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In essence, the function of law is to establish
"rules and procedures that constrain the power of all parties, hold all parties accountable for their actions, and prohibit the accumulation of autocratic or oligarchic power. It provides a variety of means for the non-violent resolution of disputes between private individuals, between groups, or between these actors and the government" (Crocker, 1996, p.586).
Sources of law can be broken into three camps: natural law, positive law and realism. (Lang, 2001, p. 1-7,8) Commenting on the theory of natural law, Fienberg and Coleman (2000) quote St. Thomas Aquinas: "Law is nothing else than an ordinance of reason for the promotion of the common good, made by him who has the care of the community and promulgated" (p. 2). The positivists' view of understanding the concept of law focuses on the aspect that law is a command of the generally adhered to sets of rules and the power to enforce them (Ibid.). Realism deals with the subjective influence of the particular parties involved in the dispensing of law (Lang, p. 1-8). In all these paradigms, the concept of law, as an instrument of managing conflict, is unavoidable. The concept of law is therefore bigger than the source it derives from or the processes used to administrate it. Adjudication and facilitation are the two main processes dealing with the management of conflict that are considered in this paper.
Conflict is inevitable and perpetual in all human interaction. "Human beings engage in conflict. Aggression, warfare, violence seemingly equate with the human condition" (Tidwell, 1999, p.1). Conflict has two faces: that which negatively affects society through violent acts between people, and that which positively contributes to the development of human relationships and social interaction. Violent acts against humanity and society call for a different kind of treatment than do transformational conflicts. Both require rules to ensure that justice prevails and truth is pursued. International conflicts and conflicts within divergent cultures necessitate flexibility in management approaches and understanding of context and procedure in order to choose an appropriate mode of dispute resolution. MacFarlane underscores the need for the evaluation of the relationship between the role of law and the management of conflict when she says:
"Modern conflict theorists have moved away from the study of rules and systems and toward the study of disputes themselves. This challenges students of dispute resolution to consider the relationship of rules to conflict management and dispute resolution, both as a matter of theory and in practice" (p. 15).
The task of this paper is to explore the relationship between law and conflict management. This paper has four components: stated assumptions of law, underlying values that affect the relationship, the impact of the legal process on present day forms of dispute resolution models, and questions for future ponderings. The conclusion of this paper expresses the beliefs of this learner's present and developing understanding of law and its relationship to conflict management.
It is assumed that the virtues of accountability and love (common good) are the soil in which the concept of law has grown. It is further assumed that the concept of law is the tree trunk on which adjudication and facilitation theories and practices branch out. If this is true, then the role of law is to nurture and channel the development of how people and groups of people manage conflict. In other words, law is the banks on either side of the river of the varieties of dispute resolution. "The Law is often thought of as being the guardian of our liberties, and rightly so" (Leiser, 1973, p.1).
This is to suggest that adjudication and facilitation (and the subsequent branches of both theories and methodologies) stem from the same tree and flow in the same water. "Given . . . that the mediator constructs a reality within the mediation setting through a number of strategies that themselves assume the normativity of autonomous moral responsibility and a conflict-purged community, the mediation process becomes a de facto extension of positive liberal law" (Tie, 1999, p.244). What are the implications of this suggestion? Could the challenge of the adjudicators in the 1980's against the earlier facilitators find merit in rejecting mediation as scheme? One such proponent of adjudication believes "mediation schemes provide second class justice for the poor" (Matthews, 1988, p. 32). Does facilitation water down justice? Is it really an alternative to adjudication? Is it not possible that both adjudication and facilitation, although flawed systems in their own way, are aiming for the same outcome and built on the same values? I believe they are both aiming to bring accountability and common good into the realm of conflict management.
Pirie (2000) suggests the same conclusion when he states: "ADR [Alternative Dispute Resolution, which encompasses the many approaches to facilitation] is not a new idea but rather a modern reflection of the legal profession's long standing support for quality legal services" (p.325). Facilitation has been seen as challenging the establish status quo of the law for many years. However, as Tie comments: "That which challenges the law already belongs to law and is thus liable to reflect the same desire for closure and certitude that characterises professionalized justice" (p. 246). In all of these assumptions, one common factor is revealed: law and conflict management have an enduring relationship of dealing with human interaction.
