Education and Science 2004, Vol. 29, No. 131 (78-82)
Eğitim ve Bilim 2004, Cilt 29, Sayı 131 (78-82)
Alternative Dispute Resolution in Educational Settings: A Conceptual Analysis * Eğitim Kurumlarında Alternatif Çatışma Yönetimi: Kavramsal Bir İnceleme Selahattin Turan Osmangazi Üniversitesi Abslract The purpose of this paper is to examine alternative dispute resolution processes and tlıeir fundamental principles as well as its applicability in educational settings. First of ali, the concept of conflict was explained. Second, the limitations of traditional conflict resolution processes were analyzed. Finally, discussing alternative dispute resolution processes, the paper concluded with inıplicalions for educational settings and recommendations. Key Words: Conflict resolution, alternative dispute resolution.
Öz Bu çalışmanın amacı, uyuşmazlık çözümünde kullanılan alternatif çalışma yönetimi tekniklerinin teorik temellerini açıklamaktır. Bu nedenle, ilkönce geleneksel çatışma ve uyuşmazlık yönetimi tekniklerinin sınırlılıkları tartışılmış ve daha sonra da alternatif çatışma yönetiminin temel ilkeleri açıklanmaya çalışılmıştır. Bu ve benzeri çalışmaların son yıllarda okullarda ve eğitim sendikalarının şiddet ve çatışma içeren eylem ve söylemlerini anlamada yardımcı olabileceği ümit edilmektedir. Anahtar Sözcükler: Çatışma yönetimi, alternatif çatışma yönetimi.
Introduction
to be successful leaders. This article is an introductioıı to alternative dispute resolution processes and their fundamental principles as well as their applicability to educational settings. First of ali, the concept of conflict is explained. Second, the limitations of traditional conflict resolution processes are analyzed. Finally, discussing alternative dispute resolution processes, the paper concludes with implicatioııs for educational settings and recommendations.
Public schools try to increase their interactioıı with other instilutions in üne with tlıe policies and procedures that are necessary to carry on their work. Each interactioıı is likely to result in coııflicts because of the differing values and varyiııg expectations. Effective managemeııt of conflict is a critical issue for any school adıııinistrator. A lack of skills in this area will suıely result in frustrations and diminished performance at best or majör disputes and disruptioııs at \vorst. Schools are ıııore likely to be politicized at local, State, and federal levels. The pressures on schools are not likely to diminish in the yeaıs alıead. School leaders of the ııe\v millenııium need to beconıe skilled managers of conflict and ıethink alternative non-ıational models if they want
Defınitioıı of Conflict Coser, in his classic book The Fımctions o f Social Conflict, defıııes conflict as “a struggle över values and claims to scarce status, po\ver and resources in which the aiıııs of the opponents are to neutıalize, injıtre or eliminate their rivals” (1956, 8). We live in a world of conflicting iııterests and great social, political, and ecoııomic inequalities of status, po\veı\ and resources. The clash of classes, riots, rebellions, revolutions, strikes, marches, and demonstrations, pıotest rallies, and racial, religioııs, and commıınity conflicts are some exaıııples of social conflict. Conflict is not a ııew phenomeııon. Its history goes back to the dawıı of mankind. Hinıes (1980)
Yard. Doç. Dr. Selahattin Turan, Osmangazi Üniversitesi, Eğitim Fakültesi, 26480 Meşelik, Eskişehir, e-mail:
[email protected] *The earlier versiotı of this paper was pıeseııted at the Annual Meetiııg of the 5 T' National Couııcil of Pıofessors of Educational Admiııistration (NCPEA), 1116 August 1997, Vail, Colorado, USA.
78
ALTERNATIVE DISPUTE RESOLUTION İN EDUCATIONAL SETTINGS: A CONCEPTUAL ANALYSIS
States that archeological and historical records from the earliest times show people eııgaged in struggles with their felloNvs. We see disputes aıııong children, spouses, parents and childıen, ııeighbors, etlınic and racial groııps, fellovv workers, sııperiors and subordinates, organizations, communities, and citizens and their government (Moore, 1986).
