Parameters of dispute: towards a typology

A communicative perspective

It is self-evident, but often overlooked, that a dispute does not arise by itself. It comes into existence when somebody does something and it continues and takes its particular shape because people proceed to do subsequent things pertaining to it. This ‘doing’ of disputes is achieved by communication, the most common form of which is language. A dispute involving an employee who feels unfairly passed over for promotion arises only when s/he articulates, albeit perhaps informally in the first instance, this feeling. The same is true of a student who feels s/he has received an unfair assessment and of an HEI which desires to recover a bursary from a student.

Moreover, the most common triggers for disputes are themselves acts of communication. The mark which leads the student to complain has no such triggering force while it remains as a judgement inside the mind of the assessor - it only leads to the dispute after it has been communicated.

Acts of communication include failures to communicate. Take the case of the employee passed over for promotion. Of course, it is possible that the mere fact of not being promoted is all it takes for him/her to launch the dispute. But it is equally possible that the real trigger is that s/he is not told why, or simply not informed at all. S/he may have been willing to accept an explanation for being passed over, but feels moved to articulate a grievance because no such explanation was forthcoming. And it is this absence of communication which tends to cause the most heartfelt grievance and thus the more intractable disputes (see ‘facticity’ under ‘Object’).

Most of the example problems recounted on this website (see ‘Problems’) involve heightened antagonism as a result of such failures.

EP 2 - It was the temporary unavailability of the Centre Director and therefore the “inadequate consultation” (as identified by the Grievance Committee) which probably exacerbated Ms Jones’s sense of grievance.

EP 3 - The graduate student failed to report her worries to the HoD (and went straight to the NUS instead).

EP 4 - It was the unavailability of the Senior Tutor or any clear stand-in which led to the escalation of the dispute.

EP 6 - It was the HEI’s failure to respond to the employee’s grievance which was partly responsible for provoking her to threaten to turn down the research grant, and its subsequent failure to respond to this threat which provoked her to raise the matter of discrimination, and her failure to raise this matter with the HEI in the first instance which hardened the attitude of responsible people within that HEI.

See also Pearce & Littlejohn (1997: 3-5) for a further example, in which a protest message by a group of students concerning a projected event hosted by the institution eventually escalated into a full-scale sit-in, a physical stand-off between different groups and police intervention. A major reason for this escalation was the institution’s failure to respond to the original message before taking action, even though the action taken was intended to accommodate (slightly) the view expressed in the message.

For all the above reasons, communication is a central element in all disputes. It therefore behoves us to consider the acts of communication themselves and their circumstances.

Communicative parameters

When an employee or student ‘makes a complaint’,  s/he makes it to a particular person or group of people (who may or may not represent the HEI or a group within it and who may or may not be its target), through a particular channel (which may or may not allow others not involved to ‘listen in’), in a particular manner (which may or may not have an irritant effect) using particular words (which may or may not include a specific request or demand). Thus the act of communication involves a number of variable parameters.

This document is a first attempt to list these parameters. It is based on the assumption that ‘settings’ on of? each parameter have a profound effect on the way disputants conduct themselves and therefore will influence the nature and progression of a dispute, and therefore judgements as to the nature of desirable mediation.

Three types of parameter are identified here. They are:
Participation: who is involved in the dispute and how?
Means: how is the dispute expressed and manifested?
Object: what is the dispute about?

Some of the parameters seem to apply more obviously to the totality of a dispute and some to episodes within it. But in principle all are potentially recursive, applicable to the totality, episodes, and episodes within episodes.

It is probable that particular values in many of these categories have implications for, or even entail, particular values in others. The ‘discovery’ of these will allow us to move towards a typology of disputes.

Notes

The list of parameters presented here is adapted from a similar list compiled as part of a project at the University of Huddersfield to research the role of language in conflict generally. Any comments or suggestions concerning the parameters and their classification are welcome.

In explanations of the parameters, repeated reference is made to the Example Problems on the website (see “Problems”). These are indicated as “EP” (e.g. “EP 3” = Example Problem 3).

Reference:
Pearce, W. Barnett & Stephen W. Littlejohn (1997). Moral Conflict: When Social Worlds Collide. Thousand Oaks, California: Sage

PARAMETERS OF PARTICIPATION: Who is involved and how?

All the below may be evaluated as a matter of degree.

Scale How many are (potentially) involved? From 1:1 (e.g. EP 1) to the whole institution (e.g. EP 2; also, eventually, EP 4 and EP 6). Formally speaking, the institution may be seen as a single unit. However, in practice many disputes will involve several people acting on behalf of the institution or different parts of it, not necessarily all with the same agenda or having the same standing. In the HEI setting, the distinction between a senior individual and the institution can often become blurred.