Values are based on a belief system and can be classified twofold: intrinsic and extrinsic. "Something is intrinsically valuable if we value it for its own sake" (Marmor, 2000, p. 163). As stated earlier, the belief system (or ground) on which law is founded has to do with accountability and love. Truth, justice, security, and fairness are the intrinsic values of both adjudication and facilitation. "The societal consensus that the adjudicatory process achieves fairness of results proceeds from a sense that equal treatment is at the heart of the administration of justice" (Carbonneau, 1989, p. 5). Carbonneau goes on to state that "truth and fairness work hand in hand; they are the foundation elements of a socially valid and morally acceptable process of legal adjudication" (p. 6). Does not facilitation aim to achieve similar values of fairness and justice in the settlement of a dispute? I think it does.
Where adjudication and facilitation differ is in their stated extrinsic values. Adjudication values public development of laws through dealing with private disputes. "The public life conception underlines contemporary civic republicans' approval of deliberate democracy, by which they mean the public use of reason and deliberation in making public decisions" (MacFarlane, p. 526). Facilitation prefers placing the private rights over the public process in order to achieve settlement. Cloke (2000), in his defaming of the legal system, compares extrinsic values of the two branches of the concept of law:
"The law [adjudication] is designed to contain and control conflict, not resolve and transform it; to terminate disagreements not to learn from them; to suppress emotions, not complete them; to settle cases, not search for underlying issues; a third party decision, not facilitate consensus" (p. 168).
Mediation is one of the many branches of facilitation and it values the transformation of the individual involved in disputes over the public resolution to conflict. (Baruch & Folger, 1994, pp.13-32) "Mediation's greatest value lies in its potential not only to find solutions to people's problems but to change people themselves for the better, in the midst of conflict" (p. xv)
Adjudication and facilitation are two branches from the same tree, the trunk of which is law and the roots of which are the values of law. Adjudication "is thought to serve important values such as rationality, impartiality, fairness and consistency" (Lyons, 1984, p.61). Facilitation, on the other hand, may appear to be irrational at times. But this is not the case. It is simply alternatively different in approach and style.
"Alternative medicine and traditional medicine could be compared to alternative dispute resolution and law. Medicine may be ahead of law in making its decision but one might expect law would, in a similar way, seek to join with those parts of ADR that can be complementary to laws enterprise and reject those parts of any concern" (Pirie, p. 397).
In the past, the value of justice has been placed solely on the back of the adjudication system. However, there are now additional ways to deal with disputes or manage conflict and the legal system is not the only 'just' method. In evaluating New Zealand's attempt at using alternative dispute resolution for aboriginal dispute, Povlich states: "you can pursue a 'just' legal process of mediation" (cited in Tie, p.247). I would suggest that as we explore the complementary values of facilitation and adjudication practitioners will lead theorist in developing a common understanding of how the law can relate more effectively to the management of conflict.
Although the legal system is making room for alternative methods of dealing with disputes there is still a wide valley between the opposing opinions of the impact of law on conflict management. Harrington takes the position "that informal justice [facilitation] expands the capacity of the formal system, legitimates the basic approach of the system, fails to expand community control, fails to advance rights and social justice, and diverts attention from the courts as an important area for struggle" (cited in Matthews, p.30). However, a more recent and lenient attitude is found in Pirie. "Instead of standing in opposition to adjudication, ADR [facilitation] has come to be viewed as a concept that points to the need for evaluating the entire continuum of dispute resolution techniques, skills and resources before choosing the right disputing steps to take" (Pirie, p.325). In 1976, Frank Sander spoke of a vision of not having a "court house but a Dispute Resolution Center" (cited in Pirie, p. 396). That vision may have been prophetically inspired and may contain the best hope for a preferred future reality.
