Entering the Fields of Conflict and Dispute Resolution

Chapter 1 Entering the Fields of Conflict and Dispute Resolution

The skillful management of conflicts, [is] among the highest of human skills. — Stuart Hampshire, Justice Is Conflict 35 (2000)

The core mission of the legal profession is the pursuit of justice, through the resolution of conflict or the orderly and civilized righting of wrongs. — Howard Gardner, Mihaly Csiksentmihali & William Damon, GoodWork: When Excellence and Ethics Meet 10 (2001) Conflicts among human beings are as old as life itself. From the time we began to work and socialize with other people we have had to learn how to resolve conflicts. Using approaches ranging from negotiation to violence we have, in some eras, been more successful than in others in resolving our conflicts effectively and productively. Indeed, our degree of success in dealing with the conflicts inevitable to human interdependence is one mark of our success (or not) in achieving an advanced civilization. In striving to deal with our differences, we often have focused on trying to establish fair processes to resolve these differences. Stuart Hampshire, the philosopher quoted above, has suggested that while we will never reach agreement about the substantive good in our culturally and politically diverse world, we can come close to achieving a human universal value by committing to “procedural fairness.” Thus we have developed law,legal institutions, and other procedural mechanisms to try to regulate our conflicts or potential conflicts with one another. Both substantive law and legal processes are modes of conflict resolution.These processes include judicial, legislative, and executive entities. But it is also important to recognize that law and traditional legal institutions are not the only viable means for resolving human problems. Because you are in law school, it probably now seems commonplace for you to think of all human problems as having a “legal” solution.Yet many problems, even when strictly legal, never go further than the lawyer’s office. Instead, negotiation and drafting are used to resolve many problems, both small and complex, even when the disputes are bitterly contested. Sometimes such disputes are resolved in noncourt settings, such as employee grievance systems, internal ombuds or complaint services,

3 4 Part I Introduction

with privately contracted dispute resolution professionals, or community action organizations. Even after a case has been filed with a court, the parties sometimes voluntarily choose some other means of dispute settlement or are assigned to one of the newer forms of dispute resolution you will study in this book. In addition, as both transactions and disputes increasingly transcend national boundaries, processes other than one nation’s legal system may be needed to structure relationships and solve problems involving multiple parties of different legal systems.That is, the field of dispute resolution or alternative or“appropriate”dispute resolution (ADR) in law has grown out of recognition that the conventional legal systems of legislative enact- ments, litigation practices, trials, and court decisions are not always adequate to deal with all kinds of human problems. This book uses the theory of “process pluralism” to explain why different kinds of matters may require different kinds of procedures or ways of dealing with the underlying conflict. If trial-by-court is an evolved form as compared to the trial- by-ordeal or trial-by-combat of medieval days, then our newer forms of dispute resolution may be thought of as an evolutionary improvement over trial-by-court. Recent empirical research has documented that, for many people, being treated fairly by being heard and acknowledged may be as important as achieving a good result or “winning” a dispute, known as the measure of “procedural justice” as distinguished from substantive justice. Although not all disputes are legal, and not all legal disputes have to be “tried” in order to be resolved, lawyers play a key role in helping to resolve a broad array of conflicts in our society.To be effective in this role, you will need to expand your knowledge base and behavioral repertoires.That’s why this book is called “beyond the adversarial model.”This book presents a particular point of view that human relationships and well-being are improved by a greater number of choices about how to resolve human problems and that some choices are better than others in particular cases. Usually (though not always) the maximum participation of parties in the decisions that affect their lives should be an essential part of any choice about how decisions should be made.While adversary process has its place, modern life, with multiple parties and multiple issues present in almost every human endeavor, may not fit so easily in the casebook headings where often only one name appears on either side of the “v.” Your job as a well-educated lawyer and citizen is to know about and assist others in making choices about what process is best for the particular matter at hand. To perform well in your job of assisting with process choices, you need to “think outside of the box,”to be aware of many alternative modes of conflict resolution, and to communicate and consult well with your clients. In each chapter we will offer problems for you to solve (which, ironically,will appear “inside the box” to demarcate the problems from the text).Thus, this book exposes you to more varied forms of human problem solving (including negotiation, mediation, arbitration, and variants of these). This book is organized to help you move from the simpler forms of conflict and dispute resolution to the more complex.This first chapter introduces some key concepts that describe the frameworks or theories human beings have developed to understand themselves and how they interact with each other, the history of these Chapter 1 Entering the Fields of Conflict and Dispute Resolution 5 concepts, and the institutions and practices that have been built around them.The second chapter will introduce the key skills needed to solve problems for clients, including interviewing clients about their needs and goals, and counseling them about available processes and potential outcomes. Subsequent sections of this book then examine particular forms of dispute resolution. The focus initially is on the three foundational processes, other than litigation, that are most frequently used to resolve disputes in the United States and most parts of the world: negotiation, mediation, and arbitration. Later chapters explore the infinite possibilities of dispute resolution in our complex world.The chapter on hybrid processes shows how we can creatively combine aspects of negotiation, mediation, arbitration, and even adjudication to form other processes that may better serve the needs of disputants or society in particular situations. Next you will examine particular processes that are used to deal with multiparty disputes, conflicts arising in the transactional context, and some conflicts that cross international borders. Finally, we conclude with a few words about the future and potential of different means of dispute resolution. As the book presents these various processes, it elaborates the theories, frameworks, models, concepts, and basic premises of a particular process; examines each process’s internal or institutional structures; describes the skills and practices involved in each process; and explores the policies, ethics, and issues or dilemmas challenging the use of each particular process. This book focuses on theory of process, with the hope that such a grounding will serve you in counseling clients, making and affecting policy and law,and struc- turing your own professional (and personal) life. In particular, the book is conceptu- alized to present “theories-in-use,”as Donald Schön of MIT has defined that phrase inThe Reflective Practitioner (1983).To practice good dispute resolution and problem solving, we need to have theories to inform our actions and assist the choices we make about what process is appropriate for a particular human problem.At the same time, our theories should be useful, so we should constantly test the assumptions on which we base our actions and correct them if they do not serve us well. In short,“theory-in-use” means we must have some reasons for what we are doing. If what we are doing cannot be understood or adequately explained, we need to refine our theories and practices. To explore the theoretical underpinnings of process pluralism, this text looks to both law and other disciplines, drawing at times from such fields as economics, game theory, political science, psychology, sociology, anthropology, sociolegal studies, peace studies, communication, and urban planning and public policy studies. As globalization increases our contacts with others — individuals, groups, organizations,nation-states,and cultures — we can see both the existence of other forms of conflict resolution embedded in other legal systems and cultures and the need for different forms to deal with our many human problems and interactions, in varied regional and worldwide interdependent political, economic, and legal regimes. Per- haps you will develop your own new form of dispute resolution or process for some human, social, or legal problem we have yet to confront. 6 Part I Introduction

A. THEORETICAL UNDERPINNINGS OF CONFLICT AND DISPUTE RESOLUTION

Although law school focuses on disputes or cases,the disputes that make it into casebooks represent the tip of the iceberg of all the kinds of conflicts that people have. Lawyers are often called on not only to bring or defend lawsuits, but also to help prevent conflicts from arising or to deal with disputes other than in court.Thus it is useful for lawyers to have a broad understanding of the types of conflicts that may exist. Scholars in a wide variety of the social sciences have attempted to define and develop taxonomies of different kinds of conflicts so as to better understand the different possible treatments or interventions available in conflict settings.At the same time, it is important to realize that not all conflict is bad or ought to be avoided. Carrie Menkel-Meadow briefly explores these multiple aspects of conflict.

❖ Carrie Menkel-Meadow, CONFLICT THEORY

in Encyclopedia of Community: From the Village to the Virtual World 323-326 (Karen Christensen & David Levinson eds., 2003)

There are many reasons for conflicts to develop, at both the individual and at the group level. Some conflicts are based on belief systems or principles, some are based on personality differences, and others on conflicts about material goods or personal or group status or reputation. Because there are so many different reasons conflicts develop and because much conflict is dangerous and unproductive, the theory of conflict attempts to understand the different sources of conflict, the dynamics of how conflict develops, escalates or declines, and how conflict can be managed, reduced or resolved. At the same time, it must be recognized that conflict can have social utility as well. Many important changes in human society,many for the betterment of human life, have come from hard-fought conflicts that resulted in the change of human institutions, relationships or ideas.The United States Civil War, for example, was a bloody and painful war in which over a million Americans died, but this war elimi- nated slavery in the United States and ushered in a long period of change in race relations....Evensmall interpersonal conflicts (like between a husband and wife or parent and child) can lead to important changes, not only in relationships between the people in conflict, but in larger social movements, such as the women’s rights or feminist movement and the children’s rights movement. Conflicts with outsiders often clarify and reinforce commitments and norms of one’s own group. And internal conflict within the individual can lead to changed views and intellectual and emotional growth. Conflict theory tries to explain the types of conflicts that exist and whether they are productive or destructive and then goes on to attempt to explain the ways in which conflict proceeds or is structured...andhowitcanbemanaged or resolved. A conflict can be experienced as a simple disagreement, a feeling of discomfort or opposition, and a perception of difference from others, or a competition or Chapter 1 Entering the Fields of Conflict and Dispute Resolution 7 incompatibility with others. Conflicts, then, can be perceptual, emotional or behavioral.When a conflict is actually acted on it becomes a dispute with someone or a group of others. In order for a conflict to fully develop into a dispute we have to experience some sense of wrong to ourselves, someone else to “blame” for that wrong and some way to take action against those we think caused our difficulty — what one set of scholars have called, “naming, blaming and claiming.”1 How the conflict turns into a dispute and how it is labeled (“framing”) then may affect how it progresses and how it may either escalate and get worse, leading in extreme cases to war, or how it can be handled, managed or resolved.

TYPES OF CONFLICTS Conflict can exist on many different levels, including the intrapersonal, interpersonal, intragroup, intergroup, and international. Conflicts can exist about different subject matters — ideational or beliefs, values, materiel and resources, emotions, roles and responsibilities. Conflicts vary in terms of the social contexts in which they are located (two old friends, family members, neighbors, strangers, consumers and merchants, distant nation-states) and in the time span in which they are located (“one-off” or “one-shot” encounters and conflicts, long-standing or “embedded” conflicts, temporary or “repeated” conflicts in on-going relationships like families and employment settings). Conflicts vary, even within the same social environment or subject matter by how the disputants treat the conflict, in the strategies, tactics and behaviors they employ (avoidance, self-help, peaceful negotiation, argument, escalation, physical violence, peace seeking, mediation or settlement) and how the strategies chosen interact with each other.And conflicts are often classified by how they affect the parties in the conflict (the consequences of the conflict) and those outside of the conflict (the “externalities” of the conflict, like children in a marital argument or divorce and neighbors of warring states who accept refugees).... Conflicts have also been classified by various social scientists and conflict theorists by virtue of what is at stake in the conflict such as: Resources (land, power, property, natural resources like water, oil, minerals, money); Values or beliefs (class, religious, nationality, political aspirations and codes that create systemic belief systems for groups or individual members); Preferences or interests (incompatible desires, wants or objectives of action); Relationship (differences in desires or objectives about relationships); Identity (concerns about recognition of and respect for group member- ships). The theory of such classifications is that if we can analyze different kinds of conflict, we can determine how they might enfold and whether a particular conflict is amenable to a positive outcome (whether harnessing the conflict to constructive

1. William L. F. Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Dis- putes: Naming, Blaming and Claiming...,15L.&Socy.Rev. 631-654 (1980-1981). 8 Part I Introduction

solutions or processes) or whether it is likely to become destructive (for the parties or others affected by the parties).... Conflicts often take somewhat predictable turns ranging from precipitating event, response or reaction, development of in-group-out-group loyalties and the development of both offensive and defensive strategies, followed by escalation, impasse or stalemate and then, motivation for resolution, settlement, and solution seeking (or, in highly competitive or violent conflicts, victory or “annihilation” of the other). But while many think of conflicts as necessarily competitive and antago- nistic, there really are a wider range of behaviors that occur in most conflict situations,many of them dependent on the situation and social and political environment of the conflict, as well as the sophistication of the parties in using multiple strategies. Many of those who study conflict see a greater variety of possible conflict modes or strategies in handling conflict that can occur at individual, group, organizational, and even nation-state levels of actions.There are those who compete (or seek to maximize their own self-interest, even at the expense of others), those who cooperate (seeking to work with the other side(s) to find some middle or compromise grounds), those who accommodate (who may simply give in to the other party), those who avoid (by exiting or absenting themselves from the conflict) and those who collaborate (by seeking to work for joint and mutual gains for all parties, without unnecessary harm to others or needless compromise or giving in).2 What makes conflict processes so complex are the strategic interactions that occur when more than one party must interact to start, maintain, interrupt or resolve the conflict. These different conflict management strategies interact with each other and can produce reactive and unproductive responses, such as when competing leads to more competing and escalation of competitive behavior causes more violence, less information sharing and an inability to seek mutual gain possibilities. This “mirroring” effect, when each party merely returns the behavior that is offered to it, often leads to stalemates or the impossibility of achieving some resolution because the parties cannot even see or hear beyond the one strategy they have chosen. Thus, much recent empirical work in conflict processes has been to study the conditions under which parties in conflict can alter their behavioral or strategy choices and open themselves up to new ways of communicating or testing the possibilities with other parties. Conflicts have been studied at the level of community relations, ethnic-racial conflicts, economic and resource competition, environmental disputes, lawsuits (both individual and class actions) and international conflicts. Parties in conflict are now asked to explore their underlying interests (apart from their conflict-producing “positions”), to consider the needs and interests of other parties (“role-reversals” and other communication technologies) and to develop strategies of collaborative and creative problem solving (by expanding and creating resources and alternatives, by trading non-mutually exclusive preferences or goods, by using contingent or “trial” agreements, rather

2. K.Thomas, Conflict and Conflict Management, in Handbook of Industrial Organizational Psychol- ogy (M. D. Dunnette ed., 1976). Chapter 1 Entering the Fields of Conflict and Dispute Resolution 9 than permanent solutions, by developing processes and rules for respectful co-existence, such as in Truth and Reconciliation Commissions in politically divided nations). Both modern research and recent history have demonstrated the importance of third party interveners (mediators, conciliators, fact-finders and facilitators) who can effectively manage processes. These third party efforts have been effective at interpersonal (divorce and family), organizational (labor-management), and international (Northern Ireland, Mid-east) levels of conflict in developing both interim “cease-fires” and more permanent resolutions or agreements to end conflicts and to attempt to resolve larger and underlying problems and conflicts.

