The Process of Managing "Contentious Disputes"

Experience from National and International Cases

Introduction

We all have some knowledge or direct experience of what we perceive to be highly contentious disputes. In some cases we try to avoid such disputes, thinking that any agreement or compromise is impossible. With this in mind we see little sense in us, or some other party, trying to intervene to seek some sort of collaborative resolution. In many cases we may feel that such disputes are best left to court processes because an imposed judgement is the only possible solution. Underlying both of these thoughts may be the assumption that a resolution, by its very nature, would involve a compromise of fundamental values. This paper focuses on: whether an assumption that resolution is impossible - therefore do nothing - is constructive in a society of diverse values; what role a "third party"°)could have in trying to manage seemingly irreconcilable positions; and what "outcome"(')we should be considering in trying to address such disputes.

This paper discusses a process option that provides a different forum for the management of contentious disputes. This forum focuses on dialogue rather than debate, being creative rather than seeking compromise and enhancing collaborative relationships rather than allowing adversarial positions to harden.

The Nature of Contentious Disputes

I am assuming that many people in New Zealand would accept that the recent controversy over the exhibition Britannica, at the Te Papa National Museum, was a contentious dispute. It involved a clash of belief systems between a diversity of groups who had different opinions about what things are morally acceptable in our society. It was not just a dispute between the Catholic Church and Te Papa. It also involved a variety of issues important to the wider public: freedom of speech, the role of contemporary art, multiple religious understandings, the role a museum should take in modem society, and finally, it also touched on many differing cultural assumptions over what issues should, or should not be challenged in such a forum. A contentious dispute of this nature typically involves a conflict over cultural, spiritual and social values. It also contains some element of commitment by the parties to a set of fundamental norms that tend to dictate how they each see the world around them.

One of the challenges in dealing with this dispute was to reframe how these issues were being addressed - from adversarial debate to constructive dialogue. To identify the process conditions that would allow different groups to listen to different perspectives and suspend their judgement where people did not confuse understanding others' points of view with agreement and could separate substantive issues from relationship issues. This is not to say that debate is not useful. However, in this case it had already occurred through the media and further debate was unlikely to achieve any common understanding on how to creatively deal with the issues at hand.

Public Sector, Vol. 21, No.2, Page 12

Colin McKenzie is the Director of Conflict Management New Zealand Limited and is an agent for Conflict Management Group Boston. He holds an B. Sc. from Otago University and an MSc. in Natural Resource Management from Canterbury. He also holds a Master's degree in Conflict Resolution from York University, Toronto and a Specialisation in Negotiation from the Program on Negotiation,

Harvard Law School. He is accredited as a mediator and negotiation trainer by Harvard Law School and Conflict Management Group Boston and has accumulated a wide range ofpractical experience in Canada, United States ofAmerica, Australia and New Zealand

The debate cycle is often confrontational; it invariably leads to resistance, which creates a sense of frustration amongst participants. When this happens, people tend to withdraw and change their behaviours to either avoid the dispute or intensify their confrontational stance. A process of "joint facilitated dialogue" M is a more useful way to address confrontational disputes and can challenge our assumptions about the way we see other parties. It can also change participant attitudes which leads on to changes in the way participants think and behave, which opens the possibility of their considering new options.

Another example of contentious disputes in New Zealand could be the Treaty of Waitangi claims. These can involve the transfer of substantial financial and natural resources. The claims raise fundamental questions about our history, the role of government, our vision for the future, our own cultural identity, the bicultural management of finite natural resources and issues around self-determination.

A typical example of a highly contentious dispute in Treaty claims could be fisheries management. Stakeholders in dispute include: the existing commercial operators who want quotas protected; those who are trying to regulate and manage the resource in a sustainable way; environmentalists who see the government "selling-out" in terms of the Quota Management System; recreational users who don't want to be regulated; and Iwi who want to establish new rights for the harvesting of kia moana. The issues emanate from the high stakes that are involved, cultural rights and responsibilities, conflicting cultural perceptions over natural resource use, and differing legal and constitutional interpretations.

Disputes such as these can lead to intractable or protracted conflict. There are many reasons for intractable conflict. There is often a temporal dimension: the longer they last the more intransigent and polarised the parties become. There is often a

spatial dimension: there are conflicting claims over resources which are perceived to be mutually exclusive. Invariably there is a political dimension: the distribution of political and economic benefits resulting in associated power imbalances. There is nearly always a perceptual dimension: people see themselves in cycles of action and reaction over conflicting values, which keep the conflict progressing.

