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Perry Mason. Atticus Finch. Ally McBeal. Lawyers try cases,

right? Until you entered law school, you may have shared the

common perception that lawyers spend most of their time in the

courtroom arguing on behalf of their clients.

Not only do many lawyers never try a case, but in the past

several decades, the means for resolving disputes have expanded

well beyond traditional adversarial litigation. Alternative dispute

resolution, which encompasses a range of processes, has become

both widely available and extensively used. In fact, in manystates, most litigants must make a mandatory ADR stop along

the road to the courtroom.

In recent years, ADR, sometimes called "appropriate dispute

resolution," has become a standard feature of essentially every

lawyer's work.

Contemporary lawyers also encounter mandatory ADR

requirements outside the context of court-annexed ADR.

Commercial contracts, employment agreements, and real estate

contracts commonly require the contracting parties to settle

disputes through ADR rather than through formal litigation.

What is ADR?

ADR processes have their roots in the dispute resolution

systems of non- Western cultures, which often emphasize

community healing rather than individual rights.

The recent growth of ADR has been prompted primarily by the

shortcomings of the adversarial litigation system. In a 1984

address to the ABA, then-Supreme Court Chief Justice

Warren Burger acknowledged that while trials are the only way

to resolve some disputes, overall, our adversarial legal system istoo costly, painful, destructive, and inefficient. Indeed, ADR

processes are designed to reduce both cost and trauma to the

parties, and to ease the overwhelming dockets most courts have

faced in the past several decades.

Aside from the practical concerns of cost and crowded dockets,

many ADR proponents envision a transformative approach to

resolving disputes. In their view, traditional litigation focuses too

much on winning and not enough on problem solving. Further,

courts can impose only certain prescribed solutions, mostly

involving money. So when a court or jury decides a dispute, the

outcome may or may not resolve the underlying issues. Incontrast, ADR processes like mediation focus on exploring the

parties' "interests" and allow the parties themselves to craft

solutions that advance those interests. Thus, ADR fosters

flexible, individually tailored results that achieve joint gain for

the parties, rather than a win-lose outcome.

ADR advocates also argue that by providing a forum in which

parties can tell their stories, ADR processes allow the parties to

be "heard" during the dispute resolution process. Further, these

processes emphasize cooperation and openness rather than

conflict and secrecy, allowing the parties more control over both

the process and the outcome. As a result, they satisfy important

psychological needs and achieve better-quality justice.

ADR: not only for civil l itigation

ADR processes are not limited to civil litigation. In the criminal

arena, some jurisdictions have experimented with the idea of

"restorative justice." Restorative justice programs attempt to

address the harm criminal behavior causes by involving bothoffenders and victims in the response.

For instance, parties might participate in victim-offender

mediation, during which the offender hears the victim's story

and has the opportunity to better understand the impact of the

offense. A sentence might be imposed through a sentencing

circle, during which members of a community discuss the impact

of the crime, raise underlying issues, and promote healing. Or

offenders might be ordered to make restitution particularly

suited to their crimes, allowing them to remedy the damage

caused by their actions.

Becoming an ADR expert

As a lawyer, you will probably be involved in ADR in a

representative capacity at some point. But if you are interested in

becoming a mediator, an arbitrator, or a neutral evaluator, what

should you do?

First, recognize that becoming an ADR neutral for any ADR

process requires experience and knowledge. Law students do not

usually graduate from law school and immediately become ADR

practitioners, even if they have taken ADR courses during law

school.

"It's the classic case of needing the experience to get the job, but

needing the job to get the experience," says Hamline University

School of Law Professor Bobbi McAdoo, an ADR specialist and

practicing mediator. For the most part, she says, mediators and

arbitrators are successful lawyers who have shown dispute

resolution excellence to their peers. To prepare for a career as an

ADR practitioner, she recommends looking for ways to develop

relevant skills in your legal practice, including listening skills, the

ability to ask appropriate questions, and creativity in solving

problems.

Carolyn Chalmers, an experienced mediator and director of theUniversity of Minnesota Office for Conflict Resolution, agrees

that experience is essential. "If you want to mediate or arbitrate

cases with the potential for litigation, you need practice

experience. Lawyers choose the mediator, and they look in the

legal field," she says. "Even for disputes that are not in litigation

or not focused on legal issues, it's not easy to become a mediator

unless you have significant life experience that will help you in

the mediation process."

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While particular subject matter expertise is not an absolute

requirement for ADR practitioners, experience in the relevant

area of law always helps. Generally, the mediator or arbitrator

needs to understand the legal issues sufficiently to structure the

conversation, understand what litigation will look like if the

parties do not resolve the case, and remain credible with the

parties.

ADR experts agree that adversarial adjudication serves important

purposes, such as generating the rule of law and serving as a lastresort when parties themselves cannot resolve their disputes. But

ADR is definitely here to stay, as more courts require it and

more parties take advantage of the benefits it offers. Law

students need to familiarize themselves with basic ADR methods

and ideas so they can graduate ready to be competent,

knowledgeable professionals.

Historical Background of ADR in the Philippines

Before the Spaniards discovered the Philippines in 1521,

arbitration, as a mode of settling disputes, was practiced in

barangays and other forms of village settlements. In those earlydays, the datu (chieftain) settled the disputes of his constituents,

and his decisions were accepted as having authority and finality.

Also, the elders and parents acted as arbiters of family quarrels

and their decisions were binding upon the parties concerned.

The Roots of ADR

The Deciding Stone to the European Law Merchant

Two men glare at each other. Long-haired and bearded, their fur

garments oily from use, they hold gnarled clubs loosely at their

sides. Emotions have been building since the rainy season

started and the river overflowed. Who will be forced to brave

the swollen river to hunt, and who will hunt near their village?

Today it will be decided. With war cries, the disputants raise

their clubs and begin to circle. Suddenly an old man appears,

shouting: "Behold, the Deciding Stone!" The two men stop in

midstride. The old man says, "Ush, the smooth side is yours; Ore,

the rough side is yours." The pair hesitate, looking angrily at each

other and at the old man, and finally they nod in agreement.

With all his might, the old man throws the stone into the air.

Their heads turn to the sky as they watch the stone turn over

and over.

This imagined story of prehistoric times illustrates that while

humans have always had the tendency to solve their differences

by fighting, they also have recognized the benefits of settling

matters peacefully by flipping a coin or some other way. This

search for alternatives to violence gave birth to the precursors of

alternative dispute resolution (ADR).

The most basic form of ADR is negotiation: at its core, two

people simply talk about a problem and attempt to reach a

resolution both can accept. It follows that mediation started

when two negotiators, realizing they needed help in this process,

accepted the intervention of a third person. If the third party was

asked to make a decision or placed the decision in the hands of

some arbitrary mechanism, the process was arbitration. Other

methods followed:

When the third party undertook an investigation that helped

bring the matter to closure, this was fact finding. If the matter is

brought before the community and all members had to be

satisfied with the outcome, we today call that process consensusbuilding.

ADR is often thought of as a new way of resolving disputes. In

fact, its roots run deep in human history, and they have long

played a crucial role in cultures across the globe.

ADR in Traditional Societies

To trace the roots of ADR, we can turn to anthropological and

sociological studies of traditional societies for a glimpse of some

of the ways early humans may have resolved disputes without

the use of fists, clubs, or poison arrows. Many of these ways ofresolving conflicts are starkly alien to our Western way of

looking at the world. Nevertheless, they have much to teach us

about the utility of conflict in airing the disagreements of

everyday life and how to use them as opportunities to deepen

relationships and achieve lasting harmony.

The Bushmen of Kalahari

William Ury and others have written extensively about the

Bushmen of the Kalahari, a traditional people whose

sophisticated system for resolving disputes in many ways puts

modern society to shame. The Bushmen are hunter-gatherers

living in a large, arid plain in Namibia and Botswana. Despite the

encroachment of agrarian people, the Bushmen have largely

stuck to their traditional ways of life, including a way of settling

disputes that avoids fighting and the courts.

