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Conflict management

Conflicts are a critical and meaningful symptom of something which is not working anymore and must be changed, an opportunity to develop and improve relationships. Whether such an opportunity is caught or not depends on the way conflict is tackled.

A conflict usually offers two options: avoid it or face it.

1) Avoiding conflict means leaving the interest clash unresolved. Seldom is avoidance the best strategy, because every conflict, if deeply motivated, tends to recur or appear in different forms. This happens in individual lives and in the life of communities and nations. If a conflict is real, i.e. it is not just a misunderstanding between the actors involved, but it is based on actually opposite interests, then avoiding it often means make it worse. Any conflict, however, even the most serious one, can be avoided while waiting for the best suited moment to tackle it: this is the case when avoiding a conflict means acting out a precise strategy aimed at solving it at a later time. A different thing is denying a conflict by "ignoring it". This way conflict does not cease to exist but gets out of the parties' control and risks to degenerate and become more dangerous. Denial strategies are often applied by seriously disrupted and weak individuals and groups. It is quite common, for instance, to observe denial of even very heavy interpersonal conflicts in seriously disturbed families: these families develop more and more radical inner conflictual dynamics which are never overtly vented and, even worse, consciously perceived (Mordini, 2001).

2) Dealing with a conflict means deciding to tackle the interests at play and trying to reach the best possible position for at least one of the actors. This paves the way to three conflict solving strategies:

a) trying to reconcile the parties' interests: the parties meet on their own or with the assistance of a neutral third party for the purpose of attempting conciliation of their interests;

b) trying to determine who is right: the parties are confronted according to formal roles with the purpose of gaining an officially acknowledged victory, for instance a judgment;

c) determining who is the stronger party (who holds more power): the parties are confronted according to power roles, for instance economical or physical.

Conflict starts when a subject (or a group) lay a claim or a request towards someone who rejects it: it may be a wrong suffered or a necessity to be met. Conflict resolution implies essentially the attempt at merging the opposite positions of claim vs. rejection into a single result. In each conflict, specific interests are at play (point 1); judicial procedures are often used to help reach a "fair" outcome (point 2); finally, a power relation between the parties is more or less manifestly there (point 3). Interests, rights, power are the basic elements of any conflict.

Interests are wishes, intentions, plans to defend or improve distribution of scarce resources: interests are therefore missing or desired "things". Dealing with interests means facing deeply rooted prejudices and beliefs, inventing creative solutions and providing a wide system of offers and grants. To this end, the most common procedure is negotiation where an agreement is reached through bi-directional communication.

All negotiation procedures aim at solving conflicts through interest confrontation. Some deal with rights (two solicitors may argue on behalf of their clients on which position has more juridical ground), some others deal with power relations (two neighbours quarrel). Negotiation procedures often sum up all these interaction levels: satisfaction of interests, discussion on rights, assessment of the relevant power balance. If the parties involved are divided by such an interest clash that prevents them from reaching a valid for all settlement, the only thing left to do is deciding who is right and who is wrong, who is stronger and who is weaker; American scholars call this strategy "win-lose approach", where at the end there is a winner and a loser. This approach is based on the assumption that not all conflicts are negotiable. The main objection to contention strategies is that the very idea of non negotiable right is fictitious: as a matter of fact there is always room for negotiation.

Problem Solving Negotiation can be applied to all remaining cases; this approach considers a dispute as a common problem that the parties had better solve. Problem solving tactics include increasing available resources, compensation, exchanging concessions and creating new mutually beneficial options. American scholars named this conflict solving strategy "win-win approach" that promises a final advantage for all. Such resolution strategy allows for the use of a certain type of power or coercion forms, however these contention forms occur within an agreed setting and without prejudice to the relation between the parties. When conflicting parties try to come to terms without resorting to external help we may speak of direct negotiation. Instead, if a neutral party is asked to assist we speak of mediation.

