Hi Class, Some of you have brought to my attention that you are feeling overwhelmed by the amount of content on the final exam. I will clarify some things that will make studying studying for PACS ! more effective. "i#s $ focus your attention on the modules over the readings. $ %odule & is a hel#ful guide to what will be on the exam $ 'on(t feel you need to know everything $ "his exam is )uite a bit of writing so #ace yourself and be mindful of the time.
Section 1 study tips (40 points) $ focus your attention attention on the conflict conflict resolution ma# $ know the characteristics of the different methods*#rocesses $ be sure to know what makes each distinct and be able to com#are and contrast these
Section 2: modules 1-12 (2 questions, 20 points each) $ focus on key #rinci#les or conce#ts that came u# in the first half of the course. +i.e., conflict analysis, a#ology, forgiveness, escalation, communication, #ositions and interest, conflict drivers, #ower*rights* interests, etc. $ be able to define them and ex#lain their characteristics $ -ou will be able to choose which )uestions you answer out of #ossible )uestions.
Section 3: Modules 13-24 (2 questions, 20 points each) $ focus on key #rinci#les or conce#ts that came u# in the second half of the course. +i.e., inter#ersonal inter#ersonal conflict resolution, negotiation, mediation, arbitration, ad/udication, hybrids, restorative /ustice, etc. $ be able to define them and ex#lain their characteristics $ -ou will be able to choose which )uestions you answer out of 0 #ossible )uestions.
1est of luck on your final exam2
3elly
Module 2: Core Terms: Core Principle 1: The 1: The only person you can change is yourself Core Principle 2: Your 2: Your power to influence a situation positively is likely greater than you think. (You don’t change a person but change a situation) Core Principle 3: Conflict 3: Conflict is normal, Conflict can be positive, elationships without conflict can indicate poor health. Core Principle 4: !ealthy conflict resolution depends as much on your spirit as your skill. Core Principle 5 & 6: "ometimes walking away is the best thing to do (are though) • •
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#cting before before thinking$ thinking$ eal freedom freedom is the the ability to pause between between a stimulus and a response, response, and in that pause to choose. Conflict: is an e%pressed struggle between at least two interdependent parties, who perceive incompatible goals, scarce resources, and interference from others in achieving their goals. &n intense conflict, we are reactive 3 Definitions of Conflict '. conflict is the e%pressed e%pressed struggle struggle between two or more individuals individuals with with incompatible incompatible goals, scarce resources, interference from others to reach our goals . conflict is the e%pressed e%pressed struggle struggle over the value of status, power and and resources resources to eliminate or neutralie an opponent *. conflict is the the realiation of multiple realities to reach reach a common ground Conflict cycle: Conflict happens, esponse, Conse+uences, elief-attitude about conflict Destructive Conflict$ Conflict $ negative conflict styles$ critical start up where we enter conflict already pinned for it to go bad defensiveness not willing to listen and focus on defending ourselves stonewalling barriers are up and & won’t respond to what you have to say contempt not only am i right, but i am superior escalatory spiral as you attack, i attack even more strongly and then you see that and raise me avoidance spiral we withdraw where i back away and then you back away and then i respond kindly and so do you and eventually no conflict (before we know it we no longer have any communication) #ttack-withdraw #ttack-withdraw /r we we combine these. & attack 0 then then pull into my defensive defensive stance, stance, and you do the same. 1e land in a repetitive pattern, where we can never really break through to communicate pursue-flee i want to solve problem so i chase you to talk but you are afraid to talk so you flee so i pursue harder and you run away faster and soon running in circles reciprocal negative emotion you get angry and i get angry that you’re angry retaliation$ These patterns all amount to forms of retaliation. This leads nowhere good. • • • • •
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Module 3: Cognition nd conflict escltion Cognitive 2issonance$ the state of having inconsistent or conflicting thoughts, beliefs, or attitudes, especially as relating to behavioral decisions and attitude change. (inconsistent memories of the past but we believe that they are not changing and are the truth and consistent)