79
Coııflict is a fact and a daily part of the lives of people and organizations. Most of us see it as stressful confrontation. Dispute may be stressful and unpleasant, but we need to leam how to overcome it in constructive ways that reduce stress and result in satisfactory outcomes. Över the years, many approaches have been developed to resolve conflicts in organizations. Coııflict literatüre pıovides many models and approaches to dispute resolution such as avoidance, iııformal discussion, problem solving negotiation, mediation, formal resolution processes (grievance, arbitration, administrative action, ete.), legal proceediııgs (judicial decision, legislative decision) to extra legal aetions (violence, coercion, ete.). The traditional approaches have created dissatisfaction among disputants and have become costly in terms of moııey, time, and eııergy. Unlike traditional models of conflict resolution \vhich emphasize formality and means-ends rationality, such as courts and administrative decisions, altenıative dispute resolution (ADR) models emphasize informality, face to face communication, problem-solving orientation, parties shaping the processes, decisions by consensııs, and, if ııecessary, third party assislance (Fisher and Ury, 1991; Bingham, 1986; Carpeııter and Kenııedy, 1988; Susskind and Cruikshank, 1987).
The ABA sııggested that “altenıative forıııs of dispute resolution, in particıılar mediation and arbitration, vvould ease congested coıırts, reduce settlement time, and minimize costs” (Scimecca, 1993, 212). Since the 1970s ADR has gro\vıı rapidly in the United States (Breslin and Rubiıı, 1995; ide, 1993; Mills, 1991). Leading ADR seholar, Susskind and Cruikshank (1987) States that good coııflict resolution should share four characteristics: fairness, effıciency, wisdom, and stability. Susskind and Cruikshank (1987) questioıı whetlıer to maintain these characteristics of traditional approaches in solving disputes. Legislative institutions and courts are two maiıı dominant traditional conflict resolution approaches that feature liıııitations and shorteomings. Limitations of representative democracy inelude (1) inereasing government accountability, (2) the tyranny of the majority, (3) lack of long-term commitnıeııt, (4) inequalities of voting process, (5) today’s techııical complexities, and (6) the winner-lakes ali mind-sel (Susskind and Cruikshank, 1987). Like representative democracy, courts also have some shorteomings. These shorteomings are (1) procedural emphasis, (2) continuiııg legal battles, (3) iııeffeclive decision- nıaking, (4) techııical conıplexities, and (5) human and financial costs. Two altenıative processes to court adjudication, negotiation and mediation, will be summarized in the folloıving pages. Those approaches are not intended to take the place of the traditional court system and democratic decisioıı-making processes, but rather provide opportunity for dialogue among the disputants, assert “w in -m ı” decisions, and proınote opeıı and iııformal communication betvveeıı parties.
Liıııitations of Traditional Dispute Resolution Processes
Altenıative Dispute Resolution Processes
Iıı the last two decades, literatüre on conflict resolution has questioned the role of traditional dispute resolution processes for “failing to provide sufficient opportunity for dialogue among affecled contending parties” (Stephensoıı and Pops, 1991, 17). In the early 1970s, the American Bar Associatioıı (ABA) pointed out the popular dissatisfaction with the administration of justice by the judicial system (Goldbeıg, Sander, and Rogers, 1992; ide, 1993). The same orgaııizatioıı, theıefore, sponsoıed a national confereııce on the caııses of popular dissatisfaction with the administration of justice. That was the beginning of the ADR movemeııt.