The Bushmen are far from a passive people. Rivalries over mates

food, and land are common. But when a dispute arises, they are

slow to fight and quick to find others who will intercede. When

two people have a problem, they bring others around to hear out

both sides. If things get testy, some members of the tribe are

appointed to hide the hunters' poison arrows-an early form of

gun control. If small-scale intervention fails, the whole group is

brought into the process. "When a serious problem comes up,"

writes Ury (2002), "everyone sits down-all the men, all the

women-and they talk, and they talk and they talk. Each person

has a chance to have his or her say. It may take two or three day

This open and inclusive process continues until the dispute is

literally talked out" (p. 40). The processes involved here include

mediation and consensus building.

Hawaiian Islanders

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Hawaiian islanders of Polynesian ancestry use their own

traditional system for resolving disputes amicably. The practice,

known as ho'oponopono, involves a family's coming together to

discuss interpersonal problems under the guidance of a leader.

The common translation of the term is to "set things right" on

both a spiritual and interpersonal level. The leader of the session

is someone both sides look to with respect. He or she leads the

session and acts as mediator. To avoid hard feelings, all

discussion is directed toward the leader rather than directly

between the disputing parties. The leader opens the session with

a prayer, asks questions of the participants, and at times will call

for a moment of silence when tempers are running hot or one

side is refusing to listen to the other (Boggs and Chun, 1990).

After hearing out both sides and attempting to get at the heart of

the dispute, the leader works to bring about reconciliation.

The Kpelle of Central Liberia

The Kpelle people of central Liberia have evolved a moot court

to resolve family disputes that are too small or intimate for the

traditional courts. The sessions, attended by a group of

neighbors and family members, are presided over by someonewith a kinship tie to the participants and usually political

standing in the group. In one typical dispute, a man named

Wama Nya had one wife but inherited a second when his

brother died. He accused this second wife of cheating on him,

staying out late, and denying him some of the food she brought

in from the fields. The assembled group listened to the

complaints of the man and the first and second wives, offering

their opinions as the principals spoke and in side conferences.

The process in some ways was therapeutic: it allowed everyone

to be heard and to feel that their complaints were legitimate

enough for others to take the time to listen to and consider

seriously. In the end, the group decided that the husband was

mostly at fault. He was ordered to bring rum, beer, and food for

the entire group and thus reintegrate himself and his family into

the community (Gibbs, 1963).

The Abkhazian of the Caucasus Mountains

In the Caucasus Mountains of Georgia in the former Soviet

Union, the Abkhazian people have long practiced mediation by

elders to resolve disputes within their group and among the

tribes in the surrounding areas. The mediators are generally

respected elders, usually male but sometimes female. The

disputing sides tend to call in mediation after a cycle of revengehas allowed each side to feel that it has exacted equal retribution

but before any reconciliation has been achieved. In one case, a

drunken argument between members of different families had

led to violence. The mediators essentially shamed the two sides

into a reconciliation, which was followed up by a joint feast. This

feast of reconciliation, according to participants, cements family

bonds and is considered more sacred than any court document

(Garb, 1996).

Interestingly, Abkhazian reconciliation before World War II had

often involved either intermarriage between groups or the

adoption of a child from one family into the other, thus creating

an extended family link. The bond was dramatized by the new

mother's taking the adopted child to her breast-either literally or

symbolically. At times, an adult male seeking to end a dispute

would steal into the home of the rival family and attach himself

to the breast of his adversary's wife or mother. Sometimes this

method would have the desired effect of ending the dispute.

Sometimes (perhaps understandably) it would not.

The Yoruba of Nigeria

In Nigeria, the Yoruba live in modern cities but cling to

traditional ways of resolving disputes. When a matter between

Yoruba ends up in court, it is generally considered a mark of

shame on the disputants: they are viewed as not good people

who favor reconciliation. This is not to say that the people do

not feel conflict has a place in life. An old Yoruba saying makes

this clear: "The tongue and teeth often come in conflict. To

quarrel and get reconciled is a mark of responsibility" (Albert,

Awe, Herault, and Omitoogun, 1995, p. 9).

Disputes at the family level, such as an argument between co-

wives or between parents and a youth who has run away, are

generally brought before the mogaji, the lineage head, and the

baale, an elderly head of the district. After the two sides state

their case, the elders ask questions and then try to work toward a

compromise in which both sides accept some of the blame. The

elders have an arsenal of techniques for reaching a settlement:

proverbs, persuasion, subtle blackmail, precedent, and even

magic. The only real power behind the elders' decisions is

cultural: they can threaten social excommunication or use

emotional blackmail.

Some disputes transcend the family. One unique venue for

resolving such disputes is a television program known as So Da

Bee, which acts as an informal arbitrator. Land disputes are a

common topic. In one case, broadcast in 1995, a blind woman

had given a piece of land to a man for farming some twenty

years earlier. After the old woman and the farmer died, their

heirs, each assuming they held ownership, sold the land to

different parties. Through a fact-finding process, the program's

arbitrators determined that the agreement between the old

woman and the farmer had related only to farming, not full

possession of the land. The farmer's heirs were forced to rescindtheir sale.

The traditional head of the Yoruba, known as the Olubadan,

also acts as an arbitrator in many disputes. In a 1983 case, two

men each sought the title of mogaji of the Sodun family. All

internal efforts to resolve the dispute had failed, so the matter

was brought before the Olubadan, who sat in council with his

most powerful chiefs. After both sides presented their case and

were questioned by the council, the situation still could not be

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resolved, so the Olubadan ruled that the family would have two

mogaji.

Mediation in China

China, where the traditional view of dispute resolution has its

origin in Confucian ethics, adopted mediation early. Confucius

(551-479 B.C.) taught that natural harmony should not be

disrupted, and adversarial proceedings were the antithesis of

harmony. Since the Western Zhou Dynasty two thousand yearsago, the post of mediator has been included in all governmental

administrations. Today in China, it is estimated that there are

950,000 mediation committees with 6 million mediators-in fact,

there are more mediators per 100 citizens in China than lawyers

per 100 people in the United States (Jia, 2002).

Given the emphasis on harmony, Chinese mediators have long

played a far-reaching role: "Chinese mediation aims not only to

respond to a conflict when it breaks out, but also to prevent it

from happening.... [It] is a continuous process of being vigilant

against any potential threats to harmony, even after the harmony

has been built" (Jia, 2002, p. 289). Chinese mediators thus domore than try to settle a dispute and move on: they also instruct

the participants in how to have a better relationship for the long

term. It would be many, many years before Western practitioners

of ADR would catch up to these ideas.

Ancient Greek Roots of Arbitration

In the Western World, the story of ADR can be traced back to

the ancient Greeks. One famous story of arbitration comes

down through mythology. The goddesses Juno, Athena, and

Aphrodite were squabbling over who was the most beautiful and

called on Paris, the royal shepherd, to decide. Paris, it seems, wasnot above accepting a bribe from Aphrodite, who thus won the

contest. But Juno, wife and sister of Jupiter, was not one to

forgive and forget. She was so furious at Paris that she unleashed

a host of plagues on Aenaes, his fellow Trojan, as the great hero

strove to found the new Troy. Thus, one of the classics of

Western literature, Virgil's The Aeneid, can be read as a long

meditation on the evils wrought by an arbitration gone awry.

Arbitration was not simply a matter of mythology to the ancient

Greeks. As Athenian courts become crowded, the city-state

instituted the position of public arbitrator some time around 400

B.C. (Harrell, 1936). According to Aristotle, all men served thisfunction during their sixtieth year, hearing all manner of civil

cases in which the disputants did not feel the need to go before

the more formal, and slow, court system. The decision to take a

case before an arbitrator was voluntary, but the choice of being

an arbitrator was not. Unless he happened to be holding another

office or traveling abroad, any eligible man selected to serve as

an arbitrator was required to do so; if he refused, he would lose

his civil rights (Harrell, 1936).

The procedures set up by the Greeks were surprisingly formal.

The arbitrator for a given case was chosen by lottery. His first

duty was to attempt to resolve the matter amicably. This failing,

he would call witnesses and require the submission of evidence

in writing. The parties often engaged in elaborate schemes to

postpone rulings or challenge the arbitrator's decision. An appea

would be brought before the College of Arbitrators, which could

refer the matter to the traditional courts. In one such appeal

process, Demosthenes had alleged that one Midias had used

disrespectful language toward Demosthenes and his family.

