Working Paper 93-19, August 17, 1993(1)
By Mark E. Appel
Regional Vice President, American Arbitration Association
(1) This paper is an edited transcript of a talk given by Mark E. Appel for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.
© 1993. Conflict Resolution Consortium. Do not reprint without permission.
I have been in the ADR field since 1977 and also have been a community activist for about as many years. I moved here from New York, where I was president of a block association. I first settled in Westminster and then moved to Park Hill, where I have been involved in the neighborhood organization. If you like conflict, Park Hill is a great place to be! The neighborhood organization gets involved in all sorts of issues--things like light rail coming down your street, airplanes coming down your street--well, you get the idea.
It is crucial to recognize that alternative dispute resolution doesn't mean conflict avoidance. For that matter, it is important to note that conflict is not a bad thing. Conflict happens; it's necessary, it's healthy, it's good.
What we're here to talk about today is conflict in a very difficult situation--intractable conflict. Alternative dispute resolution sometimes inspires expectations that are unrealistic. ADR is not a panacea. Intractable conflicts do exist. There are disputes which are not capable of resolution--at least final resolution--because of value differences. These differences may be ethical, political, or sociological. They are neither uniform nor static. Values are constantly in flux. Conflicts involving significant differences are not capable of instant solutions.
There are several benefits of the ADR process which may be incompatible with the needs of parties in intractable conflicts. For example, one generally perceived benefit of ADR, at least in the commercial context, is privacy. Intractable conflicts tend to be very public. The parties need to make their requirements, their interests, and their positions known publicly. So privacy is not a selling point when confronting intractable conflicts.
Another benefit of ADR is its finality. In third-party decision-making processes, with arbitration, for example, one of the benefits is a final decision. The matter is settled; the parties can go home. Or the decision-maker goes home, and the parties stay. That's the problem. Arbitrators go home, but communities remain. An example that comes to mind was a long-standing land dispute between the Navaho and the Hopi tribes, supposedly resolved years ago by a third-party neutral. This third-party neutral first tried to mediate a solution, when that failed he determined the boundaries himself. He said, "this is fair"--and it might have been fair for him, from his perspective, but, for the families who were living on the boundary line, who were going to be separated from their neighbors and relatives, it wasn't a workable solution. Third party decision-making processes are difficult within the context of intractable disputes.
So, how can ADR facilitate constructive confrontation within intractable conflicts? ADR can open lines of communication--get people talking. A neutral facilitator's first duty is to create a safe environment and opportunity for parties to meet and exchange information, needs, wants and priorities. It is the propensity of people in intractable disputes to dehumanize the "enemy." Look at wartime--it's the propaganda at wartime which makes the enemy appear to be criminals or worse, murderers, and which allows opponents to do the same. Images of dead babies work well if you want to justify killing a doctor who performs abortions. Dehumanization can make it easy to rationalize force, even deadly force, in resolving conflicts.
Additionally, ADR can provided parties with the means of negotiating limits and consequences of their actions. So, for example, if a party needs to interrupt a parade to gain public interest and sympathy, that need can be negotiated. Who gets arrested and how they are arrested can be negotiated. Ultimately, ADR can allow people to feel they have some control over things that often feel unmanageable (intractable conflicts often appear uncontrollable) and to take some responsibility for their actions, and the consequences of those actions.
Finally, as stated previously, it is unrealistic to expect that the use of ADR techniques will provide ultimate answers to these very difficult issues. As mentioned above, one of the problems with intractable conflicts is the issue of differing values. Even "nonviolence" means different things to different people. During our Columbus Day dispute, for example, I heard the words "nonviolence" and "self-defense" used in the same sentence. That's an interesting concept for me to work with.