Problem 1-1. What Are the Conflicts? Look through a case reporter or one of your casebooks, or do a random search on a computer service, and choose a reported case. What dispute brought the parties to litigation? What underlying conflicts existed between the parties or between other people involved in or affected by the dispute? Where do these conflicts fit in the list provided by Menkel- Meadow describing what is at stake? Now, read a newspaper or magazine and find a conflict that is reported. How might the disputants (or possibly attorneys) have avoided such a conflict in advance? Do you think that the conflict you identified has positive or negative aspects, or both? What are they?

Conflicts will always exist. While we may prevent and avoid some, clearly we will never succeed in eliminating all of them.The remainder of this section examines how to deal with conflicts that already exist. In focusing on conflict, it is critically important to examine what it means to “win” in a conflict. While many people assume that someone must lose when another person wins, the following readings show that this either-or mentality is often fallacious.Thomas Schelling, a Harvard economist and Nobel prize winner, examines the nature of conflict from a game theoretic perspective. He explains that while a person who approaches conflict strategically always tries to “win” in the sense of doing as well as possible for herself, that does not mean that other disputants need to lose.The next excerpt is taken from the work of Mary Parker Follett who was an important early theorist in the field of conflict resolution. She was trained as a political scientist and worked as a social worker, as well as working in labor- management relations, administrative “science,” and business management. Follett urges that conflict can lead to a creative process that allows constructive solutions to come from the friction created by conflict.Yet the win-lose attitude toward conflict has permeated our culture in general,and our concept of the legal system in particular. Popular writer and professor of linguistics, Deborah Tannen, critiques the adversarial mindset of our society, arguing that it limits the possibilities of better alternatives and also makes for an uncomfortable civil society. Finally, Carrie Menkel-Meadow outlines some of the problems that arise when the legal system is envisioned in purely binary win-lose terms. 10 Part I Introduction

❖ Thomas C. Schelling,THE STRATEGY OF CONFLICT

3-5 (1960)

Among diverse theories of conflict — corresponding to the diverse meanings of the word “conflict” — a main dividing line is between those that treat conflict as a pathological state and seek its causes and treatment, and those that take conflict for granted and study the behavior associated with it.Among the latter there is a further division between those that examine the participants in a conflict in all their complexity — with regard to both “rational” and “irrational” behavior, conscious and unconscious, and to motivations as well as to calculations — and those that focus on the more rational, conscious, artful kind of behavior. Crudely speaking, the latter treat conflict as a kind of contest, in which the participants are trying to “win.” A study of conscious, intelligent, sophisticated conflict behavior — of successful behavior is like a search for rules of “correct” behavior in a contest-winning sense. We can call this field of study the strategy of conflict.... But, in taking conflict for granted, and working with an image of participants who try to “win,” a strategy does not deny that there are common as well as conflicting interests among the participants....Pureconflict, in which interests of two antagonists are completely opposed is a special case....Forthis reason,“winning” in a conflict does not have a strictly competitive meaning; it is not winning relative to one’s adversary. It means gaining relative to one’s own value system; and this may be done by bargaining, by mutual accommodation and by the avoidance of mutually damaging behavior.

❖ Mary Parker Follett, CONSTRUCTIVE CONFLICT

in Prophet of Management: A Celebration of Writings from the 1920’s 67-69, 75, 77, 79, 82, 84-86 (Pauline Graham ed., 1995)

As conflict — difference — is here in the world, as we cannot avoid it, we should, I think, use it. Instead of condemning it, we should set it to work for us.Why not? What does the mechanical engineer do with friction? Of course, his chief job is to eliminate friction, but it is true that he also capitalizes friction.The transmission of power by belts depends on friction between the belt and the pulley....Themusic of the violin we get by friction....Wetalk of the friction of the mind on mind as a good thing. So in business too, we have to know when to try to eliminate friction and when to try to capitalize it, when to see what work we can make it do.That is what I wish to consider here, whether we can set conflict to work and make it do something for us. There are three main ways of dealing with conflict: domination, compromise and integration. Domination, obviously, is a victory of one side over the other. This is the easiest way of dealing with conflict, the easiest for the moment but not usually successful in the long run.... The second way of dealing with conflict, that of compromise, we understand well, for it is the way we settle most of our controversies; each side gives up a little Chapter 1 Entering the Fields of Conflict and Dispute Resolution 11 in order to have peace, or, to speak more accurately,in order that the activity which has been interrupted by the conflict can go on.... Yet no one really wants to compromise, because that means a giving up of something. Is there any other method of ending conflict?There is a way now beginning to be recognized at least, and even occasionally followed: when two desires are integrated, that means that a solution has been found in which both desires have found a place, that neither side has to sacrifice anything. Let us take some very simple illustration. In the Harvard Library one day, in one of the smaller rooms, someone wanted the window open, I wanted it shut.We opened the window in the next room, where no one was sitting.This was not a compromise because there was no curtailing of desire; we both got what we really wanted. For I did not want a closed room, I simply did not want the north wind to blow directly on me; likewise the other occupant did not want that particular window open, he merely wanted moreairintheroom.... [T]he revaluing of interests on both sides may lead the interests to fit into each other, so that all find some place in the final solution....Ifthefirst step is to uncover the real conflict, the next is to take the demands of both sides and break them up into their constituent parts....Ontheother hand, one often has to do just the opposite; find the whole demand, the real demand, which is being obscured by miscellaneous minor claims or by ineffective presentation.... Finally, let us consider the chief obstacles to integration. It requires a high order of intelligence, keen perception and discrimination, more than that, a brilliant inventiveness....Another obstacle to integration is that our way of life has habitu- ated many of us to enjoy domination. Integration seems a tamer affair, it leaves no “thrills” of conquest....Finally, perhaps the greatest of all obstacles to integration is our lack of training for it. In our college debates we try always to beat the other side.... I should like to emphasize our responsibility for integration....Onetest of business administration should be: is the organization such that both employers and employees, or co-managers, co-directors, are stimulated to a reciprocal activity which will give more than mere adjustment, more than equilibrium? Our outlook is narrowed, our activity restricted, our chances of business success largely dimin- ished when our thinking is constrained within the limits of what has been called an “either-or” situation. We should never allow ourselves to be bullied by an “either-or.” There is always the possibility of something better than either of two given alternatives.

❖ Deborah Tannen, THE ARGUMENT CULTURE: MOVING FROM DEBATE TO DIALOGUE

3-4, 8, 10 (1998)

The argument culture urges us to approach the world — and the people in it — in an adversarial frame of mind. It rests on the assumption that opposition is the best way to get anything done:The best way to discuss an idea is to set up a debate; the best way to cover news is to find spokespeople who express the most extreme, 12 Part I Introduction

polarized views and present them as “both sides”; the best way to settle disputes is litigation that pits one party against the other; the best way to begin an essay is to attack someone and the best way to show you’re really thinking is to criticize.... In a word the type of opposition I am questioning is what I call “agonism.” I use this term, which derives from the Greek word for “contest,” agonia, to mean an automatic war-like stance — not the literal fighting against an attacker or the unavoidable opposition that arises organically in response to conflicting ideas or actions.An agonistic response, to me, is a kind of programmed contentiousness — a prepatterned, unthinking use of fighting to accomplish goals that do not necessarily require it.... Our determination to pursue truth by setting up a fight between two sides leads us to believe that every issue has two sides — no more,no less:If both sides are given a forum to confront each other,all the relevant information will emerge and the best case will be made for each side. But opposition does not lead to truth when an issue is not composed of two opposing sides but is a crystal of many sides. Often the truth is in the complex middle, not the oversimplified extremes.

❖ Carrie Menkel-Meadow,THE TROUBLE WITH THE ADVERSARY SYSTEM IN A POSTMODERN, MULTICULTURAL WORLD

38 Wm. & Mary L. Rev. 5, 6-10 (1996)

Binary, oppositional presentations of facts in dispute are not the best way for us to learn the truth; polarized debate distorts the truth, leaves out important information, simplifies complexity and often obfuscates rather than clarifies. More significantly,some matters — mostly civil, but occasionally even criminal, cases — are not susceptible to a binary (i.e., right/wrong, win/lose) conclusion or solution. The inability to reach a binary resolution of these disputes may result because in some cases we cannot determine the facts with any degree of accuracy.In other cases the law may be conflicting, though legitimate, legal rights giving some entitlement to both, or all, parties. And, in yet another category of cases, human or emotional equities cannot be sharply divided. Modern life presents us with complex problems, often requiring complex and multifaceted solutions. Courts, with what I have called their “limited remedial imaginations,” may not be the best institutional settings for resolving some of the disputes that we continue to put before them. Even if some form of the adversary system was defensible in particular settings for purposes of adjudication, the “adversary” model employed in the courtroom has bled inappropriately into and infected other aspects of lawyering, including negotiation carried on both in the “shadow of the court” and outside of it in transactional work.... Furthermore, the complexities of both modern life and modern lawsuits have shown us that disputes often have more than two sides in the sense that legal disputes and transactions involve many more than two parties. Procedures and forms like interpleader, joinder, consolidation, and class actions have attempted to allow for Chapter 1 Entering the Fields of Conflict and Dispute Resolution 13 more than just plaintiffs’ and defendants’ voices to be heard, all the while structur- ing the discourse so that parties must ultimately align themselves on one side of the adversarial line or the other. Multiparty, multiplex lawsuits or disputes may be dis- torted when only two sides are possible. Consider all of the multiparty and complex policy issues that courts contend with in environmental clean-up and siting, labor disputes in the public sector, consumer actions, antitrust actions, mass torts, school financing and desegregation and other civil rights issues, to name a few examples. Finally, scholars have criticized modern adversarialism for the ways it teaches people to act toward each other.

Problem 1-2. What DoYou Do about Conflict? For the next 24 hours, keep a list of all the conflicts, disputes, or disagree- ments in which you get (or could get) involved.What did you do? Argue, compromise, accommodate (give in), get your way, avoid, or “integrate”? How? Why?

Problem 1-3. Framing Conflicts and Solutions Problem 1-1 asked you to examine a series of reported cases and consider what underlying conflicts brought the parties to litigation. Now consider the following with respect to these cases: a. Who were the “real parties in interest,” whether they were named in the reported case or not? Who else might be affected by a judicial resolution or settlement of the matter at issue? b. How were the issues framed? In terms of perceived wrongs and rights? Legal entitlements? Were there any instances of cases where not all the wrongs or rights existed on one side? c. Consider what solutions, other than those ordered by the court, might have resolved the conflict among all interested parties.

