"New Techniques of Conflict Resolution
and Dispute Settlement –
Applications to Self-Determination and Native Peoples"
A Background Paper
by Jack R. Miller,
B.A., B.C.L., B.L.
Student Conference Committee
on Native Peoples and the law
February 8, 1990
purpose of this paper is to focus on new techniques
of conflict resolution and dispute settlement, collectively
referred to as "ADR", and their potential
for application to the resolution of conflict and
settlement of disputes involving native peoples,
including self-determination. The premise of this
paper is that there are urgent needs not being met
by current techniques, that new technologies are
available and that applying and matching the techniques
to the needs could move the whole process dramatically
forward with a good chance of attaining goals and
objectives within a relatively short period of time.
The paper concludes with some suggestions for a
I guessed that many people of good faith felt frustrated
when thinking of conflict, self-determination and
native peoples, would I guess correctly? I think
that I would. I have only to read the newspapers
regularly to hear such feelings expressed across
eloquent essays of some of the leaders of native
peoples brought together in "Drumbeat - Anger
and Renewal in Indian Country" edited by Boyce
Richardson, with an introduction by Georges Erasmus
and published in 1989, reflect this frustration.
have heard this frustration myself. I have become
a practitioner of conflict resolution and dispute
settlement. I have adapted my private litigation
practice over a period of eight years incorporating
new techniques. It is my privilege to provide conflict
resolution and dispute settlement services to some
I would like to share with you some of what I have
learned in the hope that it could also be of benefit
to you and to the people whom you serve. I think
that it is time for some fresh approaches. I hope
that some further information could stimulate your
feel that conflict and dispute are often confused
and interchanged. I observe that for most people
there are few options. Some people seem rooted in
one paradigm or mode. For others, the dynamics are
a blur or stereotyped. Some think that a law suit
and negotiation are the only options. Many think
in terms of enforcement and sanctions. Some have
heard of mediation, arbitration or conciliation
but are locked into a particular technique and are
unaware of the full range of options. Some try to
fit all disputes and conflicts into one mould, like
some kind of universal tool for all jobs.
Marvin Minsky, co-founder of the Artificial Intelligence
Laboratory, Massachusetts Institute of Technology,
has derived a profound respect for human intelligence
from his pioneering work on artificial intelligence.
In a recent Public Lecture at the Science College
of Concordia University, Dr. Minsky said that he
could not understand why so much attention is paid
in the sporting world to incremental accomplishments
such as adding a fraction of an inch to the high
jump record and so little to the quantum leaps of
the human brain. I think that he had in mind among
others the world chess champion who took on and
beat the chess-programmed computer. I was thinking
people could count the options of conflict resolution
and dispute settlement on the fingers of one hand,
without using all the fingers. I have identified
from the reported experience and from my own experience
34 options which are separate and distinct systems
of conflict resolution and dispute settlement. I
annex the list to my paper. These options do not
include the many variants and forms of each option.
And I am sure that there are more to be discovered
and invented. I think of them as compounds and mixtures
derived from basic elements of justice through the
catalyst of human interaction.
situate and visualize these options on a spectrum
measured by potential for value, commencing with
the options of highest value and progressing towards
the options of lesser value. I measure value in
terms of the interests of the parties, those having
the greatest potential to satisfy the greatest number
of interests having the greatest value.
classify the options into two broad categories,
facilitative, where a third party (which could be
a group or team) assists and supports the parties
to themselves resolve their conflicts and settle
their disputes and adjudicative, where a third party
resolves the conflicts and settles the disputes
for the parties after due process.
options also seek not only to settle disputes but
also to resolve conflicts. "Conflicts"
I understand to be something internal to a person
or to an institution (which some have said corresponds
to hurt) and "disputes" I take to refer
to interaction between two or more persons or institutions.
