Gadlin, H --- "Contributions from the Social Sciences" [2005] LegEdDig 11; (2005) 13(3) Legal Education Digest 15

Contributions from the Social Sciences

H Gadlin

[2005] LegEdDig 11; (2005) 13(3) Legal Education Digest 15

54 J Legal Educ 1, 2004, pp 34–41

When the contemporary study of, and work to resolve, conflict was first being legitimated, it made sense to emphasise that people and organisations ought not turn away from conflict or attempt to deny, avoid or suppress it. While it might be painful, we argued that it also was, or could be with our help, productive.

Unfortunately, we were successful, and soon a whole array of practitioners emerged promising to make conflict productive. What all of these share is the promise that conflict can be handled in such a way as to enhance management’s ability to control a variety of sources of inefficiency, discontent, or unruliness within organisations, whether they be the courts, corporations, universities, or the fora for public discourse. Conflict management has been sold, in essence, as a way to maintain the status quo. Ironically, these salespeople are, for the most part, people who were drawn to dispute resolution as a way of promoting change. How did this happen?

The entire enterprise of understanding the social functions of conflict has been assimilated into what we might consider the paradigm of healthism. By healthism the author refers to a peculiar form of instrumentalism in contemporary American society, whereby many of our activities — intellectual, sensual, or personal — are described, understood, and evaluated in terms of what they contribute to our health.

We have done the same with conflict. One need only glance at the titles of numerous books and seminars in the conflict resolution field to recognise how what began as subtle and insightful analysis of the social functions of conflict has been transformed over time into a sales pitch presenting conflict as something that can be tamed, managed, or controlled, and above all else put to use for healthy personal or organisational purposes. In our representations of the field we play directly to people’s fears about conflict — the ways it can upset equilibrium, undermine control, and leave either the individual or the organisation with problems for which there might not be solutions, tensions from which there is no relief. In our talks and writings, from the most cravenly commercial to the most studiously academic, there is always the reassuring voice of the expert: there is a cure; conflict can be resolved; stability and healthy functioning can be restored. In so emphasising health, we miss something very important — the pleasures of conflict, the joy of enmity and the satisfactions of victory and revenge.

It seems so obvious: emotional life requires enemies, and conflict is one way to construct them. The point is that conflict is an important, intrinsic part of being alive, and being in relationships, and being in organisations, and being in society. But we are not going to be able to work appropriately with conflict if we do not have some ways of appreciating how much it gives to people, how much it affirms their identities, how much it helps them position themselves in relation to other people when they have no other way to satisfactorily do so. By focusing on the pleasures and satisfactions of conflict we may appear to have turned away from a social analysis toward a more psychological perspective. Years ago within the social sciences there was much debate about the difference between a functional and a critical analysis of social phenomena. Functional analysis tended to emphasise the ways in which various aspects of a social system fit together to sustain a functionally effective and essentially stable social system.

When ADR first emerged, it represented one extension of the critical social science analyses of contemporary society. It offered, both at the theoretical level and at the level of real-life programs, alternatives to traditional modes of understanding and addressing conflict. At its core were issues about procedural justice, power imbalances, fairness and justice, and self-empowerment. To gain entry into mainstream society, ADR practitioners and theorists have tamed conflict. We transformed it from something scary that people avoided because they understood, vaguely, how passionate and dangerous it could be, into something that could be managed. At best conflict is seen as something that calls out for control, something to be treated or contained or managed or resolved, this occurs not only because we fail to see the pleasures and satisfactions associated with conflict, but also because we do not understand its contradictory purposes. But this failure comes about because we have not successfully incorporated into our understanding of conflict the most significant insights of critical social sciences.

In recent years much has been made of the alleged success of mediation in addressing complaints before the Equal Employment Opportunity Commission (EEOC). Efficiency and cost effectiveness are touted as the primary justification for the use of mediation for EEOC cases. Within the culture of federal agencies, employees learn that they can attempt to counter almost any managerial move of which they do not approve or with which they disagree by filing an EEOC complaint. They need not cite any actual instances of discriminatory statements or actions; they need simply to assert that they felt discriminated against on the basis of some feature of their personal identity. Within most agencies there is very strong pressure on managers to agree to mediation of EEOC complaints, for both financial reasons and reasons of public relations.

This is not to dwell on the failures of ADR programs within the EEOC, but to point to the need for a broader social perspective from which we might discern how the satisfactions and pleasures associated with these EEOC disputes are a part of the reproduction of patterns of discrimination and racial and ethnic inequality. From this perspective, to address inequality requires interventions at the systemic level rather than one a case-by-case basis. This is especially important because discrimination might well not be discernible on a case-by-case basis even while it is apparent from systemic analysis. For conflict resolution practitioners this perspective demands that they find some way to assess their own work in addition to the usual measures of resolution rates and disputant satisfaction levels.

This must feel very far removed from the pleasures and satisfactions of conflict. It was argued earlier that the pleasures of conflict are not merely psychological, that they are in very significant ways interactional as well as systemic. Indeed, although it is anthropomorphising to speak of whole organisations or societies as finding pleasures or satisfactions in conflicts, there might be some usefulness in stretching the language in that direction. To address these issues we should embrace these negative pleasures, appreciate them on their own terms, and decide collectively where to go from there.