Midias took legal steps to put off the decision by the arbitrator,

Straton, including failing to show up on the day the final

decision was to be rendered, but Straton ruled against him.

Although the official record is incomplete, Midias successfully

appealed the decision before the College of Arbitrators, and

Straton was expelled from the board. This outcome may seem a

setback for arbitration at a very early stage, but it can also be

read as an example of a strong self-policing mechanism. A

traditional judge later upheld the board's censure of the

arbitrator. The system, it seemed, had worked.

Both Aristotle (384-322 B.C.) and Cicero (106-43 B.C.)

commented favorably on arbitration in words that certainly

could be used to describe modern arbitration. They made clear

that arbitration was an alternative to the courts. Aristotle said

arbitration was introduced to "give equity its due weight, making

possible a larger assessment of fairness" (Aristotle). Cicero said a

trial is "exact, clear-cut, and explicit, whereas arbitration is mild

and moderate" (Cicero). He added that a person going to court

expects to win or lose; a person going to arbitration expects not

to get everything but not to lose everything either.

What Is ADR?

The term "alternative dispute resolution" or "ADR" is often

used to describe a wide variety of dispute resolution mechanismsthat are short of, or alternative to, full-scale court processes. The

term can refer to everything from facilitated settlement

negotiations in which disputants are encouraged to negotiate

directly with each other prior to some other legal process, to

arbitration systems or minitrials that look and feel very much like

a courtroom process.

Processes designed to manage community tension or facilitate

community development issues can also be included within the

rubric of ADR. ADR systems may be generally categorized as

negotiation, conciliation/mediation, or arbitration systems.

Negotiation systems create a structure to encourage and facilitate

direct negotiation between parties to a dispute, without the

intervention of a third party. Mediation and conciliation systems

are very similar in that they interject a third party between the

disputants, either to mediate a specific dispute or to reconcile

their relationship. Mediators and conciliators may simply

facilitate communication, or may help direct and structure a

settlement, but they do not have the authority to decide or rule

on a settlement. Arbitration systems authorize a third party to

decide how a dispute should be resolved.

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It is important to distinguish between binding and non-binding

forms of ADR. Negotiation, mediation, and conciliation

programs are non-binding, and depend on the willingness of the

parties to reach a voluntary agreement. Arbitration programs

may be either binding or non-binding. Binding arbitration

produces a third party decision that the disputants must follow

even if they disagree with the result, much like a judicial decision.

Non-binding arbitration produces a third party decision that the

parties may reject.

It is also important to distinguish between mandatory processes

and voluntary processes.

Some judicial systems require litigants to negotiate, conciliate,

mediate, or arbitrate prior to court action. ADR processes may

also be required as part of a prior contractual agreement between

parties. In voluntary processes, submission of a dispute to an

ADR process depends entirely on the will of the parties.

Taxonomy of ADR Models from the Developed and

Developing World

Alternative Dispute Resolution (ADR) includes practices,

techniques and approaches for resolving and managing conflicts

short of, or alternative to, full-scale court process. The variety of

ADR models found in developed and developing countries may

be described in two fundamental ways: basic ADR processes,

which include negotiation, conciliation, mediation, and

arbitration; and hybrid ADR processes, in which specific

elements of the basic processes have been combined to create a

wide variety of ADR methods (e.g., mediation is combined with

arbitration in med-arb.). Hybrid ADR processes may also

incorporate features found in court-based adjudication; for

example, the minitrial mixes an adjudication-like presentation ofarguments and proofs with negotiation.

This taxonomy provides definitions of basic and hybrid ADR

methods used in private, governmental, and court-connected

ADR. The definitions reflect common usage among ADR

professionals, the majority of whom are from developed

countries. Wherever possible, an example of a country which has

implemented individual ADR models is indicated, along with a

short citation to a relevant case study or document in the

Working Bibliography for further reference. While this

taxonomy is not a catalogue of traditional or indigenous dispute

resolution methods, an effort has been made to direct readers todeveloping world examples in which features of traditional

dispute resolution have been incorporated in ADR.

Definitions of ADR Models

I. Basic ADR Models

A. Negotiation: The most common form of dispute resolution,

negotiation is the process by which the parties voluntarily seek a

mutually acceptable agreement to resolve their common dispute.

Compared with processes involving third parties, generally

negotiation allows the disputants themselves to control the

process and the solution.

Examples: Nicaragua negotiation training (Lytton 1997);

South Africa Case Study negotiation of community disputes;

Indonesia environmental conflict (Moore 1995).

B. Conciliation: A process in which a third party meets with the

disputants separately in an effort to establish mutual

understanding of the underlying causes of the dispute andthereby promote settlement in a friendly, unantagonistic manner

Often the first step, and at times sufficient, to resolve disputes.

Examples: South Africa Case Study Commission for

Conciliation, Mediation, and Arbitration; Bolivia Case Study;

Colombia Bogota Chamber of Commerce centers (DPK

Consulting 1994); U.S.A. historically used in some labor

disputes as a step prior to arbitration; India People's Courts

"Lok Adalat" (Whitson 1992); Japan auto accident victims and

insurance companies (Moriya 1997) (NB: some practitioners use

the term "conciliation" to describe processes that range from the

above definition of conciliation to mediation.)

C. Mediation: A voluntary and informal process in which the

disputing parties select a neutral third party (one or more

individuals) to assist them in reaching a mutually-acceptable

settlement.

Unlike a judge or arbitrator, the mediator has no power to

impose a solution on the disputants; instead, the mediator assists

them in shaping solutions to meet their interests. The mediator's

role and the mediation process may vary significantly, depending

on the type of dispute and mediator's approach.

Mediators can employ a wide-range of techniques, e.g.: assist

parties to communicate effectively and to develop a cooperative,

problem-solving attitude; identify parties' underlying interests;

identify and narrow issues; transmit messages between parties;

explore possible options for agreement and the consequences of

non-settlement.

Examples: South Africa Case Study IMSSA, victim-

offender mediation; Sri Lanka Case Study Mediation Boards;

Indonesia environmental disputes (Moore 1995); Malaysia

inter-ethnic disputes (Othman 1996); India civil and criminal

cases (Kassebaum 1989);USA community mediation (McGill

1997), mandatory civil case mediation in North Carolina (Clarke

et al. 1995); Bangladesh Case Study community mediation

based on indigenous practice.

D. Arbitration: An adjudicatory dispute resolution process in

which one or more arbitrators issues a judgment on the merits

(which may be binding or non-binding) after an expedited,

adversarial hearing, in which each party has the opportunity to

present proofs and arguments.

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Arbitration is procedurally less formal than court adjudication;

procedural rules and substantive law may be set by the parties.

In court-annexed arbitration, one or more arbitrators, usually

lawyers, issue a non-binding judgment on the merits after an

expedited, adversarial hearing. The arbitrator's decision addresses

only the disputed legal issues and applies legal standards. Either

party may reject the non-binding ruling and proceed to trial;

sometimes, cost sanctions may be imposed in the event the

appellant does not improve his/her position in court. Thisprocess may be mandatory or voluntary.

Examples: USA used in federal and state courts, mainly in

small and moderate-sized tort and contract cases, where the

costs of litigation are often much greater than the amounts at

stake; Japan appellate ADR (Iwai 1991); Bolivia Case Study

pilot project.

Private (v. court-annexed) arbitration may be "administered"

managed by private organizations, or "non-administered" and

managed by the parties. The decisions of arbitrators in private

arbitration may be non-binding or binding. Binding arbitrationdecisions typically are enforceable by courts and not subject to

appellate review, except in the cases of fraud or other defect in

the process. Often binding arbitration arises from contract

clauses providing for final and binding arbitration as the method

for resolving disputes.

Examples: South Africa Case Study IMSSA; Thailand

commercial arbitration (Worawattanamateekul 1996); Bolivia

case study Chambers of Commerce centers.

II. Examples of Hybrid ADR Models

A wide variety of hybrid models have emerged in developed and

developing countries. Below are some examples of hybrids

found connected to courts in commercial and government

settings.

Appellate ADR: Appellate court programs use mediation in

mandatory, pre-argument conferences in cases that appear most

likely to settle; mediators are typically staff attorneys or outside

lawyers.