The recognition of the part that emotions, hurt
and stress play in conflict resolution and dispute
settlement is essential to success.
is an abundant literature on the subject, some of
which I have collected over the last 8 years. The
literature is growing. The curriculum of law schools
acknowledges it. The curriculum of management schools
also incorporates it.
process of fundamental change proceeds from roots
within the legal system and from roots within different
communities, including the communities of native
peoples. The process accords with many fundamental
changes in society, such as the desire of individuals
for more control over their lives, the desire for
greater productivity and efficiency, the research
into how our brains work and what our minds do.
is an approach which seeks a quantum improvement
in the quality of results and also an elimination
or reduction in wasteful expenditure of time, money
and allocation of resources, including human resources.
In other words, ADR is soundly grounded in the basic
needs and capabilities of society.
most cases, 5 or 6 options could apply, sometimes
in sequence, other times in combination, often by
a process of elimination. The law plays a vital
role as do the adjudicators. The processes are integrated
into a coherent plan of action with a critical path.
It is essential to match the option to the question
and not try to fit all questions into one or two
call it "Appropriate Dispute Resolution".
goal is to rationalize the options and determine
their appropriate application. This approach is
done jointly by the parties who co-own the resulting
process. Often in arriving at the process, the parties
find that many substantive issues have been resolved
and a basis of co-operation and technique is available
to tackle the tougher issues.
processes are soft on people, hard on issues. The
processes build relationships and seek to enhance
the self-esteem and self-respect, i.e. the human
rights, of all concerned on an equivalent and reciprocal
Adisciplinary and Multiprofessional
is in my view adisciplinary, i.e. it does not belong
to the exclusive domain of any single discipline,
and is multiprofessional, i.e. works best through
the interaction and integration of many professional
experiences. I call them conflict resolution and
dispute settlement professionals.
have assembled an adisciplinary and multiprofessional
group of independent conflict resolution and dispute
settlement professionals in Montreal who have received
a basic training in ADR. I hope to link up this
group with other comparable groups across North
America in the near future. I also hope within the
same time-frame to integrate into the link-up centres
of research in North America. Preparations have
been under way for about a year. The basic principle
is Just-in-Time, Total Quality Control, i.e. calling
upon an appropriate resource when needed who is
able to perform a particular task and maintain a
seamless continuity of high quality with a minimum
is a very large number of disciplines and professions
which could make a contribution to conflict resolution
and dispute settlement. Here I want to recall that
such disciplines and professions are in support
of the parties themselves. The disciplines and professions
include the health professions, physics, engineering,
educators, economics, management, actuaries, among
others, including law.
a lawyer in my 24th year of private practice, I
would like to say a word about my perception of
the law. I believe that the role of the law is shifting
from an authoritative to a normative role. Rather
than perceiving the law as deciding a matter, the
law is perceived as the collected wisdom of past
generations guiding us to wise solutions in the
present and for the future. Actually, I think that
it was always so. Now it is really the perception
that is changing. Thus the law cannot claim a monopoly
on solutions to conflict resolution and dispute
settlement, but it can become a dynamic instrument
understand psychology as the science of thought
or as the study of thinking. It is widely believed
that thinking determines our emotions. Some would
say that our emotions are different ways of thinking.
Changing our thinking is a key to conflict resolution
and dispute settlement.
know of two sure ways of changing our thinking:
information exchange and listening. Many ADR options
facilitate information exchange and listening. Audi
alteram partem - the right to a hearing - is said
to be a fundamental rule of natural justice. Unfortunately,
too often, there is not enough listening in the
hearing. ADR seeks to make sure that the parties
in my view, psychologists and other health professionals,
including health professionals among native peoples,
are essential to conflict resolution and dispute
settlement. ADR is part of getting well again.
could go on and make a case for economists and a
case for engineers, but perhaps you could do it
for me, and for many other professionals as well,
e.g. actuaries, who manage risks.
