"New Techniques of Conflict Resolution and Dispute Settlement –
Applications to Self-Determination and Native Peoples"

A Background Paper

by Jack R. Miller,
B.A., B.C.L., B.L.

Student Conference Committee
on Native Peoples and the law
Interamicus

McGill University
February 8, 1990

Abstract

The purpose of this paper is to focus on new techniques of conflict resolution and dispute settlement, collectively referred to as "ADR", and their potential for application to the resolution of conflict and settlement of disputes involving native peoples, including self-determination. The premise of this paper is that there are urgent needs not being met by current techniques, that new technologies are available and that applying and matching the techniques to the needs could move the whole process dramatically forward with a good chance of attaining goals and objectives within a relatively short period of time. The paper concludes with some suggestions for a critical path.

If I guessed that many people of good faith felt frustrated when thinking of conflict, self-determination and native peoples, would I guess correctly? I think that I would. I have only to read the newspapers regularly to hear such feelings expressed across Canada.

The eloquent essays of some of the leaders of native peoples brought together in "Drumbeat - Anger and Renewal in Indian Country" edited by Boyce Richardson, with an introduction by Georges Erasmus and published in 1989, reflect this frustration.

I have heard this frustration myself. I have become a practitioner of conflict resolution and dispute settlement. I have adapted my private litigation practice over a period of eight years incorporating new techniques. It is my privilege to provide conflict resolution and dispute settlement services to some native peoples.

And I would like to share with you some of what I have learned in the hope that it could also be of benefit to you and to the people whom you serve. I think that it is time for some fresh approaches. I hope that some further information could stimulate your own creativity.

34 Options

I feel that conflict and dispute are often confused and interchanged. I observe that for most people there are few options. Some people seem rooted in one paradigm or mode. For others, the dynamics are a blur or stereotyped. Some think that a law suit and negotiation are the only options. Many think in terms of enforcement and sanctions. Some have heard of mediation, arbitration or conciliation but are locked into a particular technique and are unaware of the full range of options. Some try to fit all disputes and conflicts into one mould, like some kind of universal tool for all jobs.

Dr. Marvin Minsky, co-founder of the Artificial Intelligence Laboratory, Massachusetts Institute of Technology, has derived a profound respect for human intelligence from his pioneering work on artificial intelligence. In a recent Public Lecture at the Science College of Concordia University, Dr. Minsky said that he could not understand why so much attention is paid in the sporting world to incremental accomplishments such as adding a fraction of an inch to the high jump record and so little to the quantum leaps of the human brain. I think that he had in mind among others the world chess champion who took on and beat the chess-programmed computer. I was thinking of ADR.

Most people could count the options of conflict resolution and dispute settlement on the fingers of one hand, without using all the fingers. I have identified from the reported experience and from my own experience 34 options which are separate and distinct systems of conflict resolution and dispute settlement. I annex the list to my paper. These options do not include the many variants and forms of each option. And I am sure that there are more to be discovered and invented. I think of them as compounds and mixtures derived from basic elements of justice through the catalyst of human interaction.

I situate and visualize these options on a spectrum measured by potential for value, commencing with the options of highest value and progressing towards the options of lesser value. I measure value in terms of the interests of the parties, those having the greatest potential to satisfy the greatest number of interests having the greatest value.

I classify the options into two broad categories, facilitative, where a third party (which could be a group or team) assists and supports the parties to themselves resolve their conflicts and settle their disputes and adjudicative, where a third party resolves the conflicts and settles the disputes for the parties after due process.

The options also seek not only to settle disputes but also to resolve conflicts. "Conflicts" I understand to be something internal to a person or to an institution (which some have said corresponds to hurt) and "disputes" I take to refer to interaction between two or more persons or institutions. The recognition of the part that emotions, hurt and stress play in conflict resolution and dispute settlement is essential to success.