In short, we can say that conflicts allow for different solutions:

a) when no external help is there the stronger party wins: "justice is the advantage of the stronger". This legitimates the rule of the stronger, who imposes his interests over the weaker part irrespective of any human law (according to Thrasymachus, in Plato, The Republic, I, 338a-339b). The resolution of a conflict situation based on power (or strength) is the ability to force someone to do something he would not do otherwise. It can be difficult to determine who is the stronger party without a real and potentially destructive confrontation of powers.

b) Conflict resolution occurs through a neutral third party who shall determine who is right according to an independent formally legitimate standard (valid rule) or commonly regarded as so (custom, equity). This is the prevailing solution in our modern societies organized around judicial systems. The third party is then regarded as having superior knowledge and therefore able to guarantee neutrality and fair decisions. This third party can be a public (courts) or private institution (arbitration chambers).

c) A dispute can be settled with an agreement between the parties through a third party (conciliator), who guides negotiation and helps the parties to find a mutually satisfying agreement. The conciliator is an impartial and independent party who is a subject matter specialist, but also knows negotiation and mediation techniques; his task is to let the parties communicate and let their real, often unconscious, interests emerge, thus contributing to the success of the culture of cooperation rather than of contention, with a modern and more cooperative view of the relations between conflicting actors.

The first two conflict resolutions highlight a "pathological" view of conflict, i.e. conflict is a disease to be healed or removed, the third one, on the contrary, considers conflict situations as "physiological" phenomena with possibly positive aspects. Once deprived of its negative associations a conflict is nothing but a discussion of the different positions around the same problem. Conflict can therefore be seen and experienced as a moment of confrontation, even of hard contrast, but not necessarily of irreducible disagreement thwarting any communication and implying that the opponents become enemies to be defeated. What count is not the existence of conflict, but the way they are handled. Conflict as such is a mere event, a neutral phenomenon: our attitudes towards it can make it useful or useless, positive or negative and so on. It depends on the way we see it.

Our communities appear to have much more confidence with imposed conflict management systems rather than with those based on negotiation, as the first ones belong to their cultural background. The marginal role of conciliation practices in our institutions is only a consequence of a psychological and cultural attitude towards conflict in our societies. Jacqueline Morineau, for instance, emphasizes that conflict derives from the way we perceive reality and face change: the passage from order to disorder, from the comfortable safety of a known situation to the confusion of a new one generate conflict, and the violence that often accompanies it is born out of the pain and loneliness of two people who cannot communicate any longer (Morineau, L'esprit de la mèdiation, 1998).

Having, at least formally, refused to continually resort to the mere confrontation of strength or power our communities turned to the typical methods of conflict of rights and ignored almost completely those of interest conciliation. However, the current structural crisis of the juridical approach is largely acknowledged (see for instance: De Sousa Santos, Stato e diritto nella transizione post-moderna. Per un nuovo senso comune giuridico, in "Sociologia del diritto", n. 3, 1990; Cosi and Foddai, ed., Lo spazio della mediazione, Giuffrè, Milano 2003; Ceretti, Progetto per un Ufficio di mediazione Penale presso il Tribunale per i minorenni di Milano, in Pisapia G.V., Antonucci D., ed., La sfida della mediazione, CEDAM, Padova 1997). The ongoing diversification and "complexification" of our communities' requests towards the institutions has inevitably resulted in a parallel complexity of rules. Laws lose their form in the vain attempt at regulating the whole community life. Diffusivity, hypertrophy and helplessness of the classic juridical instruments are the common consequences and the sovereignty of the law, as a point of reference in the balance of powers in the modern-liberal society, is clearly altered by continuous informal bargaining processes (Cosi G., Interesse, diritti, potere. Gestione dei conflitti e mediazione, in "Ars Interpretandi", 2004). The more and more diffused need for a weak, flexible and soft law emerges from this background (Zagrebelsky G., Il diritto mite, Einaudi, Torino 1992), in full contrasts with the modern juridical paradigm. To this regard the spreading, though still ambiguous, of negotiation is the symptom of an unmistakable truth: "rule-based law" is losing ground.