Conflict: It’s Relational and that ain’t Situational

Many mediators say they adjust their approach according to the situation.  This makes sense on one level.  If a mediator remains responsive to the parties, the interventions will necessarily vary according to the parties, and will even vary with the same parties as their interaction changes.  But many mediators mean something different when they say they adjust their approach.  They mean sometimes they get more directive or more evaluative.  They do so because they believe those tactics will make a settlement more likely;  and they do so in an attempt to contain the interaction. And they suggest that sometimes the interaction matters and other times the terms of the settlement matter.  Sometimes they say that certain types of disputes lend themselves to a focus on interaction; and others lend themselves to a focus on the terms of settlement.  But it turns out all conflict is at its core, a crisis in interaction.

Many divorcing couples, with or without children, and with big or small marital estates, manage to sort out the terms of their divorce efficiently.  Others litigate for years.  The difference between the two groups is not what’s at stake, but what the state of their interaction is.

When an injured party seeks compensation from someone they believe is responsible, the amount of compensation can be negotiated without a lawsuit.  If the negotiation degenerates into a lawsuit, the costs of the lawsuit mean that one or both sides end up with less of the money that is supposed to be so important.  There must be something else going on:  an interactional crisis.

When big companies sue each other for tens of millions, there’s more happening than pure, rational concern for their bottom line.  The issues being litigated could also be negotiated, but they’re not.  All sides of these lawsuits are spending significant amounts of money on the fight – that money is hurting one or all sides’  bottom lines – something other than money must be driving those fights. If the negotiations have degenerated to a wasteful lawsuit, there must be interactional challenges at play.  Problematic confusion, distrust, demonization, and defensiveness must be present.

The US invaded Iraq at a time when US citizens were still traumatized by 9/11.  On top of that, many in the US felt hatred of Saddam Hussein (and many were confused and thought he was involved in 9/11).  And a large majority of Americans had no close relationship with anyone in Iraq. And on the other side, as it turned out, Saddam had good reason to feel threatened by the US.  So both sides felt threatened by the other, and a lack of trust of the other.  The war that started between the two countries was only possible when mutual distrust was intense.  While oil, power, and ideology were also at play, only the crisis in the interaction between the countries could have led to the war.

This is not to say that war and litigation are necessarily always a mistake, but they’re always a mistake for at least one side, in terms of the outcome.  If disputing parties have high quality conversations, in which clarity about themselves and each other increase, the need for war and litigation decrease greatly.

So for conflict intervention to be helpful, improved interaction should be its focus.

posted by Dan Simon

3 thoughts on “Conflict: It’s Relational and that ain’t Situational

  1. All disputes arise out of interaction, of course. And all resolution involves some sort of interaction between at least one other plus the parties (the latter aren’t necessarily interacting directly but at least through a third party). But why do you say “If the negotiation degenerates into a lawsuit … “? Why is that necessarily a “degeneration”? When an aggressor, for ex., harms an innocent party, why should anyone try to make nice between the parties? Why would the injured party WANT to interact with the aggressor? And why should the injured party care about the aggressor’s interests? I do not understand why ADR folks appear so against the vindication of rights.

  2. Thanks for the comment. And thanks for catching me in an overgeneralization. I absolutely agree that a negotiation that becomes a lawsuit does not necessarily mean the interaction has degenerated. The decisions of the parties to litigate certainly might be the product of strength, clarity, and mutual understanding. I should have put the word “usually” in there somewhere.

    The legal system and vindication of rights certainly have their place. One of the essential principles of the transformative model is support for parties’ choices, including, for example, a choice to forego mediation and proceed to litigation. So thanks for the correction!

  3. The emphasis on supporting parties’ choices is another aspect of the ADR movement (especially the ever-expanding body of literature promoting ADR in law journals etc.) that seems odd to me: has anyone EVER been prevented from attempting to settle disputes peacefully (with or without third-party assistance and whether for a fee or otherwise) without filing a lawsuit? Of course not! It often seems that much of ADR is an attempt to capitalize on what people have ALWAYS had at their disposal (although SOME aspects of informal dispute resolution methods are, of course, being improved upon by study and practice by ADR professionals). Still, so much of the ADR literature seems “evangelical” denouncement of civil law process and in many cases civil law substance–see, e.g., the article arguing for replacing civil law adjudication with private ADR at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ohjdpr22&div=28&id=&page=

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