ALTERNATIVE DISPUTE RESOLUTION PERSONAL NOTES

THE DYNAMICS OF CONFLICT RESOLUTION: PRACTITIONERS GUIDE (BERNARD MAYER)

THE NATURE OF CONFLICT

Conflict may be viewed as a feeling, a disagreement, and a real or perceived incompatibility of interests,
inconsistent worldviews, or a set of behaviours.

Conflict may be viewed as occurring along cognitive (perception), emotional (feeling0, and behavioral (action)
dimensions. This 3 dimensional perspective can help us understand the complexities of conflict and why a conflict
sometimes seems to proceed in contradictory directions.

 Conflict as Perception: as a set of perceptions, conflict is a belief or understanding that one’s own needs,
wants or values are incompatible with someone else’s. There are both objective and subjective elements to
this cognitive dimension. As a practical matter, I find it useful to think of conflict as existing if at least one
person believes it to exist.
 Conflict as Feeling: Conflict also involves an emotional reaction to a situation or inter-action that signals a
disagreement of some kind. If we experience the feelings of fear, bitterness, anger etc. in regard to another
person or situation, we feel that we are in conflict- and therefore we are. Often a conflict exists because one
person feels in conflict with another, even though those feelings are not reciprocated by or even known to the
other person.
 Conflict as Action: Conflict also consists of the actions that we take to express our feelings, articulate our
perceptions and get our needs met in a way that has the potential for interfering with someone else’s ability
to get his or her needs met. Conversely, the conflict behaviour may be conciliatory, constructive and friendly.
But whatever its tone, the purpose of conflict behaviour is either to express the conflict or to get one’s needs
met. Again the question of reciprocity exists.

Can social systems-organisations, countries and communities – as well as individuals be in conflict, particularly
along the emotional or cognitive dimensions? Practically speaking I think systems in conflict often experience that
conflict on all three dimensions. This does not mean that every individual member of each community shares the
same feelings or perceptions or even that a majority do. Instead it means that conflict evokes certain reactions and
attitudes from the dominant leaders and significant number of people in each society.

WHAT CAUSES CONFLICT?

Conflict is seen as arising from basic human instincts, form the competition for resources and power, from the
structure of societies and institutions people create, from the inevitable struggle between classes.
At the centre of all conflicts are human needs. People engage in conflict either because they have (or believe they
have) needs that are inconsistent with those of others. Conflict cannot be transformed or settled unless these
needs are addressed in some way. Needs to not exist in a vacuum, however. They are embedded in a constellation
of other forces that can generate and define conflict. In other to effectively address these needs, it is usually
necessary to work through some of these other forces, which affect how people experience their needs and how
these needs have developed. There are 5 basic forces or sources of conflict; the ways people communicate
emptions, values, the structures within which interactions take place and history.

 Communication: Humans are very imperfect communicators. Sometimes this imperfection generates conflict,
whether or not there is a significant incompatibility of interests and it almost always makes conflict harder to
solve. Many factors may contribute to communication problems. Culture, gender, age, class and environment
significantly affect individual’s ability to communicate effectively.
 Emotions: Emotions are the energy that fuels conflicts. At times emotions seem to be in control of behaviour.
Sometimes they are also the source of power for disputants. They contribute to the energy, strength, courage
and perseverance that allow people to participate forcefully in conflict. Emotions are generated both by
particular interactions or circumstances and by previous experiences. In conflict it is often possible and
necessary to work specifically on the emotional content of disputants’ experience. This usually requires
creating some opportunity to express and release emotions and to experience someone else’s understanding
and empathy. Another key in many conflicts is to find an adequate way of dealing with the feelings of all
participants so that they are neither ignored nor allowed to escalate out of control.
 Values: Values are the beliefs we have about what is important, what distinguishes right from wrong and good
from evil and what principles should govern how we lead our lives. Because people define themselves in part
by their core beliefs, when they believe these values are under attack, they feel they are being attacked.
Similarly, it is hard for people to compromise when core values are in play, because they feel they are
compromising themselves or their integrity. Though values are often a source of conflict and an impediment
to ist resolution, they can also be source of commonality and a restraint on conflict escalation.
 Structure: The structure, the external framework, in which an interaction takes place or an issue develops is
another source of conflict. The elements of a structure may include available resources, decision-making
procedures, time constraints, communication procedures and physical settings. Other structural elements that
often affect conflict include proximity of the disputants, distribution of resources, and access to information,
legal parameters, organizational structure and political pressures. Sometimes these structural realities can be
changed through a conflict resolution process.
 History: The history of the people who are participants in a conflict, of the systems in which the conflict is
occurring, and of the issues themselves has a powerful influence on the course of the conflict. History provides
the momentum for the development of conflict. Conversely history is not a determinant of conflict, although
sometimes it can seem that way. The long history on conflict in the Middle East does not mean that present
 conflicts in these regions will never be settled. That form of historical determinism is dangerous and
misleading. However, such conflicts cannot be solved without an understanding of the complicated systems of
interaction that have developed over time and the degree to which the conflict itself has become part of the
disputants’ identity.