B. FRAMEWORKS FOR HANDLING CONFLICTS AND DISPUTES

Now that you have briefly examined the nature of conflict and some nonadversarial approaches to conflict resolution, we consider how disputants, lawyers, or others should choose the most appropriate process for resolving a particular dispute. In other words, as William Felstiner, Richard Abel, and Austin Sarat explain, once a “perceived injurious experience” (PIE) (or a potential conflict) with someone else 14 Part I Introduction

occurs, the next question is what to do about that perception.3 In the background, of course, are social processes and psychological factors that lead us to identify an “experience” as “injurious” or not, and that leads us to blame someone other than ourselves for what has happened. But, taking as given a body of PIEs, one can, in any social or legal culture, create a pyramid of possible ways in which such disputes are handled. The size and shape of the pyramid differs from culture to culture or legal system to legal system, but no system treats all conflicts the same; most have developed hierarchical systems for dealing with conflicts and disputes. In our U.S. legal system and culture, for example, despite all the claims that we are so litigious,4 most people avoid dealing with every little conflict they have. Imagine what your day would be like if you decided to file a lawsuit about everything that made you feel wronged. Figure 1-1 shows our current U.S. legal system (which has been changing dramatically in the last few decades); at the top of the pyramid are those important disputes that go all the way to the Supreme Court and culminate in a reported decisional precedent. Note that most of your legal education has been about reading the reported cases from the top of the pyramid. From a social scientific perspective, this may be a very unrepresentative sample of the actual disputes or conflicts that people have since the vast percentage of PIEs are resolved outside of courtrooms, whether through the choice not to pursue the claim, settlements, or third-party assisted processes such as mediation or arbitration. The pyramid of dispute resolution is not a “given” in any society,but rather the result of choices made by policy makers and individuals in that society.Policy makers decide which dispute resolution mechanisms should be made available for which kinds of disputes, and choose whether and how to fund or subsidize particular dispute resolution tools. Disputants and their attorneys then make choices about how to approach a particular dispute, given the options provided in the society. How should societies or individuals approach the question of what processes are most useful for resolving particular kinds of disputes? To use the phrase coined by major negotiation theorist (and mathematician and decision scientist), Howard Raiffa,5 there is both a science and an art to conflict resolution, problem solving, and decision making.The science involves understanding and analyzing the nature of the problem in these categories: 1. Who are the parties? (And who speaks for them — principals, agents? Are they unified or divided?) 2. What issues do they have with each other (scarce or divisible resources, building or maintaining a relationship)? 3. How many parties? (Two? More than two?With or without representatives?) 4. How many issues are there?

3. Felstiner et al., supra note 1, at 631. 4. Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4-71 (1983). 5. Howard Raiffa, Negotiation Analysis:The Science and Art of Collaborative Decision Making (2002) (with John Richardson and David Metcalf). Chapter 1 Entering the Fields of Conflict and Dispute Resolution 15

Supreme Court

Fed. Cts. of Appeal or State Supreme Courts

Trial Courts—Federal/State; Admin. Agencies/Legislatures

Court ADR (Med., Arb., ENE, STJ) Private ADR (Med., Arb., MedArb, etc.)

Organizational or Other Dispute Services (Ombuds, Med.)

Consensus Building (formal facilitation) (Private, Public)

Third-Party Intervention

Negotiation—Direct Party; Assisted by Lawyers

Community Organizing—Political Activity—Nonviolent Resistance

Self-Help (Direct Negotiation; Other Action)

Violence

Avoidance, Resignation, Postponement, Inaction

Un-PIE (not noticed)

Figure 1-1 U.S. Legal System 5. How do the issues affect each other (intertwined, “linked” and dependent, or severable and independent)? 6. How do the parties “interact” with each other (long-term relationship, “one-off or one shot”)? 7. What kind of a “solution” do the parties require (a precedent; a fast, temporary, or permanent decision; a contingent agreement; a modifiable agreement; a public announcement; a private arrangement)? 8. Can the parties solve their own problems, or do they need help (either to assist in the seeking of a solution (process) or to fund or create the substantive solution (“external” resources))? Do they share norms, rules, or a culture to resolve the conflict, or do they need to look outside or create their own rules and norms of process or substance or both? 16 Part I Introduction

9. What are the “stakes” for the parties? (How seriously do they need to resolve the problem or conflict? Who stands to gain or lose what and how much?) Only once a problem has been analyzed for these (and possibly other) factors, can one consider which process might best effectuate the needs and interests of the parties to achieve their goals. (Of course, this becomes quite complicated when the parties don’t agree on what their goals are or if they seek different things from the conflict before them.) But the analysis does not stop there. The choice of a process itself shapes the outcomes. For example, the choice of an adjudicative process (litigation or binding arbitration) that results in a definitive ruling requires adversarial presentations and a win-lose result. The behaviors necessitated by such a process (presentation of evidence, witnesses, and arguments) reinforce the adversarial and competitive nature of the problem. Adversarial behaviors produce more conflict, making the likelihood greater that the parties will produce a “competitive” or “zero” or “negative-sum” result. Similarly, if the parties choose negotiation but use adversarial and competitive techniques (such as debate, argument, persuasion, and more extremely, lying, deception, threat, and intimidation), rather than a problem- solving approach, they may wind up either in a total loss or a stalemate (or at best, a coerced “compromise” or accommodation). Choosing a more “cooperative process” (explained in Chapters 3 and 4) can result in more joint gain, but it also presents the risks of being taken advantage of when one party openly reveals information, for example, and the other party “uses” this information against the other.Thus behaviors and processes cannot be chosen for themselves; they must be related to the analysis of what the problem looks like and what goals and outcomes are possible. You can also see that choices about process or behavior are “strategic” in the sense that they are necessarily affected by what the other parties do. As individuals and policy makers choose appropriate dispute resolution processes, they must also consider the multiple ways in which people express themselves. One might call this “the art” of linking choice about process to particular behaviors so as to enhance the likelihood that desired goals and outcomes are achieved. Even in the traditional legal system and governmental institutions that you have studied in other courses, multiple “modes of discourse” are used. Political scientist Jon Elster,6 for example, differentiates appeals to reason, argument, and principle (most familiar in law) from appeals to utilities, preferences, trading, and bargaining (which may be based on “wants,”“needs,”or “interests” but need not be “principled”).Added to this mix, other theorists suggest that claims of “passion,” including not only emotion but also religious, moral, and political beliefs, form yet a third mode of discourse that is presented in conflict situations. Jürgen Habermas,7 an important social philosopher of the twentieth century, has spent his lifetime exploring the requirements for “ideal speech conditions” under which citizens could come together to achieve legitimate decisions about their

6. Jon Elster, Strategic Uses of Argument in Barriers to Conflict Resolution (Kenneth Arrow et al. eds., 1995). 7. Jürgen Habermas,A Theory of Communicative Action (1984). Chapter 1 Entering the Fields of Conflict and Dispute Resolution 17 joint lives, even where they don’t share substantive values. But even Habermas “privileges” reason and persuasion as the most appropriate mode of discourse for proper political problem solving.What if others disagree and think that arguments based on passion are just as valid? Conflict resolution professionals and political activists seeking to enact “legitimate” processes in the real world (such as in bitterly contested disputes about environmental justice, affirmative action, abortion, taxes, and welfare policy) have had to confront these issues of different “modes of discourse” in a wide variety of settings.8 Are some processes better than others at generating both innovative and acceptable “solutions” to difficult conflicts? Where do our ideas about problem solving come from? As you begin to think about which kinds of dispute resolution processes are best for resolving which kinds of disputes, or for engaging which kinds of “modes of discourse,” it is appropriate to highlight the work of Lon Fuller. A legal scholar, philosopher, practitioner of law, and professor at Harvard Law School for many years, Fuller is considered by many the intellectual father of the jurisprudence of ADR. He wrote a series of articles on each of several different legal processes, including adjudication, arbitration, mediation, contracting, and legislation, in which he discussed the special moralities and structures of each of these separate processes. Fuller also wrote more broadly about other processes, such as elections and administration, and called this entire project “eumonics” — the study of good social arrangements. Because Fuller saw each process as unique, he was very uncomfortable with some of the combinations of processes that are common today.(These are discussed at length in Chapter 12, where we return to the question of whether such combinations are a good idea jurisprudentially and ethically.)

❖ Carrie Menkel-Meadow, MOTHERS AND FATHERS OF INVENTION:THE INTELLECTUAL FOUNDERS OF ADR

16 Ohio St. J. on Disp. Resol. 1, 15-21 (2000)

For Fuller, law was a “problem solving activity” purposively directed towards enabling voluntary transactions and contracts, preventing violence, defining ideals and standards for civic participation, as well as providing a means for settling disputes and preserving social harmony. Law was enacted in and enforced by a variety of different legal institutions, which is why some commentators refer to him as concerned, above all else, with “problems of institutional design,” or as an “architect of social structure.” Fuller saw that lawmaking and rulemaking occurred in the realms of private ordering — negotiating contracts and mediating solutions produced as much “law” as the public institutions of courts and legislatures. In his efforts to elaborate the different structures, functions, and moralities of different legal processes, Fuller wrote the first description of, and most sustained argument for, mediation. He said that this conciliatory process, which did not require a decision of state-made law, would “reorient the parties to each other” and “brin[g] about a more harmonious relationship between the parties, whether this be

8. See, e.g.,Amy Gutmann & Dennis Thompson, Democracy and Disagreement (1996). 18 Part I Introduction

achieved through explicit agreement, through a reciprocal acceptance of ‘social norms’ relevant to their relationship or simply because the parties have been helped to a new and more perceptive understanding of one another’s problems.” For Fuller, as for other theorists of mediation, its principal functional strength lay in its release of the parties “from the encumbrances of rules and of accepting, instead, a relationship of mutual respect, trust and understanding that will enable them to meet shared contingencies without the aid of formal prescriptions laid down in advance.” Mediation, in Fuller’s words, is for “the administration and enforcement of rules or social norms” between parties, not for the creation of state-made law.... For Fuller, each process of decision making, or as he preferred to say,“problem solving,” had its own logic, morality, and function. Fuller acknowledged that not all legal disputes or social problems were similarly structured.Where a problem was like a “spider web” in which unraveling one thread of a “polycentric” problem (such as deciding a single legal issue in a web of relationships such as occurred in a factory among labor and management or in a marriage) might destroy the whole web, mediation, with its ability to work on many issues at the same time and focus the parties on their relationship concerns, would be better.... Fuller’s work is still best known for seeking to elucidate the particular moralities of particular process modalities. Fuller’s strength as a theorist of process is that he fully elaborated the structures and functions and the “internal” moralities of each of the legal processes he studied. He gave us what probably still is the deepest and most “classic” statement of what mediation is. However, perhaps because he was somewhat encumbered by the structuralist-functionalist schools of both social science and the legal process school of jurisprudence of the 1950s and 1960s, structure and function were seldom rearranged or allowed to “mix” in his work on social ordering. Today’s “hybrid” processes combine the structures of negotiation, mediation, and arbitration to attempt to perform a wide variety of functions, from relationship reorientation to dispute settlement to conflict resolution to administrative rulemaking and public policy decision making. It would be fascinat- ing to see what Lon Fuller would make of these more flexible procedural institutions as the modern world of social ordering develops increasing complexity and reorganizes structures to meet the requirements of different functions....Fuller’s questions about process integrity and morality, as well as structural-functionalism, remain with us today.

❖ Lon L. Fuller,THE FORMS AND LIMITS OF ADJUDICATION

in The Principles of Social Order: Selected Essays of Lon L. Fuller 105-106, 108-109, 113, 126-128, 133 (Kenneth I.Winston ed., rev. ed., 2001)

It is customary to think of adjudication as a means of settling disputes or controversies....Morefundamentally, however, adjudication should be viewed as a form of social ordering, as a way in which the relations of men to one another are governed and regulated....If...we start with the notion of a process of Chapter 1 Entering the Fields of Conflict and Dispute Resolution 19 decision in which the affected party’s participation consists of an opportunity to present proofs and reasoned arguments, the office of the judge or arbitrator and the requirement of impartiality follow as necessary implications....Adjudication is, then, a device which gives formal and institutional expression to the influence of reasoned argument in human affairs. As such it assumes a burden of rationality not borne by other forms of social ordering. A decision which is the product of reasoned argument must be prepared itself to meet the test of reason.We demand of an adjudicative decision a kind of rationality that we do not expect of the results of contract or of voting....Theproper province of adjudication is to make authoritative determination of questions raised by claims of right and accusations of guilt.... What kinds of tasks are inherently unsuited to adjudication?This...introduces a concept — that of the “polycentric” task.... Some months ago a wealthy lady by the name of Timken died in New York leaving a valuable, but somewhat miscellaneous, collection of paintings to the Metropolitan Museum and the National Gallery “in equal shares,”her will indicat- ing no particular apportionment.When the will was probated the judge remarked something to the effect that the parties seemed to be confronted with a real problem. The attorney for one of the museums spoke up and said, “We are good friends.We will work it out somehow or other.”What makes this problem of effecting an equal division of the paintings a polycentric task? It lies in the fact that the disposition of any single painting has implications for the proper disposition of every other painting. If it gets the Renoir, the Gallery may be less eager for the Cezanne but all the more eager for the Bellows, etc. If the proper apportionment were set for argument, there would be no clear issue to which either side could direct its proofs and contentions. Any judge assigned to hear such an argument would be tempted to assume the role of mediator or to adopt the classical solution: Let the older brother (here the Metropolitan) divide the estate into what he regards as equal shares, let the younger brother (the National Gallery) take his pick.... We may visualize this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different complicated pattern of tensions.This would certainly occur, for example, if the double pull caused one or more of the weaker strands to snap. This is a polycentric situation because it is many centered — each crossing of strands is a distinct center for distributing tensions....Wearedealing with a situation of interacting points of influence and therefore with a polycentric problem beyond the proper limits of adjudication....Itmaybe said that problems in the allocation of economic resources present too strong a polycentric aspect to be suitable for adjudication....When an attempt is made to deal by adjudicative forms with a problem that is essentially polycentric, what happens?...First,theadjudicative solution may fail....Second, the purported arbiter ignores judicial proprieties — he “tries out” various solutions in posthearing conferences, consults parties not represented in the hearings, guesses at facts not proved and not properly matters for anything like judicial notice.Third, 20 Part I Introduction

instead of accommodating his procedures to the nature of the problem he confronts, he may reformulate the problem so as to make it amenable to solution through adjudicative procedures.