3%$ & am a good person 45ood people don’t yell6 & 7ust yelled 8 only of these can be true at once ( we cannot hold two contradicting ideas in our head at the same time, especially if they carry significant weight) #ttribution 3rror$ !ow we see ourselves different from how others see us in conflict 1hen we do well, we see it as a function of our basic behaviour 1hen we do poorly, we see it as if someone forced us to do it 1hen someone else does something poorly, we see them as a bad person 1hen someone else does something well, we see it as if they were forced to do it • • • •
To overcome the attribution error we must realie its e%istence, become aware of it, and then change ourselves. emember we cannot change the other person. This is a basic shift in attitude towards curiosity, and asking oneself the hard +uestions while listening to others. "even stage model of conflict escalation$ "tage '$ 9roblem solving$ Conflict is intense but remains on issue "tage $ 9ersonal #ntagonism$ 9eople shift focus onto the person not the problem "tage *$ 9roliferation of &ssues$ 4piling on6 issues trust becomes threatened "tage :$ Triangulating$ people talk about, not with each other "tage ;$ 3scalating eactions$ conflict increasingly destructive "tage <$ #ntagonism and !ostility$ isk of violence "tage =$ 9olariation$ /riginal cause of conflict is forgotten, elationship may not recover Conflict deescalation can cause a short period of depression as people stop being heated about the issue. Conse+uences of unhealthy conflict$ 3%pensive isk physical and mental health #ffects others "ucks our energy • • • •
3ffects of healthy conflict$ more creativity better sense of self identification better when dealing with future problems brings people together clearer perspective more energy better solutions • • • • • • •
Module 4: Communiction Traditional model$ "ource>3ncoding>Channel>2ecoding>eceiver>?eedbac k (here you have an idea, put that idea into code typically a language, e%press that code, receiver hears that, decodes what you have said, and then responds) The : Communication @odels$ Encode-decode Model @atch between what is encoded and decoded (so know background information to make actual sense of a sentence i may have said 4& argued with my mom6...do you know what my mom’s personality isA) &ncrease signal to noise ratio •
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Intentionalist Model 1hat does the speaker intend to sayA 2ecode, in+uire, intent &mpossible to determine true intent without shared knowledge between both parties Perspective Taking Model To ensure clear communication you need to take into account the perspective from which the other person sees the situation !ard to validate any other perspective other than our own Dialogic Model Conte%t matters Communication is a 7oint accomplishment where we use mutual e%ploration of our e%periences of conflicts and shared understanding of these e%periences (e%. conflicts with mothers) Communication is established through the conte%t of the social relationship this model steps away from the standard modelB it should be our goal to move towards this approach in conflict situations • • •
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!ntent: "ction: #ffect helps us understand a person’s background story of why they feel-act in certain ways #ction is public to people within the conflict, however intent and effect are private and can be kept to oneself. 3%$ oke in an office offended an individual, the offended individual assumed the 7oke teller was trying to hurt her feelings while the 7oke teller believed she was being humerous. • •
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Module 5: Conflict styles conflict styles are patterned behaviours involving the e%pression of disagreement and emotions and the intersection these two factors. the core dimensions of a conflict are the following$ o patterns that reflect more direct or indirect approaches to communicating about substantive disagreements patterns that reflect emotionally e%pressive or restrained approaches for o communicating how each party feels towards the other •
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$o%ris 'indo(: o developed as a tool to aid in self understanding and understanding of our relationships with others often used in work teams where participants given a list of ad7ectives that might o describe a person and uses them to describe themselves and other participants. Compares what one thinks of themselves and what others think of them o o
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you can build trust with others by disclosing information about yourself. with the help of feedback from others, you can learn about yourself and come to terms with personal issues. four areas$ ?acadewhat we see and they donDt #rena what we see and others see Enknown what we donDt see and others donDt see lind spot what others see and we dont