Altenıative Dispute Resolution (ADR) has received wide acceptaııce in practice (Carpeııter and Kenııedy, 1988; Goldberg, Sander, and Rogers, 1992; Mills, 1991; Scimecca, 1993; Girard and Koch, 1996; Hail, 1993; Breslin and Rubiıı, 1993; McDermott and Beıkeley, 1996). ADR refers to “a variety of approaches that alloıv the parties to ıııeet face to face to reach a mutually acceptable resolution of the issues in a dispute or potentially coııtroversial sitııatioıı. Ali are voluntary processes that involve some form of consensııs building, joiııt problem solving, or negotiation” (Biııghaın, 1986, xiv). Tlıis defınitioıı does not inelude litigatioıı,
TURAN
80
admiııistrative procedures, and arbitration. The two most widely ıısed alternative appıoaclıes to dispute resolutioıı are negotiation and mediation. Conımon to ali ADR procedures is the word altenıate. Each ADR procedure is an alternative to court adjudication. Negotiation Över the past two decades, researchers have studied and emphasized the importance of negotiation in solviııg disputes in different settings and circıımstances (Breslin and Rubin, 1995; Fisher, Ury, and Pattoıı, 1991; Hail, 1993; Saııdole, 1993). Negotiation is the most common form of alternative dispute resolution. Moore (1986, 6) defines negotiation as follows: [A] bargainiııg relationship betvveen parties who have a perceived or actual conflict of interests. The participaııts voluntarily joiıı in a temporary relationship designed to educate each otlıer about their needs and interests, to exchange specifıc resources, or to resolve one or more intangible issues sııclı as the form their relationship \vill take in the future or the procedure by which problems are to be solved. The most popular approach to negotiation, which was conceptualized by Fisher and Uri is called “interestbased.” Fisher and Ury (1991) identify basic steps for effective negotiation tlıat can be used under almost any circumstance: (1) separate the people from the problem, (2) focus on interests, not positions, (3) iııvent optioııs for nıutual gain, and (4) insist on usiııg objective criteria. Mediation In tlıis sectioıı, the coııcepts of mediation and mediator are defined and discussed. Fuıthermore, selection of mediator and intervention processes in conflict resolution are defined and discussed briefiy. Mediation involves the assistance of an acceptable, impartial, and neutıal third party who helps parties to resolve their differeııces. Uıılike an arbitrator or judge, a mediator has no power to inıpose an outcome on disputing parties. Mediation refers to “the intervention iııto a dispute or negotiation by an acceptable, impartial, and neutıal third party wlıo has no authoritative decisionmakiııg power to assist disputing parties in voluntarily reachiııg their owıı mutually acceptable settlement of issues in dispute” (Moore, 1986, p. 14). Since mediation means the involvement of a third party, llıe selection and
role of a mediator are cıucial. Selection of a mediator slıould be carefully coıısidered and should have some prerequisites: impartiality, process skills, and ability to haııdle sensitive information (Caıpenter and Keıınedy, 1988; Moore, 1986; Susskind and Cruikshaıık, 1987). The role of the mediator includes seıving as the opener of communication channels, the legitimizer, the process facilitator, the resource expander, the problem explorer, the ageııt of realily, the scapegoat, and the leader (American Arbitration Association as quoted in Moore, 1986). In the dispute resolution process, the mediator plays a crucial role. It works because he or she depersoııalizes issues, lıaııdles emotioııs, observes and comments, and provides model behavior and negotiation techniques. The timing for the intervention of a mediator is also important. Carpenter & Keıınedy (1988, p. 189) suggest that in the following conditions, a mediator is needed: (1) \vhen negotiation is deadlocked; (2) when the parties need help in establishing communication; (3) wheıı