via HNMCP blog
by Patrick Maxwell ’21
This post is the second installment of a multi-part blog series by Patrick Maxwell, “When Norms Collide: The (Growing?) Challenge of Inter-bubble Conflicts.” The series will explore conflicts that cut across structures, groups, and worldviews—and what it may take to effectively navigate them. Read Part 1 here.
In the previous entry in this series, we looked at “inter-bubble” conflicts—conflicts marked by deep clashes of worldviews and perspectives. We defined an inter-bubble conflict as one that shares some combination of the following characteristics:
- A lack of consensus on valid sources of “truth” that can be a basis for a resolution.
- No commonly-shared authorities or experts (either on substance or process) who can intervene to shape an outcome.
- A lack of a defined process or structure for resolving or managing the conflict.
For this entry, we’ll zoom in on the third piece—a lack of defined process or structure for resolving a conflict—to illustrate why inter-bubble conflicts can be so difficult to address.
Some quick theory: Rights, interests, and power
Most strategies for resolving conflicts base fall into one of three basic types: rights-based processes, interests-based processes, and power-based processes.1 An archetypal rights-based process is a courtroom, in which a (supposedly) neutral judge gathers information and determines an outcome according to legal principles. An example of an interests-based process is a mediation, in which two parties talk through their dispute with the guidance of a mediator and come to an agreement that meets both of their needs. And a power-based process might take the form of a protest or a workers’ strike, in which one side brings influence to bear against another to enforce an outcome of their choosing.2
Applying the theory: Why does this matter, for inter-bubble conflict?
Let’s return to a phrase that we introduced in the first blog entry: “conflict resolution infrastructure.” Conflict resolution infrastructure, you’ll remember, is important to the question of inter-bubble conflicts because the different parties to the conflict will have drastically different preferences for the type of conflict resolution process they prefer. The theory building-blocks above can help break down what a “conflict resolution infrastructure” might consist of; they also help explain why it can be so devastating when different parties clash.
Let’s take two examples of thorny disputes: First, let’s imagine that the assistant pastor of a large church—one known for its strict adherence to written Biblical principles—has been accused of having an affair with one of his parishioners. And second, let’s imagine a situation in which a hydroelectric power company’s plans to dam a river are likely to displace a small community of people who live in the area.3
In the first example, the theoretical building-blocks that we discussed earlier are clearly defined. An affair is not illegal, so the matter is unlikely to be addressed in court, but the church has another set of “rights” —namely, the Biblical principles to which the church holds a deep commitment—that it can apply. Interests (i.e., the best interests of the congregation) are likely to be relevant, but secondary. And the pastor’s position as an assistant means that it is unlikely that he’ll be able to force the rest of the congregation to do as he wants them to. The outcome may be undecided—and subject to interpretation and application of different passages of the Bible—but since the key decision-makers will likely agree that the church’s rules come first, the process for deciding the outcome is hardly up for debate.4 In other words, the church has an agreed-upon infrastructure for conflict resolution that it can rely on to guide its decision-making as it navigates an uncomfortable issue.
In the second example, however—of a hydroelectric dam threatening to displace a community—the primary mode of conflict resolution may be less clear. There is no real consensus among the parties about whether rights, interests, or power should be used to resolve the conflict. And even within those three broad types, a huge range of possible options exists. There may be multiple, competing sets of “rights”: state, local, and federal regulations; international laws and standards on resource development; and the unwritten (but very important) understandings of “fairness” held by the power company and the community. Depending on the eventual process, the relevant interests might be those of the power company, the community itself, the environment (as represented by lawyers and activists), the government, and the towns that will benefit from the electricity that the dam will produce. And the possible sources of power are also unclear and multiple. The power company, certainly, has access to resources and connections. The community might be able to enlist a sympathetic journalist to boost their profile. Environmental activists could chain themselves to trees in a last-ditch effort to prevent the construction of the dam.
In the case of the hydroelectric dam—much more so than in the case of the adulterous pastor—the elements of rights, interests, and power are much less defined. There is no single agreed-upon conflict resolution infrastructure; in fact, there are multiple competing possibilities, each of which might privilege one stakeholder above another. The community, the power company, and other relevant stakeholders (local government? Environmental groups?) might have drastically different ideas of how they would prefer to solve the issue—and the mere choice of deciding how to move forward is likely to be thorny, fraught, and highly contested.
As mentioned above, an inter-bubble conflict is defined by three elements: a lack of shared consensus on valid sources of truth; a lack of shared authorities or experts; and a lack of a defined conflict resolution process. The examples above illustrate the potential problems that just one of these elements can present.
The next entry in this series will look at how inter-bubble conflicts raise the stakes of conflict, and the unique ways that they can play out across a range of institutions and groups.
1. William Ury, Jeanne M. Brett, & Stephen B. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict” 3 (1993).
2. To be clear, real life is messy and elements of rights, interests, and power impact every conflict to different extents. These shouldn’t be interpreted as neat, mutually-exclusive theoretical categories, but rather as different sources of influence. Also, all three types can be used well or misused; the point here is not that one is “better” than another, but rather that these processes play out in different ways depending on the mix of rights, interests, and power that apply.
3. These are both fictional scenarios, although similar incidents can and do happen quite frequently.
4. Of course, all three are affected. Systems of rights protect the power and interests of some groups over others. The point here is that a rights-oriented approach is the primary method of conflict resolution in this case—the guiding question is “what do the rules say?” as opposed to “who do we want to benefit?” or “how can we make them do what we want?”
Patrick Maxwell is a JD/MA candidate at Harvard Law School and the Fletcher School at Tufts University, where he focuses on conflict resolution, conflict analysis, and international humanitarian law. Patrick has served as both the Training Director and Co-President of the Harvard Mediation Program during his tenure at Harvard Law School. He is a two-time recipient of the Chayes International Public Service Fellowship, which allows students to spend the summer working with governmental or non-governmental organizations concerned with issues of international scope or relevant to countries in transition. Before law school Patrick worked for non-governmental organizations in the Democratic Republic of the Congo and in South Sudan, where his work focused on disarmament/demobilization, peacebuilding, and civilian protection. He graduated summa cum laude from Goshen College in Goshen, Indiana. Patrick’s first project in the Dispute Systems Design Clinic was with the Public International Law & Policy Group (PILPG) to create a portfolio of coalition-building materials that would allow PILPG to rapidly provide relevant and targeted support to clients building, strengthening, and operating as a coalition during peace and political processes. Patrick’s second project with us is one he cultivated and brought to us with the Southwest Initiative Foundation to design a set of materials that can be used to facilitate conversations that bring community members together to share and hear each other at a fundamental level.
Filed in: Clinical Voices, Legal & Policy Work
Tags: Class of 2021, Harvard Negotiation & Mediation Clinical Program, HNMCP, Patrick Maxwell
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