T%oms )illmn Conflict Mode !nventory: Concern for othersFConcern for oneself leads to$ "voiding: uilt on low concern for the issue and a low concern for the relationships. "ccommodting: &nvolves low value on issue and a high focus on the relationship. &ts motto is 4/G, whatever you say,6 or 4Can’t we all 7ust get alongA6 Compromising: uilt on low concern for each of relationship and issue. &ts motto is 4Het’s make a deal.6 Competing: 9remised on a high concern of the issue or the task, with low concern of the relationship. &ts motto is 4@y way or the highway Coll*orting: uilt on high valuation of both the issue and the relationship. •
Conflict +tyles 2iscussion stlye$ 2irect in communicating about the disagreement and emotionally restrained. This style speaks to the other directly about the problem, but does so with little emotional content. Confront problems but maintain a calm atmosphere. 9eople here are seen as logical but uncomfortable with emotional arguments 3ngagement "tyle$ 2irect in discussion of the disagreement and emotionally e%pressive. Clear opinions 9erceived as dominating (unconcerned about others feelings) might involve shouting etc. • •
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#ccommodation "tyle$ 3motionally restrained and indirect in communication regarding the disagreement. Control their emotions and sensitive to the feeling of other party difficulty voicing their own opinions, as uncommitted and dishonest and difficulty providing e%planations. 2ynamic "tyle$ 3motionally e%pressive, but indirect in communication about the disagreement itself. Ese third parties nonverbal and rarely able to get to the point. • • •
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Module 6: "pology 9erson causing harm I9ower Jictim$ 3%periences harm (vulnerable) 2uring apology these positions switch because person causing harm is shameful in some sense and victim has power accepting or re7ecting the apology people apologie to live in the present rather than having a past e%perience constantly on their conscience. 5ives significant freedom from the trauma apology I an act of recognition. "tep in the healing process for both parties Two Ginds of #pologies$ ,efle-ive: Kon @eaningful and the +uick 4&’m "orry6 e%$ bumping into someone +ignificnt: 3%change of shame and power, acknowledges harm done, no defence to apology, e%pression of regret, leaves person vulnerable, takes responsibility, involves restitution • • •
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"pology nd .egl system: &f you admit you caused me harm then you are now responsible /ften in insurance claim situations if you apologie you are admitting yourself to be in the wrong &n lawsuits an apology can admit guilt but sometimes decrease the risk of liability as the victim is willing to accept an apology (isky to do so in court though) • •
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Harge 5roup-Kational #pologies 11&& e%ample$ apanese Canadians were put into concentration camps in C and the 9rairies o Kot released for four years Hobbied for apologies and compensation o Canada supplied both o esidential "chools for #boriginal 9eople of Canada Church trying to replace aboriginal culture and replace it with religion and o Canadian culture o Jerbal, physical and se%ual abuseLcausing generations of deeply damaged children Module /: 0orgiveness it does not mean you are /G with the in7ustice that occurred nor is it forgetting 0orgiveness: it is not allowing the actions of the other to control you Hetting go of the pain and hurt "eeing the other person as comple%$ recognie them as not all bad 1ishing the other person well Hetting go of negative emotions 5iving up right to revenge 0orgiveness model: 3vent occurs>2enial>9ain and hurt>#nger>C!/&C3 (esentment or letting go) ,esentment: Continue to be angry .etting goCompssion>e%it recycling of pain #mish use their own methodology of how they forgive those who have done wrong •
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Module : Conflict "nlysis +ystems perspective: Hanguage of systems theory$ &t’s a way of looking at individual conflict within a broader system 1hat do those systems look like$ Concentric circles ?irst circle$ "elf (1hat & bring to the conflict) /thers$ relationships with others &nterpersonal$ live through patterns @icro system$ how the people function together @acrosystem$ the larger organiation .ine of primry tension: 1here the most work needs to be done in the #C conflict triangle (Hine of primary tension is between # and 0 it is the C’s 9osition to remove it through mediation) C position: The mediator in the #C triangle. The mediator is always C 3 C%oices: you can be in the C position in a way that’s healthy and that liberates the conflict you can be in the C position in a way that entrenches the conflict you can get out.