sensitive information is involved; (4) when negotiation is thıeatened by disagreements inside groups; and (5) \vhen a process is not \vorking. In many instances, a mediator works well because people expect change \vhen a third party enters. Implications for Educational Settings Violence and dispute in schools have become reality and part of life (Curcio and First, 1993; Girard and Koch, 1996; Katz and Laıvyer, 1993, 1994; Lantieıi and Patti, 1996; McConııick, 1988; McCueıı, 1995; Morse and Ivey, 1996). The causes of the conflict in schools include a steady rise in general environmental violence, changes in the family enviroııment, economic and demographic shifts, poor self-esteem, instilutional racism and discrimiııation, violence associated with drug and alcohol use, and the proliferatioıı and use of handguns (Sherman, 1994). When conflict \vithin schools is inevitable, as \vithin any orgaııization, ways mııst be foııııd to maııage the dysfunctioııal eflects of conflict. Conflict mııst be, at least, maııaged effectively if ali conflict caıınot be resolved. Adversarial relationships are not productive in school settings. People need to be able to work together on behalf of studeııts. Schools need to help both staff members and studeııts develop skills and altilııdes that
ALTERNATIVE DISI’UTE RESOLUTİON İN EDUCATİONAL SETTİNGS: A CONCEPTUAL ANALYS1S
w i11 lead lo coııflict tııatıagemeııl behaviors. Altemalive dispııte resolulion ıııodels emphasize problem solving vvitlı ali parties participatiııg in efforts to fiııd mutually acceptable optioııs to tlıe issues in a dispııte and to deal vvitlı tlıe coııflict. Furtlıerıııore, altemative approaches can pıovide a different framevvork and ıııode of tlıiııkiııg in solving disputes anıoııg paıties. Stıclı altemative approaches lıave beeıı enıployed vvitlı studeııls in oıder to help yoııııg people gaiıı skills tlıal vvill eııable tlıenı to deal vvitlı coııflict in vvays that are ııol violent or adveısarial (see Giıard aııd Koch, 1996; Mediatioıı in tlıe Schools, 1985; NVilbunı and Bates, 1997). Instead of relyiııg on tlıe traditioııal Systems of dispııte resolulion, tlıe pıocess of ıııediation, especially peer mediatioıı, vvill create an enviroıımeııt vvlıere adulls and stııdeııts come togetlıer to discııss tlıe issues that they are faciııg by ıısing ADR ıııodels. Accordiııg to Girard and Koch (1996, xvii), “coııflict resolııtioıı prograıııs in schools, particularly peer mediatioıı ıııodels, have pıoliferated in elemeııtary and secoııdary schools throughoııt tlıe United States, and college campııses have experinıeııted vvitlı ombudsperson positions, peer mediatioıı, and staff training in coııflict resolııtioıı.” There are fevv studies concerniııg tlıe role of ADR in schools. Dejong (1994) eıııplıasizes tlıe iıııportance of expandiııg peer mediatioıı prograıııs froııı iııdividual classrooıııs and schools into tlıe larger aıeııas of ııeiglıborhoods lo solve school-based violeııce. The aullıor believes that coııflict resolııtioıı priııciples such as aclive listeııiııg, expressioıı of feeliııg, perceptivetakiııg, cooperatioıı, ııegotiatioıı, and vvays to iııterrııpt expressioııs of bias must be lauglıt to teachers, stııdeııts, and pareııts. Moore and Batisle (1994) ideııtify tlıe iıııportance of ııonviolent coııflict resolııtioıı prograıııs to provide ııeeded skills and teclıııiqııes dcsigııed to proıııote commuııication, undcrstaııdiııg, problem solving, crilical tlıiııkiııg, and self-esteeııı. Muııoz and Tan (1994) specifically discusses tlıe iıııportance of ııpplying altemative dispııte resolııtioıı priııciples and skills to ııoııtraditional ceııteıs such as tlıose vvorkiııg vvitlı commıınity policiııg officers, yoııtlı vvoıkeıs, and yoııııg people in a retıeat format. Iıı addilion to ıısing ADR priııciples and techniqııes in resolving schoolbased disagreemeııts, ADR can also be ıısefııl tool in addıessing tlıe issues and disputes betvveen sclıool admiııislratioıı and teacher ııııioııs.