Example: USA common in federal and state appeals courts.

Early Neutral Evaluation (ENE): A court-based ADR processapplied to civil cases, ENE brings parties and their lawyers

together early in the pretrial phase to present summaries of their

cases and receive a nonbinding assessment by an experienced,

neutral attorney with expertise in the substance of the dispute, or

by a magistrate judge. The evaluator may also provide case

planning guidance and settlement assistance; in some courts, it is

used purely as a settlement device and resembles evaluative

mediation.

Example: USA Developed during the mid-1980s in the San

Francisco federal court, ENE is now used in the U.S. in state

and federal courts.

Fact-Finding: A process by which a third party renders binding

or advisory opinions regarding facts relevant to a dispute. The

third party neutral may be an expert on technical or legal

questions, may be representatives designated by the parties to

work together, or may be appointed by the court.

Judge-Hosted Settlement Conference: In this court-based ADR

process, the settlement judge (or magistrate) presides over a

meeting of the parties in an effort to help them reach a

settlement.

Judges have played a variety of roles in such conferences,

articulating opinions about the merits of the case, facilitating the

trading of settlement offers, and sometimes acting as a mediator.

Examples: USA This is the most common form of ADR used

in US federal and state courts; Japan judge as neutral may

implement three ADR procedures (Jardine 1996).

Med-Arb or Mediation-Arbitration: An example of multi-step

ADR, parties agree to mediate their dispute with the

understanding that any issues not settled by mediation will be

resolved by arbitration, using the same individual to act as both

mediator and arbitrator. Having the same individual act in both

roles, however, may have a chilling effect on the parties

participating fully in mediation. They might believe that the

arbitrator will not be able to set aside unfavorable information

learned during the previous mediation. Additional related

methods have evolved to address this problem.

In Co-Med-Arb, different individuals serve as neutrals in the

arbitration and mediation sessions, although they both may

participate in the parties' initial exchange of information. In Arb-

Med, the neutral first acts as arbitrator, writing up an award and

placing it in a sealed envelope. The neutral then proceeds to a

mediation stage, and if the case is settled in mediation, the

envelope is never opened.

Minitrial: A voluntary process in which cases are heard by a

panel of high-level principals from the disputing sides with full

settlement authority; a neutral may or may not oversee this stage.

First, parties have a summary hearing, each side presenting theessence of their case. Each party thereby can learn the strengths

and weaknesses of its own case, as well as that of the other

parties. Second, the panel of party representatives attempts to

resolve the dispute by negotiation.

The neutral presider may offer her opinion about the likely

outcome in court.

Court-based minitrial: a similar procedure generally reserved for

large disputes, in which a judge, magistrate or nonjudicial neutral

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presides over a one- or two- day hearing like that described

above. If negotiations fail, the parties proceed to trial.

Examples: Used in some US federal districts. (CPR 1993, p. 25.)

Negotiated Rule-Making, Regulatory Negotiation or "Reg-Neg":

Used by governmental agencies as an alternative to the more

traditional approach of issuing regulations after a lengthy notice

and comment period. Instead, "agency officials and affected

private parties meet under the guidance of a neutral facilitator toengage in joint negotiation and drafting of the rule. The public is

then asked to comment on the resulting, proposed rule. By

encouraging participation by interested stakeholders, the process

makes use of private parties' perspectives and expertise, and can

help avoid subsequent litigation over the resulting rule." (CPR

1993, p. 149.)

Ombudsperson: An informal dispute resolution tool used by

organizations. A third party "Ombudsperson" is appointed by

the organization to investigate complaints within the institution

and prevent disputes or facilitate their resolution. The

Ombudsperson may use various ADR mechanisms (e.g., fact-finding, mediation) in the process of resolving disputes.

Examples: Japan Civil Liberties Bureau (Rosch 1987).

Private Judging: A private or court-connected process in which

parties empower a private individual to hear and issue a binding,

principled decision in their case. The process may be agreed

upon by contract between the parties, or authorized by statute

(in which case it is sometimes called "Rent-a-Judge").

Settlement Week: Typically, a court suspends normal trial activity

for the week and with the help of volunteer lawyers, mediates

long-pending civil cases. Mediation sessions may last an hour or

two. Unresolved cases go back on the court's docket.

Examples: USA used more widely in state than federal courts.

Summary Jury Trial: A flexible, voluntary or involuntary non-

binding process used mainly to promote settlement in order to

avoid protracted jury trials. After a short hearing in which the

evidence is provided by counsel in abbreviated form (but usually

following fixed procedural rules), the mock jury gives a

nonbinding verdict, which may then be used as a basis for

subsequent settlement negotiations.

Summary Bench Trial: Like summary jury trial, except that

presiding neutral provides an advisory opinion.

Two-Track Approach: Used in conjunction with litigation,

representatives of disputing parties who are not involved in the

litigation conduct settlement negotiations or engage in other

ADR processes. The ADR track may proceed concurrently with

litigation or during an agreed-upon hiatus in litigation.

Examples: USA and Japan useful when litigation has become

acrimonious or when suggestion of settlement would be

perceived as a sign of weakness (Jardine 1996).

The Characteristics of ADR Approaches

Although the characteristics of negotiated settlement,

conciliation, mediation, arbitration, and other forms of

community justice vary, all share a few common elements of

distinction from the formal judicial structure.

These elements permit them to address development objectives

in a manner different from judicial systems.

1) Informality

Most fundamentally, ADR processes are less formal than judicial

processes. In most cases, the rules of procedure are flexible,

without formal pleadings, extensive written documentation, or

rules of evidence. This informality is appealing and important fo

increasing access to dispute resolution for parts of the

population who may be intimidated by or unable to participate in

more formal systems. It is also important for reducing the delay

and cost of dispute resolution. Most systems operate without

formal representation.

2) Application of Equity

Equally important, ADR programs are instruments for the

application of equity rather than the rule of law. Each case is

decided by a third party or negotiated between disputants

themselves, based on principles and terms that seem equitable in

the particular case, rather than on uniformly applied legal

standards. ADR systems cannot be expected to establish legal

precedent or implement changes in legal and social norms. ADRsystems tend to achieve efficient settlements at the expense of

consistent and uniform justice.

In societies where large parts of the population do not receive

any real measure of justice under the formal legal system, the

drawbacks of an informal approach to justice may not cause

significant concern. Furthermore, the overall system of justice

can mitigate the problems by ensuring that disputants have

recourse to formal legal protections if the result of the informal

system is unfair, and by monitoring the outcomes of the

informal system to test for consistency and fairness.

3) Direct Participation and Communication between Disputants

Other characteristics of ADR systems include more direct

participation by the disputants in the process and in designing

settlements, more direct dialogue and opportunity for

reconciliation between disputants, potentially higher levels of

confidentiality since public records are not typically kept, more

flexibility in designing creative settlements, less power to

subpoena information, and less direct power of enforcement.

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The impact of these characteristics is not clear, even in the

United States where ADR systems have been used and studied

more extensively than in most developing countries. Many argue,

however, that compliance and satisfaction with negotiated and

mediated settlements exceed those measures for court ordered

decisions. The participation of disputants in the settlement

decision, the opportunity for reconciliation, and the flexibility in

settlement design seem to be important factors in the higher

reported rates of compliance and satisfaction.

The Limitations of ADR

Although ADR programs can play an important role in many

development efforts, they are ineffective, and perhaps even

counterproductive, in serving some goals related to rule of law

initiatives. In particular, ADR is not an effective means to:

Define, refine, establish and promote a legal framework.

Redress pervasive injustice, discrimination, or human rights

problems.

Resolve disputes between parties who possess greatly different

levels of power or authority.

Resolve cases that require public sanction.

Resolve disputes involving disputants or interested parties who

refuse to participate, or cannot participate, in the ADR process.

A. ADR programs do not set precedent, refine legal norms, or

establish broad community or national standards, nor do they

promote a consistent application of legal rules.

As noted earlier, ADR programs are tools of equity rather thantools of law. They seek to resolve individual disputes on a case-

by case basis, and may resolve similar cases in different ways if

the surrounding conditions suggest that different results are fair

or reasonable according to local norms.