eutrlity vs !mprtility: Keutrality$ you are indifferent &mpartiality$ fair mindedness give % positive unregard give y positive unregard Module : Polrities nd +ources of Conflict !ntroducing Polrities
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polarities$ re+uire us to live with both-and, which can be e%pressed as yes-no conflicts polarity conflicts are essentially about foundational values o o it is important to dig beneath the yes-no conflict to find the underlying polarity distinguishing a polarity from a conflict a problem can be solved o a conflict can be resolved o a polarity can only be managed o
Conflict Drivers suggests that good conflict analysis M determining the cause of the problem M will help you figure out how to focus your conflict resolution conversation. #s you can see from the diagram, the circle of conflict identifies si% sources of conflict or si% factors that drive conflict forward •
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if there is agreement between the parties as to the drivers underlying their conflict, the parties have a clear sense of what needs discussion. &f they disagree on what drivers are present, the first step is to e%plore the drivers. #gain, this sets the framework for the discussion value conflicts$ different criteria for evaluating the rightness or wrongness of their behaviour relationship conflicts$ misperceptions or stereotypes of another may drive a conflict as we impose a set of descriptions on each other that may have no bearing on realityB and may be hidden behind the actions we take based on our misperceptions moods and e%ternals data conflicts$ people may have different views on what information is relevant or different understandings of procedures structure conflicts$ une+ual control, ownership, or distribution of resources, are aspects of structure any situations of social unrest and see this aspect of structure lying behind the o unrest interest conflicts
Module 1: Po(er Defining Terms Conflict vs. bullying definition Conflict$ Conflict is a struggle over values and claims to scarce o status, power, and resources, in which the aims of the opponents are to neutralie, in7ure, or eliminate their rivals •
ullying$ conscious, wilful, and deliberate activity intended to harm, or to induce fear through threat or further aggression , to create terror in the target of the activity some definitions of power The ability to get what you want over the ob7ection of others o The capacity to bring about change. o The ability to influence another to do something they wouldn’t necessarily do on o their own, or to act against their own interests. To have a voice (what & say counts) and to have a choice (decide the outcome in o a situation regardless of what others want. Po(er nd Control types of power positional power$ flows from one’s authority or one’s location in a particular role o personality power$ flows from one’s way of being in the world o identity power$ related to various aspects of who we are M gender, race, o economic class, education level, and many others o group power$ related to our participation in groups ?eminist definitions of power o power to$ compromiseB the goal here is to find the middle ground, to find something that works o power over$ the goal is to win, often at all costs (competing) o power with$ the essence of collaboration is the desire to work with the other to find a solution that works for allB power resources such as listening and asking +uestions lie at the heart of collaboration Postmodern pproc% to po(er o
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T%e 7ictimvillinrescuer tringle
Module 11: Positions nd !nterest when we argue a position, we are always arguing from our e%perience position and interest are similar what we most often see in conversations with other is the tip of the iceberg which is the position, underneath the waterline are where the values, principles, relationships etc. all fall. interests are powerful tool for e%ploring issue based conflict while the intentactioneffect model is useful for e%ploring incident based conflict interest can be divided in groups I wants (tangible interests) and needs psychological interests$ selfdetermination I & can do it myself o belonging I they are not letting me play o recognition I his piece is bigger than mine o security I are you safe to be aroundA o success I i can do itN (here emphasis not on doing it myself but solely doing it) o • •
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Module 12: T%e Po(er8 ,ig%ts8 !nterest Prdigm Po(er s met%od for resolving conflict: "dvntges:
'. #n immediate response is possible . &t get things done *. 9ower based processes can resolve deadlocks :. 9ower can be used in the interest of a weaker party Disdvntges: '. 9ower methods are disenfranchising . 9ower is easy to subvert *. /rganiation doesn’t get the benefit of the wisdom of the group :. 9ower is inherently win-lose ;. 9ower systems can create a foe that cannot be deterred from opposition <. 9ower can create escalating interactions ,ig%ts s met%od for resolving conflict: ights are a set of enforceable entitlements that come to us from a variety of sources &nherent in being human "ome rights are granted through national constitutional documents 5ranted through legislation 5iven by contract #greed upon practice or standards ights in healthy systems, rights codify power and interests in order to manage power and ma%imie general interests The healthy system would have a robust listing of rights, such that the largest number of people would be protected &n unhealthy systems, rights codify power and interests to ma%imie power and minimie general interests Positively: # positive right might be a statement that everyone has the right to practice the religion of their choice egtive: ?ramed negatively, this would be a statement that every person has the right to be free from the discrimination on the grounds of religion • • • • • • •
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!nterest s met%od for resolving conflict: "dvntges: result in more ownership of outcome rely on the wisdom of participants creates a more comprehensive solution Those who are impacted by the decision make it The solutions in interest based models are longerlasting decisions are more likely to address underlying concern Disdvntges can be time consuming but are cheaper interests may be incompatible or difficult to name conversations can level the playing field when a rights based appeals is more apt • • • • • •
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&n a stable system, &nterest based systems are used most fre+uently, rights based systems are used when the former is not possible and power based systems are used as a last resort only. Module 13: !nterpersonl Conflict ,esolution
