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The nature of conflicts and disputes, highlighting the positive aspects of conflict and the sources that can lead to disputes. It also explains the emergence of disputes, the stages they go through, and their transformation into the justice system. Additionally, it touches on the role of alternative dispute resolution (adr) processes in civil justice systems.
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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