5.13 Intractable Conflicts
In the business context in particular, where a client may more readily think in terms of transactions, rather than disputes, these mediator facilitated problem solving solution might often work to the overall betterment of both sides.
Other times, however, the parties are not able to negotiate unassisted to an agreement. Perhaps there is bad blood between the clients, or their lawyers, or there is too much at stake, or it is a matter of principal. Peter Coleman, Director of the International Center for Cooperation and Conflict Resolution, sheds light on intractability of conflicts in traditional litigation.281. Time and intensity. His first factor of intractability is the time and intensity of the conflict. It is interesting to note how the process of complaint and answer, interrogatories and depositions add time and intensity in the dispute between the parties and certainly to their lawyers.
2. Issue centrality. The second factor is issue centrality: that the conflict involves needs or values that the disputants experience as critical to their own survival.
3. Conflict pervasiveness. Third is conflict pervasiveness: that the conflict affects the disputants in their everyday life and work.
4. Hopelessness. Next is a feeling the parties share, that feeling is one of hopelessness.
5. Motivated to harm. Fifth, parties are motivated to harm the other side. In the litigation process, the parties have sought Rule 11 sanctions, made ethics complaints to the bar about the lawyers, and have stated intentions to “destroy,” “put out of business,” and “make sure that this never happens again.”
6. Resisted efforts to resolve. Finally, the parties have repeatedly resisted efforts to resolve the dispute, but nothing seems to have worked. Here is where the lawyer most often may see the need for mediation; where he has been involved in protracted and heated negotiations, with no movement between the parties.29
Again, however the social science literature suggests how mediators might help resolve even intractable conflicts.
Peter Coleman suggests a number of guidelines that should be employed to try and overcome the resistance the parties have to settlement.Guideline 1
Conduct a thorough analysis of the conflict system (its history, context, issues, and dynamics) prior to intervention
Here is where mediators can design a presentation process in the hearing of the concerned parties to make sure each side gets a chance to be heard, and be assured that the mediator understands the perspective of each party. Rusk’s listening for understanding model is particularly good for fulfilling this guideline.
Guideline 2
Initial concern for the mediator should be to establish or foster an authentic experience of “ripeness” among the disputants or among the key representatives of each of the groups.
Lawyers can help create this sense of ripeness by picking a skilled and fair mediator who has been successful in other difficult disputes and helps create a just and particularized solution to the dispute that lasts. The reputation of the mediator can create a sense of “ripeness” among the parties that now is the time to get this settled. One variable that can help the lawyer in suggesting the timing of the mediation can be whether there has been a recent or near catastrophe. In addition, if the cost of stalemate has been recalculated and is now projected to raise unacceptable costs to both sides (for example, the likely number of plaintiffs in future class will make it such that existing plaintiffs will not receive fair compensation) then the time is ripe for mediation.
Guideline 3
Initially, the mediator should orient the disputants toward the primary objective of defining a fair, constructive process of conflict engagement, and away from the objectives of achieving outcomes that resolve the conflict.
Before resolving the conflict the parties should focus on a fair process. This required input from the harmed and flexibility from the mediator, to hear the objections, and help design a process that would be fair.
Again, a skilled mediator is vital to this occurring, but lawyers can “feed” the mediator suggestions regarding a fair process that will live within the limits of the client’s goals and objectives.Guideline 4
Given the complexity of intractable conflict, analysis and intervention must be embedded in a multidisciplinary framework.
Where a lawyer understands the social, psychological, economic, and justice implications involved in an intractable dispute, he can best prepare a process that will satisfy the parties. For example, where there are multiple parties in a mass tort setting and multiple interests, democratic theories require that each party has representation and a voice in the design of the process. In addition, any economic analysis needs to be designed to insure a reliable process of valuing individual harms. Document retrievals and language searches need to be designed that will insure fairness. Experts need to be drawn from different disciplines to advise and provide balance for different biases with in fields. The process needs to open. The steps in each decision need to be clearly articulated. Panels of decision makers must be accountable for their decisions. While mediators can design these, again the lawyers and their clients can suggest structure that works and lasts.
Guideline 5
Elicitive approaches to conflict intervention, particularly when working across cultures, tend to be more respectful of disputants, more empowering and sustainable, and generally more effective than prescriptive approaches.
The problem solvers and facilitative neutral mediators are cheering! Back by theories of representative democracy, these mediators attempt to get the disputants to suggest the solutions, arguing that they are more likely to own it and abide by it than if it is forced on them. These studies suggest that what is true about democratic representative processes on a national or international scale is true in private litigation. If the disputants can suggest, have input, and seem to have selected the process, they are more likely to live by it.
Again, the litigator might suggest that the mediator propose a solution to the other disputants and see if they can see it as their own demand, that the litigant is “forced” to accede to.Guideline 6
Short term (crisis management) interventions need to be coordinated and mindful of long term objectives and intervention.
This guideline is for the mediator, but it is the job of the advocate to remind the mediator of the long term goals of his client in mediation, and insure that these goals are not harmed.
Guideline 7
When working with conflicts between large groups (such as ethnic groups and communities), it is useful to concentrate interventions on the “mid-level” leadership representing each group.
Coleman writes about this guideline in the context of international disputes:
The work of John Burton, Herbert Kelman, John Paul Lederach, and others have emphasized targeting for intervention certain types of leader with groups and communities engaged in protracted social conflicts. These leaders, labeled “track II diplomats” or “middle-range leaders,” are typically influential, unofficial representatives (members of the media; former or potential government officials; leaders of business, educational, religious, union, and other local institutions) from opposing sides of a conflict who represent the mainstream of each community and reflect the attitudes and interests of their respective communities.
There are several advantages to working with such [a mid-level]. It is efficient because mid-level representatives have influence going up and down the ladder. Mid-level representatives are more realistic because these have seen the good and bad in the parties they represent. They are also not usually constrained by their roles to take the more extreme positions.
A lawyer might suggest that a different cast of characters be present at a mediation session. The lawyer might look for mid level line workers as sources of both apologies, and or to build consensus about what is the realistic and fair thing to do to resolve a dispute.
Guideline 8
The general intervention strategy must integrate appropriate approaches for issues rooted in the past, the present, and the future.
Mediators mediating the mass multiparty dispute are worried that any short-term solution will be short term and leave future claimants without a remedy. Again, the litigator should prepare for the mediation ready to show why the resolution is designed to last.
Mediators mediating the mass multiparty dispute worry that any short term solution will be short term and leave future claimants without a remedy. Again, the litigator should prepare for the mediation ready to show why the resolution is designed to last.
For a litigator to think strategically about implementing the client’s goals and objectives, the litigator needs to understand theory choices and strategies that are likely to come into play. The two prominent strategies are position bargaining, or adversarial bargaining, and problem solving. Position bargaining is the most common strategy employed by bargainers and involves taking positions to learn how your opponent likely sees his case and to determine how to move the opposition into a solution that meets your client’s goals. Problems solving, on other hand, involves creating a relationship between the parties of trust and cooperation, in order that better and more creative solution can be devised. Problem solving strategies often require the involvement of a mediator, so the promise of problem solving be fully implemented.
Understanding these strategy choices can help you better counsel the client about the means by which his goals might be achieved. The strategies can also be useful for helping both client and lawyer understand the strengths, weaknesses, and risks involved in resolving their case, and finally, help the client best make the strategic moves to implement his goals.