81
Conclıısion The limilatioııs of traditioııal dispııte resolulion processes indicate that vve need altemative methods of dispııte resolııtioıı. Negotialioıı and mediatioıı are tvvo altemative ıııodels iıı underslaııding, aııalyziııg, and resolving disputes in edııcatioııal orgaııizations. Tlıese altemative dispııte resolııtioıı ıııodels emplıasize iııformality, face to face commuııication, problemsolviııg orieııtatioıı, participalioıı by tlıe parties to the process, decisioııs made by coııseıısııs, and, if ııecessary, tlıird paıty assistaııce. Tlıese clıaracleristics of ADR distinguislı it froııı tradilioııal approaches and provide ıııore flexible processes vvitlı less Iraıısaction cosls, higlı satisfactioıı vvitlı outcomes, and positive relatioııslıips as vvell as durable Solutions. ADR ıııodels provide an appropriate fraıııevvork for solving disputes in edııcatioııal settings. Iıı order to be sııccessful in ıısing altemative coııflict resolııtioıı approaches in schools, pıior training and haıd vvoık are required because schools are peopled orgaııizations tlıat are slıaped by huıııan cmotion and iııterpersoııal relatioııs. Accordiııg lo Girard & Koch (1996, p. 77), for an effective praclice of tlıese ıııodels in schools, “coııllict resolııtioıı processes-ııegotiation, mediatioıı, and coııseıısııs buildiııg-ııeed to be stııdied, observed, modeled, and practiced before they can be effectively utilized.” ADR has outstaııding implicatioııs for edııcatioııal settings vvhere violeııce and dispııte increase every day. Wc caııııot predict that in the 2 İst century, sclıool vvill be safer than today. What vve can predict is that vvitlı altemative approaches vve can create an enviroıımeııt vvhere stııdeııts commıınicate eaclı other and solve their disputes on a lace-to-face basis and in an informal enviroııment. Refcrcııces American Bar Association. (1989). Altemative dispııte resolulion: An ADR priıner. NVaslıington, D.C: American Bar Association. Binglıam, G. (1986). Resolving enviroııınental disputes: A decade o f e.vperience. NVaslıington, D.C: The Coııservatioıı Foundation. Bresliıı, J. W. & Rııbin, J. Z. (Eds.). (1995). Negotialioıı theoıy and praclice. Caıııbridge, MA: The Program oıı Negotialioıı at Harvaıd Lavv Sclıool. Carpeııtcr, S. L. & Kenııedy, W. J. D. (1988). Managı’ng pııblic disputes: A practical gııide to handling coııflict and reaching agreenıenls. San Francisco, CA: Jossey-Bass.
82
TURAN
Coser, L.A. (1956). The fımctions ofsocial conflict. Ne\v York, NY: The Free Press.
Mills, M. K. (Ed.). (1991). Alternative dispute resolution in the public sector. Chicago, IL: Nclsoıı-Hall.
Curcio, J. L. & First, P. F. (1993). Violence in the schools: How ta proacıively prevenl and defııse il. Newbııry Park, CA: Corwin Press.
Moore, C. \V. (1986). The mediation process: Practical strategies fo r resolviııg conflict. San Francisco, CA: JosscyBass.
DeJong, W. (1994). School-bascd violence prevention: Froııı the pcaceable school to the pcaceable ııeighborhood. NIDR Fonun, 25, 8-14.
Moore, P. & Batise, D. (1994). Preventing youth violence: Prejııdice elimination and conflict resolution programs. NİDR Forum, 25, 15-19.
Fislıer, R., Ury, W. & Palton, B. (1991). Getting lo yes: Negotiating agreemenl ıvithout giving in. New York, NY: Pcngııin Books.
Morsc, P. S. & Ivey, A. E. (1996). Face to face: communication and conflict resolution in the schools. Thousand Oaks, CA: Convin Press.
