CONFLICT RESOLUTION CONSORTIUM NEWSLETTER FALL/WINTER 1990/91 ________________________________________________________________________ COURT-ANNEXED ARBITRATION REPORT RELEASED ________________________________________________________________________ In May of 1987 Colorado joined about half the states in the nation and ten federal district courts in adopting a court-annexed arbitration program. The experimental arbitration pilot program mandates the private, non-binding arbitration of civil disputes in eight of the state's 22 trial court districts in cases where no equitable remedy is sought and the plaintiff's prayer amount does not exceed $50,000. In 1988 the Consortium obtained a grant from the State Justice Institute to conduct a comprehensive evaluation of the impact of the experimental court-annexed arbitration program on the administration of civil justice in Colorado. The study, co-directed by Professor Lloyd Burton of the CU-Denver Graduate School of Public Affairs and Professor John McIver of the CU-Boulder Political Science Department, reached the following principal findings: - PROCESSING TIMES AND DISPOSITION MODES Cases terminating in an arbitration hearing were resolved 30-60% (depending on the district) sooner than similar cases that went to trial the previous year. The percentage of cases settled by negotiation did not change significantly under the arbitration program, but the percentage going to hearing in 1988 (roughly 10%) was approximately double that of similar cases going to trial the previous year. While the appeal rate from arbitrator decisions has been relatively high during the first 18 months of the program (30-40%), the total number of appeals is quite small because only 10% of all cases filed are ever arbitrated. The trial de novo rate, following appeal from the arbitration decision, is also quite small (less than 10%). Consequently, the trial rate for cases that were arbitrated and subsequently tried in a court of law is less than one in every 100 cases. - USER PERCEPTIONS AND SATISFACTION. Eighty-one percent of arbitrators, 68% of attorneys, and 52% of litigants were either highly or somewhat satisfied with arbitration hearing outcomes; but almost three times as many litigants as attorneys (32% v. 12%) were highly dissatisfied with outcomes. The majority of attorneys and litigants found the hearing process to be very fair; but again, over three times as many litigants (25% v. 07%) deemed the process to be either very or somewhat unfair. About three-fourths of attorneys, arbitrators, and litigants favor continuation of the arbitration program, but the great majority also favor significant program modifications. Attorneys want more time to prepare their cases and stiffer sanctions against appealing arbitral awards; some litigants (as well as some attorneys) want to see the trial de novo option eliminated. Most typically, litigants wanted more information about the program -- why they were required to arbitrate their cases, what choices they had and how this system differed from their understanding of the traditional legal system. - PROGRAM COSTS. A majority of attorneys indicate that mandatory arbitration has affected the costs to litigants. Over one-third of the attorneys interviewed said that their clients' costs decreased under this program. Yet, for a significant (though lesser) number of litigants, costs appear to have risen. Arbitration has had little overall effect on the dollars expended by the state's district trial courts, except for the very steep decline in post-arbitration trial rates. It has, however, redistributed time commitments allocated to cases. District clerks are now spending slightly more time processing case files while judges are spending less time with these cases. - COURT BACKLOGS. Although backlogs were beginning to decline statewide during the test period, they declined twice as steeply in the arbitration districts as in districts not using the program. The backlog decline was less steep in rural arbitration districts, but in sample rural districts not using arbitration backlog levels actually increased. - RECOMMENDATIONS. In this report Burton and McIver do not take a position on whether the Colorado mandatory arbitration pilot program should be continued or expanded statewide. They offer several suggestions, however, designed to improve the implementation of mandatory arbitration should the legislature decide to continue this program in 1991. 1. Establish a statewide training program for judges and clerks to avoid startup problems and inconsistencies across jurisdictions. 2. Increase slightly the filing fees for all civil cases to defray some of the costs to litigants in arbitration. 3. Have the courts collect the arbitration administration fees at filing and response to avoid collection and arbitrator payment difficulties. 4. Provide courthouse hearing rooms for all arbitration hearings when suitable neutral space is not otherwise available. 5. Set preliminary trial de novo dates when the case is assigned to arbitration to avoid needless delay. 6. Restructure the arbitrator appointment process by restricting choice to: a. a single arbitrator, b. a court appointed arbitrator, or c. a strike list system from a short list of court-identified arbitrators. A more useful arbitrator database which includes arbitrator performance evaluations would assist both the court and attorneys in this process. 