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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