Power From equal to very unequal. Stereotypically, the institution-as-gatekeeper has more power than the party with whom it is in dispute. However, circumstances (e.g. the real prospect of bad publicity or of heavy financial sanction) can result in a severe diminution of this pattern of inequality or even its reversal.

Instigation Who started it? That is, can we point the finger at just one of the parties involved? From unequivocal instigation by one person, who has independently raised a concern or made a complaint (e.g. EP 2; EP 4) to what may begin to look like equal responsibility for its escalation (with perhaps both parties trying to claim it was the other who started it - as in EP 1 and EP 5).

Permeability To what extent are members of the opposing parties fixed? From closed (i.e. disputants clearly identifiable and restricted) to entirely open (e.g. anyone can ‘take sides’ - or change them - in an ongoing ideological dispute).

Included here (but perhaps really a separate category) is the question of who stands to be affected. For example, only some staff in British HEIs took strike action during 2006 - and fewer still engaged in negotiation and debate with employers - but all were in some sense 'involved'.

Visibility Who else other than those involved is privy to the dispute? From nobody to everybody. Crucially, this parameter refers not only to knowledge of the existence of a dispute but also to the extent to which episodes of it are witnessed. Clearly, this parameter is quite closely tied to the category of ‘Channel’ (see ‘Means’) and also brings up the issue of confidentiality (see e.g. EP 3; EP 6).

Direct / indirect To what extent do the parties in dispute engage directly? (Or is communication between them mediated through third parties?). Several third parties, for example, are involved in EP 3, and several episodes in this dispute do not involve communication between the protagonists.  .

Representativeness To what extent are those directly engaged in ‘doing’ the dispute acting on their own behalf? (Or are they merely representing a position? If so, what latitude do they have?)

CATEGORIES OF MEANS: How is the dispute expressed and manifested?

Channel A list of means for relaying language (e.g. face-to-face, phone, e-mail, memorandum, letter, displayed notice, badge, distributed flyer, circulated publication). Some of these may or may not have protocols or rules pertaining to them.

Activity / Genre For example, informal discussion, formal warning, formal negotiation, debate, semi-public meeting, report. This category includes the issue of accountability. Is a meeting on-record or off-record? (And if the former, how is it to be recorded?). The precise nature of an encounter, and its assumed purpose, are often matters of contest. When parties enter into such an encounter with divergent assumptions about its purpose (e.g. is this a pastoral or judicial meeting?), its level of formality (e.g. can participants be held accountable for what they say?) and its level of confidentiality, senses of additional grievance can arise. There may be reciprocal feelings of betrayal, imputations of trickery and thus escalation of the dispute.

Clearly, this category is central when defining the options for IDR (since these too will involve a choice of activities).

Intensity From inflammatory and/or inflamed verbiage (e.g. EP 6) to language of entirely neutral affect.

CATEGORIES OF OBJECT: What is the dispute about?

The categories identified here take the ‘naïve’ perspective that all disputes are essentially rational - that is, they are about disputed desired outcomes, both/all of which are presented as reasonable by those involved. In practice, of course, disputes frequently become a matter of divergent views as to where ‘the right’ lies, because it is upon the upholding of these views that disputants base their claims to be reasonable. In addition, personal animosities are, or can become involved, so that disputants’ motivations for behaviour become quite irrational and their, sometimes unreasonable, agendas remain hidden.

Nevertheless, from a mediation viewpoint, it is important that categories of dispute are framed in this rational manner, since (re)establishing the existence of divergent desired outcomes as the crux of a dispute is a vital step in getting disputants to entertain an interests-based resolution. The fact that as disputes unfold they tend to become multi-faceted (as exemplified all too well by almost all the example problems), so that there is not one disputed outcome but many, does not negate this approach; rather, it makes it all the truer, as it is by breaking down the dispute into this series of contested desiderata that it becomes possible to cut through the fog of interpersonal animosities which befuddle the dispute as a whole.

A final point: the categories as expressed and exemplified below speak of people ‘wanting’ a certain outcome (which others contest). These, of course, are desired outcomes which have been made explicit, not what a person might ‘really’ want. Thus, the account of example problem 4 ends with the student wishing to make a complaint against the HEI, presumably to be framed as a claim for compensation, although his motivation is actually “to protect his position”, to head off any attempt to recover funds from him. Mediators, of course, need to understand these motivations and take them into account because they can form the levers for resolution. But all that mediators have to start with are the overt claims.