Note that these different sources of conflict interact with each other. People’s history affects their values,
communication style, emotional reactions and the structure in which they operate. And history is constantly being
made and therefore affected by these other sources.

The wheel of conflict is a construct, and the test of its power is how useful it is. I believe that these are the sources
we need to analyse as part of comprehending conflict. To understand a conflict and to plan how to work with it, we
need to think about where different people are stuck, where insights are needed and where opportunities to
improve a situation can be found. The wheel is a mechanism that helps us to do this.

Additionally, there are three dynamics that the wheel of conflict model does not include, because they cut across
all the sources and are best often analyzed in terms of those sources. They are culture, data and power. Culture
affects conflict because it is embedded in individual’s communication styles, history, and way of dealing with
emotions, values and structure. Power is a very elusive concept, one that can confuse our thinking or help us
understand an interaction. How data are handled and communicated can lead to conflict. Therefore, data or
information can be viewed as an issue within both communication and structure.

THE CONTINUUM OF NEEDS

At the center of the wheel of conflict model are the human needs that drive people’s actions, including
engagement in conflict. Many theorists from Freud to Maslow have characterised fundamental human needs.

In the literature on conflict, a distinction is often made between interests and needs. Interests are viewed more
transitory and superficial, needs as more basic and enduring. I find it useful to think of a continuum of human
needs, roughly paralleling Maslow’s hierarchy. Interests then become a category of human needs that exists
between the basic concern for survival at one end of the continuum and the striving for identity at the other.
Survival needs seem self-evident so focus would be on interests and identity needs.

 Survival Needs
 Interests: if we think of interests as midrange human needs, as the practical concerns that drive us in most
conflicts, then for the most part it is on interests that we initially need to focus when we try to understand a
conflict. It is also in the realm of interests that most conflicts can be resolved. If people can present their
concerns to each other in a constructive way and are receptive to understanding each other’s interest, they
are most likely to make progress in working their way through a conflict. In considering people’s interests, we
 will find many types: short term and long term interests, individual and group interests, outcome based
interests and process interests, conscious and unconscious interests. Moore suggests three types of interests:
substantive (concerns about tangible benefits), procedural (concerns about a process for interacting,
communicating, or decision making) and psychological (concerns about how one is treated, respected or
acknowledged).
 Identity-Based Needs: Beyond interest is what we can call identity-based needs. These are people’s needs to
preserve a sense of who they are and what their place in the world is. It is useful to think of what four needs in
this category: the needs for menaing, community, intimacy and autonomy.
a. The need for meaning has to do with establishing a purpose for one’s life, existence, actions and struggles.
Sometimes, pursuing a conflict is a great source of menaing for people. in that case the resolution of the
conflict entails a significant loss of menaing. Unless they can find a new source of menaing, this loss may
be devastating and may cause them to hold onto a conflict regardless of how well the proposed solution
addresses their interests.
b. Community refers to that aspect of people’s identity that derives from feeling connected with groups with
which they can identify and in which they feel recognised. Community can arise from actual communities.
Community can be experienced in both positive and negative ways. Individuals may identify with others
on the basis of what they all share or what they are all against. As an identity-based need, community is
not simply about feeling part of a group; it is about having a social home in an impersonal world – a home
where people feel connected, safe, recognised as individuals and appreciated.
c. Intimacy is the need for a different kind of connectivity. It goes beyond needing to be recognised and
involves wanting to be special, unique and important to other people. Intimacy implies some sort of
reciprocity.
d. At the same time as people need connection; they also need a sense of their independence, freedom and
individuality. In relationships, they often struggle with how to find a deep sense of connection and of
autonomy at the same time. This struggle to establish needed ties and their boundaries is a source of
much of individuals’ conflicts and it is also at the heart of many interpersonal conflicts.

