Thursday, February 24, 2011

Week Seven: In what ways are mediation and arbitration similar? Different?

            There are two ways that mediation and arbitration are very similar. First, both processes involve a third party (221, 235). In mediation, this third party “has limited or no authoritative decision-making power” (221). Instead of making a decision for the parties, in mediation the third party typically enables the parties in conflict to have their own discussion and arrive at their own solution (222). Of course, the results of mediation vary, but the third party’s role is to create space for dialogue and possibly a solution to emerge from the parties in conflict (221). In arbitration, the role of the third party is that of a decision-maker (235). Essentially, the third party is chosen to listen to the perspectives of both sides and come to the best decision for everyone involved (235). So, while the roles are very different, one similarity between mediation and arbitration is the involvement of a third party in the process.
             The second similarity is that both mediation and arbitration are alternatives to typical legal options (220). As alternatives, mediation and arbitration processes enable the parties in conflict to be active participants in creating their own solutions. This participation plays out differently in mediation and arbitration. For example, in mediation the parties are able to come to their own solution (222). However, even in arbitration, with the third party holding the decision-making power, the parties have chosen to take part in the arbitration process and chosen to involve the third party (235). For this reason, the parties are significantly more invested in the process and the solution in arbitration than they would be in a litigation process (235).
            In exploring the similarities between mediation and arbitration, I have also touched on many of the differences. However, one difference stands out between these two processes, and that is the role of the third party. While the third party is neutral in both mediation (231) and arbitration (235), in arbitration the third party is required to make a decision. Thus, in arbitration the third party is more involved in shaping of a solution. As Cheldelin points out, there is much debate about the neutrality of the third party in the mediation process (231), with many scholars and practitioners doubting that it is possible or even helpful for the third party to be completely neutral. I share these doubts, and I really struggled in mediation training with the idea that in order to be a good mediator I was not allowed to care about the situation at hand. However, also I would not want to be in a process in which I (as the third party) had all the decision-making power. Thus, for me the “med-arb” approach that combines these two processes is very appealing (239). This process, which creates space for dialogue between the parties but ultimately leaves decision making power to the mediator/arbiter, has great potential as a balanced alternative to litigation (239).

Wednesday, February 16, 2011

Week Six: How may institutions affect conflict, positively and negatively?

            Institutions, like all dimensions of conflict, have both positive and negative potential in times of conflict. Rubenstein focused on the legitimacy of institutions, specifically the legal system (175). Whether or not institutions are viewed as legitimate impacts their capacity to affect conflict positively or negatively, as “every social system rests on a foundation consisting of both force and consent” (168). While institutions can use force to impact a conflict, this usually goes along with a decrease in consent and popular support (168). On the other hand, an increase in support and consent decreases the need for use of force (168). Thus, the consent of the people based on their perception of an institution’s legitimacy can dramatically change the dimensions of conflict (168).
            Rubenstein explored institutional legitimacy using the example of the legal system, stating that “the system as a whole justifies its existence by the extent to which it satisfies people’s need for security, freedom, and other social goods” (175). He also emphasized the responsibility of the legal system to “maintain social peace…[and] resolve conflicts both inside and outside their boundaries” (177). Finally, he listed “protecting the rights and interests of disadvantaged parties” as one of the five purposes of the legal system (179). All of these tasks of a legitimate legal system are examples of how institutions can and do affect conflict positively—by meeting needs, by protecting rights, and by promoting peace. On the other hand, Rubenstein was honest in admitting that the legal system can also affect conflict negatively, adding fuel to the fire. For example, at times “legal rulings can intensify social conflicts rather than resolve them” (181). When this happens, the legal system loses its legitimacy, as it fails to meet the needs of all people and resolve the conflict at hand.
            Overall, I think institutions have a critical role in conflict, but it is important to recognize the connection between institutions and individuals. If individuals do not view institutions as legitimate, any influence in the conflict will likely be through force, which I think would lead to negative influences in conflict. However, if an institution meets needs, protects rights, and promotes peace, the consent of the people will likely place that institution in a prime position to affect the conflict situation in a positive manner. While the examples in this chapter were specific to the legal system, I think it provided a helpful framework for both identifying legitimate institutions and critiquing and transforming illegitimate ones.

