Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Managing Societal Conflicts: Identity, Social Inclusion and Values” (2020) 30 (3) Australasian Dispute Resolution Journal, 193 – 202).

Social/Societal conflicts are those that are fluid, moving from stage to stage, from emergence to escalation and de-escalation, and then to resolution. They include many small conflicts which interlock, with parties engaging in various strategies for the achievement of their goals.^[1] Societal conflicts are not always large-scale violent conflicts attracting the attention of the international community. They relate to social problems which may include issues around identity, race, gender, culture and class.

Conflict can arise in relation to values (Culture), goals (basic needs/Nature) and interests (Structure) and is a combination of attitudes, behaviour and contradictions.^[2] Galtung goes further to identify various forms of violence within society. Violence is defined simply as ‘any avoidable insult to basic human needs’.^[3] Basic needs, according to Galtung, include survival, wellness, freedom and identity needs. ^[4] Violence includes direct violence, cultural violence and structural violence. Direct violence is a form of physical violence directed by one person at another or at a group, which injures physically. Structural violence exists when institutions and systems employ discriminatory practices toward a group and cultural violence exists when discriminatory practices are not condemned by mainstream groups or government institutions.^[5] Galtung argues that direct violence can result when injustices are woven into the social structure of society and there is polarisation (social distance) and frustration.^[6] Frustration can lead to violence[7] but regardless of the absence of violence, conflict may exist, lying covertly under existing structures.  The flame of conflict can be fanned by negative societal discourses embedding prejudices, stereotypes and ethnocentrism.

But societal conflicts, as with any other type of dispute, can be functional in that they can promote social change, facilitate reconciliation of legitimate interests, discourage premature decisions for fear of antagonism and foster group solidarity.^[8] Realising positive outcomes however requires cooperative processes.  Processes in which frank and open conversations can be had regarding underlying issues including value-differences, perceived divergence of interests and needs.^[9]

A conflict resolution approach designed to achieve social change based on social justice values would require a vision of what a just society looks like.[10]  A just society, it is argued, is one where justice, freedom, equality and peace are core values. A society that emphasises the need for addressing societal conflict by engaging with underlying causes of conflict. A conflict resolution process that will inject values (justice, freedom, equality and peace)[11] into the conflict conversation to bring about a change; a change that will end the cycle of conflict. Not all conflict resolution processes have the injection of values at their core, but restorative justice processes could be useful in this regard.

Restorative justice is an approach to conflict resolution used where a community has been harmed by the action of one of its own.  This approach is used mostly in relation to criminal offending but the values underlying it are useful in the context of societal conflicts where a section of the community may be feeling excluded and undervalued;^[12] where people and relationships have been violated and the goal is to seek healing and put right the wrongs. It is process in which taking responsibility is important. The goal must be clear and centred on achieving social justice, and the forum must be designed to provide an opportunity for genuine and honest conversations about the implications of negative public discourses on peoples, including minority groups. It must include taking steps to redress the situation where possible.

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[1] Louis Kriesberg ‘The State of the Art in Conflict Transformation’, Berghof Handbook of Conflict Transformation, Article, [50-69] available online at https://www.berghof-foundation.org/fileadmin/redaktion/Publications/Handbook/Articles/kriesberg_handbook.pdf   

[2] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 22.

[3] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[4] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35-36.

[5] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 29; Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[6] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

[7] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

Dean G Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (McGraw Hill, 2004) 10-11.

[9] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Wiley & Sons, 2004) 172.

[10] Alicia Pfund (ed), From Conflict Resolution to Social Justice – The Work and Legacy of Wallace Warfield (Bloomsbury Academic, 2013) xxxii.

[11] Lola Akin Ojelabi and Tania Sourdin, ‘Using a Values-Based Approach in Mediation’, 2011 (22) Australasian Dispute Resolution Journal 258.

[12] Brenda Morrison and Eliza Ahmed, ‘Restorative Justice and Civil Society: Emerging Practice, Theory, and Evidence’ (2006) 62 (2) Journal of Social Issues 209. The paper refers to a values-oriented conception of restorative justice.

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Dignity and Culture in Dispute Resolution” (2020) 8 (1) Griffith Journal of Law and Human Dignity 1, 52 – 84).

Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity  yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way’^[1] particularly the  aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’.^[2] Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes.^[3] In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.  

Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’^[4] in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution.^[5] These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria.^[6] These elements, when fully explored, support human dignity as autonomy.

Mediation, particularly facilitative mediation, promotes the self-determination of participants.^[10] Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice.^[11] These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.^[12]

In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem.  In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’.^[7] The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’^[8] without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.^[9]

In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process.^[13] Third parties must give opportunity [to parties] to speak and to be heard^[14] and to enable balanced negotiation between parties^[15] among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’.^[16] The reason is not far-fetched: human dignity is a universal need. ^[17]  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.

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[1] Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.

[2] Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.

[3] Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).

[4] Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.

[5] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 11.

[6] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  11.

[7] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[8] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[9] John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.

[10] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants.  and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.

[11] Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.

[12] David Kahane, ‘What is Culture? Generalizing about Aboriginal and Newcomer Perspectives’, in Catherine Bell and David Kahane (eds), Intercultural Dispute Resolution in Aboriginal Contexts, (UBC Press,  2004) 28 – 56.

[13] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.

[14] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.

[15] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.

[16] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.

[17] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.

EXPRESSIONS OF INTEREST

We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).

The NMAS Review Team are currently seeking expressions of interest for February 2021 workshop waitlists and participants for The NMAS Survey pilot in April.

Please follow the link to the NMAS Review 2020-21 Hub to register your interest. We encourage the ADR Research Network community to share this EOI within your networks.

NMAS REVIEW 2020-21

The NMAS Review 2020-21 is designed to be a collaborative process that actively seeks input from a diverse range of stakeholders across multiple points in time and using a variety of engagement strategies. This means stakeholders will have multiple opportunities to provide input over the life of the review.

The Approval and Practice Standards Survey (The NMAS Survey) is the primary instrument of the review and as such is the review proper. Unlike many traditional review processes, The NMAS Survey is being developed in consultation with the DR community through a range of forums including reference groups, collaborative workshops and pilots.

The findings arising out of The NMAS Survey will form the basis of the recommendations to the Mediator Standards Board (MSB).

Participation in The NMAS Survey is open to all stakeholders and interested parties. We invite you to be a reviewer by completing The NMAS Survey when it becomes available later in the year.

For up-to-date information about the review visit the NMAS Review Hub.

Kind Regards

NMAS Review Team, Resolution Resources

Email:nmasreview@resolutionresources.com.au | Website: www.nmasreview.com.au

LINK TO EXPRESSION OF INTEREST FORM