Girard, K. & Koch, S. J. (1996). Conflict resolution in the schools: A manıtal fo r edıtcators. San Francisco, CA: JosseyBass.
Munoz, S. & Tan, N. (1994). Organizing police-youthcomınunity dialogucs to prevent violence. NIDR Forum, 24, 20-24.
Goldberg, S. B., Sander F. E. A. & Rogcrs, N. H. (1992). Dispute resolution: Negotiation, mediation, and other processes. Boston, Mass: Little, Brown and Company.
Sandole, D. J. D. & Menve, H. (1993). Conflict resolution theoıy and practice: hıtegration and applicatioıı. Manclıester, UK: Manchestcr University Press.
Hail, L. (Ed.). (1993). Negotiation: Strategies fo r ınutual gaiıı. Nc\vbury Park, CA: Sage.
Schellcııberg, J. A. (1996). Conflict resolution: Theoıy, research, and practice. New York, NY: State University of Ne w York Press.
Himes, J. S. (1980). Conflict and conflict management. Atlıcns, GA: The University of Georgia Press. ide, W., III. (1993). ADR: A giant step to\vard future. Dispute Resolution Journal, R (4), 20-24. Katz, N. H. & Lawyer, I. W. (1993). Conflict resolution: Building bridges. Newbury Park, CA: Convin Press. Katz, N. H. & Lawyer, J. W. (1994). Preventing and ınanaging conflict in schools. Thousand Oaks, CA: Convin Press. Kulınert, K. W. (1993). Leaderstıip theory in postmodemist orgaııizations. In R. T. Goleıııbievvski (Ed.), Handbook o f Organizational Behavior. New York: Marcel Dckker. Lantieri, L. & Patti, J. (1996). IVagiııg peace in oıtr schools. Boston, MA: Beacotı Press. McComıick, M. M. (1988). Mediation in the schools: An evaluation o f the Wakefıeld pilot peer-mediation program in Tucson, Arizona. (n.p.): American Bar Association. McCucn, G. E. (1995). Clıildren o f violence in America: Ideas in conflict. Hudson, \VI: Gary McCtıen Pııblications. McDermott, E. P. & Berkelcy, A. E. (1996). Alternative dispute resolution in the svorkplace: Concepts and technicptes fo r hıtman resource e.vecutives and their counsel. \Vestport, CT: Quorıım Books. Mediation in the Schools. (1985). A report/directoıy/ bibliography. \Vashington, D.C: National Association for Mediation in Education, National Iııstitute for Dispute Resolution, & American Bar Association Special Committee on Dispute Resolution Public Services Division.
Scimecca, J. A. (1993). Theory and alternative dispute resolution: A contradiction in tenııs. Itı D. J. D. Sandole, H. van der Men'c (Eds), Conflict Resolution Theoıy and Practice: hıtegration and Application. Manclıester, UK: Manclıester University Press. Shernıaıı, R. F. (1994). Dispute resolution: Providing for positive youth developıııent and prevention of violence. NIDR Forum, 25, 1-7. Steplıcııson, M. O. & Pops, G. M. (1991). Public administrators and conflict resolution: Democratic theory, adıııinistrative capacity, and the case of ııegotiated rulenıaking, Itı M. K. Mills, (Ed.) Alternative Dispute Resolution in the Public Sector. Chicago, IL: Nelson-Hall. Susskiııd, L. & Cruikslıaıık, J. (1987). Breaking the impasse: Consensual approaches to resolviııg public dispııtes. New York, NY: Basic Books. NVilburıı, K. O. & Bates, L. (1997). Conflict resolution in Aıııerica’s schools. Dispute Resolution Journal, 52 (I), 87-71.
Geliş: 9 Eylül İnceleme: 19 Eylül Düzeltme: 18 Ekim 2. İnceleme: 10 Haziran Kabul: 13 Ekim
2002 2002 2002 2003 2003
