Law and Dispute Resolution terminology: conflict resolution



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  • 2. Law and Dispute Resolution
    • terminology: conflict resolution,
    • conflict management, conflict regulation,
    • dispute processing, dispute resolution, disputing,
    • ADR (alternative dispute resolution)…..etc.
    • but: disputes are human, social, interactive
    • entities - the legal system addresses only the
    • legal aspects - so disputes are “authoritatively
    • settled ” rather than resolved - resolution is
    • a different matter, requires ameliorating
    • underlying causes (e.g. divorce; dom. assault)
  • Nader and Todd (1978): stages in the dispute
  • process:
    • 1. the grievance or pre-conflict stage
        • - ‘brewing’ grievance, perception of
        • injustice, real or imaginary
        • - group or individual
    • 2. the conflict stage
        • - aggrieved party confronts offending party
        • - dyadic, interactive
      • 3. the dispute stage
          • - conflict is made public
          • - involvement of third parties
          • - informal or formal resolution mechanisms
  • 3. Methods of Dispute Resolution
    • two main forms of legal means of dispute
    • settlement - negotiation or adjudication
    • non-legal dispute resolution:
      • - interpersonal violence
      • - dueling
      • - feuding
      • - rituals
      • - shaming
      • - shunning or ostracism
      • - banishment
      • - appeals to the supernatural (trial by ordeal)
      • - ‘lumping it’
      • - avoidance
      • - ignoring it
  • Primary dispute resolution processes
    • 1. Negotiation
      • - without help of third parties
      • - motivation a key factor
      • - willingness to compromise
      • - minimal disruption of ‘normative’ order
      • 2. Mediation
        • - use of neutral, non-coercive third party
        • - mediator is not a decision-making role,
        • rather a ‘facilitation’ role
        • - nonadversarial - parties mutually agree
        • on the mediator, mediation process, and
        • ultimately, the outcome
        • - increasing use of professional mediators,
        • paralegals, etc.
        • - also: ombudsman process
  • 3. Arbitration
    • - usually of a mandatory, binding form
    • - disputants agree beforehand on the
    • arbitrator, the decision-making power of the
    • arbitrator
    • - can remain largely a private process
  • 4. Adjudication
    • - public, formal method of dispute resolution
    • - zero-sum decisions/finality
    • - disputants give up control to the legal
    • system
    • - expensive
  • 4. Civil Litigation and Dispute Resolution
    • the U.S. is the ‘capital’ of tort litigation - with
    • annual cost estimated between $280 - $300
    • billion annually
    • why?
      • - Alexis de Tocqueville, Democracy in
      • America, and the proliferation of lawyers
      • - distrust of official, institutional dispute
      • resolution mechanisms
      • - contingency billing, lack of penalties to
      • litigants (note the ‘English rule’
      • in Canada)
  • note also, increase in number of ‘repeat players’
  • and the increasing use of ‘tactical lawsuits’
  • designed to encumber competitors, or as a means
  • of threatening, encouraging out of court settlements
  • finally, the relationship between the proliferation
  • of all forms of insurance, and litigation
  • frivolous lawsuits as a ‘nuisance’ - e.g. plastic
  • versus wooden chairs; the use of step-ladders;
  • prisoner lawsuits; product liability lawsuits
  • Goldman and Sarat (1989) - generic factors
  • promoting the proliferation of lawsuits:
      • 1. social development
      • 2. subjective cost/benefit calculation
      • 3. growth of legal rights, responsibilities
  • 5. A Typology of Litigants
          • D
  • One Shotter Repeat Player
  • One Shotter divorce injury victim v. insurance co.
  • student v. university
  • commitments
  • P homeowner liability
  • landlord-tenant management v. union
  • Repeat Player banks versus debtors
  • disputes between individuals
    • - e.g. wills, trusts, civil commitments, personal/
    • homeowner liability, by-law infractions/damage,
    • breach of contract, slander and libel, custody
    • cases, malpractice, etc.
    • - again: adjudication is a ‘zero-sum’ game, and
    • adversarial process where one party wins, the
    • other loses
    • - where there is bound to be an ongoing
    • relationship, considerable pressure to seek
    • ADR means
    • - the issue of $$$ settlements in the adjudication
    • process
  • disputes between individuals and organizations
      • 1. over property and money (e.g. appropriation
      • of land)
      • 2. damages and restitution (e.g. the gas
      • company digging up your driveway)
      • 3. civil rights (e.g. a ‘female unfriendly’
      • workplace)
      • 4. organizational actions, procedures, policies
      • (e.g. the plan to collect urine samples from
      • welfare recipients)
  • law as a method of dispute resolution in academe
      • - the faculty - administration relationship
      • - student - faculty relationships (e.g. the issue
      • of academic malpractice, and the concept of
      • respondeat superior)
      • - student - administration relationships
  • 6. Courts as Collection Agencies
    • garnishment
    • liens
    • forced sale
    • ‘dunning’ to encourage payment
    • imprisonment
  • 7. Disputes between Organizations
    • - both inter-organizational and intra-organizational
    • disputes
      • 1. social policy disputes (e.g. the Indian Act)
      • 2. regulatory disputes (e.g. the regulation of
      • private health care)
  • Schneiderman - Just Say No to the War on Drugs
    • the Reagan administration, and Nancy Reagan’s
    • ‘just say no to drugs’ campaign, and the
    • subsequent spawning of Wisotsky calls the
    • ‘web of Black Market Pathologies’
    • recent estimates that 1/32 Americans are
    • currently serving a sentence of incarceration,
    • probation or parole for a criminal conviction -
    • an estimated 60% of these are for drug or
    • drug-related offences; in some large American
    • cities, 1/4 Black males are currently serving
    • a criminal sentence
  • estimated that between 25% and 50% of all
  • homicides, robberies and b&e are drug
  • related
  • corruption of government officials; undermining
  • of the independence of foreign governments;
  • individual, social, health, economic costs
  • the need for more and more money $$$, more
  • and more enforcement to fight the war on drugs,
  • but estimated seizures less than 10%
  • civil control and forfeiture - proceeds of crime,
  • proposed provisions for seizure prior to
  • conviction for crime; zero-tolerance policies,
  • drug testing in the workplace, schools - what
  • price civil rights?
