Mirror as Prism: Reimagining Reflexive Dispute Resolution Practice in a Globalized World

27 Pages Posted: 9 Aug 2014

Date Written: January 1, 2014

Abstract

Private dispute resolution processes are an increasingly established global phenomenon. Some processes, like international commercial arbitration, have been formally in pace for more than a century and draw upon clear principles of law and contract. Arbitrators and parties are guided by relevant treatises, procedural rules, and well-settled practices. Other international dispute resolution processes, like negotiation, mediation, conciliation, and conflict coaching, similarly have a long history and some process guidance. However, by their very nature, these non-adjudicative, cooperative processes are multidimensional, fluid, and complex. They require the intervener, parties, and their representatives to engage with one another in ways that go beyond the law and well into the realm of human relations. In order to make the best use of such cooperative processes, interveners, parties, and representatives - hereafter "conflict practitioners" - draw upon knowledge, insights, and skills related to communication, culture, history, language, philosophy, psychology, and sociology, among many other fields. They also draw upon their own professional and personal lived experience.

As cooperative private international dispute resolution practices become increasingly common, it is tempting for conflict practitioners to assume that the human relations insights, skills, and practices that worked well for them at home will be equally effective (and appropriate) in an international, cross-cultural environment. However, exporting the ways we understand and interact with others in conflict form a domestic environment into new and different legal, political, economic, cultural, and social environments can be problematic. At best, exporting our set ideas and practices can lead to missed insights and lost opportunities for better solutions to the disputes at hand. At worst, this practice can exacerbate disputes, causing greater confusion, more deeply entrenched conflict, and less likelihood of resolution. As a result, attending to the human dimension of conflict and interaction should be a central part of global negotiation and dispute resolution practice. That is the focus of this essay.

Working in the global dispute resolution environment puts into clear relief the need for conflict practitioners to be attuned to themselves and to their counterparts in ways that might not have been apparent in local practice. As mentioned above, this attunement goes beyond technical legal knowledge and skills. It also includes being attuned to the subtle and complex human, cultural, linguistic, and other relational dimensions of working across social worlds. One way to be so attuned is to develop reflective and reflexive practice - intentionally seeking to learn and grow from one's past experience ("reflection-on-action") and developing multiple dimensions of awareness as the conflict interaction actually unfolds ("reflection-in-action").

This essay focuses on these two dimensions of reflective and reflexive practice, In the next part, the author discusses the nature of reflection-on-action and reflection-in-action from a modernist ("reflective") and postmodern ("reflexive") perspective. These modern and postmodern concepts of reflective and reflexive practice parallel a growing trend in the conflict literature from a "modernist" to a postmodern or "social constructionist" orientation to understanding conflict itself.

In the final part, the author examines how engaging with practice reflexively reveals additional dimensions of awareness about ourselves, other parties, and the conflict context. I then bring together the elements of reflective and reflexive practice to articulate a more holistic conception of "awareness" that can help conflict practitioners more purposefully learn from past experience and develop greater awareness as conflict interactions unfold.

Keywords: dispute resoultion, ADR, alternative dispute resolution, global, worldwide, cultural, conflict resolution, reflective, reflexive, globalized, arbitrator, mediator, conflict, cognitive, emotional, physiological, awareness, global dispute resolution, conflict practitioner

JEL Classification: D75, J52, K, K19, K39, K41, K49, F01

Suggested Citation

Fox, Kenneth H., Mirror as Prism: Reimagining Reflexive Dispute Resolution Practice in a Globalized World (January 1, 2014). Washington University Journal of Law and Policy, Vol. 45, p.41-67, 2014. Available at SSRN: https://ssrn.com/abstract=2477473

Kenneth H. Fox (Contact Author)

Hamline University ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States
6515232411 (Phone)

HOME PAGE: http://www.hamline.edu/faculty-staff/ken-fox/

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