would like to refer you to a short reading list
in order to stimulate your thinking along the line
of integrating disciplines and multiprofessional
interaction: Roger Fisher and William Ury, Getting
to Yes - Negotiating Agreement Without Giving In;
John Burton, Resolving Deep-Rooted Conflict
- A Handbook; Robert Axelrod, The Evolution
of Cooperation; James Gleick, Chaos, The
Making of a New Science; Scott Peck, A
Different Drum; Marvin Minsky, The Society
of Mind; Manuel Smith, When I say no, I
feel guilty; Gerald Jampolsky, Love is
Letting Go of Fear; Michael Doyle and David
Strauss, How to Make Meetings Work, the New
Interactive Method; Erving Goffman, Interaction
Ritual - Essays on Face-to-Face Behaviour;
Lawrence LeShan, Alternate Realities; Carl
Rogers, On becoming a person; Pia Mellody,
Facing Codependence; David Burns, Feeling
Good; Stephen Hawking, A Brief History
of Time; and Jerold S. Auerbach, Justice
believe that ADR has particular potential for conflicts
involving native peoples because there is a special
opportunity for common ground.
course, ADR would lend itself well to the multiplicity
of issues and could offer a quality of result in
a reasonable time frame at affordable costs.
it is the potential for congruence of ADR, with
its numerous options derived from basic elements,
and the justice systems of native peoples.
is an opportunity not only for common ground but
also for sharing, mutual teaching, and an equality
of participation. Each can come to the process from
a base in his or her culture where the bases converge.
Justice systems of native peoples often could be
and are models of where the justice systems of non-native
peoples would like to be, e.g. victim-offender reconciliation
is another reason: ADR permits the resolution of
what John Burton of George Mason University calls
"deep-rooted conflict", i.e. conflict
which cannot be "managed" but can only
be resolved through respect of basic vital interests.
ADR permits an appropriate differentiation of basic
dynamics and modes of reality. For instance, negotiation
is only one of the 34 methods since it involves
a particular dynamic and configuration. Great strides
have been made in negotiation theory and practice,
progressing from positional to principled negotiation.
Experienced negotiators are not discouraged by irreconcilable
positions. Rather the positions are given due attention
and respect. The focus then shifts to the underlying
interests and their numerous points of convergence.
The effort is to construct win-win solutions.
is also important to recognize the applications
of theoretical physics with its current concentration
on chaos theory to negotiations. Scott Peck's experience
of community building and consensus-making is also
prefer the term "interaction" to refer
to the numerous and diverse elements of any given
process. For me the generic is interaction and not
negotiation. Even in the theory and practice of
meetings, there are dynamic innovations and new
models constructed and applied.
ADR approaches are the essence of success, i.e.
scientists and practitioners have studied systematically
successful interaction and extracted its essences.
A Critical Path
in the space that remains in this sketch of new
techniques with deep, well-nourished roots, I would
like to offer suggestions for a critical path of
conflict resolution and dispute settlement involving
self-determination for the native peoples.
I would like to suggest that there could be a critical
path for the design, construction and testing of
the self-determination edifice on a turn-key basis.
A critical path has a beginning and an end, functions
with a budget, and permits course adjustments and
adaptations. There are many models. I would choose
an appropriate model and with the help of engineers
and project managers adapt it to the purpose.
the critical path could begin with the design of
the process culminating in the critical path itself
which will co-ordinate many interacting parts. The
design must begin with education. I suggest that
the designers learn together and from each other.
They could agree to disagree for the time being
and begin agreeing on process and focus on building
their relationship. In my experience, attempts at
conflict resolution often fail when the parties
plunge into the heart of the issues. I advise beginning
with the process, considering the alternatives,
and building together a comprehensive, durable process.
The process like the body of an aircraft must be
capable of withstanding turbulence without falling
let me leave you with one more thought. I feel that
we have passed through the Age of Information and
have added, in the computer, an important tool to
our tool box. We are entering in my view the Age
of Relationships. I believe that relationships are
all important because it is through relationships
that we can co-operate and produce the greatest
gain for all, even in a world of egoists. Egoism
it seems is a natural part of the human condition,
our shared human frailty. Lest disappointment become
discouragement, we could remember that we have choices
and we could choose peace. Now.