Furthermore, ADR results are private and rarely published. As

long as some other judicial mechanism exists to define, codify,

and protect reasonable standards of justice, ADR programs can

function well to resolve relatively minor, routine, and local

disputes for which equity is a large measure of justice, and for

which local and cultural norms may be more appropriate than

national legal standards. These types of disputes may includefamily disputes, neighbor disputes, and small claims, among

others.

In disputes for which no clear legal or normative standard has

been established, ADR may not be able to overcome power

imbalances or fundamental disagreements over norms among

disputants. On the other hand, in situations where there is no

established legal process for dispute resolution, ADR may be the

best possible alternative to violence. For example, in South

Africa, a variety of ADR processes used before and during the

transition appear to have prevented violence to some degree and

helped set the foundation for peaceful political change.

B. ADR programs cannot correct systemic injustice,

discrimination, or violations of human rights.

As noted above, ADR systems often reflect the accepted norms

of society. These norms may include discrimination against

certain groups and populations. When this is true, ADR systems

may hinder efforts to change the discriminatory norms andestablish new standards of group or individual rights. In India,

for example, the lok adalats were generally credited with

resolving large numbers of cases efficiently and cheaply in the

mid-1980s before the system was taken over by the government

judiciary. Women, however, did not like the system, especially

for family disputes, because resolution of disputes was based on

local norms, which were often discriminatory towards women,

rather than on more recently defined legal rights. The same was

true for members of lower castes. (See Whitson, 1992.)

C. ADR programs do not work well in the context of extreme

power imbalance between parties.

These power imbalances are often the result of discriminatory

norms in society, and may be reflected in ADR program results.

Even when the imbalance is not a reflection of discriminatory

social norms, most ADR systems do not include legal or

procedural protections for weaker parties. A more powerful or

wealthy party may press the weaker into accepting an unfair

result, so that the settlement may appear consensual, but in fact

result from coercion. For the same reason, ADR programs may

not work well when one party is the government.

When the program design has been able to enhance the poweror status of the weaker party, ADR has been effective in

conditions of discrimination or power imbalance. In Bangladesh

for example, women who have submitted cases of spousal abuse

to mediation have found that the village mediation system,

which includes women mediators, provides better results than

the court system which is even more biased against women in

these cases. (See Bangladesh Case Study.) In general, however,

ADR programs cannot substitute for stronger formal

protections of group and class rights.

D. ADR settlements do not have any educational, punitive, or

deterrent effect on the population.

Since the results of ADR programs are not public, ADR

programs are not appropriate for cases which ought to result in

some form of public sanction or punishment. This is particularly

true for cases involving violent and repeat offenders, such as in

many cases of domestic violence.

Societal and individual interests may be better served by court

sanctioned punishment, such as imprisonment.

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It is important to note, however, that victim offender mediation

or conciliation may be useful in some cases to deal with issues

unresolved by criminal process.

E. It is inappropriate to use ADR to resolve multi-party cases in

which some of the parties or stakeholders do not participate.

This is true because the results of most ADR programs are not

subject to standards of fairness other than the acceptance of all

the participants. When this happens, the absent stakeholdersoften bear an unfair burden when the participants shift

responsibility and cost to them. ADR is more able than courts to

include all interested stakeholders in disputes involving issues

that affect many groups, such as environmental disputes. When

all interested parties cannot be brought into the process,

however, ADR may not be appropriate for multi-stakeholder

public or private disputes.

Alternative Dispute Resolution Approaches and their

Application

Conflicts have existed in all cultures, religions, and societies sincetime immemorial, as long as humans have walked the earth. In

fact, they also exist in the animal kingdom.

Philosophies and procedures for dealing with conflicts have

been part of the human heritage, differing between cultures and

societies. Nations, groups, and individuals have tried throughout

history to manage conflicts in order to minimize the negative

and undesirable effects that they may pose. Conflicts can

develop in any situation where people interact, in every situation

where two or more persons, or groups of people, perceive that

their interests are opposing, and that these interests cannot be

met to the satisfaction of all the parties involved.

Because conflicts are an integral part of human interaction, one

must learn to manage them, to deal with them in a way that will

prevent escalation and destruction, and come up with innovative

and creative ideas to resolve them. Dealing with conflicts

conflict management, or conflict resolution, as it has come to

be called in professional circles is as old as humanity itself.

Stories of handling conflicts and the art of managing them are

told at length throughout the history of every nation and ethnic

group who share the same history.

Conflicts have been recorded from the very early days of

humankind. We find in The Bible and similar religious and

historical documents in different cultures an account of conflicts

that were resolved by various processes, including negotiation,

mediation, arbitration, and adjudication. We also find accounts

of various types of negotiations: between animals and humans,

between two persons, between an individual and a group,

between two groups, and between humans and God. The first

negotiation in The Bible was between the snake and Eve, over

the apple in the Garden of Eden. But not all conflicts in religious

scriptures have been resolved by alternative/appropriate dispute

resolution (ADR). One that was resolved by force and violence

is the story of Cain and Abel. In The Bible we find among many

stories of conflicts and their resolution, the story of Abraham

and Lot negotiating, where Abraham, in order to avoid a fight,

offers Lot a deal that Lot cannot refuse.

Negotiation was conducted not only between people, but also

between humans and God. Abraham negotiated with God over

the fate of the people of Sodom and Gomorra. God also acted

as a mediator between Abraham and Sara when she wanted

Abraham to expel Hagar and her son. In the Muslim traditionwe find the story of Muhammad who negotiated with God over

the number of times that the followers will pray. Muhammad

managed to reduce the number from the initial fifty times a day

down to five, using as his main argument the necessity to leave

enough time for people to do things other than pray.

Throughout history, individuals and groups used a variety of

ways to resolve their disputes, trying to reach a resolution

acceptable to all parties. There is a common belief in all cultures

that it is best to resolve disputes and to reach an agreed end to

them, because conflict is a destructive force.

In the twentieth century many reached the understanding thatdisputes are normal in human society, and not necessarily

destructive, and that if they do not get out of hand they may

have within them a potential for growth, maturity, and social

changes, an opportunity for new ways of thinking and new

experiences.

Because conflicts are an integral part of human interaction, one

should learn to manage them: to deal with them in a way that

prevents escalation and destruction, and arrives at new,

innovative, and creative ideas to resolve them.

Much can be learned about the different ways in which conflictshave been prevented in the past. In older societies, resolving

disputes was considered a unique ability reserved for the wise

and the elders of the community or for religious leaders. More

recently, conflict prevention has become a primary focus of

interest for everyone, and this has resulted in an ever-expanding

field of study and practice.

The field of conflict resolution gained momentum in the last

three decades of the twentieth century. It has developed into a

widely accepted field of study, where skills and strategies are

being taught, and changes in philosophical attitudes occur

through training and enhanced self-awareness. The increasingacademic activity and practical training initiatives have generated

a vast and expanding body of research and publications.

The field is characterized by diversity and complexity. It is

diverse because conflicts exist in every facet of individual and

social life: between business partners, employers and employees,

among employees, between trading partners, among neighbors,

between parents and their children, husbands and wives, an

individual and society, and between countries.

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The field of conflict resolution. has matured as a

multidisciplinary field involving psychology, sociology, social

studies, law, business, anthropology, gender studies, political

sciences, and international relations.

The discipline is complex because it deals with conflicts at

different stages of their existence, and also because it is a mix of

theory and practice, and of art and science, as Howard Raiffa

demonstrated so brilliantly in his book The Art and Scienceof

Negotiation (1982). The science is the systematic analysis ofproblem solving, and the art is the skills, personal abilities, and

wisdom.

Some conflicts may not be resolved easily, and can last many

years. Sometimes these conflicts persist in spite of the fact that

they cause heavy losses of resources, and even human life.

According to a study at Stanford University (Arrow et al., 1995)

there are three categories of barriers to resolving conflicts:

. Tactical and strategic barriers; these stem from the parties

efforts to maximize short or long term gains.

. Psychological barriers; these stem from differences in social

identity, needs, fear, interpretation, values, and perceptions of

one another.

. Organizational, institutional and structural barriers; these can

disrupt the transfer of information, and prevent leaders from

reaching decisions that are in the interests of the parties in

dispute.

