In January, 2003, Ridgewood began participation in a federally funded pilot project for the development and application of protocols and rules for Principled-Arbitration. This Process will be based on the CBCR Convention for Community-Based Conflict Resolution, the principles of Foundational Process and an emphasis on conflict resolution.
The enclosed article outlines areas of ADR, Community-Based Conflict Resolution as well as the process of Principled-Arbitration. It also includes description of the Protocol Process which is linked to Principled-Arbitration through the Ridgewood Convention.
Robert (RP) Birt With Robert Watts
© 2003 Ridgewood Foundation For Community-Based Conflict Resolution (Int'l)
The purpose of this article is to outline the areas of ADR, Community-Based Conflict Resolution and the process of Principled-Arbitration. It also includes description of the Protocol Process which is linked to Principled-Arbitration under the Ridgewood Convention.
The term, ADR (alternative dispute resolution), has become a “catchall” for settlement and resolution processes. It has become synonymous with Mediation, Arbitration and certain styles of Negotiation. As it has become “institutionalized”, perceptions of ADR have become more “rigid”. Sometimes this is a complication which makes it difficult to delineate how these techniques and processes can be used in other ways or how other types of processes may be employed in dispute resolution.
ADR was conceived as an alternative to the court system. It was envisioned as a non-adversarial “mediated” process where parties could work out their differences instead of going to court. In theory ADR is a good concept. In practice (with an emphasis on Court-Annexed Programs) it can potentially become a “Pre-Trial” with the mediator acting as a surrogate judge and the “opposing” counsels as advocates. In this application, the parties are brought together for an opening “interaction” and then separated into caucus, then the mediator shuttles back and forth until some type of settlement is reached and the parties can be brought back together to articulate the acceptance of the deal…or not.
The process is driven very much by the “threat”, that if there is no deal, then the nasty and expensive litigation process will continue.
Given that the costs of litigation have risen significantly, this is not an empty threat, even with the advent of changes to the court system such as “simplified rules”.
In many other ways, the practice of ADR by the legal profession is a step forward. Through the use of negotiation processes known by a variety of terms such as: Mutual Gains, Principled-Negotiation, WIN-WIN Bargaining, the key impact has been on the practice of law through using negotiation in a collaborative and effective manor. This is reducing court time and dockets while at the same time increasing the satisfaction of commercial clients who want to get things settled so that they can get on with business.
ADR in Family Law has had a long history of mediated agreements, where the relationships of the parties are as much of a factor as the facts in the disputes. Court was not designed to take the time necessary to wade through all the issues that form the underlying conflict in so many instances. Having an impartial “Neutral” has helped many former couples come to terms with the break-up of a family unit and the aftermath of new arrangements.
Often the difficulties with “ADR types” of processes are in situations that are not formally connected to a system of justice or where participants are there on a voluntary basis. The conflict which has not quantified itself into a dispute or crime is not the concern of the legal system. Two people who are angry enough to harm each other are not within the jurisdiction of the court. Yet the situation is one that requires resolution.
In organizational settings, ADR is increasingly being viewed as a panacea for whatever ails an organization. In group processes ADR can be inappropriately used as a tool to accomplish unpleasant tasks that the organizational leadership would prefer not to tackle. ADR can also be used as a way to take long-standing issues off the table. The “system” looks at a dispute as being a “quantified and identified conflict”. Conflict is not easily quantified. When the system discharges its responsibility or interest in the matter, it is without regard to the outcomes and byproducts associated with the “settlement”.
The “Promise of Mediation” through ADR was the preservation of relationships and the transformation and resolution of conflict into mutual gains, through being able to face conflict and own a solution or in preserving relationships. In ADR, the terms settlement and resolution are used almost interchangeably. The “R” in ADR is perhaps a misnomer. It should really be an “S” for settlement. Resolution has a more comprehensive goal and usually much less quantifiable processes are employed to achieve it. Source: The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition, Robert A. Baruch Bush, Joseph P. Folge; Jossey-Bass )
On a more positive note, the policies and initiatives supporting ADR within the system have created very positive by-products: the awareness and capacity to resolve conflicts in a collaborative manner, extensive training in the skills and design of resolution processes and the development of new paradigms, which can be applied to the task of conflict resolution outside the system.