One important theoretical question raised by students of conflict processes is the extent to which approaches to conflict resolution do or should cross cultural, temporal, or national lines. Do all humans have the same needs with respect to dispute resolution, or do different types of cultures and societies call for different dispute resolution processes? Social scientists such as anthropologists, historians, and sociologists have generally shed more light on this question than have legal scholars.

❖ Martin Shapiro, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS

1-6, 9, 15-16 (1981)

Cutting across cultural lines, it appears that whenever two persons come into a conflict that they cannot themselves solve, one solution appealing to common sense is to call upon a third for assistance in achieving a resolution. So universal across time and space is this simple invention of triads that we can discover almost no society that fails to employ it....[T]he triad for purposes of conflict resolution is the basic social logic of courts, a logic so compelling that courts have become a universal political phenomenon.The triad,however,involves a basic instability,paradox or dia- lectic that accounts for a large proportion of the scholarly quarrels over the nature of courts and the political difficulties that courts encounter in the real world.At the moment the two disputants find their third, the social logic of the court device is preeminent. A moment later when the third decides in favor of one of the two disputants, a shift occurs from the triad to a structure that is perceived by the loser as two against one.... The most fundamental device for maintaining the triad is consent....The almost universal reluctance of courts to proceed in the absence of one of the two parties is less a testimony to the appeal of adversary processes than it is a remnant of this emphasis on consent, of both parties choosing the triad as the appropriate device for conflict resolution....Nearly every triadic conflict resolver adds another device to consent to avoid the breakdown into two against one. This device is the avoidance of the dichotomous, imposed solution. In examining triadic conflict resolution as a universal phenomenon, we discover that the judge of European or Anglo-American courts, determining that the legal right lies with one and against the other of the parties, is not an appropriate central type against which deviance can be conveniently measured. Instead, he lies at one end of a continuum. The continuum runs: go-between, mediator, arbitrator, judge. And placement on the continuum is determined by the intersection of the devices of consent and nondichotomous, or mediate, solution....Thekey distinction Chapter 1 Entering the Fields of Conflict and Dispute Resolution 21 between the mediator and arbitrator is that the arbitrator is expected to fashion his own resolution to the conflict rather than simply assisting the parties in shaping one of their own....Associeties become more complex, they tend to substitute law for the particular consent of the parties to a particular norm for their particular dispute. They also substitute office for their free choice of a particular third man to aid in resolution of their disputes.... It would not be difficult to move about the world’s legal systems endlessly multiplying the examples of the intermingling of mediation and judging....In Western societies as well, firms that must maintain continuous relationships are not prone to litigation....In short, if one were to review all societies, or even to confine oneself to modern industrial and commercial states where one would most expect to find the prototypic court, one discovers that legal processes are not necessarily or even entirely court processes, if we confine our definition to the prototype. For we frequently find intermediate rather than dichotomous resolutions....A substantial share of the legal conflicts in most societies is resolved not by dichotomous but mediate decision, either rendered by a court itself or under the shadow of potential court proceedings. Much of what courts do is not adversarial in the sense of encouraging or requiring disputations between the two conflicting parties. It is enough that both parties present their views to one another with an option of going to a third. The style of interchange may be cooperative, benevolent, or even familial rather than one of ritualized trial by battle. Moreover, where courts preserve a more or less mediatory style, they may subtly mix preexisting legal rules with rules that emerge from the interaction of the parties.To the extent that there are preexisting rules, they may be ones created by the parties themselves in a contract. After the final settlement, less may depend on those rules than on a newly emerging agreement or understanding or set of subrules that is suggested or elicited in the very process of settling the dispute.

Problem 1-4. Choosing an Appropriate Process What kind of dispute process do you think would be appropriate for each of the following conflicts? a. Disagreement between the president and U.S. Congress over the federal budget; b. A grade dispute between you and your professor; c. A car accident between strangers involving only property damage; d. A parent-child dispute about going to school; e. A dispute between a fired high-tech employee and her former employer, when she takes the company source code with her, claiming she developed it and it is hers; f. Whether and how much the federal government should pay victims of terrorism against the United States. 22 Part I Introduction

C. INSTITUTIONS OF CONFLICT AND DISPUTE RESOLUTION

Now that you have examined theories of conflict and of dispute resolution processes, you are ready to examine the institutions that our society and others have used to resolve disputes. In thinking about such processes as litigation, arbitration, mediation, negotiation, and the many other processes we discuss in the pages that follow, you may find it useful to consider where each process falls on a variety of continua including the following:

Private< >Public Consensual/voluntary< >Compelled/mandatory Nonbinding< >Binding Informal< > Formal Oral unwritten process and decision< >Written rules, process, and decision Temporary/contingent/variable< > “Permanent” decision or outcome outcome Parties only< >Other participants (representatives or third-party neutrals) Dyadic (two-party)< >Multiparty Competitive (distributional)< > Collaborative, integrative Rights-based (public norms)< >Interests-based (private norms; trades) Commonsense/community norms< >Expertise — science, technical process “Pure” forms (e.g., facilitative mediation, “Hybrids” or combined process adjudication)< > (e.g., evaluative mediation, court-hosted settlement conferences) Pre-dispute contractual< > Post-dispute election

As societies or parties develop and choose different forms of conflict resolution, whether through laws or private contract, some of these forms become “institutionalized” and therefore formalized. Both public agencies (courts, administrative agencies, and even legislatures) and private organizations (such as the American Arbitration Association (AAA), the International Center for Conflict Prevention and Resolution (CPR), and the Judicial Arbitration and Mediation Services (JAMS)) offer (or in some cases require) particular forms of dispute resolution from a dispute resolution “menu.” Thus whether through public or private action, it seems inevitable that dispute resolution processes become institutionalized, or some say “co-opted.”9 Consider the pros and cons of institutionalization as you study ADR.

9. Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or the Law of ADR, 19 Fla. St. U. L. Rev. 1 (1991) (suggesting that processes that were intended to create flexibility now offer complex systems of rules, process, and decision). Chapter 1 Entering the Fields of Conflict and Dispute Resolution 23

Although most of your law school courses have focused until now on litigation, historically U.S. legal practice included a variety of dispute institutions, beginning in pre-colonial times. Some of the root values of modern dispute resolution ideology in the U.S. are found in early colonial “communitarianism.” Early forms of mediation and arbitration generally were typically limited to culturally or religiously homogenous groups that presumedly shared values and goals. Many of these com- munities had different processes for resolving disputes with persons outside of the community and sometimes these were non-litigation processes as well. For example, the merchants of early America used commercial arbitration to resolve their disputes with one another.10 Modern dispute resolution in the United States began in the mid-1970s, as a host of complaints were leveled at the traditional legal system. These complaints can be divided into two categories: efficiency or “quantitatively” based arguments (that the legal system was overloaded, slow, inefficient and often prohibitively expensive); and more “qualitatively” based arguments (that litigation outcomes were inadequate to solve social, human, and legal problems and that the processes failed to permit parties to fully participate). Thus attempts to develop new forms of dispute resolution in the legal system emphasized speed, low cost, increased party participation, simplification of procedures, and more tailored and creative solutions. As new forms of dispute resolution were developed both outside of the formal legal system and eventually within the formal justice system itself, older forms of dispute resolution were also “rediscovered” and readapted for new uses (community mediation, industry specific arbitration). Together, these efforts eventually led to the development of new professions including mediators, arbitrators, early neutral evaluators, and facilitators.11 The “modern dispute resolution movement” is often formally dated to the 1976 Pound Conference on the Causes of Popular Dissatisfaction with the Admin- istration of Justice, at which Professor Frank Sander of Harvard Law School delivered an address on the “Varieties of Dispute Processing.” This speech was so influential that a number of court systems received funding to develop the “Multi-Door Courthouse” to attempt to enact Professor Sander’s ideas and make them a functional reality.

10. Jerold Auerbach, Justice Without Law? Resolving Disputes Without Lawyers (1983). 11. See, e.g., Carrie Menkel-Meadow,The Lawyer as Consensus-Builder: Ethics for a New Practice, 70 Tenn. L. Rev. 63 (2002); Id., The Lawyer as Problem Solver and Third Party Neutral: Creativity and Non-Partisanship in Lawyering, 72 Temple L. Rev. 785 (1999). 24 Part I Introduction

❖ Frank E.A. Sander,VARIETIES OF DISPUTE PROCESSING

70 F.R.D. 79, 111-118, 120, 124-132 (1976)

[A]...wayofreducing the judicial caseload is to explore alternative ways of resolving disputes outside the courts, and it is to this topic that I wish to devote my primary attention. By and large we lawyers and law teachers have been far too single- minded when it comes to dispute resolution. Of course, as pointed out earlier, good lawyers have always tried to prevent disputes from coming about, but when that was not possible, we have tended to assume that the courts are the natural and obvious dispute resolvers. In point of fact there is a rich variety of different processes, which, I would submit, singly or in combination, may provide far more “effective” conflict resolution. Let me turn now to the two questions with which I wish to concern myself: 1. What are the significant characteristics of various alternative dispute resolution mechanisms (such as adjudication by courts, arbitration, mediation, negotiation, and various blends of these and other devices)? 2. How can these characteristics be utilized so that,given the variety of disputes that presently arise, we can begin to develop some rational criteria for allocating various types of disputes to different dispute resolution processes? One consequence of an answer to these questions is that we will have a better sense of what cases ought to be left in the courts for resolution, and which should be “processed” in some other way. But since this inquiry essentially addresses itself to developing the most effective method of handling disputes it should be noted in passing that one by-product may be not only to divert some matters now handled by the courts into other processes but also that it will make available those processes for grievances that are presently not being aired at all.We know very little about why some individuals complain and others do not, or about the social and psychological costs of remaining silent. It is important to realize, however, that by establishing new dispute resolution mechanisms, or improving existing ones, we may be encouraging the ventilation of grievances that are now being suppressed.Whether that will be good (in terms of supplying a constructive outlet for suppressed anger and frustra- tion) or whether it will simply waste scarce societal resources (by validating grievances that might otherwise have remained dormant) we do not know. The important thing to note is that there is a clear trade-off: the price of an improved scheme of dispute processing may well be a vast increase in the number of disputes being processed.

THE RANGE OF AVAILABLE ALTERNATIVES There seems to be little doubt that we are increasingly making greater and greater demands on the courts to resolve disputes that used to be handled by other institutions of society.Much as the police have been looked to to “solve” racial, school and neighborly disputes, so, too, the courts have been expected to fill the void created by the decline of church and family. Not only has there been a waning of Chapter 1 Entering the Fields of Conflict and Dispute Resolution 25 traditional dispute resolution mechanisms, but with the complexity of modern society, many new potential sources of controversy have emerged as a result of the immense growth of government at all levels, and the rising expectations that have been created. Quite obviously, the courts cannot continue to respond effectively to these accelerating demands. It becomes essential therefore to examine other alternatives. The chart reproduced [in Figure 1-2] attempts to depict a spectrum of some of the available processes arranged on a scale of decreasing external involvement.

