METHODS OF DISPUTE RESOLUTION
Disputes appear in every society, and a wide variety of methods are used to manage these disputes (see, for example, Chase, 2007; Coltri, 2010). Most societies use fairly similar methods; the differences among them consist in the preference given to one method over others. Cultural factors and the availability of institutions for settling disputes usually determine such preferences.
Two main forms of resolving legal disputes are used throughout the world. In Henry W Ehrmann’s (1976:82) apt description,
Either the parties to a conflict determine the outcome themselves by negotiations, which does not preclude that a third party acting as a mediator might assist them in their negotiations. Or, the conflict is adjudicated, which means that a third, and ideally impartial, party decides which of the disputants has the superior claim.
Anthropologist Simon Roberts (1979:57-59) noted that, in some societies, direct interpersonal violence constitutes an approved method of dispute settlement. This violence may be a way of retaliation for violence already suffered, or, instead, a reaction to some other form of perceived wrong. In earlier eras, physical violence was sometimes channeled into a restricted and conventionalized form, such as dueling. Another historic form of physical violence in response to grievances has been feuding (Gulliver, 1979). Feuding is a state of recurring hostilities between families or groups, instigated by a desire to avenge an offense (insult, injury, death, or deprivation of some sort) against a member of the group. The unique feature of a feud is that responsibility to avenge is carried by all members of the group. The killing of any member of the offender’s group is viewed as appropriate revenge, because the group as a whole is considered responsible. At times, a feud can turn into a full-scale battle when, in addition to the families, whole communities are drawn into a dispute. This happened from time to time in the famous feud triggered by a romantic interlude between a Hatfield of Virginia and a McCoy of Kentucky. The feud broke out in 1882 and lasted for several years (Alther, 2012).
Disagreements are sometimes channeled into rituals (Rosati, 2009; Stewart and Strathern, 2010). For example, among the Inuit of North America, parties to a dispute may confront each other before the assembled community and voice their contentions through songs and dances improvised for the occasion. In the form of a song, the accuser states all the abuse he or she can think of; the accused then responds in kind. A number of such exchanges may follow until the contestants are exhausted, and a winner emerges through public acclaim for the greater singing skill (Hoebel, 1967).
In some societies, shaming is used as a form of public reprimand in the disapproval of disputing behavior. Ridicule directed at those guilty of antisocial conduct is also used to reduce conflict. At times, the singing of rude and deflating songs to, or about, a troublesome individual is also reported as a means of achieving a similar end. Ridicule, reproach, or public exposure may also take the form of a “public harangue,” in which a person’s wrongdoings are embarrassingly exposed by being shouted out to the community at large (Roberts, 1979:62).
In attempts to resolve disputes, parties in the traditional societies studied by anthropologists may choose to resort to supernatural agencies. The notion that supernatural beings may intervene to punish wrongdoers is rather widespread among these societies. This notion is often accompanied by the belief that harm may be inflicted by witches or through the practice of sorcery. In some societies, witchcraft and sorcery are seen as a possible cause of death and of almost any form of illness or material misfortune. Jane Fishburne Collier (1973:113-120), for example, identified a variety of witchcraft beliefs among the Zinacantecos in Mexico. They include witches who send sickness, ask that sickness be sent, perform specific actions (such as causing the victim to rot away), control weather, talk to saints, or cause sickness by an evil eye. Consequently, in such societies the procedures for identifying witches or sorcerers responsible for particular incidences or misfortunes assume great importance in the handling of conflict (Roberts, 1979:64).
Of course, not all disputes are handled by violence, rituals, shaming, ostracism, or resorting to supernatural agencies (Chase, 2007). Most societies have access to a number of alternative methods of dispute resolution. These alternatives differ in several ways, including whether participation is voluntary, presence or absence of a third party, criteria used for third-party intervention, type of outcome and how it may be enforced, and whether the procedures employed are formal or informal (Administrative Conference of the United States, 1987:12-13). Before considering them, let us look at two other popular ways of coping with disputes: “lumping it” and avoidance.