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14 Harv. Negot. L. Rev. 51

Harvard Negotiation Law Review

Winter 2009



Amy J. Cohena1

Copyright (c) 2009 Harvard Negotiation Law Review; Amy J. Cohen

I. Introduction

This essay critically explores whether techniques that emerge out of individual dispute resolution paradigms can provide a socially compelling vision for the resolution of larger-scale conflict. To that end, it examines the methods of dispute systems design (DSD) and some of the background social and political conditions that influenced DSD’s emergence. In the late 1980s and 1990s, dispute resolution scholars began to expand the methods of alternative dispute resolution (ADR) and apply them to disputes involving not only individuals but also groups, organizations, and public and private entities in a variety of settings.1 Over the last decade, scholars and practitioners *52 have designed proposals to address repetitive grievances in labor and employment contexts2 (including in many large multinational corporations3), to improve the resolution of investment treaty and other forms of commercial disputes,4 and to enhance the capabilities of public institutions to manage political conflict.5 Alongside these initiatives, there has also been a proliferation of other dispute resolution forms. In 2008, the American Bar Association Section of Dispute Resolution added a committee on “Public Policy, Consensus Building, and Democracy” to capture practices of dispute resolution that “foster integrative solutions to public policy disputes” and that contribute to ideals such as “deliberative democracy” and “collaborative governance.”6 Some scholars thus describe DSD capaciously - as a new field of theory and practice to address conflicts that extend beyond bounded individual disputes.7

*53 But when, in the 1970s, U.S. dispute resolution scholars and practitioners created institutional mechanisms to resolve individual disputes by providing alternatives to the direct application of state law, they did so at a time when our relation to the state was, in important ways, different from our relation today. ADR was created in the United States within and against an understanding of state law as the primary producer of dispute resolution. By contrast, contemporary dispute resolution scholars are transforming alternative principles for managing individual disputes into principles for managing larger-scale conflict against a backdrop marked by shifting forms of state power due, in part, to decades of neoliberal policies in the United States and elsewhere. These shifts have helped to reshape some of our background ideas of dispute resolution; in Alfred Aman’s pithy summary, “if injustices in the 1970s were greeted with the slogan ‘there ought to be a law,”’ social problems today are greeted “with a new refrain: ‘there ought to be a market.”’8 Aman argues that this change reflects the fact that “we now live in an increasingly neo-liberal state” that relies more on markets than on politics and law to resolve social conflict.9

This essay, then, is an effort to locate DSD discursively and politically within a dominant neoliberal rationality of our time. Because DSD applies to conflicts that span levels of social organization, I use an analytic of scale - a term I employ chiefly to capture how we conceptualize levels of social organization (individuals, groups, institutions, corporations, communities, societies, states) and the distinctions and similarities among them.10 I suggest that when *54 viewed through an analytic of scale, both neoliberal ideologies and the methods of DSD can appear insensitive to distinctions in social organization in analogous ways. I suggest further that to the extent projects of DSD are unfolding against a backdrop of neoliberal ideas and practices, this structural similarity stands to strengthen some of these ideas and practices, and with them attendant forms of social inequality. I conclude by sketching some research questions and examples of case analyses that may contribute to a scale-sensitive approach to DSD.

II. From ADR to DSD Under Conditions of Neoliberalism

ADR’s pioneering legal architects sought to reform top-down and state-centric practices of individual dispute resolution. As several scholars have illustrated, in the 1970s and early 1980s, ADR comprised a tri-part endeavor dedicated to rationalizing the court system, enhancing access to dispute resolution for disadvantaged populations, and empowering individuals and communities to resolve disputes in ways that were qualitatively different from the sorts of resolutions achieved through public adjudicatory processes.11 Reformers within the legal establishment focused on making the delivery of public dispute resolution services more efficient and also more accessible and relevant to ordinary users.12 More radical reformers outside the legal establishment focused on creating grassroots dispute resolution initiatives to empower individuals and communities to resolve their conflicts without relying on professional judges and state authority.13

*55 ADR’s early critics argued against these reforms in parallel fashion. Most prominently, Laura Nader described ADR as an intentional “effort to quell the rights movements (civil rights, women’s rights, consumer rights, environmental rights)” by replacing public concern for state-enforced rights with private social norms (or interests) and by replacing access to public institutions with private technologies of dispute management.14 Alongside the early argument that ADR undermined rights guaranteed by the state, critics also argued that ADR provided the state with the means of expanding its reach into previously less accessible spaces in order to manage conflictual populations (the poor, minorities, women) and preserve the existing social order.15 In fact, most critics cast ADR as either undermining the emancipatory power of state law by eroding rights (in terms similar to the argument that Nader put forth), or as extending the coercive power of state governance by expanding social control through an illusion of voluntary empowerment, or both.