THE DESIRES FOR EXPRESSION AND FOR OUTCOME

Lewis Coser proposes two components of conflict in his classic work, The Functions of Social Conflict. One which he
labels ‘unrealistic”, is people’s need for some form of energy release. The other component, which he labels
“realistic”, is people’s desire for a result that will meet their needs. The unrealistic component will not be satisfied
by a good solution, but instead requires listening, ventilation, acknowledgement, validation, a day in court, so
some means of expressing and releasing the feelings and energy associated with conflict. The realistic component
requires a satisfactory solution, one that addresses people’s essential interests.
HOW PEOPLE CONFLICT

How people handle conflict is basic to which they are, to how they try to make their way in life and to how they
relate to others. People’s approach to conflict derives not only from what they have been taught about conflict and
how they have experienced it but also from their personalities, their culture, and their particular role in a dispute.
Four factors are especially significant in understanding the differences in the ways individuals approach conflict:
values and beliefs about conflict, approaches to avoiding and engaging in conflict, styles of conflict and the roles
people are drawn to play in conflict.

VALUES AND BELIEFS

The most influential beliefs deal with whether conflict is acceptable, how people should behave in conflict and
what kinds of outcomes are possible or acceptable.

IS CONFLCIT ACCEPTABLE?

GETTING TO YES: FISHER AND URY

THE PROBLEM

DON’T BARGAIN OVER POSITIONS (POSITIONAL BARGAINING)

Any method of negotiation may be fairly judged by three criteria:

a. It should produce a wise agreement if agreement is possible. A wise agreement can be defined as one that
meets the legitimate interests of each side to the extent possible, resolves conflicting interests fairly, is
durable and takes community interests into account).
b. It should be efficient
c. It should improve or at least not damage the relationship between the parties.

Taking positions serves some useful purpose. It tells the other side what you want. It provides an anchor in an
uncertain and pressured situation and it can eventually produce the terms of an acceptable agreement. But those
purposes can be served in other ways. And positional bargaining fails to meet the basic criteria of producing a wise
agreement, efficiently and amicably.

When negotiators bargain on positions, they tend to lock themselves into those positions. Ego becomes identified
with the position - (Situation of President Kennedy and the Soviet Union on the nuclear testing). As more attention
is paid to position, less attention is devoted to meeting the underlying concerns of the parties. Bargaining over
positions creates incentives that stall settlement. In positional bargaining you try to improve the chance that any
settlement reached is favourable to you by starting with an extreme position, by stubbornly holding on to it , by
deceiving the other party as to your true views and by making small concession only as necessary to keep the
negotiations going. Positional bargaining becomes a contest of will. Anger and resentment often result as one side
sees itself bending to the rigid will of the other while its own legitimate concerns go unaddressed. Positional
bargaining thus strains and sometimes shatters th relationship between the parties. It is even worse when there
are many parties. The more people involved in a negotiation, the more serious the drawbacks to positional
bargaining. Because there are many members in a group, it becomes more difficult to develop a common position.
What is worse, once they have painfully developed and agreed upon a position, it becomes much harder to change
it. Many people in recognition of the high cost of hard positional bargaining particularly on the parties and their
relationship, they adopt a gentle style of negotiation and prefer to see the other side as friends.

STYLES OF POSITIONAL BARGAINING

Most people see their choice of negotiating strategies as between two styles. These are soft and hard bargaining.
The soft bargaining game emphasizes the importance of building and maintaining a relationship. The process tends
to be efficient, at least to the extent of producing results quickly. As each party competes with the other in being
more generous and more forthcoming, an agreement becomes highly likely. But it may not be a wise one. Primary
c0ncern with the relationship runs a risk of producing a sloppy agreement. More seriously, pursuing a soft and
friendly form of positional bargaining makes you vulnerable to someone who plays a hard game of positional
bargaining. In positional bargaining a hard game dominates a soft one.

