CH7-Conception and Practice §

Class: IS404 Created Time: January 21, 2022 4:08 PM Database: Class Notes Database Last Edited Time: January 21, 2022 4:10 PM Type: Lecture, Reading Notes

This presentation will focus on diverse procedures exist to respond to various types of problems at personal, communal, and international levels.

We will explain about the diverse ways to manage and resolve issues from wide range of theories and practice. How they are differentiating from each other? What process did they involved in? What outcome did they produce?

Three approaches to problems: §

1. Right-based approach
   • Types: Applied to cases with the main goal to restore justice for the victims.

• Parties: Human Right offender and Government
• Method: Range from a court verdict and arbitration based on goals of the parties and nature of the issue.
• Reason: Fairness to victim, and remedies is possible to weaker.
• For example: The verdicts on war criminal in former Yugoslavia and Rwanda
• International:
  • Do not have strong mechanisms to protect the victims
  • Legal settlement are is not easy given the insufficient power of supranational authority
  • eg: Genocide acts in Bosnia and Rwanda
• Domestic:
  • Institution deficiency and grow power imbalance between perpetrator and victims
  • Lack of Judicial independence
  • eg: Activist lawyers is barred in China

1. Interest-based approach

• Types: Applied to settling price differences or interest, parties can be loss and gains.
• Parties: Organizational, industrial, and matrimonial
• Method: Negotiation or mediation
• Reason:
  • Guaranteeing a fair outcome
  • Can help avoid the domination of powerful parties
  • Non-judicial resolution: a). cost-efficient and not involving unnecessary emotions and power struggle b). Informality

1. Need-based approach

• Types: Concerned intangible issues of self-esteem and respect are often enmeshed with territorial or other types of tangible objects
• Parties: Government and groups
• Method: facilitation by can be sought by recognizing different identities and respecting each other’s dignity or analyzing the needs
• Reason:
  • seeks coexistence based on the agreement of the removal of exploitative and oppressive relationships
  • Realization of self-interest embedded in a shared future
  • For example, the white minority regime in South Africa

Settlement Activities §

Approach: Passive avoidance to active engagement.

Methods: inaction, informal discussion, negotiation, mediation, arbitration, administrative rules, judicial decision, legislative vote, nonviolent protest, and other direct action.

Outcome: representative, or facilitated negotiations by third parties

Choices: Formality or Informality?

Circumstance: based on any circumstance, sometimes a breakdown of communication or difficulties in reaching agreement  (need third parties)

Context or nature: existing relationships between the parties or they shared the same goal

Types of settlement methods

1. Voluntary settlement

Main task: compromise interest

Focus: substantive issue or manage a relationship

Formality: Informal, required effective communication

Outcome: seek non-adversarial; seek trust relation and collaborative solution

1. Judicial Settlement

Main task: Produce fair judgement about rights entitlement

Focus: substantive issue or manage a relationship

Formality: Formal, required convince Judges or Jury

Outcome: lack of control over outcome; delivering decision without concern about relation consequences

Evaluative Decision Making

1. Judicial Decisions

Parties have little control over not only the process but also outcomes

Court arguments are guided by precedents and legal norms

They cannot choose a judge or jury.

Decision is enforceable and binding

Mini-Trial: to predict formal court decisions.

Example: the ICJ (decision and advisory opinion)

1. Arbitration (Quasi-Judicial)

Parties have more control over the process but not the outcomes

Parties can choose the arbitrators, whom they think are of expertise and impartiality

It is more informal and flexible, less costly, and more convenient (modify schedule and place)

Some requires formal agreement

Examples: the WTO and the PCA (the Permanent Court of Arbitration)

1. Ombudsmanry

The ombudsmanry system protects individuals against possible institutional failures and abuse of public trust

Elected officials and public institutions should be subject to public scrutiny

Features: investigating the sources of a complaint, looking into rights abuses and  preparing a report.