7. Pay more attention to the existence of legally indigent parties in the arbitration system, and train arbitrators in how to conduct proceedings involving pro se parties. Taken together, these suggestions amount to more fully integrating the arbitration program into the administration of civil justice by the courts. Burton and McIver believe that such integration will enhance both the perceived legitimacy and the fairness of the program, especially insofar as hearing conduct, arbitrator selection, and arbitrator remuneration are concerned. For more information or a copy of the final report contact the Consortium. IPRA ENVIRONMENTAL SECURITY NETWORK ________________________________________________________________________ In a joint Conflict Resolution Consortium and the International Peace Research Association (IPRA) project, Bruce Byers has been working to establish an International Environmental Security Network. The network would address four areas in which environmental change is of interest to peace researchers: 1) Environmental changes which directly threaten comprehensive security -- the availability of basic resources -- food, water, and energy. 2) Environmental conditions which cause or exacerbate both violent and nonviolent social conflicts. 3) Military activities which have significant direct effects on the environment in times of both peace and war. 4) The use of conflict resolution and consensus-building techniques to produce agreements on how best to handle particular problems. Persons wanting more information or interested in participating in this network should contact Bruce Byers through the Consortium. JUSTICE WITHOUT VIOLENCE PROGRAM UPDATE ________________________________________________________________________ The Consortium recently submitted the first of several major grant applications for the Justice Without Violence Program. This one -- to the United States Institute of Peace -- proposes an interdisciplinary project to examine the use of nonviolent methods to resolve fundamental political, social, and economic rights conflicts between dominant and disempowered segments of society. The primary goal is to advance our understanding of when and how nonviolent techniques can be effectively substituted for more traditional violent approaches. While most of the research team is already identified, a few more participants will be added. Researchers with an interest in participating on such a project should call the Consortium. Although the research questions to be investigated will be refined as the project proceeds, we are starting from a theoretical image developed from Kenneth Boulding's theory of power. Boulding suggests that power derives from three sources: threats, exchange, and love. In this context, one possible strategy is to threaten perpetrators of injustice with violence if they do not correct their behavior. When these threats are met by submission they can, at least until the threat is removed, resolve justice conflicts. We are more concerned, however, about cases where violent threats lead to counterthreats, defiance, and, often, actual violence and war. The purpose of the Justice Without Violence Program is to investigate less destructive, nonviolent ways in which subordinate groups can force dominant groups to change unjust practices. Boulding's second source of power is exchange, which can be manifested (for our theoretical purposes) through bilateral or multilateral negotiation. Boulding describes it as "you give me something I want and I'll give you something you want." As Fisher and Ury (1980) argue, if and when exchange works, it is almost always less costly and more effective than threats and power contests. However, exchange strategies are dependent upon a number of factors which often are absent in power and justice conflicts. The primary problem is that low power groups generally have little, if anything, to trade. They can work around this problem by enlisting the aid of richer or more powerful, outside groups. They can also offer to withdraw any nonviolent (or violent) threats which they might make. For instance, low power groups might threaten to strike, organize boycotts, or threaten to withhold political support. Since these exchanges are based upon continued threats and/or outside support, they tend to break down should the threats or support weaken in the future. As a possible solution to these problems the Consortium is particularly intrigued with Boulding's third source of power, "love," which is shorthand for his integrative system. According to Boulding, love is a relationship in which A says to B, "I'll do something for you because I like you, not because I expect you to do something for me in exchange or fear you might hurt me if I don't." If the word love seems too strong, Boulding suggests substituting the word, respect. While love has been largely ignored in the academic literature on power and conflict, Boulding argues quite persuasively that it is the most significant source of power in his typology. "Without some sort of legitimacy," he explains, "neither threat power nor economic [i.e. exchange] power can be realized in any large degree." The integrative system is especially important in justice disputes, because the prevailing social order cannot be sustained unless the dominant group is able to morally justify its continued dominance. While dominant groups can usually justify their dominant position in some moral terms, they are also likely to believe in some other universal principles of justice which are antithetical to the continuation of their unjust policies. This creates an opening for nonviolent strategies which confront people with these