Adjudication Mediation/Conciliation Negotiation Avoidance

Court Arbitration Administrative Process

Ombudsman Fact-Finding/Inquiry

Figure 1-2 (Process Flow Chart)

At the extreme left is adjudication, the one process that so instinctively comes to the legal mind that I suspect if we asked a random group of law students how a particular dispute might be resolved, they would invariably say “file a complaint in the appropriate court.” Professor Lon Fuller, one of the few scholars who has devoted attention to an analysis of the adjudicatory process, has defined adjudication as “a social process of decision which assures to the affected party a particular form of participation, that of presenting proofs and arguments for a decision in his favor.” Although he places primary emphasis on process, I would like for present purposes to stress a number of other aspects — the use of a third party with coercive power, the usually “win or lose” nature of the decision, and the tendency of the decision to focus narrowly on the underlying relationship between the parties. Although mediation or conciliation also involves the use of a third party facilitation (and is distinguished in that regard from pure negotiation), a mediator or conciliator usually has no coercive power and the process in which he engages also differs from adjudication in the other two respects mentioned. Professor Fuller puts this point well when he refers to the “central quality of mediation, namely, its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and disposition toward one another.” Of course quite a variety of procedures fit under the label of adjudication.Aside from the familiar judicial model, there is arbitration, and the administrative process. Even within any one of these, there are significant variations. Obviously there are substantial differences between the Small Claims Court and the Supreme Court. Within arbitration, too, although the version used in labor relations is generally very similar to a judicial proceeding in that there is a written opinion and an attempt to 26 Part I Introduction

rationalize the result by reference to general principles, in some forms of commercial arbitration the judgment resembles a Solomonic pronouncement and written opinions are often not utilized. Another significant variant is whether the parties have any choice in selecting the adjudicator, as they typically do in arbitration. Usu- ally a decision rendered by a person in whose selection the parties have played some part will, all things being equal, be less subject to later criticism by the parties. There are important distinctions, too, concerning the way in which the case came to arbitration. There may be a statute (as in New York and Pennsylvania) requiring certain types of cases to be initially submitted to arbitration (so-called compulsory arbitration). More commonly arbitration is stipulated as the exclusive dispute resolution mechanism in a contract entered into by the parties (as is true of the typical collective bargaining agreement and some modern medical care agreements). In this situation the substantive legal rules are usually also set forth in the parties’ agreement, thus giving the parties control not only over the process and the adjudicator but also over the governing principles. As is noted on the chart, if we focus on the indicated distinctions between adjudication and mediation, there are a number of familiar hybrid processes. An inquiry, for example, in many respects resembles the typical adjudication, but the inquiring officer (or fact finder as he is sometimes called) normally has no coercive power; indeed, according to Professor Fuller’s definition, many inquiries would not be adjudication at all since the parties have no right to any agreed-upon form of presentation and participation. But a fact finding proceeding may be a potent tool for inducing settlement. Par- ticularly if the fact finder commands the respect of the parties, his independent appraisal of their respective positions will often be difficult to reject.This is especially true of the Ombudsman who normally derives his power solely from the force of his position.These considerations have particular applicability where there is a dis- parity of bargaining power between the disputants (e.g., citizen and government, consumer and manufacturer, student and university).Although there may often be a reluctance in these situations to give a third person power to render a binding decision, the weaker party may often accomplish the same result through the use of a skilled fact finder. There are of course a number of other dispute resolution mechanisms which one might consider. Most of these (e.g., voting, coin tossing, self-help) are not of central concern here because of their limited utility or acceptability. But one other mechanism deserves brief mention. Professor William Felstiner recently pointed out that in a “technologically complex rich society” avoidance becomes an increasingly common form of handling controversy. He describes avoidance as “with- drawal from or contraction of the dispute-producing relationship” (e.g., a child leaving home, a tenant moving to another apartment, or a businessman terminating a commercial relationship). He contends that such conduct is far more tolerable in modern society than in a “technologically simple poor society” because in the former setting the disputing individuals are far less interdependent. But, as was pointed out in a cogent response by Professors Danzig and Lowy, there are heavy personal and societal costs for such a method of handling conflicts, and this strongly argues for the development of some effective alternative mechanism. Moreover, Chapter 1 Entering the Fields of Conflict and Dispute Resolution 27 even if we disregarded altogether the disputes that are presently being handled by avoidance — clearly an undesirable approach for the reasons indicated — we must still come to grips with the rising number of cases that do presently come to court and see whether more effective ways of resolving some of these disputes can be developed....

CRITERIA Let us now look at some criteria that may help us to determine how particular types of disputes might best be resolved.

1. Nature of Dispute Lon Fuller has written at some length about “polycentric” problems that are not well suited to an adjudicatory approach since they are not amenable to an all-or- nothing solution. He cites the example of a testator who leaves a collection of paintings in equal parts to two museums. Obviously here a negotiated or mediated solution that seeks to accommodate the desires of the two museums is far better than any externally imposed solution. Similar considerations may apply to other allocational tasks where no clear guidelines are provided. At the other extreme is a highly repetitive and routinized task involving application of established principles to a large number of individual cases. Here adjudication may be appropriate, but in a form more efficient than litigation (e.g., an administrative agency). Particularly once the courts have established the basic principles in such areas, a speedier and less cumbersome procedure than litigation should be utilized.

2. Relationship Between Disputants A different situation is presented when disputes arise between individuals who are in a long-term relationship than is the case with respect to an isolated dispute. In the former situation, there is more potential for having the parties, at least initially, seek to work out their own solution, for such a solution is likely to be far more acceptable (and hence durable).Thus negotiation, or if necessary,mediation, appears to be a preferable approach in the first instance. Another advantage of such an approach is that it facilitates a probing of conflicts in the underlying relationship, rather than simply dealing with each surface symptom as an isolated event.

3. Amount in Dispute Although, generally speaking, we have acted to date in a fairly hit-or-miss fashion in determining what problems should be resolved by a particular dispute resolution mechanism, amount in controversy has been an item consistently looked to to determine the amount of process that is “due.” The Small Claims Court movement has taken as its premise that small cases are simple cases and that therefore a pared-down judicial procedure was what was called for. Next to the juvenile court, there has probably been no legal institution that was more ballyhooed as a great legal innovation.Yet the evidence now seems overwhelming that the Small Claims Court has failed its original purpose; that the individuals for whom it was designed have 28 Part I Introduction

turned out to be its victims. Small wonder when one considers the lack of rational connection between amount in controversy and appropriate process. Quite obviously a small case may be complex, just as a large case may be simple. The need, according to a persuasive recent study, is for a preliminary investigative- conciliational stage (which could well be administered by a lay individual or paraprofessional) with ultimate recourse to the court.This individual could readily screen out those cases which need not take a court’s time (e.g., where there is no dispute about liability but the defendant has no funds), and preserve the adjudicatory process for those cases where the issues have been properly joined and there is a genuine dispute of fact or law. Obviously such a screening mechanism is not limited in its utility to the Small Claims Court.

4. Cost There is a dearth of reliable data comparing the costs of different dispute resolution processes. Undoubtedly this is due in part to the difficulty of determining what are the appropriate ingredients of such a computation. It may be relatively easy to determine the costs of an ad hoc arbitration (though even there one must deal with such intangibles as the costs connected with the selection of the arbitrator(s)). But determining the comparable cost of a court proceeding would appear to pose very difficult issues of cost accounting. Even more difficult to calculate are the intangible “costs” of inadequate (in the sense of incomplete and unsatisfactory) dispute resolution. Still, until better data become available one can probably proceed safely on the assumption that costs rise as procedural formalities increase. The lack of adequate cost data is particularly unfortunate with respect to essentially comparable processes, such as litigation and arbitration. Assuming for the moment that arbitration would produce results as acceptable as litigation — a premise that is even more difficult to verify — would cost considerations justify the transfer (at least in the first instance) of entire categories of civil litigation to arbitration,as has been done in some jurisdictions for cases involving less than a set amount of money? One difficulty in this connection is that we have always considered access to the courts as an essential right of citizenship for which no significant charge should be imposed, while the parties generally bear the cost of arbitration. Thus although I believe, on the basis of my own arbitration experience, that process is, by and large, as effective as and cheaper than litigation, lawyers tend not to make exten- sive use of it (outside of special areas such as labor and commercial law), in part because it is always cheaper for the clients to have society rather than the litigants pay the judges. Perhaps if arbitration is to be made compulsory in certain types of cases because we believe it to be more efficient, then it should follow that society should assume the costs, unless that would defeat the goal of using costs to discour- age appeals....

5. Speed The deficiency of sophisticated data concerning the costs of different dispute resolution processes also extends to the factor of speed. Although it is generally assumed — rightly, I believe — that arbitration is speedier than litigation, I am not Chapter 1 Entering the Fields of Conflict and Dispute Resolution 29 aware of any studies that have reached such a conclusion on the basis of a controlled experiment that seeks to take account of such factors as the possibly differing complexity of the two classes of cases, the greater diversity of “judges” in the arbitration group, and the possibly greater cooperation of the litigants in the arbitration setting. What I am thus advocating is a flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes (or combinations of processes), according to some of the criteria previously mentioned. Conceivably such allocation might be accomplished for a particular class of cases at the outset by the legislature; that in effect is what was done by the Massachusetts legislature for malpractice cases.Alternatively one might envision by the year 2000 not simply a court house but a Dispute Resolution Center, where the grievant would first be channeled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case.The room directory in the lobby of such a Center might look as follows:

Screening Clerk Room 1 Mediation Room 2 Arbitration Room 3 Fact Finding Room 4 Malpractice Screening Panel Room 5 Superior Court Room 6 Ombudsman Room 7

Of one thing we can be certain: once such an eclectic method of dispute resolution is accepted there will be ample opportunity for everyone to play a part. Thus a court might decide of its own to refer a certain type of problem to a more suitable tribunal. Or a legislature might, in framing certain substantive rights, build in an appropriate dispute resolution process. Institutions such as prisons, schools, or mental hospitals also could get into the act by establishing indigenous dispute resolution processes. Here the grievance mechanism contained in the typical collective bargaining agreement stands as an enduring example of a successful model. Finally, once these patterns begin to take hold, the law schools, too, should shift from their preoccupation with the judicial process and begin to expose students to the broad range of dispute resolution processes.

Problem 1-5. Beyond the Multi-Door Courthouse Can you think of any process, other than those described by Sander above that might be useful for litigants generally? For particular classes of litigants? Can you think of any other function that a “screening clerk” should perform? 30 Part I Introduction

Now that you have had some exposure to the animating theories and history implicated in the use of various forms of dispute resolution, we look at the different forms these processes can take and where they can be used.The following excerpt offers a glossary of basic dispute resolution processes. We will study them all in greater detail in the chapters that follow.

❖ CENTER FOR PUBLIC RESOURCES,THE ABC’S OF ADR: A DISPUTE RESOLUTION GLOSSARY

13 (11) Alternatives (to the High Cost of Litigation) 1 (1995)

Experts know that ADR encompasses a wide range of practices for managing and quickly resolving disputes at modest cost and with minimal adverse impact on commercial relationships.These processes, marked by confidentiality when desired, significantly broaden dispute resolution options beyond litigation or traditional unassisted negotiation. Some ADR procedures, such as binding arbitration and private judging, are similar to expedited litigation in that they involve a third-party decision-maker with authority to impose a resolution if the parties so desire. Other procedures, such as mediation and the minitrial, are collaborative: a neutral third party helps a group of individuals or entities with divergent views to reach a goal or complete a task to their mutual satisfaction. Arbitration, mediation and the minitrial tend to be the mechanisms most often used and, for many people, are synonymous with the term, “ADR.” But to respond to specific needs, parties often craft hybrid procedures that combine elements of one or more dispute resolution methods. The following glossary is designed to help parties communicate about this rapidly changing field. Definitions are not standardized, but flexible and creative like ADR itself. And with all aspects of ADR it is most important not that the parties use exactly the same term, but that they understand each other. We have divided the glossary into private and court-related ADR processes.

PRIVATE ADR PROCESSES Arbitration The most traditional form of private dispute resolution. It can be “administered” (managed) by a variety of private organizations, or “non-administered” and managed solely by the parties. It can be entered into by agreement at the time of the dispute, or prescribed in pre-dispute clauses contained in the parties’ underlying business agreement. Arbitration can take any of the following forms:

Binding Arbitration A private adversarial process in which the disputing parties choose a neutral person or a panel of three neutrals to hear their dispute and to render a final and binding decision or award.The process is less formal than litigation; the parties can craft their own procedures and determine if any formal rules of evidence will apply. Unless there has been fraud or some other defect in the Chapter 1 Entering the Fields of Conflict and Dispute Resolution 31 arbitration procedure, binding arbitration awards typically are enforceable by courts and not subject to appellate review.

Non-Binding Arbitration This process works the same way as binding arbitration except that the neutral’s decision is advisory only.The parties may agree in advance to use the advisory decision as a tool in resolving their dispute through negotiation or other means.

“Baseball or Final-Offer”Arbitration In this process, used increasingly in commercial disputes, each party submits a proposed monetary award to the arbitrator. At the conclusion of the hearing, the arbitrator chooses one award without modifi- cation. This approach imposes limits on the arbitrator’s discretion and gives each party an incentive to offer a reasonable proposal in the hope that it will be accepted by the decision-maker....

