process. Most arbitration is driven by a pre-dispute contract entered into by the parties in which they agree that if a dispute should arise, it will never get into the court system. By agreeing to arbitration, the parties are therefore waiving their right to make the decision regarding their problem themselves and also going to trial. Quite often, the arbitrator is an expert in the content of the dispute.

Adjudication/expert determination

Typically, in this process a sole independent expert is appointed by the parties to make a binding determination. Responsibility rests on the parties to agree this procedure beforehand. This process has become popular across the construction sector as a way of dealing swiftly with minor disputes as they arise, mitigating the risks of the costly and time-consuming claims and litigation that often continue long after completion.

Non-adversarial approaches

After much experience with adversarial approaches, some enlightened soul decided that conflicts could be resolved by finding solutions that would meet the needs and serve the interests of both parties. This required a fundamental shift in mindset from ‘right versus wrong’ to one that recognised that both parties could be right and that they could achieve a ‘win/win’ resolution to their conflict.

This approach has been called interest-based, because its focus is to identify the underlying interests, motivations and needs of the parties and make this search the heart of the process. In this non-adversarial or consensual approach to resolving conflict, the pursuit of blame and justice is removed from the equation of resolution.

Conciliation/non-binding arbitration

Conciliation is a more formal method of dispute resolution, in which a neutral third party, the conciliator, is appointed to identify the disputing issues, develop options to resolve them and encourage the parties to resolve the conflict according to his or her suggested outcomes. In doing so, the conciliator generally adopts an adversarial process, described as a ‘non-binding arbitration’. Rather than adopting an interest-based approach, conciliation more often deals with the legal rights and obligations of the parties. Depending on how it is conducted, this could also be considered adversarial.

Facilitated negotiation

Facilitated negotiation involves the efforts of an independent third party facilitator to resolve the differences of the parties in the event of a dispute. The role of the facilitator is to guide the parties through the process of negotiation and advise them to follow an interest-based approach. The facilitator does not resolve the problems on behalf of the parties; their role is to encourage the parties to achieve their objectives by suggesting innovative solutions. In this way, the facilitator acts as more of a broker than mediator.

Mediation

Mediation is a confidential and voluntary interest- and needs-based approach to resolving disputes. The process is facilitated by an independent and neutral third party, who is chosen exclusively by the parties themselves. The mediator helps to provide a structure to the dialogue and assists the parties identify the issues in their conflict, what approaches they might take to resolve it, what options they have and where their interests lie. The absence of formality provides for open discussion of the issues and allows a free exchange of ideas; it thus becomes easier to determine the interests of the parties and to craft solutions to satisfy those interests.