Community-Based Conflict Resolution (CBCR)
Community-Based Conflict Resolution (CBCR) was formulated with the premise that the communities (where we work, live, interact and have a sense of belonging) are the sum of many different values and identities (i.e. age, gender, ability, race, culture and power). If conflict is to be resolved, the resolution must include as much of the sum as possible. CBCR is a principle-based paradigm. To meet the definition of Community-Based, the process must be inclusive, barrier free, and positively-centred. Its primary objective is the resolution of conflict through creating an environment of dignity and respect, which welcomes interaction and fosters trust and honour.
When conflict occurs, the ownership of the conflict and the choices related to its outcome are vested in the participants, as are the processes for settlement and resolution. Community-Based also means that it is to be based on, and respond to the needs of people, especially in times of uncertainty or tension. This will give rise to the creation of new forms of Conflict Resolution Processes and tools.
A New Paradigm Requires New Processes
Moving from a “rights-based” and “top down, expert-driven system” into the area of CBCR, requires not only the retrofitting of many established resolution processes but innovation as well. Over a period of ten years, there have evolved processes and implementation methodologies that represent the experiences of lessons learned, and in the spirit of “experiential process” these are lessons that represent both success and failure. The resulting changes are more than “change for the sake of change”…they are part of the principle-base that requires process; to be practical, efficient and effective; and the development must be sustainable.
A key strategy is the use of the “Protocol Process” as a positive centred activity which is non-issue based. It is coupled with “Resolution Processes”. Sometimes training can be used as an opportunity to work out differences and can become a conflict resolving process in itself.
Protocol and Protocol Process
Early in 1992, a Community Dialogue Process was initiated that asked the question: “How do we develop conflict resolving communities?” Since that seminal process in Ottawa, thousands of people, in hundreds of dialogues around the world have worked at that question. People of all ages, all walks of life, in dozens of languages…sometimes in many languages at one time, have contributed to that dialogue.
In 1996, the Ridgewood Foundation began a series of three day “field processes” which included a segment where each of the participants was given the opportunity to ask a group of people any question they wanted and to lead the group in a process addressing that question. It became apparent that this exercise, “The Art of the Question”, could be used to create the foundation for a resolution process, and that the effort could be directed to creating a conflict resolution protocol which, in addition to addressing conflict, would reflect the values and identities of the community.
The advantage or benefit of the “Protocol Process” is its “developmental and dynamic” nature. It has the capacity to include new ideas and enhancements. It is fashioned in the model of the “open source project” approach employed in the design and creation of Linux software. This approach has encouraged contributions from people all over the world. It has expanded through workgroups and collaboration utilizing the internet. It has created a workable model of how synergy can be applied to development and providing at the same time a framework (or protocol) for usage by large institutional or individual users/contributors. It recognizes the often divergent interests of “for-profit” and “not-for-profit” activity and attempts to reconcile them.
The first “output” in the process is the “Protocol Preamble”, which is the result of a series of collaborative steps.
The next step in the development of this protocol
is to begin to frame the guiding principles and process steps for resolution of conflicts. When it is completed it will form the framework for an array of process options.
CBCR Convention for Community-Based Conflict Resolution
The Ridgewood Foundation, through a two year consultation process, developed a Convention Statement. It gives direction, as well as shape and form, to the Community-Based Conflict Resolution “Protocol Processes”. The Convention is as follows:
Arbitration has long been seen as one of the corner stones for ADR. At one time it was seen as the only alternative to the court system. Many former or retired judges became arbitrators and much of its usage was legislated in labour and commercial regulations and law. Mediation is really a “new kid on the block” and its role as something other than a “fixer”, has expanded only in the last couple of decades.
Arbitration proceedings can be very formal and as adversarial as any court process. It is in its portability and expediency, as well as potential
cost savings, that it has gained so much favor. On the face of it, Arbitration would not seem to be a good process for the resolution of conflict. It does however present an interesting aspect…that parties involved in conflict can determine the rules and procedures as part of the “Arbitration Agreement”, and have ownership over the rules which govern the process.