“Bounded” or “High-Low” Arbitration The parties agree privately without informing the arbitrator that the arbitrator’s final award will be adjusted to a bounded range.Example:P wants $200,000.D is willing to pay $70,000.Their high- low agreement would provide that if the award is below $70,000, D will pay at least $70,000; if the award exceeds $200,000, the payment will be reduced to $200,000. If the award is within the range the parties are bound by the figure in the award....

Fact-Finding A process by which the facts relevant to a controversy are determined. Fact-finding is a component of other ADR procedures and may take a number of forms. In neutral fact-finding, the parties appoint a neutral third party to perform the function and typically determine in advance whether the results of the fact-finding will be conclusive or advisory only. With expert fact-finding, the parties privately employ neutrals to render expert opinions that are conclusive or non-binding on technical, scientific or legal questions. In the latter, a former judge is often employed. Federal Rules of Evidence 706 gives courts the option of appointing neutral expert fact-finders. And while the procedure was rarely used in the past, courts increasingly find it an effective approach in cases that require special technical expertise, such as disputes over high-technology questions.The neutral expert can be called as a witness subject to cross-examination. In joint fact-finding, the parties designate representatives to work together to develop responses to factual questions.

Mediation A voluntary and informal process in which the disputing parties select a neutral third-party to assist them in reaching a negotiated settlement. Parties can employ mediation as a result of a contract provision by private agreement made when disputes arise, or as part of a court-annexed program that diverts cases to mediation. Unlike a judge or arbitrator, a mediator has no power to impose a solution on the parties. Rather, mediators assist parties in shaping solutions to meet 32 Part I Introduction

their interests and objectives.The mediator’s role and the mediation process can take various forms, depending on the nature of the dispute and the approach of the mediator. The mediator can assist parties to communicate effectively; can identify and narrow issues; crystallize each side’s underlying interests and concerns; carry messages between the parties; explore bases for agreement and the consequences of not settling; and develop a cooperative problem-solving approach. By learning the confidential concerns and positions of all parties, the mediator often can identify options beyond their perceptions.The process is sometimes referred to as “facilitation” to structure participation in the mediation process, or “conciliation” in the international arena. The mediator’s role can take various forms.Some mediators,who favor a“facilitative”style,encourage parties to generate their own settlement options,and will not suggest settlement terms.At the other end of the spectrum are “evaluative” mediators, who will propose settlement options and try to persuade parties to make concessions. To guide negotiations in major commercial disputes, parties sometimes ask the mediator to assume an evaluative role.The mediator might assess the merits of claims or defenses, liability or damages, or predict the likely outcome of the case in court. Generally, mediators need substantive law background or expertise to make sound assessments.

Med-Arb A short-hand reference to the procedure mediation-arbitration. In med-arb, the parties agree to mediate with the understanding that any issues not settled through the mediation will be resolved by arbitration asking the same mediator to act both as mediator and arbitrator. However, that choice may have a chilling effect on full participation in the mediation portion.A party might not believe that the arbitrator will be able to discount unfavorable information learned in mediation when making the arbitration decision....

Minitrial A structured process with two distinct components. Parties engage in an information exchange that provides an opportunity to hear the strengths and weaknesses of one’s own case as well as the cases of the other parties involved, before negotiating the matter. In the minitrial, an attorney for each party presents an abbreviated version of that side’s case.The case is heard not by a judge, but by high-level business representatives from both sides with full settlement authority. It may be presided over by these representatives with or without a neutral advisor, who can regulate the information exchange. Following the presentations, the parties’ representatives meet, with or without the neutral, to negotiate settlement. Frequently, the neutral will serve as a mediator during the negotiation phase or be asked to offer an advisory opinion on the potential court outcome, to guide negotiators....

Multi-Step ADR Parties may agree, either when a specific dispute arises, or earlier in a contract clause between business venturers, to engage in a progressive series of dispute resolution procedures. One step typically is some form of negotiation, preferably face-to-face between the parties. If unsuccessful, a second tier Chapter 1 Entering the Fields of Conflict and Dispute Resolution 33 of negotiation between higher levels of executives may resolve the matter.The next step may be mediation or another facilitated settlement effort. If no resolution has been reached at any of the earlier stages, the agreement can provide for a binding resolution — through arbitration, private adjudication, or litigation. One form of multi-step ADR is the wise man procedure, typically used when problems arise in long-term partnerships such as those in the oil and gas industry. Sometimes called “progressive negotiation” or “mutual escalation,” this procedure refers matters first to a partnership committee which oversees the day-to-day opera- tions of the project. If the problem cannot be resolved at that level, the wise-man option — the next ADR step — is employed. The wise men (or women) are respected senior executives of each company who are uninvolved in the project.These officials are given a fairly short time frame (sometimes just 30 days) to investigate the dispute. If that fails, the matter goes to a third step, usually binding arbitration.While pioneered in the oil industry, the wise man approach could also be useful in the high-technology field and other areas involving close and continuing business relationships.

Negotiated Rule-Making Also known as regulatory negotiation, this ADR method is an alternative to the traditional approach of U.S. government agencies to issue regulations after a lengthy notice and comment period.In reg-neg,as it is called, agency officials and affected private parties meet under the guidance of a neutral facilitator to engage in joint negotiation and drafting of the rule.The public is then asked to comment on the resulting, proposed rule. By encouraging participation by interested stakeholders, the process makes use of private parties’ perspectives and expertise, and can help avoid subsequent litigation over the resulting rule.

Ombudsperson An organizational dispute resolution tool.The ombudsperson is appointed by an institution to investigate complaints within the institution and either prevent disputes or facilitate their resolution. The ombudsperson may use various ADR mechanisms such as fact-finding or mediation in the process of resolving disputes brought to his or her attention.

Partnering Typically used as a dispute-prevention method for large construc- tion projects, this method is capable of being transposed in other settings, particularly in joint ventures. Before the work starts, parties to the project generally assemble for a several-day retreat away from their organizations.With the help of a third-party neutral, they get to know each other, discuss some of the likely rough spots in the project and even settle on a process to resolve misunderstandings and disputes as the project progresses.

Pre-Dispute ADR Contract Clause A clause included in the parties’ business agreement to specify a method for resolving disputes that may arise under that agreement. It may refer to one or more ADR techniques, even naming the third party that will serve as an arbitrator or mediator in the case. Pre-dispute agreements requiring arbitration of consumer disputes, or entered into as a condition of employment, have generated substantial backlash lately from people who argue that these clauses are adhesion contracts. 34 Part I Introduction

Two-Track Approach Involves use of ADR processes or traditional settlement negotiations in conjunction with litigation. Representatives of the disputing parties who are not involved in the litigation are used to conduct the settlement negotiations or ADR procedure.The negotiation or ADR efforts may proceed concurrently with litigation or during an agreed-upon cessation of litigation. This approach is particularly useful in cases when it may not be feasible to abandon litigation while the parties explore settlement possibilities; or as a practical matter, the specter of litigation must be present in order for the opposing party to consider or agree to an alternative mechanism. It also is useful when the litigation has become acrimonious or when a suggestion of settlement would be construed as a sign of weakness.

COURT ADR PROCESSES Court-Annexed Mediation In mediation, a neutral third party — the mediator — facilitates negotiations among the parties to help them settle. The mediation session is confidential and informal. Disputants clarify their understanding of underlying interests and concerns, probe the strengths and weaknesses of legal positions, explore the consequences of not settling, and generate settlement options....Ahallmark of mediation is its capacity to help parties expand traditional settlement discussions and broaden resolution options, often by going beyond the legal issues in controversy. Mediation works much the same in courts and in private settings, with a few important differences. A court mediation program may be based in the court, or may involve referral by the court to outside ADR programs run by bar associations, nonprofit groups, other local courts, or private ADR providers. Some courts require litigants to use mediation in what are known as mandatory mediation programs.The purpose of the mediation session is unchanged whether litigants enter the program voluntarily, or by court mandate. The court mediator may be a lawyer trained in mediation and compensated by the parties, or serve as a volunteer. Judges, magistrate judges, or court ADR professionals also serve as mediators in some court programs....

Early Neutral Evaluation Like mediation, ENE is applicable to many types of civil cases, including complex disputes. In ENE, a neutral evaluator — a private attorney expert in the substance of the dispute — holds a several hour confidential session with parties and counsel early in the litigation to hear both sides of the case. Afterwards,the evaluator identifies strengths and weaknesses of the parties’positions, flags areas of agreement and disputes, and issues a non-binding assessment of the merits of the case.... Originally designed to make both case management and settlement more efficient, ENE has evolved into a pure settlement device in some courts. Used this way, ENE resembles evaluative mediation, in which the mediator uses case evaluation as a settlement tool.

Court-Annexed Arbitration An adjudicatory dispute resolution process in which one or more arbitrators issue a non-binding judgment on the merits, after an Chapter 1 Entering the Fields of Conflict and Dispute Resolution 35 expedited, adversarial hearing.The arbitrator’s decision addresses only the disputed legal issues and applies legal standards. Either party may reject the non-binding ruling and proceed to trial. Court-annexed arbitration is used mainly in small- and moderate-sized tort and contract cases when litigation costs are often disproportionate to the amounts at stake....Once the premier court ADR process, it has lost popularity in recent years. Most court ADR development focuses on mediation.

Summary Jury Trial The summary jury trial is a non-binding ADR process used to promote settlement in ready cases headed for protracted jury trials. Usually, a judge or magistrate judge presides over the SJT; occasionally, a neutral attorney conducts the process. Part or all of a complex dispute may be submitted to a summary jury trial.After an abbreviated hearing in which counsel presents evidence in summary form, the jury renders a verdict. Non-binding, it becomes the basis for subsequent settlement negotiations. If the parties do not reach a settlement, the case proceeds to trial. Because they are costly,SJTs are used relatively rarely.Typically,the SJT is reserved for large cases when settlement efforts have failed and litigants differ significantly about jury outcome.

Appellate ADR Mediation programs have become increasingly popular among the nation’s appeals courts....12 In most programs, staff attorneys or outside lawyers conduct mandatory, pre-argument conferences in those cases that seem most likely to settle. Some appellate programs are geared exclusively toward settlement, while other programs also address case management and procedural issues.

Judge-Hosted Settlement Conferences The most common form of ADR used in federal and state courts is the settlement conference presided over by a judge or magistrate judge. Almost all of the 94 federal district courts use judicial settlement conferences routinely, and now, one third of the courts assign this role almost exclusively to magistrate judges. The classic role of the settlement judge is to articulate judgments about the merits of the case and to facilitate the trading of settlement offers. Some settlement judges and magistrate judges also use mediation techniques and the settlement conference to improve communication among the parties, probe barriers to settlement, and assist in formulating resolutions. In some courts, a special judge or magistrate judge is designated as settlement judge. In others, the assigned judge (or another judicial officer who will not hear the case) hosts settlement conferences at various points during the litigation, often directly before trial.

Court Minitrial The minitrial is a flexible, non-binding settlement process primarily used out of court. During the past decade, some federal district judges

12. [All of the federal circuit courts of appeals now have appellate mediation programs, almost all of them using full-time staff mediators. — EDS.] 36 Part I Introduction

have used their own version of the minitrial. Like the summary jury trial the court minitrial is a relatively elaborate ADR method generally reserved for large disputes. In a typical court minitrial, each side presents a shortened form of its best case to settlement-authorized client representatives — usually senior executives. The hearing is informal, with no witnesses and a relaxation of the rules of evidence and procedure.A judge, magistrate judge or non-judicial neutral presides over the one- or two-day hearing. Following the hearing, the client representatives meet, with or without the neutral advisor, to negotiate a settlement. At the parties’ request, the neutral advisor may assist the settlement discussions by acting as a facilitator or by issuing an advisory opinion. If the talks fail, the parties proceed to trial.

Multidoor Courthouse or Multi-option ADR This term describes courts that offer an array of dispute resolution options or screen cases and then channel them to particular ADR methods. Some multidoor courthouses refer all cases of certain types to particular ADR programs, while others offer litigants a menu of options in each case. Multidoor courthouses have been established in state courts in New Jer- sey, Texas, Massachusetts, and the District of Columbia. On the federal level, courts in the Western District of Missouri, the Northern District of California, the District of Rhode Island, and others now have multi-option ADR.

Settlement Week In a typical settlement week, a court suspends normal trial activity and, aided by bar groups and volunteer lawyers, devotes itself to the mediation of long-pending civil cases. Mediation is the mainstay ADR method in a typical settlement week....

Private Judging Private judging is a general term used to describe a private or court-related process in which disputing parties empower a private individual to hear and decide their case.The procedure may be exclusively a matter of contract between the parties or may be undertaken in connection with an authorizing statute.When authorized by statute, the process is sometimes referred to by the collo- quial term,“Rent-a-Judge.”