contradictions and/or demonstrate the superiority of the more universal standards of justice. Once the dominant group starts to believe that what they are doing is morally wrong, then they must resolve what psychologists call "cognitive dissonance" by bringing their actions into line with their beliefs. (This was a primary strategy of both Gandhi and King.) The advantage of this approach is that it gets people to do things they eventually feel good about, rather than forcing them to do things that they do not want to do. This reduces the need for continued vigilance (to make sure the group being forced doesn't respond by shooting the other group(s) in the back). Further, this approach sharply reduces the threat of counter-revolutionary change. These approaches do not work independently, but are used together in differing amounts to work towards the nonviolent resolution of justice disputes. Ongoing and planned research examines how these approaches can be used, singly and together, to achieve the greatest benefit at the lowest cost (especially human cost). CRC SMALL GRANT REPORTS ________________________________________________________________________ African, Ethnic Group/State Conflicts Jim Scarritt, Political Science, Boulder Scarritt's project is part of a larger global project on Minorities at Risk which Scarritt is doing with Ted Gurr, now at the University of Maryland. Scarritt's work uses both qualitative and quantitative methods to analyze conflicts between African ethnic minorities and the state. The quantitative part of the project involves a statistical analysis of 74 ethnic minorities in 28 African states. This is supplemented with a qualitative, case-study analysis of minority groups in 10 states that are prototypical of current conflict situations, but share a common British colonial heritage, which seems to have exacerbated ethnic conflict in the region. A very large number of variables are included in the statistical analysis including internal group characteristics (e.g., size, demography, cohesiveness), their geographic location within the country and without, differences from the advantaged group(s) in the countries (e.g., appearance, language, culture, religion, economic resources), the contemporary political, economic, social, and cultural grievances, the history of violent and nonviolent conflict with the state and with each other, and internal characteristics of the state (party system, regime type, and change in these characteristics). Scarritt uses these variables to try to explain the types and magnitude of recent anti-state political action by minority groups. He then hopes to use the case studies to further understand the importance of factors identified as significant predictors in the quantitative study, and to explore the effectiveness of specific state policies formulated in response to anti- state actions designed to eliminate such actions in the future. While his analysis is not yet complete, Scarritt reported on his findings to date which highlight four variables as most predictive of ethnic conflict. These are demographic stress, aggregate cultural, political, and economic differentials, total discrimination (a combination of economic and political discrimination), and total grievances (a combination of political, economic, and social grievances). Using these variables and path analysis he was able to explain a substantial portion of the variance in different types of protest. In order to explain the remaining variance he is in the process of analyzing the case studies to find more variables to include in the quantitative analysis. While not yet complete, the case studies seem to suggest that a combination of three factors -- class formation, economic decline, and a change in the political system -- tend to reduce ethnic conflict by focusing conflict on issues other than ethnicity. Another finding of particular interest was that predictors of nonviolent protest appeared to be considerably different from the predictors of violent protest. Traditions of past nonviolent action is more important, he suggested, than many of the other variables that predict violent protest. While most of his analysis, so far, has centered on analyzing "total protest," the differences found between violent and nonviolent protest hold interesting possibilities for further analysis. International Debt Negotiation: Steve Chan, Political Science, Boulder. Chan's research analyzes the conflicts between the negotiation strategies of the three principal actors involved in the Third World debt problem. These are private banks, their home governments, and their foreign governmental clients. Given the enormous magnitude of the Third World debt, it is highly doubtful that it will be repaid in the foreseeable future, if ever. Yet this situation, Chan asserts, cannot be publicly acknowledged. Bankers are understandably loath to write off bad loans, the sheer size of which could endanger their very corporate survival. Conversely, debtor governments eschew open declaration of default, a step that will cut them off from further overseas funding. Finally, creditor governments are obviously reluctant to "bite the bullet" of having to bail out either the banks or the debtor countries. Consequently, all parties are apparently trying to handle the conflict over who "bites the bullet" through the use of the "playing for time" game. Chan likens this situation to a prisoners' dilemma: the debtor nations want outright debt forgiveness, the bankers want debt repayment, but action by either actor to obtain