There is an abundant literature on the subject, some of which I have collected over the last 8 years. The literature is growing. The curriculum of law schools acknowledges it. The curriculum of management schools also incorporates it.

The process of fundamental change proceeds from roots within the legal system and from roots within different communities, including the communities of native peoples. The process accords with many fundamental changes in society, such as the desire of individuals for more control over their lives, the desire for greater productivity and efficiency, the research into how our brains work and what our minds do.

ADR is an approach which seeks a quantum improvement in the quality of results and also an elimination or reduction in wasteful expenditure of time, money and allocation of resources, including human resources. In other words, ADR is soundly grounded in the basic needs and capabilities of society.

In most cases, 5 or 6 options could apply, sometimes in sequence, other times in combination, often by a process of elimination. The law plays a vital role as do the adjudicators. The processes are integrated into a coherent plan of action with a critical path. It is essential to match the option to the question and not try to fit all questions into one or two options.

I call it "Appropriate Dispute Resolution".

My goal is to rationalize the options and determine their appropriate application. This approach is done jointly by the parties who co-own the resulting process. Often in arriving at the process, the parties find that many substantive issues have been resolved and a basis of co-operation and technique is available to tackle the tougher issues.

The processes are soft on people, hard on issues. The processes build relationships and seek to enhance the self-esteem and self-respect, i.e. the human rights, of all concerned on an equivalent and reciprocal basis.

Adisciplinary and Multiprofessional

ADR is in my view adisciplinary, i.e. it does not belong to the exclusive domain of any single discipline, and is multiprofessional, i.e. works best through the interaction and integration of many professional experiences. I call them conflict resolution and dispute settlement professionals.

I have assembled an adisciplinary and multiprofessional group of independent conflict resolution and dispute settlement professionals in Montreal who have received a basic training in ADR. I hope to link up this group with other comparable groups across North America in the near future. I also hope within the same time-frame to integrate into the link-up centres of research in North America. Preparations have been under way for about a year. The basic principle is Just-in-Time, Total Quality Control, i.e. calling upon an appropriate resource when needed who is able to perform a particular task and maintain a seamless continuity of high quality with a minimum of briefing.

There is a very large number of disciplines and professions which could make a contribution to conflict resolution and dispute settlement. Here I want to recall that such disciplines and professions are in support of the parties themselves. The disciplines and professions include the health professions, physics, engineering, educators, economics, management, actuaries, among others, including law.

As a lawyer in my 24th year of private practice, I would like to say a word about my perception of the law. I believe that the role of the law is shifting from an authoritative to a normative role. Rather than perceiving the law as deciding a matter, the law is perceived as the collected wisdom of past generations guiding us to wise solutions in the present and for the future. Actually, I think that it was always so. Now it is really the perception that is changing. Thus the law cannot claim a monopoly on solutions to conflict resolution and dispute settlement, but it can become a dynamic instrument for change.

I understand psychology as the science of thought or as the study of thinking. It is widely believed that thinking determines our emotions. Some would say that our emotions are different ways of thinking. Changing our thinking is a key to conflict resolution and dispute settlement.

We know of two sure ways of changing our thinking: information exchange and listening. Many ADR options facilitate information exchange and listening. Audi alteram partem - the right to a hearing - is said to be a fundamental rule of natural justice. Unfortunately, too often, there is not enough listening in the hearing. ADR seeks to make sure that the parties are heard.

Consequently, in my view, psychologists and other health professionals, including health professionals among native peoples, are essential to conflict resolution and dispute settlement. ADR is part of getting well again.

I could go on and make a case for economists and a case for engineers, but perhaps you could do it for me, and for many other professionals as well, e.g. actuaries, who manage risks.