The remainder of this book examines these and other processes in detail. But it is important to emphasize from the outset that no list of dispute resolution processes is ever complete. Creative disputants and their attorneys will always think of new processes and new variations on existing processes. At the same time, it is also important to remember that parties may not have a “choice” about what process is best for them. Increasingly courts or legislatures may require them to use a particular form of dispute resolution. It is also possible that legislatures or courts may proscribe the use of certain dispute resolution procedures in particular contexts. There are obviously many jurisprudential, policy, and practical issues to be explored here from the perspective of both future policy makers and future attorneys.Thus the final section of this introduction turns to some fundamental questions regarding where these alternative procedural approaches fit in a system of justice. Chapter 1 Entering the Fields of Conflict and Dispute Resolution 37

D. ANIMATING VALUES FOR CONFLICT AND DISPUTE RESOLUTION: OF PEACE AND JUSTICE

As you have now seen, many arguments, claims, and justifications can be made for the use of a wide variety of dispute processes in addition to litigation. At the same time, it is important to consider critiques. Social and legal change do not come easily.While the various procedural developments documented or urged by Profes- sor Sander have occurred, criticisms of the new forms of dispute resolution have also emerged. The critics challenged the “informalism,” “de-legalization,” “coercion,” “privatization,”and perceived unfairness of some of these new process innovations. You will explore these critiques more fully throughout this book, but below we present several of the classic critiques, including Owen Fiss’ Against Settlement (1983). Although more flexible processes and more tailored solutions can seem to be more fair or just to particular disputants, critics claim that privatization of dispute resolution robs us of the ability to frame precedents from more public cases and thereby serve broader justice needs. The tensions between formal legal systems and the alternatives to them likely will continue since each type of system serves different but important goals.13 Indeed, the debate between formal and informal procedures can be analogized to the age-old debate in jurisprudence about the relative value of clear, but often, rigid “rules” versus the need for more tailored and nuanced judgment and legal “discretion.” Some, including the authors of this book, are comfortable with this “creative” tension between formal and informal systems, believing that new developments in the alternatives, responsive to critiques of the formal legal system, may result in reforms in the formal justice system as well. Indeed, some have suggested that from a market perspective, the development of alternatives to the formal legal system provides an opportunity for “competition” in the provision of dispute resolution services.14 Others, however, are more fearful that growth of informal processes will lead to a degradation of traditional legal structures and processes.15 This debate can be seen as another version of the “Fullerian” question as to whether it is important to preserve as sacrosanct the moral integrity of particular processes.This debate also implicates one of the major issues of conflict and dispute resolution: For whom is the dispute process intended? The parties in conflict? Or the larger society that may desire public pronouncements of norms and enforcement of legal “peace”? Carrie Menkel-Meadow and David Luban debate this issue below.

13. Jean R. Sternlight,ADR is Here: Preliminary Reflections on Where it Fits in a System of Justice, 3 Nevada L. J. 289 (2003). 14. Bryant Garth, Privatization and the New Market for Disputes: A Framework for Analysis and a Preliminary Assessment, 12 Stud. L. Poly.& Socy.367 (1992). 15. Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation Ideology,2002 J. Disp. Resol. 81; Judith Resnik, Managerial Judges, 96 Harv.L. Rev.76 (1982); Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio St. J. on Disp. Resol. 211 (1995). 38 Part I Introduction

❖ Carrie Menkel-Meadow,WHOSE DISPUTE IS IT ANYWAY? A PHILOSOPHICAL AND DEMOCRATIC DEFENSE OF SETTLEMENT (IN SOME CASES)

83 Geo. L.J. 2663-2665, 2669-2670 (1995)

In the last decade or so, a polarized debate about how disputes should be resolved has demonstrated to me once again the difficulties of simplistic and adversarial arguments....DavidLuban and Jules Coleman, among other philosophers, have criticized the moral value of the compromises that are thought to constitute legal settlements.On the other side,vigorous proponents of alternative dispute resolution, including negotiation, mediation, arbitration and various hybrids of these forms of preadjudication settlement, criticize the economic and emotional waste of adversarial processes and the cost, inefficiency, and political difficulties of adjudication, as well as its draconian unfairness in some cases....Forme,thequestion is not “for or against” settlement (since settlement has become the “norm” for our system), but when, how and under what circumstances should cases be settled?When do our legal system, our citizenry, and the parties in particular disputes need formal adjudication, and when are their respective interests served by settlement, whether public or private?... Those who criticize settlement suffer from what I have called, in other contexts, “litigation romanticism,” with empirically unverified assumptions about what courts can and will do. More important, those who privilege adjudication focus almost exclusively on structural and institutional values and often give short shrift to those who are actually involved in the litigation. I fear, but I am not sure, that this debate can be reduced to those who care more about the people actually engaged in disputes versus those who care more about institutional and structural arrangements. I prefer to think that we need both adjudication and settlement....Settlement can be justified on its own moral grounds — there are important values, consistent with the fundamental values of our legal and political systems that support the legitimacy of settlements of some, if not most, legal disputes. These values include consent, participation, empowerment, dignity, respect, empathy and emotional catharsis, privacy,efficiency,quality solutions, equity,access and, yes, even justice. Though some have argued that compromise itself can be morally justified, I...argue here as well that compromise is not always necessary for settlement and that in fact, some settlements, by not requiring compromise, may produce better solutions than litigation.... To summarize, it seems to me that the key questions implicated in the ongoing debate about settlement vs. adjudication are: 1. In a party-initiated legal system, when is it legitimate for the parties to settle their disputes themselves, or with what assistance from a court in which they have sought some legal-system support or service? 2. When is “consent” to settlement legitimate and “real,”and by what standards should we (courts and academic critics) judge and permit such consent? 3. When, in a party-initiated legal system, should party consent be “trumped” by some other values — in other words, when should public, institutional, Chapter 1 Entering the Fields of Conflict and Dispute Resolution 39

and structural needs and values override parties’ desire to settle or courts’ incentives to promote settlement? In short, when is the need for “public adjudication...orpublicsettlement” more important (to whom?) than what the parties may themselves desire?

❖ David Luban, SETTLEMENT AND THE EROSION OF THE PUBLIC REALM

83 Geo. L.J. 2619, 2634-2635 (1995)

On the public-life conception, by contrast, the values realized in laws are a kind of public morality — objective spirit — and even ostensibly private disputes between apolitical citizens may have a public dimension engaging these values. Because the law is the visible residue of public action...,thelawelevates private disputes into the public realm. Fiss defines adjudication as “the process by which the values embodied in an authoritative text, such as the Constitution, are given concrete meaning and expression,” and he adds that these “public values” are “the values that define a society and give it its identity and inner coherence.”As Fiss explains: “Courts exist to give meaning to our public values, not to resolve disputes.” 93 Yale L. J. 1073 (1984).16 Adjudication, then, is necessary to define and redefine the conditions of the public space. Furthermore, in line with the public-life conception’s view of public life as reasoned deliberation, Fiss insists that the unique genius of the courts is their twin requirements of independence and dialogue. Indepen- dence guarantees an impartial use of reason, and dialogue guarantees that courts must listen to all comers and reply with reasoned opinions.... The difference between the public-life and problem-solving pictures is that for the public-life conception all adjudications are public in significance — they are political, inevitably embroiling the meaning and legitimacy of government. In Fiss’ words: “Civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals.”17 For the problem-solving conception, by contrast, government gets involved only by unhappy necessity in the private ordering of human affairs. On this view, judicial involvement in a dispute is a necessary evil, whereas for the public-life conception it is an essential good.

❖ Owen M. Fiss,AGAINST SETTLEMENT

93 Yale L.J. 1073, 1075-1078, 1082-1083, 1085-1086, 1087-1088, 1089-1090 (1984)

The advocates of ADR...exalt the idea of settlement more generally because they view adjudication as a process to resolve disputes.They act as though courts arose to

16. See also, Owen Fiss,The Supreme Court 1978 Term, Foreword:The Forms of Justice, 93 Harv. L. rev. 29 (1979). 17. Fiss, 93Yale L. J. 1075. 40 Part I Introduction

resolve quarrels between neighbors who had reached an impasse and turned to a stranger for help. Courts are seen as an institutionalization of the stranger and adjudication is viewed as the process by which the stranger exercises power. The very fact that the neighbors have turned to someone else to resolve their dispute signifies a breakdown in their social relations; the advocates of ADR acknowledge this, but nonetheless hope that the neighbors will be able to reach agreement before the stranger renders judgment. Settlement is that agreement. It is a truce more than a true reconciliation, but it seems preferable to judgment because it rests on the consent of both parties and avoids the cost of a lengthy trial. In my view, however, this account of adjudication and the case for settlement rest on questionable premises. I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indis- criminate basis. It should be treated instead as a highly problematic technique for streamlining dockets. Settlement is for me the civil analogue of plea bargaining: Consent is often coerced; the bargain may be struck by someone without authority; the absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised.

THE IMBALANCE OF POWER By viewing the lawsuit as a quarrel between two neighbors, the dispute-resolution story that underlies ADR implicitly asks us to assume a rough equality between the contending parties.It treats settlement as the anticipation of the outcome of trial and assumes that the terms of settlement are simply a product of the parties’ predictions of that outcome. In truth, however, settlement is also a function of the resources available to each party to finance the litigation, and those resources are frequently distributed unequally.Many lawsuits do not involve a property dispute between two neighbors, or between AT&T and the government (to update the story), but rather concern a struggle between a member of a racial minority and a municipal police department over alleged brutality,or a claim by a worker against a large corporation over work-related injuries. In these cases, the distribution of financial resources, or the ability of one party to pass along its costs, will invariably infect the bargaining process, and the settlement will be at odds with a conception of justice that seeks to make the wealth of the parties irrelevant. The disparities in resources between the parties can influence the settlement in three ways. First, the poorer party may be less able to amass and analyze the information needed to predict the outcome of the litigation, and thus be disadvantaged in the bargaining process. Second, he may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment, even though he real- izes he would get less now than he might if he awaited judgment.All plaintiffs want their damages immediately, but an indigent plaintiff may be exploited by a rich defendant because his need is so great that the defendant can force him to accept a sum that is less than the ordinary present value of the judgment.Third, the poorer party might be forced to settle because he does not have the resources to finance the litigation, to cover either his own projected expenses, such as his lawyer’s Chapter 1 Entering the Fields of Conflict and Dispute Resolution 41 time, or the expenses his opponent can impose through the manipulation or procedural mechanisms such as discovery.It might seem that settlement benefits the plaintiff by allowing him to avoid the costs of litigation, but this is not so.The defendant can anticipate the plaintiff’s costs if the case were to be tried fully and decrease his offer by that amount.The indigent plaintiff is a victim of the costs of litigation even if he settles.... Of course, imbalances of power can distort judgment as well: Resources influence the quality of presentation, which in turn has an important bearing on who wins and the terms of victory.We count, however, on the guiding presence of the judge, who can employ a number of measures to lessen the impact of distributional inequalities.He can,for example,supplement the parties’presentations by asking questions, calling his own witnesses, and inviting other persons and institutions to participate as amici.These measures are likely to make only a small contribution toward moderating the influence of distributional inequalities, but should not be ignored for that reason. Not even these small steps are possible with settlement. There is, moreover, a critical difference between a process like settlement, which is based on bargaining and accepts inequalities of wealth as an integral and legitimate component of the process, and a process like judgment, which knowingly struggles against those inequalities. Judgment aspires to an autonomy from distributional inequalities, and it gathers much of its appeal from this aspiration....

JUSTICE RATHER THAN PEACE The dispute-resolution story makes settlement appear as a perfect substitute for judgment, as we just saw, by trivializing the remedial dimensions of a lawsuit, and also by reducing the social function of the lawsuit to one of resolving private disputes. In that story, settlement appears to achieve exactly the same purpose as judgment — peace between the parties — but at considerably less expense to society.The two quarreling neighbors turn to a court in order to resolve their dispute, and society makes courts available because it wants to aid in the achievement of their private ends or to secure the peace. In my view, however, the purpose of adjudication should be understood in broader terms.Adjudication uses public resources, and employs not strangers chosen by the parties but public officials chosen by a process in which the public partici- pates.These officials, like members of the legislative and executive branches, possess a power that has been defined and conferred by public law, not by private agreement.Their job is not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes: to interpret those values and to bring reality into accord with them. This duty is not discharged when the parties settle....

THE REAL DIVIDE Someone like [former Harvard University President Derek] Bok sees adjudication in essentially private terms:The purpose of lawsuits and the civil courts is to resolve disputes, and the amount of litigation we encounter is evidence of the 42 Part I Introduction

needlessly combative and quarrelsome character of Americans. Or as Bok put it, using a more diplomatic idiom: “At bottom, ours is a society built on individual- ism, competition, and success.”I, on the other hand, see adjudication in more public terms: Civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals.We turn to the courts because we need to, not because of some quirk in our personalities.We train our students in the tougher arts so that they may help secure all that the law promises, not because we want them to become gladiators or because we take a special pleasure in combat. To conceive of the civil lawsuit in public terms as America does might be unique. I am willing to assume that no other country...hasacase like Brown v. Board of Education in which the judicial power is used to eradicate the caste structure. I am willing to assume that no other country conceives of law and uses law in quite the way we do. But this should be a source of pride rather than shame. What is unique is not the problem that we live short of our ideals, but that we alone among the nations of the world seem willing to do something about it. Adjudication American-style is not a reflection of our combativeness but rather a tribute to our inventiveness and perhaps even more to our commitment.