their desired outcome is likely to lead to retaliation which will be much less desirable than the outcome possible through cooperation. Chan's paper analyzes the behavior and incentives of banks, home, and client governments from several theoretical perspectives--collective action, sovereignty en garde, and partisan mutual adjustment. Statistical analysis of past negotiations shows that all of these theoretical constructs have shortcomings, though they model some aspects of reality relatively well. Both the theoretical and empirical analyses, Chan asserts, suggest that international debt management is a "mixed motive game among purposive egoists." However, the actors' bargaining leverage differs considerably with respect to loan availability and loan terms. Negotiations over loan availability correspond much better to the analytical models Chan investigated than do negotiations over the terms of loans. Debtor countries with larger domestic economies, higher savings level, more rapid export expansion, and strong ongoing economic and military ties with the creditor countries were more able to obtain large loan packages from foreign creditors. On the other hand, developing nations without these attributes--most particularly the African countries--had very limited access to the international credit market. The much larger exposure of banks to debtor countries such as Mexico, Brazil, and Argentina meant that they could not afford to ignore the latter's credit needs. The banks were caught by the lender's trap and forced to provide additional bridge loans in order to shore-up the quality of their existing claims in Latin America. In exchange for these new funds, however, the banks asked for tougher terms in regard to interest payment, maturity, and grace period. A Threshold Model of Collective Action William Kaempfer, Economics, Boulder and Tony Lowenberg, Economics, Denver. A great many nonviolent strategies for pursuing social justice depend upon collective action. In this theoretical paper, Kaempfer and Lowenberg present their "threshold model" of collective action which suggests that individuals will join a collective action when they perceive that a certain minimum number of other citizens have also joined. This minimum number differs for different people. Depending on the distribution of private thresholds across the population, collective action can either fail altogether, take place with low participation, or propagate to extremely high levels of participation. Under certain conditions, there exists a critical mass of support for a particular group or policy, such that, once that critical mass is attained a large proportion of the population throws in their lot with the supporters. Kaempfer and Lowenberg go on to investigate how foreign pressure can influence individual thresholds for action, and hence, the development of a critical mass for a social movement. There are three channels by which such influence occurs. First, external events might induce individuals in the target nation to believe that there is a high level of support for collective action in the population and therefore join the action themselves. Second, outside influence might improve the ability of internal interest groups to confer utility to their members. Third, pressures from abroad could produce an exogenous shift in private preferences. These three effects, Kaempfer and Lowenberg suggest, can be used to help explain a wide variety of transnational social phenomena. An obvious example is the recent proliferation of pro-democracy demands and the overthrow of communist regimes throughout the Soviet empire. They also use the threshold approach to explain the use and occasional political success of foreign economic policies such as trade embargoes, investment boycotts, and other economic sanctions. These actions are often not successful from the purely economic standpoint, but do have a political effectiveness in terms of altering individuals' thresholds for action. Conflict Between Elderly Institutionalized Mothers and Their Adult Daughters Pamela Foy, Sociology, Boulder. This ethnographic project examines conflict and power dynamics between six mothers who are in an adult care facility and their daughters who live in close proximity. Using Emerson's power-dependency theory and life-span developmental theory, Foy analyzes the mothers' and daughters' conflict styles before and after the mothers were institutionalized, the influence of other family members, as well as the institution itself on the conflict processes. She also is investigating how mothers and daughters balance power within their relationship and how alternative processes might help the elderly to empower themselves more than they already do. Although she was just beginning the analysis phase of her work at the time of her presentation, several trends were already becoming clear. Among these were: 1) Avoidance is the most common conflict style, though participants realized it was not always effective. But the mothers feared abandonment if they engaged in conflict, while daughters feared guilt and felt a need to protect the mother from discomfort, fear, or emotional upset. 2) Early life conflict management styles tend to persist--mothers and daughters will still cry and pout to gain power over the other. 3) Mothers and daughters perceived their relationship to be balanced, though they did actively use power balancing techniques. The most used approach was to find alternatives to depending on each other, removing the motivation for power contests, and utilizing coalitions to gain power for one party. 