Framing Campus Free Expression Conflict Through a Dispute Resolution Optic: Insights For Campus Leaders

Journal of Dispute Resolution Volume 2018 | Issue 2 Article 12 2018 Framing Campus Free Expression Conflict Through a Dispute Resolution Optic: Insights For Campus Leaders Robert H. Jerry II University of Missouri School of Law, Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Robert H. Jerry II, Framing Campus Free Expression Conflict Through a Dispute Resolution Optic: Insights For Campus Leaders, 2018 J. Disp. Resol. () Available at: https://scholarship.law.missouri.edu/jdr/vol2018/iss2/12 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. Jerry: Framing Campus Free Expression Conflict Through a Dispute Resolut Framing Campus Free Expression Conflict Through a Dispute Resolution Optic: Insights For Campus Leaders Robert H. Jerry, II* I. INTRODUCTION Nearly four decades of active academic study of dispute resolution processes have generated a rich array of insights into conflict management. This reservoir of understanding is more than theory and description; the learning in this field has been applied in numerous settings to produce early resolutions, save time and money, increase satisfaction and compliance, manage community discord, prevent embryonic disputes from escalating into ruinous conflict, and more. This Essay, with campus leaders as its intended audience (i.e., presidents, chancellors, provosts, deans, department chairs, and faculty, staff, and student governance leaders), maintains that acquaintance with constructs familiar to dispute resolution scholars and practitioners can deepen understanding of free expression conflict on college campuses, increase self-awareness and enhance leaders’ ability to act consciously and purposively in response to conflict, and help equip campus leaders with useful tools for managing conflict when it arises.1 This Essay will stress framing, but many constructs in the dispute resolution field illuminate the techniques and skills campus leaders need if they are to manage conflict effectively, whatever may be its source. II. INSIGHTS FROM MOORE’S CIRCLE OF CONFLICT When conflict appears imminent or has erupted, it is important to gather facts and determine, to the extent possible, what is driving the conflict, i.e., from what sources the conflict derives its energy. A useful tool for organizing this inquiry is Christopher Moore’s “Circle of Conflict.”2 This construct describes the causes of conflict in any kind of dispute as five slices of a circular pie – data; structure; relationships; values; and interests. These causes can give rise to conflict either individually or in any combination of two or more causes. When a free expression conflict arises on campus, trying to understand the underlying causes can be helpful * Isidor Loeb Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri School of Law. The author expresses his thanks to Lyrissa Lidsky for her valuable comments on an earlier draft of this Essay. 1. For a more general discussion that applies dispute resolution principles and concepts to conflicts that arise on university campuses, see Maria R. Volpe & David Chandler, Resolving Conflicts in Institutions of Higher Education: Challenges for Pracademics (CNCR-Hewlett Foundation Seed Grant White Papers, Paper No. 8, 1999), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?referer=https:// www.google.com/&httpsredir=1&article=1007&context=seedgrant. 2. Christopher W. Moore is a partner in a mediation and conflict resolution consulting and training practice located in Colorado. He introduced the Circle of Conflict construct in his book The Mediation Process: Practical Strategies for Resolving Conflict, first published in 1986 and published in its fourth edition in 2014. See CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT (4th ed. 2014). Published by University of Missouri School of Law Scholarship Repository, 1 Journal of Dispute Resolution, Vol. 2018, Iss. 2 [], Art. 12 58 JOURNAL OF DISPUTE RESOLUTION [Vol. 2018 to identifying an approach for responding to and managing it, hopefully toward resolution. Each of the causes in the Circle has different implications. Data (or information) conflicts occur when information is missing or disagreements exist about what known data means. The starting place to resolve data conflicts is transparency, i.e., getting all of the data out on the table for discussion. Data conflicts can result from rumors and misinformation; thus, transparency and prompt, full circulation of accurate information are important in dealing with data conflicts. Value conflicts are grounded in disputants’ different beliefs, cultures, religions, heritage, and political orthodoxies. Recognizing that a free speech conflict is value-laden is important, because value-based conflicts are usually among the most difficult kinds of conflicts to resolve. It is usually impossible to persuade disputants to change their values, and appreciating this reality is an important first step to dealing with a conflict. Treating value differences like additional data points – and focusing on getting these points onto the table in a transparent discussion – can be helpful. Structure conflicts are grounded in the ways institutions and relationships are organized. For example, an imbalance of power (e.g., employer versus employee, or administrator versus student) may interfere with what one (or both) of the disputants needs or wants, which leads to conflict. A deadline or time constraint that prevents at least one disputant from fulfilling expectations is another kind of structure conflict. Barriers that set up structure conflicts are common in campus environments. If an assessment of a conflict reveals that it may have resulted from or been enhanced by a lack of communication because of a structural power imbalance (or perceived imbalance), part of the solution could involve setting up informationsharing and communication-enhancing structures to break down that barrier. Relationship conflicts is a category that captures the reality of misunderstandings whenever individuals interact. These kinds of conflicts are among the more difficult to resolve because relationship problems frequently become entrenched quickly, and it is difficult to convince disputants to acknowledge how their own behaviors have contributed to a relationship conflict. As any campus leader knows, relationship conflicts are also common on our university campuses. Interest conflicts have their roots in the wants and desires of disputants. Interests can be located in the answers to why a disputant wants a parti (...truncated)