Conflict Resolution and Systemic Change

Abstract

Two assumptions about ADR - its inability to elaborate public values and its unaccountability - lie at the heart of the ADR critique. This Article suggests that, contrary to the assumptions underlying the scholarly and practitioner debate, individual conflict resolution can produce systemic change, and in the process, generate institutional practices advancing public values and addressing issues of common concern. Conflict resolution systems often segregate individual casework from systemic interventions - those aimed at addressing policy issues, examining recurring problems, or redesigning organizational systems. We demonstrate the value of integrating (but not merging) systemic thinking into individual casework, and individual cases into the project of understanding and addressing systemic concerns. We document this novel form of conflict resolution that begins by attending to individual cases, but proceeds through a critical methodology to produce systemic interventions advancing public values. We demonstrate that, under certain circumstances, informal conflict resolution can produce systemic changes that adjudication cannot achieve, and can thus solve public problems and generate public values. Indeed, we argue that, in some situations, effective individual conflict resolution depends upon its linkage to systemic problem solving. The linchpin is a methodology of inquiry and intervention for case work, which uses a form of root cause analysis to identify and, where possible, address underlying problems.

The methodologies used to link individual and systemic conflict resolution also provide a kind of accountability presumed to be unavailable without appellate review. The article question the conventional assumption that "detached neutrality" is the only or even the best way to achieve impartiality and reduce the expression of bias. It introduces the idea of "multi-partiality" - critically analyzing a conflict from multiple vantage points - as a way to check the inevitable biases in decision making that must be continually surfaced and corrected. Multi-partiality can be achieved through institutional design that builds in participatory accountability - ongoing examination and justification to participants and a community of practitioners. This reflective practice, if institutionalized, provides a check on conflict resolvers' biases, by requiring conflict resolvers to subject their analysis to the scrutiny of their peers and to explain and justify their choices as part of doing their work. It also provides a way to learn from and build on experience.

This Article considers the implications of this framework for conflict resolution and theories of law. Extrapolating from the case study, it identifies the elements of a conflict resolution program that can perform the role of integrating conflict resolution and systemic change. It mines the lessons about how to aggregate knowledge from individual cases and prompt structural change, and considers the implications of this analysis for the design of informal conflict resolution systems as well as for adjudication. It provides a concrete setting to test the possibilities for intervention that advance public values and still preserve the capacity to afford individual justice. Finally, it offers a reconceptualization, or at least an expanded understanding, of core rule-of-law values, such as impartiality, principled decision making, and accountability.

Keywords: dispute resolution, rule of law values