To answer the question of whether to use soft bargaining or hard is “neither”. At the Harvard Negotiation Project,
there has been developed an alternative to positional bargaining: a method of negotiation explicitly designed to
produce wise outcomes efficiently and amicably. This method called principled negotiation or negotiation on the
merits can be boiled down to four basic points. Each point deals with a basic element of negotiation and suggests
what you should do about it

 People: separate the people from the problem.

This point responds to the fact that human beings are creatures of strong emotions that often have radically
different perceptions and have difficulty communicating clearly. Emotions typically become entangled with the
objective merits of the problem. Taking positions makes this worse as people’s egos become identified with
their positions.
Dealing with a substantive problem and maintaining a good working relationship need not be conflicting
goals if the parties are committed and psychologically prepared to treat each separately on its own
legitimate merits. Base the relationship on accurate perceptions, clear communication, appropriate emotions
 and a forward-looking, purposive outlook. To find your way through a jungle of people problems, it is useful to
think in terms of 3 basic categories: perception, emotion and communication.
a. Perception: first put yourself in their shoes. How you see things depend on the position you are in. out of
a mass of detailed information, people tend to pick out and focus on those facts that confirm their prior
perceptions and to disregard or misinterpret those that call their perceptions into question.
Understanding people’s point of view allows you to reduce the area of conflict, and it also helps you
advance your newly enlightened self-interest. Secondly, don’t deduce their intentions from fears. It is all
too easy to fall into the habit of putting the worst interpretation on what the other side says or does.
Thirdly, don’t blame them for your problem. Assessing blame firmly entangles the people with the
problem. Fourthly, discuss each other’s perceptions. This may provide the understanding they need to
take what you say seriously, and vice versa. Fifthly, look for opportunities to act inconsistently with their
perceptions. Sixthly, give them a stake in the outcome by making sure they participate in the process. If
they are not involved in the process, they are hardly likely to approve the product. Agreement becomes
much easier if both parties feel ownership of the ideas. Lastly, make your proposals consistent with their
values. Face-saving reflects a person’s need to reconcile the stand he takes in a negotiation or an
agreement with his principles and with his past words and deeds. Face-saving involves reconciling an
agreement with principle and with the self-image of the negotiators. Its importance should not be
underestimated.
b. Emotion: first, recognise and understand emotions, theirs and yours. Secondly, make emotions explicit
and acknowledge them as legitimate. This will not only underscore the seriousness of the problem, it will
also make the negotiations less reactive and more pro-active. Thirdly, allow the other side to let off steam.
Fourthly, don’t react to emotional outbursts. Fifthly, use symbolic gestures.
c. Communication: Without commination there is no negotiation. Negotiation is a process of
communicating back and forth for the purpose of reaching a joint decision. First, listen actively to what is
being said. Active listening not only improves what you hear, but also what they say. Secondly, speak to
be understood. Talk to the other side. It is easy to forget sometimes that a negotiation is neither a debate
nor a trial. Thirdly, speak about yourself, not about them. it is more persuasive to describe a problem in
terms of its impact on you than in terms of what they did or why. This becomes difficult to challenge and
you convey the same information without provoking a defensive reaction that will prevent them taking it
in. Fourthly, speak for a purpose. Before making a significant statement, know what you want to
communicate or find out and know what purpose this information will serve.
 Interest: Focus on interests, not positions.
This is designed to overcome the drawback of focusing on people’s stated positions when the object of a
negotiation is to satisfy their underlying interests. A negotiating position often obscures what you really want.
Compromising between positions is not likely to produce an agreement which will effectively take care of the
humans needs that led people to adopt those positions. With this a bottom line should be avoided.
For a wise solution reconcile interests, not positions. Interests define the problem. They motivate people. Your
position is something you have decided upon. Your interests are what caused you to do decide. Reconciling
interests rather than positions works for two reasons. First, for every interest there usually exist several
possible positions that could satisfy it when you do look behind opposed positions for the motivating interests,
you can often find an alternative position which meets not only your interests but theirs as well. Reconciling
interests rather than compromising between positions also works because behind opposed positions lie many
more interests than conflicting ones.
Behind opposed positions lie shared and compatible interests as well as conflicting ones. In many negotiations,
a close examination of the underlying interest will reveal the existence of many more interests that are share
