NATURE OF CONFLICTS AND EMERGENCE OF DISPUTES
ADR processes become relevant to civil justice systems which has changed the role of the court.
Courts become sponsors of settlement and parties are responsible for resolution of their issues.
The nature of conflict
Conflict v Dispute
Bercovitch – there are positive aspects of conflict e.g. facilitating internal change/focusses attention
on the real problem.
Carrie Menkel-Meadow – conflict leads to creativity of integrated solutions uncovering interests and
resolving disputes.
Sources of conflict
Having insight into the source of conflict helps solve it before it gets into a dispute.
Filey – there are 2 types of conflict: (i) competitive, (ii) disruptive.
Competitive – diametrically opposed views/goals. Solution is achieved by mutually agreed
rules
Disruptive – parties are interested in harming each other
De Bono – perception influences conflicts. Cognitive influences impact the way we receive and make
decisions which can prevent creative solutions.
Moore – ‘circle of conflict’ breaks down conflict into 5 different types: Interest, date, structural, value
and relationship.
Emergence of disputes
Not all conflicts end up as disputes, but certain elements occur cumulatively that lead into a dispute:
Abel – there needs to be interaction. Conflict becomes a dispute if one person seeks to make a claim
over the matter in dispute and so inconsistent claims are asserted publicly.
Felstiner, Abel & Sarat – 3 stages to emergence of dispute:
Naming – acknowledgement of an injury/breach
Blaming – recognition of someone/something being responsible for the injury
Claiming – once injured party has laid blame, a claim may be made for restitution/damages
The dispute occurs only when there’s denial of the claim.
Roberts & Palmer – looked at disputes through a legal lens:
Identification of a wrong
Attribution of responsibility for the wrong
Translation of the dispute into legal language
Transformation of the dispute into the justice system