A conflict may store within it the potential for a future major

dispute, but at the same time it also contains the possibility of

future creative cooperation, provided the parties seek what iscalled the winwin solution.. To accomplish this, one must learn

to negotiate in a manner that is less competitive and adversarial,

thereby invoking the potential for cooperation.

By working together as joint problem solvers. seeking joint

solutions and not working against one another, the participants

can enlarge the pie. that is to be divided. This can be done either

by negotiation, or with the help of an impartial third party who

will act as mediator.

Third-party intervention is used when a negotiation reaches an

impasse. It is used to restore belief in the possibility of abeneficial resolution for the parties, future dialogue, and restored

relationships, while leaving the control over the decisions with

the parties.

President Carter acted as a mediator between President Sadat of

Egypt and Prime Minister Begin of Israel. Former US Senator

George Mitchell acted as a mediator in Northern Ireland.

An outside third party, whether a person (Archbishop Desmond

Tutu), a group of people, a representative of a state (Henry

Kissinger), or an international organization (The Vatican, The

UN) can act as a mediator, in an attempt to help the parties

reach an understanding, and an agreed solution to the conflict.

A third party, a neutral, can also act as an arbitrator, hear the

parties

arguments and reach a decision which can be binding, or

non-binding according to the agreement made beforehand.

A dispute between Israel and Egypt over the location of the

border between the two countries in the Gulf of the Red Sea was

settled in favor of Egypt by an international arbitration panel, onSeptember 29 1988. Israel had to return the town of Taba, a

resort town near Eilat, to Egypt as a result of the arbitration.

Adjudication is another method that can be used as an

alternative in the international arena (The International Court in

The Hague) and in the national local system. The courts have the

ability to enforce the law in the case of a failure of the parties to

reach agreement through negotiation or mediation. There is a

law, and a way to enforce it without the consent of the parties.

In international disputes, where states are involved, when

problems arise due to opposing interests, such as security and/orresources, an outside enforcer cannot act where it is not

acceptable to one or more of the parties involved. Ruling by the

International Court can end the conflict only if the two countries

agree to abide by its ruling.

Conflict Analysis

1.1: Challenges in Contemporary Conflict

The End of the Cold War

The end of the Cold War brought relief and optimism to people

throughout the world.

Former adversaries made major reductions in their conventional

and nuclear arms. New leaders found ways to cooperate on a

range of international issues. As the specter of nuclear

confrontation began to fade, many held hope that this spirit of

cooperation might set a precedent, that absent the context of

superpower rivalry, nations of the world might find a new

willingness to work together, as an international community, to

resolve conflicts through peaceful negotiations and diplomacy.

Yet events over the next decade proved this optimism premature

The Genocide in Rwanda

For example, in 1994, just three years after American and

Russian leaders signed the first Strategic Arms Reduction Treaty

(START I), the international community failed to provide a

coherent response to the genocide in Rwanda.

The nature and scale of this genocide have prompted substantial

study and analysis, along with deep soul-searching among policy-

makers and observers. In an attempt to eliminate Rwanda's Tuts

minority, the Hutu majority systematically slaughtered 800,000

individuals, most of them civilians, in just 100 days, a rate of

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killing that rivals the worst in human history. Armed with

machetes, the killers were both vicious and organized, torturing

their victims, murdering them in cold blood, and dumping their

bodies in mass graves. In numerous cases, such killing took place

while international peacekeepers stood by helplessly.

The Rwandan genocide exposed glaring weaknesses in the

capacity of international and multilateral institutions to prevent

or respond to such violence, while raising troubling questions

about international willingness to do so.

The Conflict in Kosovo

In a number of former communist countries, the end of the

Cold War acted to trigger conflict, as long-standing internal

divisions boiled to the surface in the sudden absence of single-

party rule.

For the most part, the countries of Eastern and Central Europe

managed their transitions without violence.

The one exception was Yugoslavia, which disintegrated in a

series of violent conflicts, including conflicts in Croatia, Bosnia,

and Kosovo. In contrast to its response in Rwanda, the

international community acted decisively in Kosovo;

nevertheless, the effort was delayed and often lacked

coordination, and the conflict took a devastating human toll.

Ethnic cleansing and other atrocities in Kosovo resulted in an

estimated 10,000 civilian deaths, over 1.5 million internally

displaced persons and refugees, burning of homes, use of human

shields in combat, rape as an instrument of war, and summary

executions.

Intensity of Conflict after the Cold War

In the intensity of violence, to what extent have the conflict in

Kosovo and the genocide in Rwanda been representative of

other conflicts after the Cold War?

Ethnic Violence

The genocide in Rwanda was one of the worst cases of ethnic

violence in world history.

On a smaller but still substantial scale, ethnic violence cost lives

in countries such as Burundi, Yemen and Ethiopia. The collapse

of authoritarian communism unleashed latent ethnic violence inmany societies besides Croatia, Bosnia and Kosovo. Other

conflicts include Georgia, Armenia/Azerbaijan and Chechnya.

Civil Violence

Since the end of the Cold War, civil violence has cost lives in

nations across the globe, including East Timor, Guatemala,

Colombia and Somalia. Civil war continued in Cambodia, Sudan

and Angola, and broke out in Liberia, enmeshed in broader

international conflicts. Many more examples could be cited.

Interstate War

Throughout the 1990s and into the 21st century, the possibility

of major interstate war has continued to loom in such diverse

places as Korea and Kashmir. Two large interstate wars have

taken place in Iraq.

Whether in the diplomatic community, the military, international

civilian police, or nongovernmental organizations, those who

work in areas of conflict have had to ask themselves afundamental and potentially disturbing question: has the

intensity of conflict actually increased since the end of Cold War

In the early 1990s, the statistics were not encouraging. With 93

wars in 70 countries, the period from 1990 to 1995 was twice as

lethal as any decade since World War II. In fact, of the estimated

22 million people who have died in conflicts since 1945, one-

quarter of those deaths occurred in the early 1990s.

The late 1990s saw a decline in violence. The end of apartheid in

South Africa, some progress towards peace in the Middle East,

and a general worldwide trend toward democratic governanceraised hopes once again that conflicts might be easier to manage

in the new century.

However, these hopes were tempered by several events,

including the crisis in the peace process in the Middle East and

the terrorist threat that brutally made itself manifest on

September 11, 2001.

Shifting Trends after the Cold War

While tracking the intensity of violence, practitioners in conflict

management have also noted shifts in the types of conflict

prevalent since the end of the Cold War. While interstate confliccontinues, intrastate conflict has grown in prominence. In their

efforts to develop effective interventions, many have wondered

if a further set of questions might help them respond to the

dynamics of post-Cold-War conflict.

Interstate Intrastate

For example, in the era of superpower rivalry, conflict-

management practitioners often focused on conflicts between

states. In the aftermath of the Cold War, must they focus more

intently on conflicts within states, as well as hybrid situations

such as Liberia?

Professional Armies Militias

Next to professional armies, are militias growing in importance?

How about private military organizations?

Territorial Aims Ethnicity/Identity

Are there shifts in the balance of the motives for conflict? Are

territorial aims growing less prominent, compared to motives

more related to ethnicity and identity? To what extent are

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ethnicity and identity used as a cover for more traditional war

aims?

Military Casualties Civilian Casualties

Are we seeing more civilian casualties in comparison with

military casualties?

Sophisticated Weapons Systems Simple, Lethal Weapons

While advanced states the U.S. above all continue to

develop ever more sophisticated weapons systems, many

combatants are relying on simple weapons that can be every bit

as lethal. What is the status of weapons of mass destruction

(nuclear, chemical, biological)?

1.2: Tools of Conflict Analysis

Questions such as theseand, more generally, questions

concerning the nature of conflictare the principal focus of the

field of conflict analysis. XXX

(T)wo tools used by practitioners in their work in conflictanalysis:

The Curve of Conflict

The curve of conflict is a visual tool that helps illustrate how

conflicts tend to evolve over time. The curve helps in

conceptualizing how different phases of conflict relate to one

another, as well as to associated kinds of third-party intervention.

Practitioners use this knowledge in the determination of

effective strategies for intervention, along with the timing of

those strategies.