Problem 1-6. Against “Against Settlement” How would you respond to the arguments made in “Against Settlement”? What might you say in response to Fiss’ arguments about imbalances of power and resources, public values, judicial roles, and remedies and justice? Is Professor Fiss always “against settlement”? See the recent Symposium on the legacy of this significant argument in Fordham Law Review: Against Settlement: Twenty Five Years Later, 78 Fordham L. Rev. 1117 (2009)

Fiss seems to argue that in dispute resolution it is difficult to achieve justice while seeking peaceful “settlement.”This raises very important concerns and values for this course.Are peace and justice possible at the same time? Do we need justice to have peace? Must we have some kind of peace (or enough calm) to pursue justice? The final two excerpts explore this issue. Nancy Welsh summarizes an important literature that suggests that the experience of a fair process is an important element of “procedural justice” for parties engaged in dispute resolution. Carrie Menkel-Meadow suggests that peace and justice can and should be explored and practiced together. Chapter 1 Entering the Fields of Conflict and Dispute Resolution 43

❖ Nancy A.Welsh, REMEMBERING THE ROLE OF JUSTICE IN RESOLUTION: INSIGHTS FROM PROCEDURAL AND SOCIAL JUSTICE THEORIES

54 J. of Legal Educ. 49, 51-53 (2004)

Over the years, we have revisited and debated the meaning of the A in ADR. It is now time, in this new world, to examine the sufficiency of the R. I offer a plea that we as law teachers begin and infuse our dispute resolution courses with a commitment to both resolution and justice. If that is so, let us begin by examining the classic concept of procedural justice, which should be a part of every dispute resolution course — and part of the evaluation of every dispute resolution process.What is procedural justice? Is it enough to say that dispute resolution processes just ought to “feel” fair?... Substantial research has been done in this area by social psychologists building on the pioneering work of John Thibaut and Laurens Walker18 and on more recent research and theories developed by Allan Lind and Tom Tyler.19 That research has revealed four procedural elements that reliably lead people to conclude that a dispute resolution process is procedurally fair: the process provides an opportunity for the disputants to express their views (generally described as “an opportunity for voice”); the third party demonstrates consideration of what the parties have said, the third party treats the disputants in an even-handed way and tries to be fair; and the third party treats the disputants with dignity and respect. Very recent research arising out of the U.S. Postal Service REDRESS employment mediation program (which uses a transformative model of mediation that focuses upon enhancing disputants’ interaction rather than achieving resolution) has shown that the disputants also care very much about the procedural justice they receive from each other, perhaps even more than they care about the procedural justice offered by the third party mediator.20 All of these results suggest that both the presence of a mediator and the mediator’s guidance of the disputants interaction have the potential to bring procedural justice to the hard bargaining that often characterizes settlement negotiations. The procedural justice literature further indicates that disputants’ perceptions of procedural justice can have profound effects. The procedural elements described above do more than just make the disputants feel good. In fact, disputants are more likely to conclude that they have received distributive justice to the extent that they perceive that they have been treated in a procedurally just way.They are more likely to comply with the outcome of the dispute resolution process if they feel they have been treated fairly.And, if people perceive that a process was procedurally just, they are more likely to view the social institution that provided the process as legitimate. This last consequence of disputants’ perceptions of procedural justice appears

18. Laurens Walker et al., Reactions of Participants and Observers to Modes of Adjudication, 4 J. Applied Soc. Pyschol. 295 (1975). 19. E.Allan Lind & Tom R.Tyler,The Social Psychology of Procedural Justice (1988). 20. Tina Nabatchi & Lisa Bingham, Expanding Our Models of Justice in Dispute Resolution:A Field Test of the Contribution of Interactional Justice (2003). 44 Part I Introduction

particularly important as formerly alternative processes for dispute resolution become imbedded within significant social institutions.

❖ Carrie Menkel-Meadow, PRACTICING “IN THE INTERESTS OF JUSTICE” IN THE TWENTY-FIRST CENTURY: PURSUING PEACE AND JUSTICE

70 Fordham L. Rev. 1761, 1764-1765, 1767-1770, 1773-1774 (2002)

In a recent address,...formerPresident Clinton, upon accepting the Second Annual Cardozo International Advocate for Peace Award, said, “Throughout human history, tragically, we have seen more advances in tools for waging war than in the art of making peace.”That comment, while certainly true of human behavior in general, is applicable to legal behavior as well.We have developed more and more sophisticated forms of legal warfare (discovery and the paper wars of attrition, and my personal favorite, the recent ad of the Los Angeles Intercontinental Hotel for a “litigation war room” available for lawyers planning strategy,taking depositions and developing their “battle plans,”all in facilities with completely up to date technology and “close to the battlefield” — the courthouse). Fortunately, I think we have also seen some advances in developing some tools for “making peace” with the proliferation of mediation, problem solving and interest-based negotiation, negotiated rule-making and a variety of consensus building processes, as well as problem solving courts in a variety of substantive areas.These new tools are intended, in my view,to seek peace and justice simultaneously through the use of a variety of different forms of dialogue, policy-making, rule development, dispute settlement and conflict management.As I now tell my colleagues in a variety of substantive areas, if we cannot make enough peace and quiet to have a reasonable dialogue with each other (see by contrast the continuing violence in the troubled spots of the world) we will not be able to seek justice, let alone substantive solutions to any of our problems. Peace, of at least some minimal sort, is a prerequisite to the search for justice. And to the extent that peace-seeking tools are part of what I would call “process consciousness,”lawyers should be — but are not yet, by disposition or training — at the forefront of practicing justice by considering and shaping processes that are more likely to lead to peaceful and better outcomes....

“PEACE WORK” AND PROBLEM SOLVING WITH CLIENTS . . . The work of the lawyer as a conflict resolver is to explore not only legal, but also other needs and interests of the parties (including economic, social, psychological, political, religious, moral and ethical concerns). Utilizing theories, not only of law, but of human behavior (sociology, psychology and economics), lawyers as conflict professionals look for situations where these diverse needs and interests do not compete with each other (the assumption of the legal system that “money is proxy” for all other, often non-economic, interests) but complement each other (the “Homans principle”). Complementary needs permit “efficient trades” (pareto- optimal in economic parlance) or “log-rolling” (in the language of political Chapter 1 Entering the Fields of Conflict and Dispute Resolution 45 scientists) — positive-sum,rather than zero-sum results.Thus,at the level of substantive problem solving, lawyers seeking to achieve both maximum gain for individual clients and joint gain for all involved in a particular situation must employ different kinds of cognitive processes and different technologies and techniques in order to fashion good and lasting solutions to disputes and conflicts. At the relational level, where legal disputes and conflicts either begin with or accumulate a large emotional “residue” of resentment, anger and a sense of injustice (and, therefore, demand for both compensation and retribution), skilled lawyers as peace-makers must develop different kinds of communication skills than the traditional forms of argument, debate and adversarial claiming. Lawyers interested in pursuing “resolution of human problems” as a dimension of justice (beyond the winning of a legal case) can perform such roles in different ways. Not all pursuers of justice in individual cases are mediators. Serving as the “representative” (restoring one of the lawyer’s more conventional roles) in a mediation, a lawyer may still serve a client who needs assistance in stating a claim or articulating a need or interest, but will also have to develop a different mind-set of approaching the other side and seeking creative (perhaps beyond precedent and boilerplate) solutions to problems. For the jurisprudentially sensitive lawyer- conflict resolver, the question of justice in a mediative setting may be framed by asking the parties to reflect on what is “fair” to them. In the words of my friend and mediator-collaborator, Gary Friedman, “law may be relevant, but not determinative” of what is fair to each party....The general law may not serve “justice” in an individual case and so, as long as not otherwise unlawful, individual or party-tailored solutions to legal disputes or problems may depart from particular legal formulations. Legal or “legislated justice” may not always be the same as personal or social justice between parties. Consider as examples: mutually agreed to departures from court-suggested spousal and child support guidelines, departures from sentencing guidelines, liquidated damages clauses in contracts and all future-oriented solutions to disrupted past dealings in both business and personal relationships. Lawyers seeking this kind of “individual” justice between parties (where no important public issue demands transparency or where the parties prefer a highly individualized and flexible, future-oriented solution to their problem) seek both a better quality solution and a more lasting “peace” between the parties than a “command” order of court is likely to accomplish. This is not to say that all “alternative dispute resolution” is necessarily more individually just than traditional litigation. Indeed, I have been critical of very problematic distortions of the “ADR” process that inhibit several important justice values: access to justice and fairness, particularly in the form of mandatory arbitration clauses in a variety of settings, ranging from employment to consumer contracts to health care, which remove process choice, may be prohibitively costly and provide inadequate representation and remedies to harmed individuals. Claims about the fairness and “justice” of all forms of process must be considered both for what they promise and do internally,as well as in relation to what else is available — “the base- line” problem in evaluating relative fairness of legal processes to each other.The best and worst of different processes should not be compared to each other but best to best and worst to worst of each process. Ideally, we should be able to measure 46 Part I Introduction

differences and understand the reasons for when and how justice is delivered in different settings (and sometimes differentially for different people).... Lawyers,...maybeparticularly well suited to participating in these new processes. Lawyers have “process consciousness.”Aware of procedural rules and concerned about “voice” and procedural fairness, with proper training (facilitation is quite different from argumentation), lawyers may make ideal process leaders of these new processes and institutions.To the extent that efforts at collaboration and community and democratic decision making still implicate legal requirements (siting disputes require zoning and environmental approvals from formal legal authorities), lawyers are well suited to spot the legal issues and provide for their appropriate coor- dination with less formal processes. To the extent that these new processes are experiments in constitution-making (as some legal scholars have named them) or simply more direct democratic enterprises than local and national and international government is accustomed to,law-trained individuals may be particularly well suited to serving in these processes, whether as “neutral-facilitators” or advocates or party representatives. These new roles put lawyers in perhaps unfamiliar ways of functioning as they pursue justice. Focused not just on “winning” the case, but on meeting the needs of multiple sets of parties and affected third parties,and on looking for substantive solutions that will require marshaling new resources, drafting new regulations, creating new institutions (including public and private partnerships in some cases) and implementing and enforcing plans, lawyers will have to learn new skills and develop new conceptual frameworks. It will not be easy to do all of this, particularly in light of robust conventional frames and conceptual models through which we process the world, and because our system is more than several centuries old. It is clear we are living in a new world with new problems that will require new forms of processes and solutions if we are to achieve a peaceful and just world. If necessity is the mother of invention, we are certainly in need of the birth of some new ideas for pursuing justice, both at home and in the larger world we now all inhabit. Conventional approaches to pursuing “justice” like our “conventional” approaches of military solutions to international problems may destroy the very “res” we are fighting about (producing a “negative sum” game in negotiation parlance). Just as military solutions to “war” may not bring us peace, an exclusive focus on “legal” needs and interests may not bring us justice.This is true, whether we like it or not.

Problem 1-7. Promoting Peace and Justice? How would you define “justice”? How do you see conflict resolution processes in achieving your conception of justice?What specific behaviors will lawyers have to learn to promote “peace as well as justice”? Write down three or four concrete skills that you would like to learn to be an effective conflict resolver.Why are these important things for you to know how to do? Chapter 1 Entering the Fields of Conflict and Dispute Resolution 47

As you proceed to study the specific processes of dispute resolution in this book, ask yourself the following questions: a. What is the purpose of this process? b. What is the historical context of the development of this process? What problem was it created to solve? What new problems are created by it? c. What is the relation of process to the substantive problem to be solved? d. Who should have decision-making authority or power in this process — the parties, their representatives, courts, legislatures, other people affected by the conflict or dispute? e. What are the relations or tensions between “justice” or “fairness” and “peace” in individual cases and at the aggregate or system level? f. How, if at all, has this process been institutionalized or formalized? What advantages or disadvantages are there to formalizing this process? g. Why do we want and make process changes? What ills are we hoping to cure? What new problems do we create? h. How should the success or effectiveness of a particular process be measured? What metrics are possible? Is party satisfaction enough, or should we look to some measures outside of the parties themselves? i. What is the lawyer’s proper role in dispute processes? As a representative of clients? As an officer of the court? Policy maker? Enacter? j. What are the ethics of dispute resolution — both in the “macro” sense of systemic justice and in the “micro” sense of choosing particular processes and behaviors?