d or compatible than the ones that are opposed. Shared interests and differing but complimentary interests
can both serve as the building blocks for a wise agreement.
Realise that each side has multiple interests. Thinking of negotiation as a two-person, two-sided affair can be
illuminating, but it should not blind you to the usual presence of other persons, other sides, and other
influences. Every negotiator has a constituency to whose interests he is sensitive. To understand that
negotiator’s interests means to understand the variety of somewhat differing interests that he needs to take
into account.
The most powerful interests are basic human needs. In searching for the basic interests behind a declared
position, look particularly for those bedrock concerns which motivate all people. Basic human needs include
security, economic well-being, a sense of belonging, recognition, and control over one’s life.
The purpose of negotiation is to serve your interests. The chance of that happening increases when you
communicate them. It is your job to have the other side understands exactly how important and legitimate
your interests are. One guideline is to be specific. Concrete details not only make your description credible,
they add impact. Part of the task of impressing the other side with your interests’ lies in establishing the
legitimacy of those interests.
Acknowledge their interests as part of the problem. This way the other side will appreciate yours. In addition,
it helps to acknowledge that their interests are part of the overall problem you are trying to solve.
Put the problem before your answer and look forward not back. you will satisfy your interests better if you talk
about where you would like to go rather than where you have come from.
Be concrete but flexible. To keep your flexibility, treat each option you formulate as simply illustrate. Think in
terms of more than one option that meets your interests. ‘Illustrative specificity’ is the key concept.
Be hard on the problem but soft on the people. Fighting hard on the substantive issues increases the pressure
for an effective solution; giving support to the human beings on the other side tends to improve your
relationship and to increase the likelihood of reaching agreement. It is the combination of support and attack
 which works; either alone is likely to be insufficient. Negotiating hard for your interests does not mean being
closed to the other side’s point of view.
 Options: Generate a variety of possibilities before deciding what to do (invent options for mutual gain)
This responds to the difficulty of designing optimal solutions while under pressure. Generate a variety of
possibilities before deciding what to do. Develop multiple options to choose from and decide on later. This
must include a BATNA. This makes the parties more creative than usual. It is best to use the objective criteria
which supersede the opinion or will of the other party.
In most negotiations, there are four major obstacles that inhibit the inventing of an abundance of options;
premature judgment, searching for the single answer, the assumption of a fixed pie and thinking that “solving
their problem is their problem”.
To invent creative options, then you will need
a. To separate the act of inventing options from the act of judging them
b. To broaden the options on the table rather than look for a single answer
With the circle chart, the task of inventing options involves four types of thinking. One is thinking about a
particular problem- the factual situation you dislike, the second type of thinking is descriptive analysis –
you diagnose an existing situation in general terms. You sort problems into categories and tentatively
suggest causes. The third type of thinking, again general terms, is to consider what ought, perhaps, to be
done. Given the diagnoses you have made, you look for prescription that theory may suggest. The fourth
and final type of thinking is to come up with some specific and feasible suggestions for action. The circle
chart provides an easy way of using one good idea to generate others. you can also combine the use of
the circle chart with the idea of looking at a problem through the eyes of different experts. n
c. To search for mutual gains
First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second,
shared interests are opportunities, not godsend. Third, stressing your shared interests can make the
negotiation smoother and more amicable
d. To invent ways of making their decisions easy.
 Criteria: insist that the result be based on some objective standard. (Insist on using objective criteria)
It should be open to reason, yield to principle and not pressure. This can be already laid custom, earlier
negotiations relating to the issue etc.
Principled negotiation produces wise agreements amicably and efficiently. A constant battle for dominance
threatens a relationship; principled negotiation protects it. Approaching agreement through discussion of
objective criteria also reduces the number of commitments that each side must make and then unmake as
they move toward agreement. Independent standards are even more important to efficiency when more
parties are involved.
At a minimum, objective criteria need to be independent of each side’s will. Ideally, to assure a wise agreement,
objective criteria should not only be independent of will but also both legitimate and practical. Objective criteria
should apply, at least in theory, to both sides. You can thus use the test of reciprocal application to tell you
whether a proposed criterion is fair and independent of either party’s will.