Analytical Framework

Where the curve of conflict helps in analyzing the evolution of a

conflict, the analytical framework helps provide insights into the

various forces driving a conflict at a particular moment. With

resources that are often limited, practitioners use the framework

to help determine where they can apply their influence most

productively.

2: The Curve of Conflict

Terms and Concepts

As in any rigorous field of inquiry, the systematic study of

conflict requires learning a challenging array of complex terms

and concepts.

Terms such as "durable peace," "stable peace" and "unstable

peace" are used to describe the state of a relationship between

nations or groups within nations. As a potential conflict

develops, these terms are used to describe different phases in a

changing relationship.

"Preventive diplomacy," "crisis diplomacy" and related terms

describe general categories of action appropriate for various

phases of conflict. In a further complication, different terms are

sometimes used to describe the same concept. For example,

while "preventive diplomacy" is an expression that might be

used in discussions at the United Nations, "conflict prevention"

might be used as an equivalent expression in academic literature.

In his insightful book Preventing Violent Conflicts, Michael

Lund introduces the Curve of Conflict, a conceptual model thatillustrates how conflict can be both violent and non-violent, and

how the use of force in violent conflict tends to rise and fall over

time. The curve also helps organize terms and concepts used by

conflict management professionals, showing how a conflict's

different phases relate to one another and to various kinds of

third-party intervention.

The Curve of Conflict

In his book, Lund explains how the curve is derived: "The

course of disputes that become violent conflicts is traced in

relation to two dimensions: the intensity of conflict (the verticalaxis) and the duration of conflict (the horizontal axis)."

Lund continues,

The line that forms an arc from left to right across the diagram

portrays the course of a conflict as it rises and falls in intensity

over time. Its smoothly curving bell shape is oversimplified to

characterize an 'ideal type' life history. As suggested by the

arrows that deviate from the line, the course of actual conflicts

can exhibit many different long and short lifehistory, trajectories

thresholds, reversals, and durations. Even conflicts that have

abated can re-escalate. Nevertheless, the model has heuristicvalue in allowing us to make certain useful distinctions among

the conflict management interventions that relate to different

levels of intensity.

The column on the left describes relations between parties to the

dispute and is divided into various phases of peace or conflict,

Durable Peace, Stable Peace, Unstable Peace, Crisis, and War

with lower intensity phases characterized by what Lund calls

interactive, mutually accommodative behavior, such as debates

and negotiations and higher intensity phases characterized by

unilateral, coercive behavior, such as ultimatums, sanctions and

physical force.

The best way to understand the model is to take a close look at

each of these phases.

2.1: Durable Peace

Durable Peace is the first phase on the curve. As its name

implies, durable peace is a lasting peace. Plotted over time, it is

represented as a relatively long, flat line.

Lund explains, Durable (or Warm) Peace involves a high level of

reciprocity and cooperation, and the virtual absence of self-

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defense measures among parties, although it may include their

military alliance against a common threat. A positive peace

prevails based on shared values, goals, and institutions (e.g.

democratic political systems and rule of law), economic

interdependence, and a sense of international community.

These terms apply to both interstate and intrastate contexts.

Lund points to relations between the United States and Canada

in the 20th Century as an example of durable peace, as well as to

relations among countries of the European Union. He citesconstitutional democracy as a domestic manifestation of durable

peace. Even in a state of durable peace, disagreements will arise

on any number of issues, but these disputes will be resolved

through Peacetime Diplomacy or Politics, whose objectives

include maintaining and strengthening stable relations and

institutions.

2.2: Stable Peace

The term Stable Peace describes a state of relations that is higher

in its degree of tension than that of durable peace. As Lund

explains, Stable (or Cold) Peace is a relationship of warycommunication and limited cooperation (e.g. trade) within an

overall context of basic order or national stability. Value or goal

differences exist and no militarycooperation is established, but

disputes are generally worked out in nonviolent, more or less

predictable ways. The prospect for war is low.

Lund gives several examples of stable peace, including US-Soviet

detente in the late 1960s, current US-Russian relations, Israel-

PLO accommodation in 1994, and US Chinese relations in 1995.

As these examples suggest, the stability should not be taken for

granted. Domestic equivalents of stable peace involve "national

political compacts among competing, sometimes hostile politicalfactions," as in South Africa from 1994-1995.

As in durable peace, the mechanism for resolving disputes is still

termed Peacetime Diplomacy of Politics.

2.3: Unstable Peace

If disputes remain unresolved and tensions continue to rise, the

conflict may over time enter a phase known as Unstable Peace.

Lund states, Unstable Peace is a situation in which tension and

suspicion among parties run high, but violence is either absent or

only sporadic. Anegative peace

prevails because although armed

force is not deployed [or employed], the parties perceive one

another as enemies and maintain deterrent military capabilities...

A balance of power may discourage aggression, but crisis and

war are still possible.

According to Lund, the relationship between the US and Iran in

1995 provides a good example of unstable peace. Domestic

versions of unstable peace include government repression of

opposition groups, as in Myanmar (Burma) in 1995.

Initiatives taken to defuse tension during a period of unstable

peace are termed Preventive Diplomacy and Conflict Prevention

whose objectives include reducing tensions, resolving disputes,

defusing conflicts and heading off crises. If the efforts are

successful, tensions will subside.

2.4: Crisis

However, if preventive diplomacy and crisis prevention are not

successful, tensions may continue to rise. Through various typesof confrontation, relations may reach the phase of Crisis.

As Lund explains, Crisis is tense confrontation between armed

forces that are mobilized and ready to fight and may be engaged

in threats and occasional low-level skirmishes but have not

exerted any significant amount of force. The probability of the

outbreak of war is high.

For examples, Lund points to the Cuban missile crisis in 1962, as

well as relations in Bosnia in 1996. Continuing political violence,

such as that seen in Colombia in 1995 and later, is a domestic

equivalent of the crisis phase. Initiatives taken to diffuse tensionduring a period of crisis are termed Crisis Diplomacy and Crisis

Management, whose objectives include containing crises and

stopping violent or coercive behavior.

2.5: War

If efforts at crisis diplomacy are not successful, there may be an

outbreak of violence, and the conflict may enter the phase of

War. Lund explains, War is sustained fighting between organized

armed forces. It may vary from low-intensity but continuing

conflict or civil anarchyto all-out hot

war.

Once significant use of violence or armed force occurs, conflictsare very susceptible to entering a spiral of escalating violence.

Each side feels increasingly justified to use violence because the

other side is. So the threshold to armed conflict or war is

especially important.

As Lund points out, the term is used not only for major conflicts

such as Vietnam and World War II, but also smaller ones such as

Chechnya in early 1995 and later. Lund gives Somalia in early

1992 and Algeria in 1995 as examples of the type of civil anarchy

that can be described as war. Efforts by outside parties at ending

hostilities are known as Peacemaking or Conflict Management.

If an agreement to end hostilities has been reached, such outsideparties might then engage in Peace Enforcement or Conflict

Mitigation.

2.6: Post-War

If efforts at peacemaking and peace enforcement are successful,

fighting will subside.

There may be a cease-fire, which may help reduce tensions and

move the relationship from a state of war back simply to a state

of crisis.

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At this point, efforts to keep the conflict from re-escalating are

typically called Peacekeeping and Conflict Termination. As the

result of a settlement, the parties may begin the difficult

processes of Conflict Resolution and Post-Conflict Peace

Building. Through such efforts, tensions can be reduced to a

point where the relationship can be described as a stable peace

or even a durable peace.

Such movement is difficult but not impossible. Lund gives

Bosnia in 1996 as an example of a conflict that moved from warto crisis, Cambodia in 1995 as a conflict that moved from crisis

to unstable peace, and South Africa in 1995 as a conflict that

moved from unstable peace to stable peace. However, as Lund

has pointed out, hard-won arrangements can also unravel. For

any number of reasons, tensions can and often do reescalate.

The skills of the practitioner are just as important in

consolidating peace and preventing recurrence of violence as

they are in keeping a conflict from growing violent in the first

place.

5: Analytical Framework

Complementary Tools

In the same way that the curve of conflict provides a structured

way of looking at a conflict's history, the analytical framework

provides a rigorous method for studying a conflict at a particular

point in time. The framework is derived from Democracy and

Deep-Rooted Conflict: Options for Negotiators [copyright

International Institute for Democracy and Electoral Assistance

(International IDEA), 1998, http://www.idea.int/].