Such disputes do not respond well to traditional methods of conflict management which may deal only with surface issues. The underlying needs of disputing parties are often suppressed. Traditional methods of conflict management (e.g. negotiation and adjudication) can sow the seeds for more intense conflict in the future. In such disputes it is often assumed that there is an obvious answer waiting to be brought to the surface. Often a solution too quickly found cannot be effectively implemented: parties who feel that they have not been genuinely heard or their issues not reasonably addressed, will not support ratification.

My experience here and overseas suggests the following typical characteristics of contentious disputes:

  • Conflicting and usually committed "positions" M
  • Differing perceptions about other parties' intentions.
  • Often untested assumptions over what is "right", "fair" or "appropriate".
  • Basic human "needs" M wxhich are being challenged or are not being met.
  • Ineffective communication and strained relationships.
  • Confrontational processes that often result in the dispute becoming protracted and a reduced likelihood of any outcome being implemented.

Given these characteristics it is easy to see why such disputes arise, intensify and seldom come to a satisfactory resolution through traditional conflict management methods.

The Need for a "Third Party"

If contentious disputes are based on conflicting values that may, at a very basic level, be non-negotiable then this poses a significant challenge for conflict management approaches that focus on substantive agreement.

Practitioners need to rethink their own assumptions about appropriate goals for conflict management and the most effective processes to achieve the ends sought. It seems to me that there are three important elements a third party needs to consider in addressing a contentious dispute:

Relationships:

Rather than having an agreement focus, a third party should have a relationship focus, a focus in which people acknowledge and respect differences. People value different things and there is a need to be creative about how to deal with differences more effectively.

Process:

Rather than a focus on resolution, a third party should focus more on achieving process ownership in terms of how parties address differing values. If parties do not feel that the process

is fair then they are unlikely to feel committed to any outcome or any steps for going forward.

Context:

Perhaps the contextual nature of these disputes is much more important than we think. We often deal with the existing most visible parties, failing to recognise that there is a wider community of interest and that the history of the dispute itself may provide many insights into how perceptions have formed and how to deal with them effectively.

In contentious disputes there often cannot be significant progress without a credible, independent third party: to be an advocate for a good process; to create a safe environment for dialogue; and to start to build trust between the parties.

The Process of Joint Facilitated Dialogue

It is essential to create a forum for dialogue in which parties can feel safe to be creative; understand others' perspectives without feeling as though they need to agree or compromise; build relationships and trust without the pressure of having to secure an agreement; and, to establish the groundrules to manage the potentially volatile dynamics. The parties themselves also need to be prepared for problem solving before trying to solve the problem. For any party to influence another they must first be open to being influenced.

We as facilitators or mediators need to think about how to prepare the parties to undertake problem solving. They seldom enter any problem-solving process as equals: there are different power relationships, different concepts of history, different perceptions of how they have been treated, and different visions of where they want to go and how to get there. If a third party enters this dynamic and starts to talk too early about developing possible solutions, the parties may quickly push the eject button. They may not be ready to talk about anything other than their own story and how they arrived at where they are now.

My suggestion is that we need to create a process in which there is not the emphasis on trying to reconcile non-negotiable positions or trying to solve the problem. An early emphasis should be on building communication, establishing more effective working relationships, developing trust, thinking about where the parties have come from and where they want to go, discussing underlying values and needs and brainstorming some options, without any commitment on how to go forward. The process could be a precursor for a subsequent structured negotiation or mediation process that seeks substantive commitment. However, a decision on the next step should be in the hands of the parties.

The process of "joint facilitated dialogue" is an informal, typically confidential, working/training session in which different stakeholder groups come together in the presence of an impartial third-party to: review differing perceptions and values around the issue in dispute; generate creative options on both substance and process that may ease current tensions; and, develop better communication and long-term working relationship. The process, is NOT to focus on commitments nor to produce any final agreement for ratification. It attempts to creatively explore the past and think about how we can better manage the future.

Specific goals of joint facilitated dialogue may include:

  • Learn how to approach the underlying issues as a common problem.
  • Develop a common framework for dealing with differences.
  • Improve communication and working relationships.
  • Understand differing interests and perceptions between the groups.
  • Generate creative options for moving forward on process and substance.
  • Develop a shared strategy for implementing or disseminating the results of the session to other groups or decisionmakers.