  • on the other hand; alcohol and tobacco are legal;
  • yet alcohol is perhaps the most destructive
  • recreational drug of all - 50% of homicides &
  • traffic fatalities; billions $$$ in health costs, both
  • short-term and long-term; and then, there is
  • smoking
  • Berger and Luckmann; the social construction
  • of reality, moral entrepreneurship, and the
  • ‘war on drugs’ - is this the only way to define
  • the problem, and to enact measures to deal with
  • it? (or should be, as Daryl Gates proposed,
  • execute casual users? Nancy Reagan - ‘if you are
  • a casual drug user, you are an accomplice to
  • murder’)
  • surveillance schemes - turning in your family,
  • neighbors
  • the case of the Netherlands
  • Barsh & Marlor - Law as Power, Law as Process
    • an evaluation and critique of the alternative
    • dispute resolution (ADR) approach, including
    • the peacemaking paradigm - do these approaches
    • work any better than the adversarial approach?
    • law as power - coming out of the concept of
    • positive law : “law is a body of legislated rules
    • applied by coercive authority”
        • - undesirable activity is prohibited
        • - human behaviour as a whole is predictable
    • - the ‘power paradigm’
  • versus tribal law or the ‘process paradigm’
  • where conflicts are resolved not through a power
  • struggle, but rather through cooperation,
  • compromise, and ‘give and take’, using a
  • flexible sets of procedures, with few ‘rules’
  • we know that many of the aspects of the power
  • paradigm are not effective; punishment does
  • not increase compliance, even certainty and
  • celerity may not be effective in reducing
  • crime, especially repeat offending
  • so: consider the alternative? ADR approaches
  • ADR or the ‘negotiated justice’ approach
  • ranging on a continuum from cooperation to
  • competition, incorporating a variety of
  • along the continuum (negotiation, mediation,
  • arbitration…..)
  • difficulty though in classifying and comprehending
  • the nature and dynamics of conflict - especially
  • where the ongoing conflict may actually
  • benefit some of the parties - to resolve conflicts
  • in the ADR manner, both parties must be honest
  • and motivated
  • the problem, frequently experienced, that
  • negotiated justice systems are too often
  • co-opted under the umbrella of state authority -
  • they are not independent systems
  • increasing the power of professionals, and the
  • whole concept of ‘net widening’ - note here:
  • is Native justice really Native justice, or
  • conventional justice in disguise?
  • ‘peacemaking’ - this approach is fundamentally
  • opposed to social control - emphasis on
  • redistribution, equality of power
  • that wrongdoers can be rehabilitated effectively
  • and inexpensively without cruelty or
  • punishment, and that the community can be
  • restored, conflict resolved
  • but what does the research say?
    • - difficult to measure outcomes, either
    • quantitatively or qualitatively with any
    • reliability/validity
    • - social divisions within Native communities
    • make it almost impossible to assess
    • contemporary effectiveness
    • - no evidence that it works better, or even as well
  • Hudson & Galloway: An Introduction to Restorative
    • Justice
    • three fundamental elements:
    • 1. crime as a ‘social’ conflict between
    • offenders, victims and community
    • 2. aim of justice system to create,
    • promote peace through reparation and
    • reconciliation
    • 3. active participation by victims,
    • offenders, communities
  • note that a restorative justice system would
  • require the decentralization, deprofessionalization
  • of the justice system - and a commitment of time
  • and resources from the community
  • emphasis on ‘community responsibility’, and a
  • broader view of the problem - a ‘peacemaking
  • perspective’
  • Restorative Justice process:
    • 1. Pre-mediation phase
      • (the role of the mediator; intake and eligibility;
      • preparation; voluntary nature; safety; direct
      • contact/not)
    • 2. Mediation phase
    • (importance of ground rules; symbolic
    • reparation: shame and forgiveness; providing
    • a means for the offenders to return from shame)
    • 3. Follow-up phase and outcomes
    • (material, psychological and social aspects for
    • all parties)
  • the future of restorative justice?
    • - what does the theory of the development of
    • law say?
    • - incorporation into ‘state operated’ justice
    • system
    • - ‘net widening’
    • - the issue of fairness and justice: are
    • restorative justice programs fair to the
    • victim, the offender, the community - are
    • these partners really equal in the process?
    • - public support/tolerance for the process

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