The notion of “Principled-Arbitration” was born out of the question “what if?”... What if the processes of Mediation and Determination (Adjudication) were reversed and the parties were to work out the conflict based on: (a) a set of principles and rules that were to be determined by the parties through the development of a “conflict resolution protocol” and “resolution contract”. (b) Present and represent the facts and situation in a non-adversarial and collaborative manor to an impartial third-party neural. (c) Use the existing forms of International Arbitration that are agreed to through the New York Convention and UNCITRAL as the rules for the procedure. (d) Grant the Neutral the role and powers of Amiable Compositeur and include the role of Natural Equity in the Protocols. (e) After the determination was made by a Neutral acting as an Amiable Compositeur, there would be a second phase lead by another neutral (perhaps the neutral that helped conciliate/facilitate the Resolution Protocol) to mediate how the determination was to be implemented and enforced, along with the voluntary binding of the parties into an agreement that could be upheld in a court of law.
Canada is a signatory to international arbitration conventions. It has legislation that governs commercial arbitration within Canada as well as internationally. Each of the Provinces has their own set of laws for international and domestic arbitration. Community-Based Conflict Resolution assumes that we live in a multi-cultural and global society. The field of International Arbitration, in dealing with commercial disputes, accounts for the differences in custom, culture and law by having a set of rules that gives consideration to what is just and fair as well as to the law that concerns the contract.
As Canada becomes increasingly more multi-cultural, it is logical that conflict resolution processes must bridge and connect diverse custom and value sets with the same purposes that international commerce have created in Arbitration. This is the case for looking at the commercial rules of Arbitration and applying them to domestic conflict resolution. Including the role of the Amiable Compositeur and ex aequo et bono, Latin for "in justice and fairness." Something to be decided is decided by principles of what is fair and just.
Principled-Arbitration… Principles and Rules
Principled Arbitration is not meant to be “arbitrary”. While the “determination” may be made by a Neutral in the role of “Amiable Compositor”, it is not in isolation or “ad hoc”, it is mandated under the terms of the “Resolution Protocol” which respects the values and agreements of the participants.
The introduction of the term “Determination” is an alternative to “Adjudication”. In essence, “Determination” is based on the agreement of the parties as to what is fair and true. It is in “the moment” and while it may be based on precedent values or tradition, the primary objective is to bring closure, so that there is a starting point for “moving forward”. It brings closure to a cycle of conflict and then seeks to mediate the outcome.
The foundation for the prefix “Principled” in “Principled Arbitration” is the set principles and values contained in the appendix. In addition, the “Principles of Neutrality” articulated in “Becoming a Third-Party Neutral” are guidelines for Process Leaders. Additionally, what differentiates this form of Arbitration is the additional emphasis on “Natural Equity”.
Application and Appropriateness
There are two primary applications for Principled-Arbitration: (a) Multi-Party Disputes involving similar issues which have not been addressed because of the enormity of the task and (b) Conflict Resolution Processes (Individuals or multi-parties) that are “stuck” because of a legacy-based or Identity-based conflict, where trust has broken down and parties are seeking ways to get off of the “merry-go-round” of blame.
The first is dealing with large backlogs of issues or disputes which have a central theme or “type” but with differing circumstances. To individually apply mediation to each of these cases may require a time frame that is overwhelming and in some ways repetitious. To arbitrarily settle them based on a formula or guidelines risks the alienation of the parties who may feel that they
have not been validated and have been “dictated to”. This is most volatile when working with people who have experienced a legacy of disempowerment, real or perceived. At the same time there may be a sincere desire to get things settled and to ”move on” especially if the process is seen to be “fair and just”. It is possible to identify a “group” of people involved in similar disputes and to gather a random selection of these people for a “protocol process” and to invite the participation from other stakeholder groups to create the “procedures” and “rules” for
the determination of individual claims by an Amiable Compositeur. Once the protocol and process are determined, people are then asked if they are prepared to voluntarily participate in the process and accept the “determination” as a settlement of their dispute. This process addresses the issue of how to give a voice to the parties and at the time builds a “learning curve” around the issues to help determine “equity”.
The second application is more difficult to encapsulate. It is in essence about “role” and “timing”…in dealing with the expectations of the parties and the point when the Principled-Arbitration Process is introduced. The role of Amiable Compositeur is not limited to the process of Principled-Arbitration. There are many instances where someone is asked to serve “in the interests of “fairness and justice” in both formal and informal settings. What is of concern are; “role shifts” where “determinations” become an avoidance of good Mediation Practices and the imposition of settlements, especially in situations where there is a power imbalance.
