Conflict Management: A Practical Guide

1005 Pages·2016·4.832 MB·English

by  Peter Condliffe

Dedicated to women and men of strength and peace — Kathy, Emma, Zoe,
John and Artie
Conflict Management
A Practical Guide
5th edition
Peter Condliffe
PhD
Barrister, Supreme Court of Victoria
Mediator and Facilitator
Nationally Accredited Mediator and Advanced Mediator at the
Victorian Bar and the Resolution Institute
Accredited Family Dispute Resolution Practitioner
Accredited Arbitrator
LexisNexis Butterworths
Australia
2016
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National Library of Australia Cataloguing-in-Publication entry
Author: Condliffe, Peter.
Title: Conflict Management: A Practical Guide.
Edition: 5th edition.
ISBN: 9780409342956 (pbk).
9780409342963 (ebk).
Notes: Includes bibliographical references and Index.
Subjects: Conflict management. Interpersonal relations.
Interpersonal conflict.
Dewey Number: 303.69.
© 2016 Reed International Books Australia Pty Limited trading as
LexisNexis.
Second edition, 2002; third edition, 2008; fourth edition, 2012 (reprinted
2014).
First edition 1991, published by TAFE Publications.
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Foreword
Whilst conflict management is as old as life itself, the academic study of
conflict management is only a fairly recent phenomenon. One such example
is taken from the Jewish Torah, involving dialogue (or negotiation) between
Abraham and God regarding criteria for the destruction of Sodom and
Gomorrah. Obviously, people realised the importance of resolving disputes
long before State-organised litigation originated. Modern alternatives to
litigation were heavily influenced by the United States National Conference
on the Causes of Popular Dissatisfaction with the Administration of Justice,
which took place in Minneapolis, Minnesota, 7–9 April 1976. At this
conference, then United States Chief Justice Warren Burger encouraged the
exploration and use of informal dispute resolution processes.
As Howard Raiffa (1982) points out, negotiation is both an art and a
science. It uses aspects of law, psychology, economics and mathematics. For
someone to fully understand the discipline, that person needs an excellent
grounding in both practice and theory.
Dr Peter Condliffe has such skills. For example, he has worked in
dangerous conditions, sorting out disputes and extrapolating from his
experience for improvements in Cambodia’s law and practice. He then
worked as Chief Executive Officer of the Institute of Arbitrators and
Mediators Australia (IAMA) — an independent, multidisciplinary body
supplying and training skilled experts in alternative dispute resolution.
Peter is a very skilled mediator, with a great commitment to social justice.
He was until recently the President (and founder) of the Victorian
Association for Restorative Justice and is a highly-valued sessional lecturer on
Negotiation and Dispute Resolution and related subjects at many Victorian
universities.
It was whilst he was at IAMA that I first met Peter. I had recently won an
Australian Research Council grant to study the development of fair processes
in alternative dispute resolution and online dispute resolution. I already had a
postdoctoral fellow with expertise in information technology, but I
desperately needed a PhD researcher with skills in dispute resolution.
Despite being in his mid-fifties, with wide experience as a barrister and
mediator, Peter enthusiastically lived up to the challenge. In three short years
he conducted superb empirical research comparing different forms of
negotiation (arb-med, med-arb (same) and med-arb (different)) and found,
amongst other things, that disputants were impacted by outcomes achieved in
judging process fairness through mental shortcuts or heuristics.
This example illustrates that Dr Condliffe is a superb scholar, in addition to
being a highly experienced and respected practitioner. He is thus the ideal
person to write a book on conflict management.
All of you who read this book will be very fortunate to benefit from Dr
Condliffe’s many years of experience and wisdom. You are very fortunate to
be able to learn from such a wise practitioner and researcher!
Professor John Zeleznikow
Laboratory for Decision Support and Dispute Management
Victoria University, Melbourne, Australia
7 August 2015
Foreword to the Second Edition
The Hon Justice Michael Kirby AC CMG
I worked closely with Peter Condliffe in one of the most interesting
experiences of my life. We were engaged by the United Nations to help
Cambodia restore the institutions of government and civil society that had
effectively been destroyed by 20 years of revolution, invasion, genocide, war
and foreign occupation.
My task, as Special Representative of the Secretary-General of the United
Nations for Human Rights in Cambodia, was to visit the country, report on
progress and make recommendations consistent with United Nations Human
Rights conventions. Peter Condliffe had a still more difficult task. He lived in
the midst of the simmering conflicts of Khmer society. He worked on the
front line, in dangerous conditions, sorting out disputes and extrapolating
from his experience for improvements in Cambodia’s law and practice. He