The charges of failure of the court systems to provide adequate and quick justice are still voiced in the streets and declared by new alternative dispute resolution practitioners. Some of this may be due to the necessity of gaining enough momentum to sustain a viable mediation business. However, the fact that it does take more time and money than it should to settle some cases remains a valid point. On the other hand, Carbonneau questions the point when he says: "Should considerations of mere efficiency, cost and time prohibit the use of consecrated legal procedures to resolve private law grievances? Are the private rights any less fundamental constitutionally than basic political freedoms?" (p. 3). He bemoans the possibility that the "undoing of democratic and judicial values may be a costly cure for the perceived pathology in the legal adjudicatory procedures" (p. 3).
On the other side of Carbonneau, in the valley of opinions regarding the impact of law on conflict management, is Cloke (2001). He believes that the new roles for mediation will break the paradigm of law and return it to its original purpose, "which was to resolve conflict" (p. 173). "Mediation is justice coming full circle, a return to the ancient tribal principles of wisdom, compassion, honesty, self-revelation, healing and forgiveness" (p. 170). He follows that bold statement with a disclaimer: "Having said this, I do not expect the legal system to be replaced by mediation overnight" (Ibid.). I am glad for the disclaimer. What justice is there in asking a murderer if he would like his case mediated with the relatives of the victims of his crimes? Unless of course the relatives initiated the request, the criminal sought forgiveness and the courts deal out appropriate punitive judgements. "The widespread use of mediation within criminal issues has the potential to reduce the level of conflict that is needed for widespread openness to emerge towards alternative conceptions of law" (Tie, p.241).
In an enlightening article, Marty Price (2001) conveys the possibility of using mediation in producing restorative justice for victims and offenders. Restorative justice "is a different paradigm or frame of reference for our understanding of crime and justice" (p.7). Crime is defined as a violation against human relationships instead of a breaking of the law. This altered understanding of crime is a foundational disparity from adjudication in restorative justice. As to justice being served, he states: "Whatever agreement the victim and offender make will reflect justice that is meaningful to them, rather than being limited to the narrow definitions of the law" (p.3). He describes a process of mediation that involves the courts, the offender and the victims of violent crimes. He separates violence against persons from those against the state and treats them differently. His contrast between retributive and restorative justice places human dignity at the core of how the law impacts conflict management (p. 3-7). Although it is not the only approach being considered in these challenging days of dealing with conflict, it has the potential of providing a way of combining the law and conflict management by facilitating the values and goals of all parities involved.
One of the questions that have bothered me in the research of this paper concerns the ability or inability of the facilitation process to enforce their agreements without the use of law. If two parties agree to facilitate their dispute instead of using the process of adjudication, and if they come to an agreed upon settlement, who will enforce it if there is no legal document? Unfortunately, the days are gone where 'men of honor' would settle with the handshake or in front of one witness. So if the ground in which the concept of law has grown up is accountability, who will hold these two parties accountable? Pirie expressed another question of interest: "Can a mediator be negligent?" (p.308). What if the settlement was wrong or broke some constitutional or criminal law? There may be honor among thieves but is this the appropriate justice or the pursuit of truth that facilitation and adjudication value?
Other questions have been pondered in my mind during these days. Can the legal system make more room for alternative styles of conflict resolution? Will lawyers and judges embrace the validity of alternative dispute resolution with the same tepidness that nurses and doctors had for alternative medicine years ago? Is it inevitable that facilitation and it varied approaches to managing conflict has so impacted the legal system that there is no turning back? What about the development of public laws and issues of morality? Can facilitation handle the complexity of law making? Why is law so complex in the first place? These questions are still unanswered in my mind. However, having been through several court cases where the only justice done was a financial divide and the only truth sought was a revenue tax statement, I am looking for something better than just the legal system. One further question leads into my conclusion: Does spirituality or religious norms play a role in the adjudication or facilitation processes of dealing with conflict?
It has occurred to me that in the route of researching this unfamiliar territory of law and conflict management, my personal beliefs about law and conflict management have been challenged and developed. My biblical worldview holds to the theory of natural law and contains characteristics that where not found in my reading during this course. I was amazed at the amount of attention given to law and conflict management in the scriptures.