1e often fall into the attribution error. "omeone who is emotionally speaking can be seen in a negative light, as aggressive or manipulative. "omeone remaining completely calm in a conflict can be seen as coldness or not caring about the situation. /ur emotions are shaped by many factors (personality, culture, family background etc.) Conflict conversations increase our adrenaline, increasing the probability for us to lose our cool and create a negative situation. The Ladder of Inference (common thinking practice we go through) might be helpful in analying what is happening for the student$ The student starts from the fact of the low mark on the paper ( t%e o*serv*le dt). The student moves on to filtering out other data, such as the OP the professor gave on a previous assignment. ("elect data) The student m9es ssumptions the professor thinks the student is not intelligent. The student dr(s conclusions the professor will never give a good recommendation. •
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The student dopts *eliefs about the professor the professor doesnDt like the studentB the professor lets biases get in the way of helping students. The student uses these beliefs to then t9e ction #motionl !ntelligence: eing able to read and understand the emotions of yourself, and your surroundings. ?our components ') "elf awareness #bility to identify the emotions of yourself ) "elf regulation the ability to regulate my own emotions to surroundings *) "ocial awareness knowing what others are feeling :) "ocial regulation e able to respond to the groups feelings and create improvement T(o ,ules of !nterpersonl Dilogue: '. Your comments must seek to be kind, they must contribute a sense of goodness into the room, and not add to the problem. &n other words, you must protect t%e %umnity of t%e ot%er . Your comments must be honest. They must speak the truth as you know it. You must protect your %umnity. •
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+i- steps for interpersonl conflict resolution ') 9repare what is going on hereA #ppropriate time to meet. ) /pen speak purpose of your conversation *) !ear intent, action, effect - positions, interests :) Enderstand ask open ended +uestions to learn more ;) "olve <) Close ensure both parties agree and decide what to do if you revisit problem again
Module 14 egotition; egotition: @ost literature focuses on negotiation as an interestbased approach Kegotiation where the goal is simply to arrive at the price of an item for sale is power based Kegotiation in which lawyers work to balance the rights of the parties involved becomes a rightsbased process Kegotiation is often e%perienced by the parties as powerbased M parenting split is e%perienced as power over move by the other side 1ith the engagement of lawyers, the negotiation becomes rightbased #bsence of trust contribute to the desire to balance power ?ocusing on the rights of the parties, rightsbased processes build on a system that draws on the outside standards which both parties need to comply • •
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egotition: The process of reaching an agreement. Competitive negotitor: seeks an outcome which ma%imies the settlement for him or herself or the client. !e or she will do whatever is re+uired within the limits of the law to achieve that result. 2isinterested in needs of other party. 1illing to stretch the facts. Eses threats. Encooperative Coopertive egotitor: seeks an outcome which ma%imies the settlement for him or herself or the client, is fair, meets his or her or the client’s needs, avoids litigation, and maintains or establishes a good personal relationship with the other negotiator. !e or she will conduct him or herself ethically to achieve that result. 2oes not use threats. Takes realistic opening position. Hogical (not emotional). !nterest <sed egotition: &nvolves identifying several factors when negotiating before beginning. These factors include$ &nterests what do people really wantA o /ptions what possible agreements e%istA o #lternatives what will we do if we can’t agreeA o Hegitimacy how will we know we are not being ripped offA o Communication am i ready to listen and talk effectivelyA o elationship am i ready to deal with the relationshipA o Commitments what commitments should i seek and makeA o Proper egotition Model '. 9repare @eet with party, identify concerns that may arise, listen for issue, prepare for process . 9roblem "olving identify issues and goals, share relevant info, clarify each others perspectives of one another *. Enderstand dig into interest e%periences needs impacts etc., use active listening, :. /pen and !ear generate creative options, assess options against interest and criteria standards ;. #greements may return to previous steps if there isn’t an agreement • •
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Module 15 & 16: Medition Medition: &nterestbased process to resolve conflicts "ome models of mediation are focused on rights The mediator’s task is to help the parties have their conversation, but not to make any decisions regarding content. The @ediator is a third party whose primary ob7ective is starting conversations, and keeping the line of primary tension between 9#TY # and 9#TY . The @ediator is #lways in the C 9osition The mediator brings a variety of skills, techni+ues and knowledge to keep on the conversation moving forward @ediators should remain selfdifferentiated to stay connected &t is the heart of negotiation Medition Process 1 =pen /pen the floor for both parties to speak 2 >er Histen to both sides 3 ?nderstnd Ese tools of intent, positions of interests, effect 4 +olve Test the parties agreements • • •
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0our Min Models of Medition
1 +ettlement "ettlement mediation is also known as compromise mediation. This is because its main ob7ective is incremental bargaining. "trengths$ 9eople understand the purpose 1eakness$ &gnores the interests of the parties. 2 0cilittive known as interestbased or problem solving mediation. The mediator’s goal is to guide the process and ensure constructive dialogue. 1eakness$ uncorporative parties 3 Trnsformtive known as reconciliation mediation or therapeutic mediation. @ain focus is resolution not settlementL !owever in some cases no agreement is ever reached. This is the dominant model. 4 rrtive Try and act as a coach to the parties involved, and go over the story until a new and improved one is identified. Eseful because it digs deep into interests, but difficult to use on conflicts with no evident backstory or tangibles. # mediator must also identify other key factors including, the sie of the group involved, the level of conflict escalation, what content is okay to disclose, etc.
