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DISPUTE RESOLUTION IN REVIEW

This section has distinguished a number of procedures used for settling disputes. Some are public, some private. Some are official, some unofficial. Some are formal, some informal. These procedures overlap, and each has its limitations and advantages. They are related in different ways to outcomes and consequences. A number of procedures may also be used for the settlement of a single dispute. Table 6.1 summarizes the salient features of the more widely used procedures.

Table 6.1 Partial List of Characteristics of the Major Primary and Hybrid Dispute-Resolution Processes

Negotiation

Mediation

Arbitration

Adjudication

Rent-a-Judge

Minitrial

Voluntary

Voluntary

Voluntary, unless contractual or court- ordered

Nonvoluntary

Voluntary

Voluntary

Nonbinding

Nonbinding

Binding, usually no appeal

Binding, subject to appeal

Binding, but subject to appeal, and possibly, review by trial court

Nonbinding

No

third-party

facilitator

Party-

selected facilitator

Party-

selected

third-party

decision

maker

Imposed

third-party

neutral

decision

maker

Party-selected third-party decisionmaker, usually a former judge or lawyer

Third-party

neutral

adviser

Informal and unstructured

Informal and unstructured

Procedurally less formal than adjudication

Highly procedural; formalized and structured by predetermined, rigid rules

Flexible as to timing, place, and procedures

Less formal than

adjudication

and

arbitration

Presentation of proofs, usually indirect or nonexistent

Presentation of proofs less important than attitudes of each party

Opportunity for each party to present proofs supporting decision in its favor

Opportunity for each party to present proofs supporting decisions in its favor

Opportunity for each party to present proofs supporting decisions in its favor

Opportunity and responsibility for each party to present proofs supporting decisions in its favor

Continued

LAW AND DISPUTE RESOLUTION

Table 6.1 Continued

Negotiation

Mediation

Arbitration

Adjudication

Rent-a-Judge

Minitrial

Mutually

acceptable

agreement

Mutually

acceptable

agreement

sought

Compromise

result

possible

Win/lose out come

Win/lose outcome (judgment of court)

Mutually

acceptable

agreement

sought

Agreement usually included in contract or release sought

Agreement usually embodied in contract or release

Reason for result not usually required

Expectation of reasoned statement

Findings of fact and conclusion of law possible but not required

Agreement usually embodied in contract or release

Emphasis on

disputants'

relationship

Emphasis on

disputants'

relationship

Consistency and predictability balanced against concerns for disputants' relationship

Process emphasizes attaining substantive consistency and predictability results

Adherence to norms, laws, and precedent

Emphasis on

sound,

cost-

effective,

and fair

resolution

satisfactory

to both

parties

Highly private process

Private process

Private process unless judicial enforcement sought

Public process; lack of privacy of submissions

Private process, unless judicial enforcement sought

Highly

private

process

182

Obviously, no one procedure is applicable to every kind of problem. Several considerations shape the selection of a particular method. One is the relationship between the disputants. For example, is there an ongoing relationship between the disputants, such as business partners, or is the dispute the result of a single encounter, such as an automobile accident? When an ongoing relationship is involved, it is more productive for the parties to work out their difficulties through negotiation or mediation, if necessary An advantage of mediation is that it encourages the restructuring of the underlying relationship so as to eliminate the source of conflict rather than dealing only with the manifestation of conflict.

Another consideration is the nature of the dispute. If a precedent is required, such as in civil rights cases, litigation in the form of class action may be appropriate. The amount at stake in a dispute also plays a role in deciding on the type of dispute-resolution procedure. Small, simple cases might end up in small-claims courts, whereas more complex issues might require court-ordered arbitration, such as in contract negotiation disputes between public employers and unions. Speed and cost are other relevant factors. For example, arbitration may be speedier and less costly than a court trial.

Finally, consideration must be given also to the power relationship between the parties. When one party in a dispute has much less bargaining strength than the other, as in the case of a pollution victim faced by a powerful corporation, an adjudicatory forum in which legal principle, not power, should determine the outcome may be desirable. The remainder of this considers why some disputants turn to legal mechanisms of conflict resolution, under what circumstances they choose the law rather than some other procedures, and the limitations of the law in resolving conflicts.

 
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