For instance, the Bible states: "Love does no harm to its neighbor. Therefore love is the fulfillment of the law" (The Bible, Romans 13:10, NIV). Why is there so little time, energy and money spent on transforming the internal attitudes of people, or extolling virtues in society? It appears that we focus on the external reactive measures of dealing with conflict and that we ignore the unhealthy conditions of the human heart that causes detrimental conflict. Or is the transformation of the heart the sole duty of the mostly distained religious component of society? Will the culture ever again value what the 'church' and the 'family' have contributed to the moral fabric of society in the past? Will the 'church' rise to the occasion and become a relevant participant in conflict management?
The scriptures are full of practical implications for individuals and groups in the midst of conflict. The compassion of Jesus in dealing with a women caught in adultery (John 8:3, NIV), aptly illustrates a restorative measure over an adversarial format. Jesus also encourages some to seek facilitation instead of adjudication. "Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. I tell you the truth, you will not get out until you have paid the last penny" (Matthew 5:25-26).
Obviously this was a business or monetary dispute that could be settled if the accused would own up to his obligation. How does this work when the party is falsely accused? As in many court cases, it is not always the pursuit of truth or the dispensing of justice that gains the focus of the interested parties. Individuals are mostly concerned with who will win or lose and how much will it cost? Or how much can I get? I believe that it is the general breakdown of the moral fabric of society that has caused our court systems to be over burdened. Unrepentant lawbreakers and criminals are not concerned with how is justice served but how can I get away with the crime I have committed. Lawyers then act on their behalf to present the best-case scenario in order to have the least punishment served. What is it in the adjudication system that perpetuates this mindset? Will the rising practice of facilitation be endangered with the same malady?
I think that righteous law and its support of the adjudication process is a necessary component in dealing with lawbreakers. "We know that the law is good if one uses it properly. We also know that law is made not for the righteous but for the lawbreakers and rebels, the ungodly and sinful, the unholy and irreligious; for those who kill their fathers or mothers, for murderers, for adulterers and perverts, for slave traders and liars and perjurers and for whatever else is contrary to sound doctrine that conforms to the glorious gospel of the blessed God . . ." (1 Timothy 1:8-11).
To reduce all judgments against lawbreakers to mere relativism, as some are in the habit of doing, would create a might is right, immature and undisciplined society. What would society look like if each man was doing what is right in his own eyes? There should always be laws for the lawbreakers and may there always be compassion for those caught in a system that causes them to break the law.
Concerning international law and conflict management it would be interesting to attempt to apply the injunction of Paul to the Galatians: "The entire law is summed up in a single command: "Love your neighbor as yourself" (5:14). On this same subject, Minow's (1998) book, Between Vengeance and Forgiveness, provides an obliging application of the biblical mandate of forgiveness into genocides and mass violence. A firm conclusion is difficult to address but the stirring of real pain and the question of reparations is worth further pursuit. "The law is only a shadow of the good things that are coming-not the realities themselves" (Hebrews 10:7). This comment by the writer of an ancient book written to Jewish Christians around 60AD indicates the failure of the law to fix the human dilemma of conflict and begs the question of something better in the future. The realities spoken of are the ultimate transformation of humanity through Jesus Christ. "For the law was given by Moses; grace and truth came through Jesus Christ" (John 1:7). Natural biblical law purports that there is One outside of ourselves that will call us to account one day. The role of His law is that it would lead us to His grace and His truth.
The ideal management of conflict occurs when we seek to love others the way that we would love ourselves. The concept of law is bigger than the source it derives from (accountability and love) or the processes used to administrate it (adjudication and facilitation). Adjudication and facilitation are two equally valid expression of law that attempt to provide processes for dealing with the management of conflict. Understanding that the "law" has deep roots in the pursuit of justice, peace and truth and given that the varied approaches to conflict management contain the same values and principles, it is hereby offered that law is the raw material out of which alternative dispute resolution is the product. If this is true then the law functions as the banks on the river of conflict management.
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