The framework is a verbal tool consisting of a series of questions

organized along five key themes:

Actors

Who are the primary actors in the conflict?

Who are the secondary actors?

Who else has influence over events?

Root Causes

What is driving the conflict?

What are the needs and fears of each group?

Issues, Scope and Stage

What are the key issues for each side?

What phase is the conflict in?

Who is suffering the most?

Power, Resources and Relationships

What are the resources and capacities of each side? What is the

state of the relationship among the leaders? What are the existing

channels of communication?

History of the Relationship

Did the parties ever co-exist peacefully?

What were the previous attempts at a settlement, and why did

they fail?

Was there a pattern to the failures?

This list of questions is not finalno such list could be. For a

particular conflict, some questions will be more useful than

others; in fact, additional frameworks have been written tailored

to specific types of conflicts. Of course, a probing analyst will

continually find new questions to ask. This framework is

intended as a starting point, as a minimum series of questions

that should be asked for any conflict. In the pages that follow,

we will apply this framework to the conflicts in Rwanda and

Kosovo. In both cases, we will focus on that point of the

conflict just prior to the outbreak of major hostilities, in Rwanda

at the beginning of April, 1994, and in Kosovo at the end of

December, 1997. xxx

5.1: Actors

Analysts usually begin by identifying the actors in a conflict. In

addition to governments, actors might include international

organizations and financial institutions, as well as identity groups

factions within groups, single-issue groups, external actors,

potential peacemakers, and potential spoilers. Within groups,

analysts usually distinguish between top leadership, middle-range

leadership, and grassroots leadership.

Who Are the Primary Actors?

Primary actors are normally thought of as those directly involved

in the conflict. In Kosovo, primary actors included the Serb side

led by Slobodan Milosevic, the Democratic League of Kosovo

and its "shadow government" led by Ibrahim Rugova, and the

Kosovo Liberation Army. In Rwanda, primary actors included

the multi-party government led by moderate Hutu, the hard-line

Hutu Power leadership, the Hutu-led Rwandan Armed Forces,

and the Tutsi-led Rwandan Patriotic Front.

Who Are the Secondary Actors?

Secondary actors are not actual parties to the conflict but

nevertheless have a high degree of interest in and influence over

it, often due to their proximity. In Kosovo, secondary actors

included the Republic of Albania and the ex-Yugoslavian

Republics, particularly Macedonia and Montenegro with their

large Albanian populations. In Rwanda, one very important

secondary actor was Radio Television Libre des Milles Collines

(RTLM), the station that urged the killing of Tutsi and moderate

Hutu over the airwaves.

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Who Are Other Parties with Influence over Events?

In addition to primary and secondary actors, analysts consider

other parties with interests in and influence over events,

including regional and global players. In Rwanda, regional actors

included Uganda and Tanzania. International actors with

influence included the United Nations, the United States,

Belgium and France. In Kosovo, the United States, the United

Kingdom, Russia, Germany, France, and Italy formed the

Contact Group, which had considerable influence over events.International organizations with influence included the United

Nations, the Organization for Security and Cooperation in

Europe, the European Union and NATO.

5.2: Root Causes

In every conflict, the actors, particularly the primary actors, raise

various grievances. For conflicts such as those in Rwanda and

Kosovo, analysts look beyond the stated grievances in an

attempt to determine root causes, some of which are listed

below.

What is driving the conflict?

What are the needs and fears of each group?

When analysts attempt to discern root causes of the genocide in

Rwanda, they often refer to the substantial fear and mistrust that

the Belgians fostered between Hutu and Tutsi during the

colonial periodand that the Hutu perpetuated during

independencealong with the scarcity of resources, especially

land, in one of the poorest nations in Africa.

For more immediate causes, analysts note the refugee crisis that

resulted from the massacres of Tutsi beginning in the late 1950s,the desire of the Tutsi refugees to return to Rwanda, Hutu fears

of the return of the refugees, and the willingness of the Hutu

establishment to exploit those fears to remain in power.

In Kosovo, analysts point to the strong attachment that both

Serbs and Albanians have for the land; the scarcity of resources

and generally poor economic conditions in the region; the long-

running desire of the Albanians, who form the local majority in

Kosovo, for independence; and the greater strength in economic

and military resources of the Serbs, who form the majority in the

region as a whole.

As more immediate causes, analysts refer to the movements for

independence and wars in Slovenia, Croatia, and Bosnia, which

encouraged the Albanians in Kosovo to seek their own

independence, while helping to inflame Serbian nationalism. As

in the case of Rwanda, analysts note the willingness of politicians

to exploit ethnic nationalism to gain and hold power.

5.3: Issues, Scope and Stage

Analysts study how root causes manifest themselves in

contemporary issues. Analysts also determine the phase and

intensity of the conflict.

What are the key issues for each side?

In Rwanda, the main issue prior to the genocide was

implementation of the Arusha Accords by the Hutu-led

Government. The accords, signed in Arusha, Tanzania, in 1993,

would have provided for the return of the Tutsi refugees and ledto a power sharing arrangement between the Government and

the Tutsi-led Rwandan Patriotic Front. The President and the

hard-line Hutu were accused of blocking implementation of an

agreement that they contended would have given a

disproportionate share of power to the RPF.

In Kosovo, the key issue was the governance of Kosovo: to

what degree the majority Albanian population would have local

autonomy or, alternatively, take a subordinate position to central

authority in Belgrade.

In both cases, these central issues led to many related disputes,including access to public sector employment, control over

educational institutions, and others.

What phase is the conflict in?

What is its intensity?

Who is suffering most?

In this exercise, we are using the framework to study points in

the conflicts just prior to the outbreak of major hostilities. Thus,

in both cases the conflicts were in a state of crisis, with tensions

running high.

In Kosovo, Albanians suffered greatest damage to life and

property; however, many Serbs lost similarly. The Federal

Republic of Yugoslavia suffered continuing political damage and

economic loss due to international sanctions and ostracism. In

Rwanda, Tutsi civilians suffered on an unimaginable scale.

5.4: Power, Resources and Relationships

Analysts study the relationships among the leaders of each group

as well as the resources available to each side.

What is the state of relations among the leaders?

What are the existing communication channels?

In Rwanda, the Hutu moderates, who had developed excellent

communication lines with the RPF during the Arusha

negotiations, were killed when the genocide began. The UN and

the diplomatic community that had provided critical channels of

communication between the hard-line Hutu and the RPF, were

unable to sustain this role once the genocide began. In Kosovo,

all communication was through the media or third parties, above

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all the Contact Group. There was no regular communication

directly between the Milosevic government and Albanian leaders.

The Albanians considered Serb leaders to be war criminals; the

Serbs saw the Albanians as traitors to the state.

What are the resources and capacity of each side?

Rwanda is one of the poorest nations in Africa. Although Hutu

leaders had all the resources of a government in power, the

Rwandan Armed Forces were ill-trained and had little combatexperience. By contrast, soldiers in the Tutsi-led Rwandan

Patriotic Front had significant combat experience from their

participation in the Ugandan war for independence.

In the conflict in Kosovo, the Serb side had the majority of

assets from the old Socialist Federal Republic of Yugoslavia,

including a substantial police establishment and remnants of an

army that was originally configured to resist the Soviets.

Albanians in Kosovo had local weaponry plus additional

weapons liberated from the collapse of the Republic of Albania.

Both the Serbs and the Kosovo Albanians were in poor shape

economically. Both inherited weak socialist economies. The Serbside had more resources to begin with, but was weakened from

years of war and economic sanctions.

5.5: History of Peacemaking Efforts

To learn from previous attempts at intervention, analysts pay

particular attention to the history of peacemaking efforts.

Did the parties ever co-exist peacefully?

What changed?

Before European colonization, Hutu and Tutsi co-existed inrelative harmony. However, relations changed dramatically

during the colonial period when Belgians sharpened distinctions

between the two groups, favoring Tutsi at the expense of Hutu.

The country eventually gained independence from Belgium, but

the enmity of the colonial period remained and was nurtured by

the Hutu leadership after independence.

In Yugoslavia under Tito, peaceful coexistence rested on balance

among the country's vario