Module 1/: "r*itrtion "r*itrtion #rbitration is basically a form of private ad7udication. That is, the parties hire a person to act as the 7udge. #rbitration usually flows from a contract between the parties. ust as in the court process, the arbitrator makes the decision based on the arguments and evidence presented. The arbitrator is chosen by the parties in dispute. The arbitratorDs decision is binding, but must be based on reasonable grounds. #rbitration is a dispute resolution process in which the parties or their representatives present proofs and arguments to a neutral third party who is appointed by the parties to making a binding decision based on standards set by the parties. "r*itrtion vs "d@udiction The primary difference between arbitration and ad7udication is the person or entity that makes the decision in a legal dispute. &n arbitration, the disputing parties agree on an impartial third partyQan individual or a groupQto hear both sides and resolve the issue. &n ad7udication, the decision is the responsibility of a legallyappointed or elected official. #rbitration’s decision is private, ad7udication is public &n #rbitration the parties set the rules and standards, #d7udication allows the law and 7udge to set standards. #rbitrator has no inherent 7urisdiction #rbitration parties set the rules of the process #rbitrator can be fired "tandard can be anything ipple effect is different Case law creates precedent, which influences what courts do with other cases o "r*itrtion +trengt%s 2isputants control the process @ore effective at restoring commercial relationships (so between commercial disputes where there is an ongoing relationship) ?aster, and more efficient than court 9rivate decision rather than public 5et a binding decision with less hassle •
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"r*itrtion 'e9nesses 2isputants are often less involved than mediation /ne party wins, /ne party loses, often no compromise. &f the arbitratorDs award is unfair or illogical, a consumer may well be stuck with it and barred forever from airing the underlying claim in court. 2oes not care about relationships, 7ust the outcome. etter chance to preserve a commercial relationship Esually faster, cheaper, more efficient inding decision with less hassle 9rivate not public forum 3ach case decided on own merits • • •
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Module 1: >y*rids Types of >y*rids 1 MeditionA"r*itrtion the parties agree to mediate first, but they also agree up front that if no mediated settlement is possible then they will shift to arbitration. "trength$ # decision will eventually be reached. 1eakness$ &f a new arbitrator has to come in, they have to be sped up on what was missed, which takes time. . Coll*ortive .( Collaborative law brings together the parties and their lawyers together for a series of conversations to resolve the conflict. Hower cost than going to trial, the disputants are the negotiators making it easier to restore relationships. *. =m*udsperson #n ombudsperson is an independent neutral officer within a large organiation. Their role is to investigate complaints regarding the functioning of the organiationB to look at both sides, and to secure redress if the complaint is 7ustified. 4 Prtnering 9artnering is a longterm commitment between two or more organiations for the purpose of achieving a specific business ob7ective. &t attempts to reorient the parties from a 4them and us6 mentality to a 4we6 approach. ;. Moderted +ettlement ConferenceThe disputants present case to a panel of three neutrals who give a nonbinding opinion. This approach uses three people, as this carries more weight than a single person
Module 1: Civil "d@udiction
Court "d@udiction: <sed on B<lnce of Pro**ilities ight based approach to resolving conflict Court’s task is to ascertain the rights of the individual before court and then to determine what outcome flows from these rights 9owerelement$ court has the power to enforce its ruling civil ad7udication deals with conflicts between people where the events do not fall within the purview of the criminal code which establishes what acts are criminal &n civil court ad7udication, the rules are created by society through the legislative system or by court precedent and the case is controlled by the system. 1e will address the distinction between civil and criminal ad7udication in the module on criminal law. Civil Court #d7udication is a dispute resolution process in which the parties or their lawyers present proofs and arguments to a neutral third party who is appointed by society to make a binding decision that is based on standards set by society usually no 7uries here and basically both parties try to convince the 7udge that their side is correct and then the decision by 7udge is made strictly on evidence presented money is the solution to most civil wrongs such as the party at wrong would pay the other party remedy in the matter of money. T%e +teps !n Civil Court "d@udiction: '. plaintiff files a claim, the defendant responds with a defence to the claim . parties engage in discovery the process of e%changing documents and interviewing the other parties. the system is built on idea that all parties are entitled to see any of the documents related to the case that other party has. also, each party through their lawyer is entitled to interview the other party to see what they know about the case *. parties determine what evidence to present, and what witnesses to call :. pretrial conference with a 7udge to clarify issues ;. in some 7urisdictions mandatory mediation <. trial =. 7udgement • •