Note the following:

  • A convenor or third party takes the initiative to invite key stakeholders to a confidential, informal working session. Depending on the nature of the dispute, this session could be as short as one day or as long as a week.
  • The participants come from different parties to the dispute, but may not be the ultimate decision-makers. (Sometimes decicion-makers are too focussed on the element of commitment.) However, participants should understand the perceptions and interests of the parties to the dispute and have easy access to those that will make the final decision.
  • A basic premise is that no participants have the authority or the need to commit anyone to anything throughout the working session.
  • The working session is informal, off the record and devoid of any organisational endorsement.
  • One of the aims of the session is to create process options on how substantive issues should be addressed.
  • The result of the session would be a series of ideas on:

-Perceptions of the problem or dispute.

-Causes of the problem, which can be realistically ad

dressed.

-Some strategies for how to overcome the causes.

-Some action ideas that should be further addressed.

-Some recommendations on how information should be disseminated.

Some suggested ground rules for the session:

-No commitment to substance.

-Speak for yourself.

-Respect different perspectives.

-No criticism or attribution.

-Treat all ideas as confidential unless otherwise advised.

-Participate without prejudice.

Process Outcomes

The process method outlined has been used in several contentious and intractable disputes at an international level(6). A vision for the process outcomes require: transforming the

dynamics of a contentious dispute from confrontation to dialogue; transforming the participants from adversaries to partners; and transforming the structure of the interaction from seeking compromise to inventing options that respect difference in a creative manner.

Perhaps the way we think about contentious disputes is the problem. Perhaps if we change our own assumptions about what is possible then maybe we can leave behind methods that focus solely on "agreements" and move towards methods that increase the capability of stakeholders to think more laterally about options for the future. In the end, conflict management is more about parties making wise decisions than it is about them coming to agreement at any cost.

Conclusions

Conflict management is often concerned with the management of disputants' differing perceptions. Parties in a contentious dispute typically see their position as "right" and other positions as "wrong". Each of us can look at exactly the same facts and draw very different conclusions and develop different assumptions and beliefs. Parties may be reluctant to participate in any discussion because they fear that they will be forced into some sort of compromise or concession that will look bad for them. If the process is changed so that substantive commitment to a situation is not expected in the initial session, then being creative suddenly becomes a lot safer.

An impartial third party in a contentious dispute can get the parties in conflict to attack the problem rather than each other. The third party can also begin to uncover the real needs of the parties rather than just focussing on what they are demanding. People in a contentious dispute will often have a very clear position: the more emphasis that is put on this position the more it can become entrenched. A third party can begin to get the parties to think about different choices. If one party is saying "no" then maybe the party making the initial demand can change the nature of the demand by understanding more about the reasons behind the response. The more I work on contentious disputes the more I realise that parties often have very sound reasons for their position and applying more pressure is seldom a constructive strategy.

Contentious disputes continue to challenge our traditional methods of conflict management; this is inevitable. Facilitated joint dialogue changes the forum by which these disputes may be managed. This process option will not be right for all contentious disputes and will not appeal to some parties. However, the more we struggle to find answers to these disputes, the more we should struggle to find better ways to deal with them.

Notes

(1)

"Third party" is used in this context to mean an impartial person who has no substantive interest in the outcome of the dispute, and has no power to impose a resolution on the parties. He or she has been invited by the parties to essentially manage the process by which the parties can discuss the issues, and assist the parties to come to some common agreement over the goals and substantive outcomes from the process.

(5)

(2) "Outcome" in this context does not necessarily mean an

agreed resolution. It may mean improved communication, clarification of the issues, better working relationships and so forth.

This process concept was originally developed at the Harvard Negotiation Project by Professor Roger Fisher who called it "Joint Facilitated Brainstorming". The idea behind this process is to separate inventing options from deciding on them, to use influential non-decision-makers to craft options and analyse alternatives that could be used to provide the bases for choices that officials or decisionmakers would eventually address. For further discussion see Fisher, Roger, Kopelman, Elizabeth and Kupfer, Schneider Andrea Beyond Machiavelli: Tools for Coping with Conflict. Harvard University Press, 1994.

(4) "Positions" are used in this paper to refer to a set of de

mands that a group or individual has with respect to a specific issue.

"Needs" refer to conditions that address individual or group health and well-being. These may include identity, security, certainty, some sense of social connectedness and certain aspects that allow individuals or groups to realise their potential.

(6) One such case was the border dispute between Ecuador and Peru, which nearly lead both parties into war. This was a case where traditional negotiations had failed and it was time to think of more creative ways to bring the parties together. In this case, influential participants from both sides were invited by the Conflict Management Group (Boston) to a week-long training session in the United States. After two years many of the participants have stayed in close contact and have been able to provide one another with informed perspectives on how to deal more constructively with the issues.