PRIMARY RESOLUTION PROCESSES
The primary dispute resolution processes can be depicted on a continuum ranging from negotiation to adjudication. In negotiation, participation is voluntary, and disputants arrange settlements for themselves. Next on the continuum is mediation, in which a third party facilitates a resolution and otherwise assists the parties in reaching a voluntary agreement (Bush and Folger, 2005). At the other end of the continuum is adjudication (both judicial and administrative), in which parties are compelled to participate, the case is decided by a judge, the parties are represented by counsel, the procedures are formal, and the outcomes are enforceable by law. Just before adjudication on the continuum is arbitration, which is more informal and in which the decision may or may not be binding. Negotiation, mediation, and arbitration are the main components of what is referred to as “alternative dispute resolution” (ADR) in legal parlance (Partridge, 2009). The ADR movement is spreading to other parts of the world. For example, legal scholars and political officials in France promote ADR as a means of relieving the burden of the courts; of rendering dispute resolutions faster, simpler, and cheaper; and of “de-dramatizing” disputes to render their resolutions more satisfactory to the parties (Gaillard, 2000). We now consider these processes and some of their variants in some detail.
Negotiation Negotiation occurs when disputants seek to resolve their disagreements themselves without the help of any third parties. Negotiation is a two-party arrangement in which disputants try to persuade one another, establish a common ground for discussion, and feel their way by a process of give-and-take toward a settlement. It involves the use of debate and bargaining (Lewicki et al., 2011). A basic requirement for successful negotiation is the desire of both parties to settle a dispute without escalation and without resorting to neutral third parties. Vilhelm Aubert (1969:284) states, “The advantage of negotiated solutions is that they need not leave any marks on the normative order of society. Since the solution does not become a precedent for later solutions to similar conflicts, the adversaries need not fear the general consequences of the settlement.” In industrial societies, such as the United States, lumping behavior, avoidance, and negotiation are the most frequent responses to dispute situations.
Mediation Mediation is a common dispute resolution method that involves a neutral and noncoercive third party, the mediator, between the disputants (McCorkle and Reese, 2010). Unlike litigation, where a judge imposes the ultimate decision, a mediator does not make the final decision. Rather, the terms of settlement are worked out solely by and between the disputants, but with the assistance of the mediator. Mediation can be an effective way of resolving a variety of disputes if both parties are interested in a reasonable settlement of their disagreement, and it often produces a more equitable outcome than other methods (Fitzpatrick, 1994). Mediation begins with the agreement to undertake mediation, it is nonadversarial, and its basic tenet is cooperation rather than competition.
The role of the mediator in the dispute is that of a guide, a facilitator, and a catalyst. The disputants may choose a mediator, or someone in authority may appoint a mediator. Depending on the society and situation, a mediator may be selected because the person has status, position, respect, power, money, or the alleged power to invoke sanctions on behalf of a deity or some other superhuman force. A mediator may have none of these traits but may simply be a designated agent of an organization set up to handle specific disputes. Bringing disputes to a mediator may be the choice of both parties, or of one but not the other party to a conflict, or it may be the result of private norms or expectations of a group that normally dictate disputes to be settled as much as possible within the group.
Mediation essentially consists of influencing the parties to come to a compromise agreement by appealing to their own interests. Mediators may use a variety of techniques to accomplish this objective. As Torstein Eckhoff (1978:36) once observed, mediators
may work on the parties' ideas of what serves them best . . . in such a way that [the parties come to] consider the common interests as more essential than they did previously, or their competing interests as less essential... . [Mediators] may also look for possibilities of resolution which the parties themselves have not discovered and try to convince them that both will be well served by his suggestion. The very fact that a suggestion is proposed by an impartial third party may also, in certain cases, be sufficient for the parties to accept it.
Ideally, both parties should have confidence in the mediator, be willing to cooperate, listen to her or his advice, and consider the mediator as impartial. A mediator may also use warnings, promises, or flattery in attempts to reconcile differences between the parties. Eckhoff (1978:36) pointed out when mediation is most likely to succeed:
The conditions for mediation are best in cases where both parties are interested in having the conflict resolved. The stronger the common interest is, the greater reason they have for bringing the conflict before a third party, and the more motivated they will be for cooperating actively with him in finding a solution, and for adjusting their demands in such a way that a solution can be reached.