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Min ,esons for entering civil court: breaching contract issues where people enter agreements and obligated with rights to enforce torts$ civil law wrongs that are not criminal and are not related to contract that result in compensation of some kind. family law issues$ divorce, separations of nonmarried couples, child care, family asset dividing etc. administrative law$ set of rules related to various boards and commissions such as human rights tribunal, refugee board, school boards etc. constitutional law$ law related to issues arising from the constitution, including what level of government has which power, whether legislation complies with the division of powers etc. •
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T%e Difference
"r*itrtion
dispute resolution process
dispute resolution process
present proofs
disputant present proof
arguments
arguments
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to a third party chosen by disputants
power by society
given power by disputants
binding decision
binding decision
based on some standard
based on ob7ective standard
Module 2: Criminl "d@udiction criminal law in Canada is federal 7urisdiction where parliament of /ttawa establishes whether or not it is a crime. the criminal law does not focus on morality. !ere, it is not interested in why someone committed a crime, e%cept to the e%tent that it creates a defence. "o focus is what to do with the person after they have committed the offence. it is an adversarial system where the task of prosecution is to present evidence that shows that the offence was committed by the accused and task of defence is show that the prosecution is wrong. urden of proof lies with the crown so defence 7ust needs to raise the reasonable doubt. all criminal cases move through similar procedure o start with investigation of crime. o then application will be made for arrest warrant where the court authories the police to take the accused into custody accused will appear in court to be formally charged with offence and enter the o initial plea of guilty or not guilty and to determine whether they can be released prior to trial. if release granted, then there will be set terms provided. for serious offence, there will be a preliminary in+uiry, which is court hearing to o determine if there is sufficient evidence to go to trial •
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date set for trial. for lesser crimes, trial before 7udgeB for more serious crimes, trial before 7udge and 7ury o in 7ury trial, 7ury limited to determining guilt. if find guilty, then process moves to sentencing. throughout process, accused can at any time enter guilty plea and then process o would enter sentencing throughout process, accused is entitled to presumption of innocence. o basically$ what laws have been brokenA (criminal law), #re they guilty and who did itA (blame), what sentence is appropriateA (punishment) victim not connected to the decision making system done through lawyer and 7udge. +ummry of t%e P%ilosop%ies of Criminl $ustice: o
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P%ilosop%y ,etri*ution
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?tilitrin
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'*th century 7udeochristian idea of blood atonement rational choice theory 'Rth century criminal law reforms behaviour sciences 'Oth century
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,estitution
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neoclassical economics political libertarianism mid to late Pth century
communitarian return to ancient wisdom ancientfuture
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wrong is righted by inflicting similar harm offender (morally) deserves this
punishment must ma%imie social good least amount that will deter (specific and general) crime is an 4illness6 that needs to be treated offender needs to be reformed some shifts towards victims (mostly toward cost of crime) offender should pay debt to society and victim relational nature of crime crime as harm 7ustice as healing
Module 21 & 22: ,estortive $ustice restorative 7ustice has had significant effect on recidivism such as with circles of support and accountability to reduce se%ual reoffences with high risk se% offenders victims e%press satisfaction since able to directly speak with person who harmed them and get +uestions answered which also allows offenders to get satisfaction in getting chance to e%plain themselves $ustice eeds the person harmed can shift away from a sense of connection to other people and e%perience isolation, stigmatiation, and shameB e%perience the world as chaotic, disordered, and confusing %osts of needs t%t follo( t%ese e-periences: safety o empowerment o acknowledgment o vindication o •
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answers restitution o set of needs creted *y t%ese e-periences: o