As a multi-cycled, principle-based and collaborative process, the Principled-Arbitration Process combined with the Protocol Process, responds to the goal of resolving conflict, by continuing post-determination to give the parties an opportunity to create a new legacy to replace the negative one.
Post Determination Process and Agreements
The Post-Determination Process would begin with questions and end with an understanding committed to by all parties to bind the “Outcome” as either a “Question of Honour” or as a formal legal contract. The questions and issues that arise in a Society which is “Rights-Based” and subject to the “Rule of Law” have filled many libraries and continue to occupy the energy of many people as they are revisited daily. As someone once put it “If laws were all written in stone, we would have more quarries and less Court’s”… rights need to be respected but they are not the only element in the equation of conflict. This is always an open question in conflict resolution.
One of the central questions after “How did it go?” is “Where do we go from here?” and “How can we make this determination sustainable?” These questions center on the commitment of the parties and their commitment to the agreement. It also opens the door to possible refinements to the agreement which are generated by the parties. If value can be added or new options explored, it has the potentiality of new understandings and ending a cycle of conflict. Here refinement may lead to a redefinition of the relationship or changes in behavior.
Awards and Confidentiality…issues in the public interest
The condition of confidentiality becomes increasingly more complex when there are issues that involve the “Public Interest” and “Determinations” which might constitute a “Case Precedent” if they were to be adjudicated by a Court of Law. At the same time, many of the underlying conflicts and feelings which are surfaced in a conflict resolution process are matters that would either”: (a) have a good possibility of being suppressed if they were to be “aired” in public forum. (b) Are private and not a matter for the public and serve no interest (c) can serve to exacerbate negative feelings, if taken either out of context or used as weapons in a conflict (d) are expressed in the “heat of the moment” and may be retracted or regretted afterwards.
The issue of, awards and settlements being confidential, is another matter that requires more discussion and reflection. There is growing criticism of “mediated and confidential settlements” as being “cover-ups” and “manipulations” to avoid precedent or accountability. Non-disclosure agreements can be a barrier to trust and confidence in a process when there is a perception that people are being bought off or that there is not an equity of distribution. This is an area that requires more input and contemplation before a recommendation can be put forward.
Institutionalization of the Rules and Panelists by an Independent Organization
Just as it is important for a Neutral or Amiable Compositeur to be seen as impartial in a process, it should follow that the Institution that is the custodian of the process, rules and panels, be equally independent and able to withstand the test of neutrality. The complication is as always, the source of funding and the conditions which are attached. It becomes further complicated with the selection of panels and the internecine rivalry that is part of any “professional discipline”….and the question of “who is going to certify the certifiers?”
While there are a number of very competent and noteworthy institutions for Commercial Arbitration both domestically and internationally, it would difficult to find one that has experience in Community-Based Conflict Resolution. At the same time, there is a wealth of experience in Arbitration that can be drawn upon to build the foundation and methodologies in the context of CBCR.
The Ridgewood Foundation has initiated the “International Centre for Principled-Arbitration” as a developmental project and is in the process of integrating it into its web site (www.ridgewood.ca). A number of “seasoned” professionals and community-based practitioners have been invited to contribute time and effort to the project. They have responded with eagerness and enthusiasm. This will help integrate “Protocol Process” and “Principled-Arbitration” into the Foundational Process “family” and encourage participation in its development.
The identification of potential “Amiable Compositeurs” begins with the question, “What is it about a conflict resolution process that makes it trustworthy?” and “What makes you trust a conflict resolution process leader?” These questions were asked at the “Brantford Gathering” which provided very valuable input into the identification process. These questions have lead to others which will evolve into even more.
A form of Arbitration may seem like an unlikely process for conflict resolution, especially when it is applied outside the System of Justice. As a means for “determination” it has a role. When it is modified, it has the potential to complete a “tool box” filled with other foundational processes for resolving conflict. It is by no means the “ultimate solution” but a step in a process. One that can help bring closure and healing for parties and communities in conflict.
