Consultation Paper on Alternative Dispute Resolution - Law Reform ...

their every day lives, such as child support, consumer, education, employment,
health, and welfare benefits.
(ii) The Dispute Iceberg
1.07 The dynamics of a dispute are often compared to an iceberg. 9 The
iceberg model below serves to illustrate that only a fraction of the issues in a
dispute are immediately accessible. 10 The submerged part of the iceberg
represents the personal interests of the party, the fundamental underlying
factors contributing to any given conflict, which do not always surface during
formal rights-based processes such as litigation or arbitration. 11
1.08 Interest-based dispute resolution processes expand the discussion
beyond the parties‘ legal rights to look at these underlying interests; they
address parties‘ emotions, and seek creative solutions to the resolution of the
dispute. The focus of these processes is on clarifying the parties‘ real
motivations or underlying interests in the dispute with the aim of reaching a
mutually acceptable compromise which meets the interests of both parties.
1.09 Preventive, facilitative and advisory dispute resolution processes
explore below the surface of the iceberg and can be described as interestbased
resolutions. Determinative processes such as arbitration can be
described as rights-based processes which focus on the positions and issues of
the parties illustrated at the tip of the iceberg. These processes tend to narrow
9 See Van Riemsdijk ―Cross-Cultural Negotiations Interactive Display.‖ <strong>Paper</strong>
delivered at The Expanding ADR Horizon Conference, 27 th April 2007, Trier.
10 The iceberg diagram is taken from Gugel ―The Iceberg Model for Conflict
Dynamics‖ Tubingen Institute for Peace Education. Available at
http://www.dadalos.org/frieden_int/grundkurs_4/eisberg.htm.
11 Cloke & Goldsmith Resolving Conflicts at Work (Jossey-Bass 2000) at 114.
11