Procedure: normally objective, confidential, neutral, informal, inexpensive, and quick

Example: Canada

Collaborative Problem Solving §

1. Negotiated Agreements

Negotiation is about adversarial bargaining

Parties can reach an agreement through compromise

Decision making is supported by agreements on factual matters, reasonable overall objectives held by disputants,

If negotiation between two parties is not possible, third party may involve and vice versa

Example: Negotiations on the transition to majority rule in South Africa, and Israeli–Palestinian peace negotiations

1. Mediation

Mediation is a more amicable way of ending conflict than adversarial bargaining

Mediation involves third party and is more suitable than arbitration when conflicts are as a results of misconception or poor or mis-communication

Mediators interpret information, make tentative suggestions, inject opinions, make recommendations, evaluate preferences.

Parties can control the outcome, for its voluntary and can be withdrawn from

1. Group Facilitation

Group facilitation aims at collective decision making.

An informal consultation process is the first step toward convincing the stakeholders to commit themselves to a consensus-building process

Facilitators keep order, suggest a procedure, set up a schedule, manage meetings, and reiterate points of agreement. But they do not involve in substantive discussion

Mutual satisfaction arises from innovative and flexible solutions made by the maximum involvement of participants

Assessing decision-making modes §

A settlement process can be ended by judicial decision, arbitration, or agreements forged by mediation, conciliation, and facilitative methods.

Border deputes are often referred to judicial mechanism. Ex: The dispute on the small island between the UK and France.

Some issues are easier to settle or resolve through institutionalized frameworks.

In a collaborative process, shared power replaces each party’s attempt to impose one’s own will on the other.

1. Power versus collaborative problem solving
   • Each partisan tries to exert strategic influence either via coercive methods or persuasion
   • In a response to conflict, partisans may push their own ideas to demand the capitulation of an adversary
   • In an ethnic struggle, the “win-lose conceptions may be self-destructive,”
2. Rationalist/utilitarian perspectives
   • Rational conflict management is based on the assumption that parties know their best interests
   • Problem solving is designed for the discovery or creation of mutually beneficial choices
   • Interest-based bargaining is more easily applied to dispute characterized as problems
3. The role of culture
   • Cultural differences play an important role in developing resolution modalities.
   • Non-assertive cultures adopt indirect means of communication supported by the involvement of recognized leaders
   • In an egalitarian social organization is more suitable than arbitration or adjudication
   • In traditional cultures, a clan resolution process can be sponsored by political brokers, local or regional headmen, or religious leaders.

Impartiality and Neutrality

Impartiality represents a “commitment to serve all parties” as opposed to a single party

Neutrality relates to the relationship between the intervener and disputants as well as attitudes and behavior.

Questions of Justice

Distributive justice concentrates on egalitarianism, procedural justice is derived from unbiased, fair processes in the administration of law. Ex: The subsidies to ethanol production in the US

In seeking distributive justice, conflict resolution activities can focus on the development of the criteria which guarantee fair outcomes. Ex: The negotiation between Palestinia-Israeli.

Restorative versus retributive justice

• Restorative justice can be manifested in reparation and apologies and promotes healing by encouraging a perpetrator to take responsibility for their own deed.
• Retributive focus on penalty that should be reasonably proportional to the severity of the infraction.

Ethnical Issues

• In venturing to transform individuals, relationships, or societies of which they are not a part, outsiders need to examine the moral and ethical foundations related to the terms of intervention. Ex: US intervention in Haiti.
• Ethical considerations cannot avoid an entangled web of power, truth, justice, and healing. Ex: Lack of action in the Rwanda and the NATO booming of Serbia
• Negotiation with warlords or hostage takers involves delicate ethical concerns.
• Ex: French government negotiate with Somali pirates
• UN and international aid agencies often face situations where they have to negotiate with warlords to deliver aid.

Ex: International aid agencies were refused by Burma’s military dictatorship