there is a need to be accountable to those harmed for the harm done there is a need to find the opportunity for personal transformation o the offender needs support o there is the need for incapacitation o estorative 7ustice is an approach to dealing with crime that orients itself around the needs created by the harms caused by crime. )ey uestions8 Po(er8 nd Decision M9ing The key +uestions for restorative 7ustice$ 1ho has been hurt or impactedA 1hat are their needsA 1hose obligation-responsibility is it to meet these needsA 1hat is the best process to address hurt and accountabilityA 1hat needs to be done to put things right as possible &t is a circle where those most directly impacted by the events speak to each other. The circle also includes a facilitator and there may be others involved the community within which the participants live, family members, the state, may all be present as well. o
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)ey Principles 0ull prticiption nd consensus 9articipation is voluntary o 2ecisions based on consensus o Community members involved o >eling '%t %s *een *ro9en
&ssue is harm done /ffender sees conse+uences of behaviour o !eld accountable o Joices of both parties heard o Can lead to healing for both, moving forward o 0ull nd direct ccount*ility /ffender has opportunity to acknowledge behavior o ,euniting (%t %s *een divided Crime breaks community o eunite victim and offender o oles are temporary o +trengt%ens Community ?uture focus, focus on society o Crime connected to distribution of power in community o estorative ustice in 9ractice #ncounter Prctices$ victim offender mediation where can happen directly, through dialogue or in circle conferences ,estortive Models$ circles of support and accountability which are offender focused and changing the way they live and helping them Trnsformtive "pproc%$ allows e%tended family together with professional working with the family (in situations like child being removed from a family) o
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Module 23: #t%ics !ntervention et%ics: the system of defining right behaviour for those of us who work to intervene in the conflicts others are e%periencing #ll professional bodies have codes of ethics. !owever a mediator is not a profession that is governed or licensed. T%e Principle of +elf Determintion: the interests of the mediator cannot be in conflict with the interests of either of the parties. # mediator must maintain independence and impartiality, and act in a way that allows both parties full engagement and allows both parties full opportunity to participate. &n mediation situations, the mediator has an ethical duty to not reveal confidential information, and stay committed to the contract regarding fees, and standards. @ediators need to be constantly vigilant regarding their behaviour to ensure that they do not unthinkingly direct the parties in the mediator’s preferred direction. Conflict of !nterest: the interests of the mediator can’t be in conflict with the interests of either of the parties, affect neutrality Confidentility & its limits: Clients complete confidentiality, without the consent of the parties you can’t carry what you hear from party in caucus to the other CucusI meeting with the clients separately ulity of t%e process & fees: professional obligation to develop 0 lead a process that’s of high +uality, and to be clear with clients about all fees #t%ics for Meditors$ #greement to proceed, client ability to negotiate, full disclosure #t%ics
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@ediators need to be constantly vigilant regarding their behaviour to ensure that they don’t unthinkingly direct the parties in the mediator’s preferred direction @ediator is a mediator not an arbitrator and so they shouldn’t make o recommendations even at the parties re+uest
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2efinitions of Conflict 9eace 0 violence$ Geep the definitions in mind, understanding of the way parties are engaging in conflict "tages, levels of conflict 0 conflict resolution$ where are the parties on the escalation scale knowing the levels guides your interaction as a mediator Circle of Conflict-drivers$ having a sense of the drives at play will enable you to tailor your responses "ystem #nalysis$ homeostasis how is the system resisting change or resolution. The symptom bearer who is the person that seems to the problem, are they really the problemA 3motional triangles who’s triangled in, if you step in how you function, self differentiation Conflict "tyles$ what styles are people using how is that helping or hindering resolution 9ositions 0 interests$ do an analysis of positions 0 interests, how can you use that analysis to help people function differently with each other ights, &nterests 0 9ower #nalysis$ how is rights, interests 0 power analysis present 0 shaping the conflict, how can you use them to help people find resolution which one should get the most focus #fter looking over all thisS think about which approach is best$ interpersonal dialogue, negotiation, hybrids, arbitration, ad7udication Then Consider what would lead to restoration$ forgiveness, apology and retribution-restorative 7ustice
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