Today, however, some of the forms and functions of state power are shifting in ways that compel us perhaps to extend, but also to think beyond, ADR’s early defenses and critiques. Whereas ADR’s early proponents primarily designed institutional alternatives to the state adjudication of individual disputes, changes in de- and re-regulatory forms of state power are creating new opportunities for dispute *56 systems designers to apply their horizontal problem-solving techniques not only in adjudicative, but also in organizational, legislative, and administrative settings. Many legal scholars have argued that in the United States we are witnessing “very basic changes in economy, polity, and society,” that include greater “devolution [of regulatory power] to the states, increased public-private partnerships, attacks on the use of litigation, and the emergence of new managerial technologies.”16 Some indeed suggest that “we are living in times of profound governance transformation as a matter of empirical fact.”17 Although neoliberalism “has not been the only discourse” underlying these transformations, as Scott Burris, Michael Kempa, and Clifford Shearing suggest, “it certainly has been the most influential [one] in Britain, the United States, Canada, and Australia.”18

I intend the term “neoliberal” to refer both to a set of market-based reforms and to a larger set of political-economic ideas and practices that has helped to reshape contemporary governance. As one legal scholar explains:

The general neoliberal consensus has three core dimensions. The first involves a commitment to freer trade and investment, financial liberalization, and the internationalization of production. The second relates to fiscal reform issues, such as the adoption of tighter budgetary discipline, lower levels of taxation, and a more structural approach to monetary policy. The third concerns a change in the character of public and private governance, represented by a shift away from the administrative [and welfare] state towards the strategies of the ‘new regulatory state.’19

In its third form as a praxis of governance, neoliberalism champions efficiency-maximization as the primary means of providing for social welfare and “proposes that human well-being can best be advanced *57 by liberating individual entrepreneurial freedoms and skills.”20 Accordingly, it figures the competitive market as the optimal mechanism for “maximizing overall resources and individual responsibility.”21

Many scholars trace these ideas to the work of economic philosopher Friedrich von Hayek and his attack on Keynesian economic policy, government planning (or intervention in the market and economic affairs in general), and the welfare state.22 Hayek argued that centralized planning is a form of tyranny because it aims “to organize the whole of society and all its resources for [a] unitary end” and thus refuses “to recognize autonomous spheres in which the ends of the individuals are supreme.”23 He reasoned further that planning is intrinsically inefficient not only because it “undermines individual freedom and the ‘vitality of [individual] abilities,’ both of which are necessary for the prosperity of all,” but because it requires a central planner to possess complex and contingent knowledge about individual interests and preferences only accessible to individuals themselves as they evolve these interests in market relations with others.24

The role of the neoliberal state is therefore to improve the conditions for individual freedom and efficient market exchange by adopting policies such as deregulation, downsizing of the public sector, or privatizing publicly-owned entities and industries.25 In addition to *58 facilitating the activities of private market actors in this way, the neoliberal state may also adopt market principles, such as business norms of “productivity and profitability,” as criteria of governance.26 For instance, government managers may present health care not as a distributive entitlement but rather as a tactical decision “to divert dollars from taxpayers’ income or employers’ productivity,” and therefore as a decision that “is best debated as a calculation of the relative costs and benefits (health and otherwise) of such a policy.”27 Even more, the state may aim to instill within its citizens the capacities and desires to govern themselves according to this market logic. Wendy Brown, for example, argues that in the United States, neoliberalism has figured citizens as “individual entrepreneurs and consumers” capable of meeting their needs (for health and otherwise) by engaging in a deliberative calculation of costs and benefits and, moreover, as individuals whose “moral autonomy is measured by [this] capacity for ‘self-care.”’28

Of course, precisely where and how neoliberal ideas and practices have occurred and to what actual effects are subjects of voluminous scholarship. To offer just one (partial) example, Ian Ayres and John Braithwaite’s review of governance policies in the United States during the Reagan Administration in areas including “the environment, occupational health and safety, nursing homes, financial institutions, securities and futures markets, defense contracting, tax enforcement, antitrust, consumer product safety, and food standards” led them to characterize our present era not as one of purely deregulation but rather one in which “dramatic regulatory, deregulatory, *59 and re-regulatory shifts are occurring simultaneously.”29 As a possible illustration of what Ayres and Braithwaite call “regulatory flux,”30 consider that today both ordinary citizens and private regulated entities are called upon to participate in negotiated processes of federal rulemaking - regulatory processes that were once the sole domain of the state.31

It is against this broad backdrop that dispute systems designers are finding new opportunities to design problem-solving systems made possible by shifts in our legal, political, and economic order. But as the debates surrounding even discrete practices of negotiated rulemaking suggest, the participatory problem-solving systems that result are in no way guaranteed (and by some accounts are unlikely) to produce outcomes that are socially progressive.32 In the last decades of the twentieth century, we have witnessed a marked rise in social inequality in the United States and elsewhere at the same time that we have witnessed a decline of the activist welfare state.33 In A *60 Brief History of Neoliberalism, David Harvey suggests that “[r]edistributive effects and increasing social inequality have in fact been such a persistent feature of neoliberalization as to be regarded as structural to the whole project.”34 The question I therefore propose in the part that follows is whether DSD is participating (purposefully or inadvertently) in neoliberal projects.

