Topic 1 - The nature of conflict and the emergence of disputes
ADR has become relevant to civil justice systems. They may be the only
options in certain jurisdictions where there’s difficulties with the litigation
processes. ADR changes the role of the courts. Courts are becoming
sponsors of settlements, parties are becoming responsible for the resolution
of issues.
The nature of conflict
Conflict v dispute - generally these words are interchangeable but there is a
distinction in the conflict theory literature.
Conflict can also be positive. It can facilitate interaction forcing parties to
modify their positions. It also facilitates change and focusses attention on
real problems.
It also helps parties find a good way of resolving disputes in a creative
manner and can lead to change.
Sources of conflict
If you have an insight into the source of the conflict, you can find ways of
solving it before it gets into a dispute.
Competitive conflict - conflicts are created when there are diametrically
opposed views/goals etc. Parties try to resolve this through mutually agreed
rules.
Disruptive conflict - this is not about winning or following rules. Parties are
more interested in harming the other.
Edward de Bono - perceptions influence conflicts. Cognitive influences
impact the way we receive and make decisions. All of this can be a barrier to
creativity.
Christopher Moore - ‘circle of conflict’ breaks down conflict into 5:
relationship, data, interest, structure and value.
Conflict v Dispute
Not all conflict ends up as a dispute, there needs to be an escalation or
certain elements occurring before it turns into a dispute.
Abel – for conflict, there needs to be an interaction of some sort. A conflict
between two people can become a dispute if one person seeks to make a
claim over the matter in dispute, there needs to be inconsistent claims and
must be asserted publicly.
,Felstiner, Abel and Sarat – created a seminal theory ‘naming, blaming and
claiming’. These three looked at the process that occurs that leads to the
formulation of a dispute.
Naming – a party needs to acknowledge that there has been
injury/breach.
Blaming – this occurs when someone/something is seen as
responsible for the harm suffered. This person is turned to as the cause
for the injury.
Claiming – a party now asks for rectification. They make a claim for
reparation/compensation. Needs communication to the other party,
you must take a step.
A dispute however does not occur with only those three, there needs to be a
denial of the claim.
Roberts & Palmer – looked at disputes through a legal lens
-identification of a wrong
-attribution of responsibility
-translation of the dispute into legal language
-transformation of the dispute by the justice system – the dispute has now
been turned into a court case etc.
Topic 2 – Adjudication and its Functions
Legal systems
Common law – judicial precedent and an adversarial process
Civil law – code based and an inquisitorial process
ADR is an alternative to a state-sponsored process. The process is informal.
Characteristics of adjudication
-Public
-Finality
-Turn taking
-Zero sum
-Imposition of decision
Parties in ADR processes are not forced to accept an outcome.
The Differences
Civil – adjudication preceded by court-led investigation
Court identifies the best evidence
, Focus on documentary evidence e.g. written depositions taken before trial
The adjudicator is an interventionist
Based on the Civil Code.
Common – strict rules of evidence
Traditional focus on orality
Party ownership and choice of evidence
Minimalist judge acting as umpire
Case-law and precedent core element
Statutory interpretation by judges based on rules of interpretation through
custom and case-law.
Function of trial
Remedies - Provides authoritative solutions and finality
Risk assessment – guides future behaviour/facilitates bargaining in the
shadow of the law
Information – reveals facts and fact patterns
Publicity – the legal system is available to all to view
Accountability – allows us to hold the legal system, judges to account
Educational - instructs us on the workings of the state and the underlying
principles of our society
Principles – facilitates the development of the law
Debate – articulates public values
As a tool in negotiation of settlement dispute
Bargaining in the shadow of the law
Kornhauser and Mnookin ‘Bargaining in the shadow of the law’ asked about
the impact of the rules and norms of the legal framework on disputes. There
are even legal rules in private divorce negotiations.
Parties consider bargaining chips which are seen in terms of precedent,
proof/evidence, credibility of witnesses, procedural rules etc.
‘Bargaining endowment’ – how likely is it that your position will succeed at
trial? Negotiation/mediation can occur at any time before/during the court
process. There needs to be an assessment of your case.
Risk analysis in dispute resolution
Marc Galanter talks about the haves and have-nots. Have-nots are likely to
be the ones who don’t proceed to trial. The haves often have lawyers and
are well advised and are in a position of advantage. Risk analysis is also
impacted by the type of lawyer.
One shotter – those who have no experienced litigation before.
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