James F. Ring and some colleagues gave a fascinating talk at the recent ABA Dispute Resolution Section on Game Theory; Where it started was cutting a cake; Where it ended was cutting out the lawyers, at least by implication.
I’ve handled any number of mediations where the parties and counsel view prospects for settlement with optimism. Lately, I’m seeing more and more pre-mediation conferences being held in complicated cases or cases where the prospects of settlement seem less likely.
Mediation is a dynamic process. This can mean stepping back, leaning out, and adopting a process that empowers the parties to set their own agenda and seek outcomes that may greatly vary from the objectives set forth in the briefs by lawyers who are trained as advocates more than problem-solvers.
They typically involve many parties and concern an intricate set of historical, religious, cultural, political, and economic issues.
Parties may have different standards of rightness and goodness and give fundamentally different answers to serious moral questions.
Some maintain that justice stems from God’s will or command, while others believe that justice is inherent in nature itself. Still others believe that justice consists of rules common to all humanity that emerge out of some sort of consensus.
Disputes are generally considered to be disagreements that involve negotiable interests. Such issues can be settled through negotiation, mediation, or adjudication. They are generally short-term and, given the right process, lend themselves to the development of mutually satisfactory solutions.
Most people probably do not recognize a distinct difference between the terms “conflict” and “dispute.” However, many conflict scholars do draw a distinction between the two terms. As is unfortunately common in this field, different scholars define the terms in different ways, leading to confusion.
Should peace be built from the top down, or from the bottom up? What roles should the different actors play? John Paul Lederach has answered this question with a diagram…a “peacebuilding pyramid.”