Mediation has become rather popular in the United States. Hundreds of nonprofit dispute resolution centers emphasizing mediation operate across the nation. One of these centers may be found in Austin, Texas. The center, aptly named the Dispute Resolution Center, features mediation services and mediation training for individuals, business, and other entities in the greater Austin area (www.austindrc.org). It has a paid staff and about a hundred volunteer mediators; about one-fifth of these volunteers are attorneys. This and the many other dispute resolution centers around the nation handle family, housing, and other disputes.
Although there is variation among centers in the types of cases they handle, almost all tend to concentrate on disputes between persons with an ongoing relationship. Participation in mediation is voluntary. The majority of disputants are referred to the centers by judges, police, prosecutors, and court clerks. Mediators include lawyers, law students, undergraduates, and laypeople, all of whom receive training in mediation techniques.
There are many advantages of such dispute resolution centers (DRCs). A major advantage is that their services cost much less (and are sometimes free) than hiring an attorney and proceeding to a civil court. Compared to the civil courts, DRCs often can resolve disputes more effectively because participants are able to explore the underlying problems contributing to the dispute without legal formalities, time limits, and lawyers acting as intermediaries in the discussion. The reliance on informal alternatives also frees the courts to attend to more serious cases (Wright and Galaway, 1989) and may help defendants in nonviolent offenses avoid a prison sentence (Zernova, 2008).
Arbitration Arbitration is another way of involving a third party in a dispute. Unlike mediation, in which a third party assists the disputants to reach their own solution, arbitration requires a final and binding decision to be made for the disputants by a third party. Disputants agree beforehand both to the intervention of a neutral third party and to the finality of her or his decision. Unlike in courts, the proceedings in arbitration can remain private and participants can opt for simplicity and informality. Arbitration tends to reduce the cost of dispute resolution because of the lack of opportunity to appeal the arbitrator’s decision and especially when attorneys are not hired. Arbitration is also faster than adjudication because participants can proceed as soon as they are ready rather than waiting for a trial date to be set.
Nowadays, almost all collective bargaining contracts contain a provision for final and binding arbitration in the event of a labor-management dispute. When such disputes occur, they may be brought before arbitrators, whose decisions are binding by mutual consent of the disputants and ultimately enforceable by private sanctions and by the courts. Arbitration clauses also appear in business contracts and even in executive employment letters. Many private organizations, professional groups, and trade associations have their own formal arbitration machinery for the settlement of disputes among members.
Although arbitration has its advantages, it may also protect businesses from being sued for unfair practices. For example, people who sign up for bank accounts and credit cards often have to agree to have any disputes submitted for private arbitration. This practice prevents customers from suing a bank corporation, and it also prevents class action lawsuits if the corporation is suspected of defrauding customers. Customers may find it difficult to find an attorney to represent them during arbitration since any financial compensation will be likely much smaller than in a lawsuit. In another problem, arbitration is a private process, whereas a lawsuit is a public event. A recent news report said that this private nature of arbitration “helps to conceal corporate misconduct from the public and regulators because the related documents and hearings are not made public” (Reuters, 2016:B5).
Adjudication Adjudication is a public and formal method of conflict resolution that involves the use of the courts. Courts have the authority to intervene in disputes whether or not the parties desire it, to render a decision that has one party win and the other party lose, and to enforce compliance with that decision. In adjudication, the emphasis is on the legal rights and duties of disputants, rather than on compromises or on the mutual satisfaction of the parties. Courts can deal only with disagreements, grievances, or conflicts that have been transformed into legal disputes. For example, in a divorce case, the court may focus on one incident in what is a complex and often not very clear-cut series of problems. It results in a resolution of a legal dispute but not necessarily of the broader issues that have produced that conflict.
Three general aspects of adjudication are important to note. First, although courts occasionally seek compromise and flexibility, generally the verdict of the court has an either/or character: The decision is based upon a single definite conception of what has actually taken place and upon a single interpretation of legal norms. When a conflict culminates in litigation, one of the parties must be prepared for a total loss. Second, because of the use of precedents, there is a fair amount of predictability in how similar cases will be settled by courts. Third, because the courts are dealing only with the legal issues, they do not take into consideration the possibility that the applicable legal facts and norms may have been influenced by different social conditions and that, in many instances, courts are treating only the symptoms rather than the underlying causes of a problem.