Professor John Lande
The distinction between conflicts and disputes
Conflict: an actual or perceived clash of interests
Dispute: arises out of those sources of conflict, the concrete manifestations of the underlying conflict
Disputes may grow out of conflicts and may escalate or de-escalate
Theories regarding sources of conflict,
individual characteristics – Needs Theory: arise out of unmet needs
social process: Competition for resources, everyone goes for self interest
social structure: arise out of nature of social system, and differences in power and influence
Moore’s circle of conflict resources of conflict, e.g., relationships, data, interests, values, structure
Constructive and/or destructive nature of conflict
Aspects of conflict & resolution, incl. cognitive, emotional, & behavioral
1. Nature of conflicts and disputes : It is helpful to know distinctions.
Conflict: “Naming, Blaming, Claiming” framework (Felstiner, Abel, Sarat):
Naming: having a perceived injurious experience (PIE)
Blaming: having a “grievance,” i.e., perceiving that a specific person (or persons or entity etc.) is responsible for the PIE
Claiming: demanding action from the person perceived to be responsible
Dispute arises only if person rejects claim, at least in part.
In this framework, the conflict is the blaming.
War is similar to conflict and battles are similar to disputes.
So it is possible to resolve a dispute (e.g., a particular battle) without ending the conflict (e.g., ending the war).
Be careful not to win the legal battle but lose the client’s war
According to Mayer, there can be conflict even if it is unexpressed and the other person isn’t aware of it.
Cognitive Resolution: how situation is perceived
Emotional Resolution: how parties feel about a conflict and the amount of emotional energy they put in
Behavioral Resolution: what people do
Note: a lot of lawyers overlook the 1st two, resolution needs all 3
d. Conflict escalates when one person makes a claim, which becomes the other person’s PIE, prompting chain reaction of blaming and counter-claims.
e. Often, lawyers are involved in only the tip of the iceberg of conflict.
Lawyers typically focus on resolving disputes rather than underlying conflicts. Sometimes lawyers can help w/ this!
uld represent a client zealously within the bounds of the law.” This is a black-letter provision (rather than just a “comment”).
Is it always in your client’s interest to act zealously within the bounds of the law? No.
In 1983, the ABA adopted the Model Rules of Professional Conduct . The new rules do not include the duty of zealous advocacy language.
OTOH, another comment to Model Rule 1.3 states that a “lawyer is not bound . . . to press for every advantage that might be realized for a client.”
c. What is the difference between advocacy and being adversarial?
Being adversarial generally means:
– trying to get as much benefit as possible at the expense of opponents (viewing the situation as zero-sum, i.e., one party’s gain is the other party’s loss)
– denying responsibility and blaming others
– taking tough and unreasonable positions, and/or
– acting in a nasty and disrespectful manner.