It is suggested, then, that in principle all disputes may be identified as being ‘about’ one or more of the following four types of issue:

Possession “I want X” versus “No, you can’t have X”. Typically, for territory, goods, money or rank.

For example:

  • student wants a higher mark than that awarded;
  • student wants compensation for inadequate course provision;
  • student wants compensation for victimisation (EP 3);
  • student wants better ongoing course provision;
  • student wants a place in halls of residence;
  • student wants financial support;
  • employee wants promotion, a salary increase, continued employment (EP 2; EP 6);
  • employee wants compensation for unfair treatment (EP 2 and probably EP 6);
  • employee wants better working facilities;
  • HEI wants money from a student (e.g. unpaid fees, to recover a bursary).

Permission “I want to do X” versus “No, you can’t do X”. Typically about access to resources or facilities, or about performing actions.

For example:

  • student wants to retake a course for free;
  • student wants ‘another chance’;
  • employee wants to do more work from home;
  • employee or student wants to be able to smoke on campus;
  • employee wants to supervise a certain research student (EP 6);
  • employee wants to be able to make certain disclosures (EP 6).

Procedure = “Let’s do X” versus “No, let’s not do X”. All disputes about mores and regulations fall into this category.

For example:

  • committee wants new regulation to be imposed (e.g. ban smoking throughout the campus);
  • employee or student wants a regulation rescinded or ignored (e.g. the HoD in EP 5);
  • somebody wants assurances about the proper following of procedures (EP 3);
  • somebody wants a certain procedure to be followed (e.g. the setting up of an appeals procedure in EP 4).

Commission = “I want X (to be) done” versus “No, X will not be done”.

For example:

  • employee or student wants another employee or student to be censured / reprimanded / warned (so that s/he can feel ‘safe’ from further harm (EP 1; EP 3; the initial claim in EP 4);
  • HEI or person within it wants someone dismissed (EP 5; EP 6);
  • HEI or person within it wants student work disqualified (e.g. on grounds of plagiarism);
  • employee or student wants an apology or retraction (EP 3);
  • HoD wants employee to apologise to another employee (EP 1).

Cutting across these basic categories are several more.

One of these admits the possibility that the matter is not so clear-cut:

Focus How clear is it? From high focus (clear, single object of dispute) to very diffuse and therefore involving in some way more than one of the above categories of object. For example, a case of alleged unfair dismissal may be clearly framed as one of possession (e.g “I want compensation”) or clearly framed as one of permission (e.g. “You have no right to dismiss me”). On the other hand, it may be framed in a manner which allows for both (“You have no right to dismiss me so I want compensation or my job back”).

Two other categories refer to participants’ alignment to the object of dispute:

Outcome = yes/no or either/or. There are two possible types of reason for “no” in the definitions above. It could be a ‘flat’ no, the naysayer arguing simply that “you have no right to X” and/or that “X is a bad idea”. This means that the disputed outcome is yes/no. On the other hand, the reason for “no” may be because an alternative is predicated. This means that the disputed outcome is either/or.

This latter type may be further subdivided into either X or Y and either me or you. The former is applicable to all categories of disputed object (e.g. “You can’t have X, but you can have Y / Let’s not do X; let’s do Y instead”). The latter is applicable only to the possession and permission categories (e.g. “You can’t do X because I want to do X instead”).

Presumably, the aim of much mediation would be to develop the stances of disputants to a stage where the disputed outcome can be transformed from the yes/no type into the either X or Y type.

Perceived magnitude From a general perception that this is a matter of great moment (because it invokes deeply-held principles and/or the setting of precedent is involved) to one that this is an ephemeral matter (e.g. “misunderstanding / storm-in-a-teacup”). Clearly, the former extreme is less amenable to mediation (though it may sometimes be possible to extricate the principle from the contested outcome).

Finally, there is a category which relates the object of dispute to its temporal existence:

Facticity Is the dispute about something which has already happened, is happening or is planned? It is here that disputants may attempt to provide justification for their stances (e.g. the course provision is/isn’t adequate, the mark awarded is/isn’t fair). Disputes concerning planned actions or arrangements may be easier to resolve, although this may not be the case if issues of institutional policy and/or face-saving for senior management are involved. Disputes concerning done deeds, on the other hand, are inherently difficult because the original sense of grievance is likely to have been exacerbated by initial responses to its voicing, so that they can all too easily become multi-faceted, the original object becoming almost lost in a welter of bad feeling and mutating into a, sometimes mutual, desire for retribution. This is what happens, to some degree at least, in all the example problems.