Wednesday, February 9, 2011

Week Five: How might conflict be a positive force in changing structures? A negative force?

            Since conflict itself is neutral, it can have either positive or negative results. This is true especially in relation to structures; conflict can lead to the transformation of oppressive and violent structures, or it can lead to the maintenance of the status quo. Because “oppressive social structures” cause “dissatisfaction of basic needs,” which can lead to conflict, the very presence of conflict is often a symptom of a deeper structural problem (155). Already, we are faced with a decision: will conflict be framed positively, as an opportunity to address the underlying structural issue, or will conflict be framed negatively as an inconvenience and interruption to the status quo? Conflict, just like our perceptions of its existence, has the potential to work either positively or negatively. In the work of changing structures, conflict has the potential to “[increase] the adaptation of particular social relationships to new situations,” thus transforming and strengthening the relationships that comprise the structure (157). Of course, conflict also has the potential to cause further alienation and division of social groups within the social structure. In order for conflict to act as a positive force in social structures and relationships, it is important that we name and claim this possibility. Awareness of broken and oppressive social structures is important, but even more critical is awareness of and real belief in the possibility of transformation (161). For if it is true that “people can be free only when they believe in the possibilities for change” (161), then proclaiming and believing that conflict has positive potential is critical if conflict is to transform oppressive social structures into more just ones.
            With all this in mind, it is also “important to note that structural changes may not be easily or immediately achieved” (164). This is because structural change is the work of conflict transformation, which requires long-term commitment (Lederach 33). Conflict resolution, on the other hand, is more concerned with resolving the manifest conflict; as a result, “structural issues are less important” since “the goal is…to maintain or restore harmony” (164). Overall, I am convinced that even though conflict transformation is a more difficult and long-term process, it is also a more holistic and complete one. By using manifest conflict to identify and address structural violence, conflict transformation uses conflict as a positive force for social change.

Thursday, February 3, 2011

Week Four: Do you think conflict is mostly caused by personal and situational sources or structural sources?

           It seems to me that conflict is most often caused by structural sources. Rubenstein describes the two main sources of conflict as “human nature” and “structures” (55). Even upon reading those two options for the very first time, I felt myself pushing back against “human nature” as the cause of conflict. Personally, I try to see the best in human nature, and I feel like blaming conflict on the way that people are (or a person is) makes it difficult to envision the possibility of peace in that situation. Rubenstein gave the rather extreme example of Hitler and whether he was an “embodiment of ideological fanaticism and power-lust” or simply “a nationalist leader responding to Great Power competition” (56). These views illustrate the difference between personal and structural sources of conflict— was the problem Hitler himself, or did a set of structural (social, political, economic, etc.) circumstances also contribute? Clearly, this is an extreme case, and it seems that both structural and personal sources of conflict collided with tragic results.
Rubenstein points out that it is easy to see overt conflict as personal (57), which makes sense since manifest conflict is carried out by individuals or groups. However, he also points of the role of structural violence in causing overt violence, saying that “if the level of provocation continues to rise, all but the rarest individuals will give way eventually to aggressive or self-destructive behavior” (57). This provocation, I think, comes from structural sources which deprive people of their needs and humanity (58). While it is easy to point to individuals who act out violently as the cause for that violence, in order to transform the conflict it is necessary to acknowledge and deal with the “institutions that function either as active causes or necessary conditions for outbreaks of violence” (59). These institutions and structures, not human beings, seem to be most consistently at the root of violence.
While human nature does contribute to conflict, I strongly resist the idea that human nature is the cause of conflict. It seems to me that it is the human instinct to survive that plays the greatest role in conflict, not a human instinct to do violence. While this human instinct to survive often leads to violence, this violence is spurred by either physical or structural threats. A human instinct of survival is not in and of itself a negative thing, as would be a human instinct of violence. Thus, by transforming the structures (and situations) that threaten human survival, it is possible to transform conflict and create space for peace to grow.