I would like to refer you to a short reading list in order to stimulate your thinking along the line of integrating disciplines and multiprofessional interaction: Roger Fisher and William Ury, Getting to Yes - Negotiating Agreement Without Giving In; John Burton, Resolving Deep-Rooted Conflict - A Handbook; Robert Axelrod, The Evolution of Cooperation; James Gleick, Chaos, The Making of a New Science; Scott Peck, A Different Drum; Marvin Minsky, The Society of Mind; Manuel Smith, When I say no, I feel guilty; Gerald Jampolsky, Love is Letting Go of Fear; Michael Doyle and David Strauss, How to Make Meetings Work, the New Interactive Method; Erving Goffman, Interaction Ritual - Essays on Face-to-Face Behaviour; Lawrence LeShan, Alternate Realities; Carl Rogers, On becoming a person; Pia Mellody, Facing Codependence; David Burns, Feeling Good; Stephen Hawking, A Brief History of Time; and Jerold S. Auerbach, Justice Without Law?.

Native Peoples

I believe that ADR has particular potential for conflicts involving native peoples because there is a special opportunity for common ground.

Of course, ADR would lend itself well to the multiplicity of issues and could offer a quality of result in a reasonable time frame at affordable costs.

But it is the potential for congruence of ADR, with its numerous options derived from basic elements, and the justice systems of native peoples.

It is an opportunity not only for common ground but also for sharing, mutual teaching, and an equality of participation. Each can come to the process from a base in his or her culture where the bases converge. Justice systems of native peoples often could be and are models of where the justice systems of non-native peoples would like to be, e.g. victim-offender reconciliation programs.

There is another reason: ADR permits the resolution of what John Burton of George Mason University calls "deep-rooted conflict", i.e. conflict which cannot be "managed" but can only be resolved through respect of basic vital interests. ADR permits an appropriate differentiation of basic dynamics and modes of reality. For instance, negotiation is only one of the 34 methods since it involves a particular dynamic and configuration. Great strides have been made in negotiation theory and practice, progressing from positional to principled negotiation. Experienced negotiators are not discouraged by irreconcilable positions. Rather the positions are given due attention and respect. The focus then shifts to the underlying interests and their numerous points of convergence. The effort is to construct win-win solutions.

It is also important to recognize the applications of theoretical physics with its current concentration on chaos theory to negotiations. Scott Peck's experience of community building and consensus-making is also of interest.

I prefer the term "interaction" to refer to the numerous and diverse elements of any given process. For me the generic is interaction and not negotiation. Even in the theory and practice of meetings, there are dynamic innovations and new models constructed and applied.

Generally, ADR approaches are the essence of success, i.e. scientists and practitioners have studied systematically successful interaction and extracted its essences.

A Critical Path

Finally, in the space that remains in this sketch of new techniques with deep, well-nourished roots, I would like to offer suggestions for a critical path of conflict resolution and dispute settlement involving self-determination for the native peoples.

First, I would like to suggest that there could be a critical path for the design, construction and testing of the self-determination edifice on a turn-key basis. A critical path has a beginning and an end, functions with a budget, and permits course adjustments and adaptations. There are many models. I would choose an appropriate model and with the help of engineers and project managers adapt it to the purpose.

Secondly, the critical path could begin with the design of the process culminating in the critical path itself which will co-ordinate many interacting parts. The design must begin with education. I suggest that the designers learn together and from each other. They could agree to disagree for the time being and begin agreeing on process and focus on building their relationship. In my experience, attempts at conflict resolution often fail when the parties plunge into the heart of the issues. I advise beginning with the process, considering the alternatives, and building together a comprehensive, durable process. The process like the body of an aircraft must be capable of withstanding turbulence without falling apart.

Finally, let me leave you with one more thought. I feel that we have passed through the Age of Information and have added, in the computer, an important tool to our tool box. We are entering in my view the Age of Relationships. I believe that relationships are all important because it is through relationships that we can co-operate and produce the greatest gain for all, even in a world of egoists. Egoism it seems is a natural part of the human condition, our shared human frailty. Lest disappointment become discouragement, we could remember that we have choices and we could choose peace. Now.

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