III. Observing Neoliberalism and DSD through an Analytic of Scale: Seeing “Stakeholders” as Individuals

By taking scale into account, it becomes possible to perceive similarities between neoliberal ideologies and some of the methods of DSD. Neoliberalism encourages us to think of individuals (and the interactions among them) as the basic, or perhaps the only, unit in society.35 In Margaret Thatcher’s famous formulation: “There is no such thing as society. There are individual men and women, and there are families.”36 Or as Hayek argues, “what are called ‘social ends’ are . . . merely identical ends of many individuals.”37 Hayek, in fact, argues that there is no “separate ‘social justice”’ (by which he means collective responsibility for the social effects of market orders).38 Rather “[t]here is only a justice of individual conduct” and there is “treatment under the same rules.”39 Within these classic neoliberal imaginaries, society is thus comprised of individuals and their ends.

As a result, for thinkers like Hayek, distinct forms of social organization - the institution, the corporation, the community, the municipality, even the nation-state - are understood as simply composites of the individuals that comprise them,40 and like a *61 (neoliberal) individual in their entirety.41 That is, these entities are understood as willful and bounded actors capable of occupying a seat at the negotiation table, creating alliances, managing risk, making choices, and ultimately pursuing their own strategic ends. Hayek, for example, explains that

[w]hen individuals combine in a joint effort to realize ends they have in common, the organizations, like the state, that they form for this purpose are given their own system of ends and their own means. But any organization thus formed remains one “person” among others, in the case of the state much more powerful than any of the others, it is true, yet still with its separate and limited sphere in which alone its ends are supreme.42

Hayek here envisions all units of social organization, including the state, as “persons” pursuing their ends in ways that are structurally similar to individuals. Or as anthropologist Ilana Gershon explains, neoliberal conceptions of agency cast “individual people [as] simply smaller versions of corporations, communities [as] interchangeable with small businesses . . . . At all levels, the units and their interactions are supposedly organized and intertwined in the same way.”43

DSD stands similarly to envision multiple forms of social organization as structurally analogous to individuals. But this is not due to any explicit commitment to neoliberal ideology (that I can discover); rather it flows from a commitment to interest-based dispute resolution (IBDR). Dispute resolution scholars regularly advise that DSD should build upon interest-based processes.44 In their foundational work, William Ury, Stephen Goldberg and Jeanne Brett argue that the “first principle” of DSD is to “[p]ut the focus on interests” and to *62 design mechanisms aimed at “reconciling the interests of the disputants.”45 In another pioneering book, Cathy Costantino and Christina Sickles Merchant recommend “interest-based conflict management systems design” to replace power-based and rights-based processes.46 In a similar fashion, Peter Robinson, Arthur Pearlstein and Bernard Mayer assert that “[a]s much as possible, [DSD] should allow and encourage parties in conflict to make decisions and resolve conflicts on the basis of needs and interests.”47 To offer one recent application, Susan Franck proposes that DSD could “promote creative problem solving to resolve [investment treaty] disputes according to the parties’ interests,” where the parties are governments, foreign investors, and NGOs.48

IBDR, however, is a paradigm based on individuals. It is modeled on a heuristic of formally equal individuals (individuals are both subject to and entitled to the same procedural forms of social exchange). And it uses the methods of value creation or interest maximization as a primary means of dispute management. I will argue that this heuristic and set of methods tend to be insensitive to differences in levels of scale. But in many contexts both are nonetheless sensible and apt. They allow mediators, negotiation trainers, and other dispute resolution professionals to enable individuals to achieve voluntary and mutually advantageous agreements at the level of interpersonal interaction. To take a proverbial ADR example, when two sisters fight over an orange, the dispute resolution practitioner hopes only to reveal that although the sisters’ positions may conflict (because they both want the same finite good), if they can transform their primary ends or their positions (the orange) into secondary ends or underlying interests (baking a cake, making juice), then they can satisfy those interests through secondary means (the *63 rind, the pulp).49 In this paradigm, a multitude of social and structural factors are irrelevant: the location of these sisters in a social hierarchy, their class privilege in relation to each other, the value of using one’s time to bake cakes and make juice, and the material, historical, and environmental factors that make it feasible for sisters to use oranges in this way. Instead, in this example, IBDR aims, quite sensibly, to achieve at an interpersonal level what neoliberalism aims to achieve writ large: to take bounded individuals as the basic unit of analysis and to encourage them to pursue their interests in relation to the interests of others in order to achieve their maximum overall good.

To be sure, many dispute resolution scholars have developed methods of interest-maximization that are far more sophisticated than the seamless orange story suggests.50 And we can debate the applications of IBDR methods to real-world disputes involving individuated conflict.51 But what if instead of two sisters sharing fruit, we shift to conflict that implicates multiple levels of scale? Consider a small Central American country in which a majority of small citrus farmers who grow oranges for export are locked in conflict with a minority of large citrus farmers who have colluded with multinational citrus processors to keep prices paid to growers and workers below those of world markets - with minimal regulation by the state.52 Add to this conflict a weakened union that represents harvesters, dock loaders, and factory workers, that is willing to negotiate wage increases on behalf of some of these occupations at the expense of

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