About the Authors
Robert (RP) Birt is founder of the Ridgewood Foundation and has been Managing Director since 1996. A former senior business executive, Bob has been the Founding Chair of four charitable organizations dedicated to human rights and conflict resolution. Bob is also author of the Becoming a Third Party Neutral training program and the Foundational Process training series which have been translated into over a dozen languages and are delivered internationally.
Robert Watts (R. Watts and Associates) is Governor of Ridgewood’s Community Partnership Trust. A former Assistant Deputy Minister for the Government of Canada, Robert is a graduate of the John F. Kennedy School of Government, Harvard University and Fellow at the Harvard Law School where he researched and lectured on the role culture plays in conflict. Robert is also a senior associate with the Consensus Building Institute, Cambridge Mass. and has worked as a practitioner and trainer in both negotiations and conflict resolution. Robert is from the Mohawk and Ojibway Nations and resides at Six Nations Reserve, Ontario.
Conflict Resolution Process Leadership Principles
DIGNITY AND RESPECT FOSTER TRUST
In bringing the parties together, while mutual interests are stressed, the process is focussed on the dignity and respect necessary for each party to be heard and acknowledged.
In order to resolve underlying conflict, the first step is to become conflict resolving. While it may not be easy, the first obstacle is facing, and then overcoming, the intensity of feelings that accompany the conflict.
MANDATE AND PERMISSION
A Neutral must ensure the parties have given a
Mandate and Permission to explore and deal with conflict, especially that which is deep rooted or identity-based.
Once a mandate for the process is established, Neutrals must also reaffirm their permissions from the parties whenever a new level of the conflict is entered and insure that all parties are in agreement with opening up that area. A Neutral must also rely on the other fundamental principles and exercise a great deal of judgment and caution.
TASK TIME TOOLS
Task... Time... Tools is the essential principle which helps keep the process running smoothly as possible and at the same time gives some framework to the shared journey. When working with people, the task must be clearly understood, the amount of time allocated must be agreed to and respected, and the appropriate tools or processes provided.
OWN THE PROCESS NOT THE OUTCOME
Similar to Process Not Content, the Neutral should refrain from offering solutions or “fixes” especially when (at least to the Neutral) it is obvious what they might be. It is up to the parties to provide their own solutions.
RESPONSE NOT REACTION
Each of us has “buttons” and sensitive areas which can be touched or engaged during the process of conflict resolution. To function as a Third-Party Neutral it is important to learn how to respond rather than react in situations which may touch our own “stuff”. This is not always easy. Practice and reflection is an important part of developing self awareness.
JUDGMENT NOT JUDGMENT
The participants may also look to you, the Neutral, to be a judge, which will alleviate their responsibility for the outcome. The Neutral must, in fact, make many judgments throughout the process, but these are about the process itself, rather than the content
PROCESS NOT CONTENT
Being involved in the process of the resolution of conflict but not in the content is very tricky, especially when one makes the mistake of believing there are obvious (at least to the outsider) solutions to the dispute or conflict.
As a Neutral, if you try to fix the problem, there is one thing both parties can agree on, and that is that you, the Neutral, are the problem. Because the conflict is owned by the parties, so is the resolution.
LISTEN, LISTEN, LISTEN
By attentive listening, a Neutral can allow the underlying and/or deep-rooted conflicts to surface. Listening by the Neutral also encourages the parties to listen to each other. Listening also means welcoming. The Neutral sets the tone for the process and becomes a model for the way the participants communicate with each other.
WELCOME… PLACE... POSITION... PRESENCE
Discovering and owning this principle will help a Neutral in times of conflict and stress. It is also applicable for every day situations as well.
Welcome is how everyone should feel when they are a part of the process and it supports the principle that Dignity and Respect foster Trust.
Place or space can have a direct effect on the energy and feelings of the participants. Careful attention to environment can be another way of expressing dignity and respect for those who come.
Position refers to how we present the process, making it positive, and ensuring the participants feel ownership. It means inclusiveness and also is affected by who we are in putting the process out there.
This leads to Presence… A welcoming, receptive, calm, and respectful presence can have a profound affect on both the participants and the process. Being open and able to put our stuff away for a period of time allows the participants and their conflict to become the main focus of the session.