4) Conflict seems to diminish as both parties age--it seems to become less acceptable, with both parties claiming that the issues are "not worth a fight." Confidentiality in Mediation Kevin Gibson, Philosophy, Boulder. Gibson's work investigated the concept of confidentiality in mediation. First, he examined what is meant by confidentiality and determined that it means different things to different people. To some mediators, confidentiality refers to a special relationship between the mediator and the client which might be compared to the relationship between a lawyer and a client or a priest and a confessor. These mediators interpret confidentiality in absolute terms and refuse to violate that pledge under any circumstance. Other mediators take the relationship to be "chiefly one of expedience." An expedient mediator is less likely to revere the relationship and may thus be more willing to breach confidentiality. Most practitioners do share a commitment to resist court subpoena, Gibson contends, while having some sort of "escape clause" for exceptional circumstances--evidence of child abuse or danger of imminent harm, for example. But what exactly constitutes exceptional circumstances and what doesn't are very poorly defined or understood. Gibson proposes a more systematic way of dealing with confidentiality by applying a standard normative principle which he sets out as follows: "A mediator should ask what norm of confidentiality or disclosure a reasonable person would choose to promote welfare if he or she had justifiable conventional social values and a general probability of being a disputant, mediator, or affected person, and then apply that norm to the individual case." Using this principle, he argues that the mediation process should remain closed to the general public, but that there would be cases in which "going public" would be appropriate. Such cases would include situations in which there was evidence of imminent or actual physical or psychological abuse of any party--not just children, but adults as well. Such cases would be sufficiently exceptional to not damage or interfere with the general perception or efficacy of mediation as a process. The only people likely to be deterred, Gibson argues, are "those for whom mediation is probably inappropriate anyway--those who make threats, seek to defraud unrepresented parties, or announce their intent to commit crimes." Gibson also argues that some form of review of the mediation process is important to assure public accountability, which is essential if it is to become a publicly sanctioned dispute resolution mechanism. He suggests periodic expert reviews of both processes as well as the substantive agreements. Gibson concludes by suggesting a revision of traditional codes of mediator conduct which would say, for example: "The mediation process is confidential, unless the mediator is made aware of preventable physical or psychological harm or gross unfairness to unrepresented parties, in which case the mediator will inform those who may be affected." Such a code, he argues, "covers the cases where it may be necessary to break confidentiality, and does so on a reasoned, consistent, and defensible basis." Gender-Based Environmental Conflict Lynn Staeheli, Geography, Boulder Staeheli's project addressed the mediation of conflicting interests in the efforts of men and women to shape the built environment. Past research, Staeheli asserted, "has intimated that gender-related interests in the environment are often in opposition, but the nature of those interests has been largely unexplored." Staeheli attempted to explore these gender differences and the ways in which the conflicts were resolved by examining the grassroots movement to control growth in Boulder. Staeheli hypothesized that the interests of men and women involved in the growth control movement would be different. Men, she hypothesized, are most interested in issues relating to "consumption," whereas women are more concerned about issues of "social reproduction." In the housing and growth control context, she defines consumption interests as those that relate to the investment value of homes, neighborhood composition, and access to and quality of services. Social reproduction interests involve families and social practices of the community. Based on past research by Gallagher, Staeheli also hypothesized that women and women's interests would take a lead position in informal grassroots growth control efforts, but that these interests would give way to masculine leadership and interests as the movement became more formal and institutionalized. To do her research, Staeheli examined documents going back to the very beginnings of the Boulder growth control movement and interviewed many people who were involved in the movement at that time or later (especially members of PLAN-Boulder). Contrary to her hypotheses, she did not find significant differences between men and women involved in the movement. The major concern for both groups was the environment. However, she did find that men and women talked about "environment" differently. Men talked about it as an abstract concept. Women were more concrete--they wanted to preserve land, consider the impact of growth on the community, look at issues of fairness, quality of life, and jobs. Females tended to look more at how the built environment and the natural environment interacted with each other. Men tended to look at the natural environment as being separate from the built environment.