gives an insight into those times in his description in this book of the
difficulties of dealing with the Wretched Witch of Sisophon.
Much of my work with Peter Condliffe related to efforts to improve the
conditions of prisoners in Cambodia. When so many other citizens were
living on the edge of poverty, our efforts to uphold the human rights of
prisoners were sometimes met with disbelief and resistance. This is where I
saw Peter Condliffe at his best in the practical art of conflict management. He
achieved much. It was not by techniques of demand and insistence. At the
time, there were only two blue helmets of the United Nations Force left in
Cambodia. Our sanctions were weak. We relied substantially on persuasion
and the provision of foreign aid by governments that supported our human
rights endeavours.
This is not, therefore, a text written by a scholar who has simply examined
all the literature, collected all the theories and repeated them with a few
insights of his own. This book is written by someone who, in crucial years,
had to turn theories of conflict management into practice. In my eyes, his
success in those endeavours gives him a special credibility.
Between my missions to Cambodia, I performed duties as an Australian
judge. Those duties continue to this day. In a sense, they represent the local
application of a highly structured form of dispute resolution that is envisaged
by the Australian Constitution and that we inherited from Britain. The
British love games. Most of the sports that are played throughout the world
were their invention. Global television networks show the way conflicting
teams channel their contests into rituals played out on the sporting field.
Political rituals take place between competing teams in Parliament and in the
media. In courtrooms, the English never felt comfortable with the
inquisitorial system of the Star Chamber. Instead, they refined the adversarial
trial, as the public way of demonstrating how serious contests should be
managed, and ultimately resolved, by an impartial decision maker.
Such judicial systems of conflict management work reasonably well if the
combatants have plenty of money and can afford lawyers of roughly equal
talents to represent them. Unfortunately, these Rolls Royce qualities are not
possessed by the majority of citizens in Australia or anywhere else. Thus, in
courts throughout Australia and other lands, increasing numbers of self-
represented litigants attempt, as best they can, to put their cases forward. In
the High Court of Australia, nearly a third of all applications for special leave
to appeal are now argued by litigants without lawyers. This development
appears to illustrate the limitations of the formal systems of dispute
resolution and conflict management in our society. The frustrations
inevitable in such circumstances often boil over into emotional outbursts,
calumny against opponents and abuse towards the judge. By the time such
conflicts reach a nation’s highest court, there is a huge investment of emotion
and economics.
These considerations have led to calls for reform or elaboration of the
formal system of dispute resolution in Australia and elsewhere. Some critics
demand a root and branch overhaul. While this is unlikely to occur (and
might, in any case, in Australia, require constitutional change, always difficult
to procure), quiet efforts are proceeding to effect reforms in a more low key
way. Those efforts necessitate a greater understanding of the nature and
typical course of conflict, an analysis of its usual components and of the
responses appropriate to particular disputes. Once one turns away from
jousting, duelling and brute force, conflict is usually channelled by organised
society into verbal contests. These can occur within a family, a society, a
nation and the world. The importance of managing such conflicts successfully
is obvious. Failure will all too frequently lead to a reversion to pent-up anger
and infantile violence. In a nuclear world, this is perilous. But even at a more
human level, it can often be dangerous and highly destructive.
Some of the best chapters of this book concern techniques of collaborative
conflict management, negotiation and mediation. Lawyers have always
required these skills. Ninety per cent of civil cases never get to a completed
trial. They are settled between the parties. Court lists could not cope if it were
otherwise. Courts and tribunals today send conflicts off for mediation. In
trained hands, such procedures can be most beneficial. Whereas the formal
institutions deliver an authoritative decision that must simply be accepted,
mediation searches for the solution that the parties can tolerate and abide by.
Whereas Australia’s culture, in the past, preferred authoritative
determinations, others always preferred the path of conciliation and
mediation. In multicultural Australia we have, perhaps, to learn from other
cultures in this regard. While our institutions have delivered a high measure
of finality and certainty, they have sometimes done so at a price of brooding
resentment, continuing frustration and endemic conflict.
This is not a book for lawyers only. Yet, as I read the text, I could see the