Dispute Resolution System Design
From MicroJustice
[edit] Dispute Resolution Systems
A dispute resolution system is the context for dispute resolution. It consists of the rules, social norms, practices, incentives, culture and other elements of the context that influence how people with a dispute behave. Examples:
- Organizations may have ways of discussing conflict. There may procedures for complaints. Or informal ways to approach a manager if a conflict arises.
- Most states offer some sort of civil procedure system. Citizens can complain about the conduct of another citizen and ask a judge or another neutral person to decide what should happen. States, or privat organizations, may also offer Alternative dispute resolution (ADR) procedures such as Mediation and Arbitration
- In an intimate relationship, ways of quarreling, negotiation and talking about issues will develop.
- Business relations will have a dispute resolution clause in their contract that says what should be done in case of a conflict.
- Neighborhoods, countries and states have ways to deal with their internal and external disputes as well.
A dispute resolution system may be more or less formal. More formal systems are the official legal system, bureaucratic procedures within an organization, or a procedure written down in a contract. Here, rules play an important role in structuring the process of dispute resolution. In informal procedures, the process is not so much structured by rules. It can be more intuitive, or organized by other means, such as topics for discussion. Customary justice and Mediation are usually less formal.
[edit] Online Dispute Resolution
Online Dispute Resolution is the newest form of dispute resolution. With the increasing of information technology and the Internet on the global marketplace electronic commerce has appeared with new form of disputes, with the trans-national disputes. Online dispute resolution has arisen as a new tool for dispute resolution.
This new branch of dispute resolution uses technology to facilitate the resolution of disputes between parties. Under this new process parties are offered to solve their disputes over the Internet, communication by means of e-mail, chat-rooms, videoconferences and other electronic mechanism. Therefore online dispute resolution is not only convenient for specific types of disputes like for example trans-national disputes, but it can also be convenient in situations in which people find it hard to have a face-to-face contact with the other party. Sometimes it's just easier to say what you want to say if you can do this by e-mail. Then you don't have to be afraid of the other person's reaction because you won't see this reaction. By using digital media to solve disputes thepower-imbalance between parties can therefore disappear. The weakest party who finds it difficult to proclaim his opinion on the matter then has found a way in which he can say what he wants to say but without the fear of the other person's reaction. By doing this both parties will be at a more equal level towards each other.
Online dispute resolution is often regarded as the online equivalent of the methods of Alternative Dispute Resolution, mainly negotiation, mediation and arbitration. One difference is the fact that there are more parties involved in Online Dispute Resolution. Besides the actual parties, arbitrator, witnesses, experts and mediator who all are actors directly implied in an ODR process there are also parties that are indirectly implied in an ODR process namely system administrator, ODR administrator and visitors. Visitors can only have access to the public side of the website. There are four main forms of online dispute resolution systems:
- automated negotiation
- assisted negotiation
- mediation
- arbitration
[edit] automated negotiation
Automated negotiation relates to those methods in which the technology takes over a negotiation. In this process the – also called blind-bidding, where some or all information about the players’ bids is hidden – the parties successively submit to a computer a monetary figure as settlement proposal, the computer then compares the offer and the demand and reaches a settlement foe their arithmetic mean.
[edit] assisted negotiation
In assisted negotiation the parties communicate with one another over the internet, using e-mails and other internet-based communication tool or videoconferences. Here the technology has a similar role as the mediator in mediation.
[edit] mediation
The online equivalents of mediation and arbitration are very similar to the offline dispute resolution techniques. The online mediation a third neutral person without decision power tries to convince the parties to reach an agreement. The difference with offline/normal mediation is that here the third neutral and the parties are communicating via Internet.
[edit] arbitration
Online arbitration is also similar to the traditional form of arbitration, in the sense that a third person chosen by the parties or other times nominated by the institution chosen by the parties, renders a decision on the case after having heard the relevant arguments and seen the appropriate evidence. However arbitration decisions are not yet recognized nor enforced in the legal systems, self-enforcement structures are being worked. The tools of online communication are the same as in assisted negotiation. (see more: http://www.hpovua.org/PUBLICATIONS/PROCEEDINGS/9_HPOVUAWS/Paper_4_2.pdf,)
[edit] issues
The development of online dispute resolution has grown now into its childhood stage.
That is because online dispute resolution has not become a fully member of society yet. Before it can be recognised and accepted by society it has to compete with several (legal) issues and uncertainties.
- How to bring parties to Online Dispute Resolution?
- Enforcement of online dispute resolution outcomes?
- Non-binding arbitration?
- Can consumers arbitrate? On what conditions?
- How to prevent infringement of fundamental procedural rights?
- Documentation of (electronic) evidence?
- Integration into national legal systems?
- Application of/Applicable international rules?
- Currently the major difficulty. But why?
- Users are not aware of the advantages of online dispute resolution and therefore do not make use of them.
- Users may not believe in it or are lacking trust in the system.
- Users may not be confident in the Internet and electronic commerce.
- Technical problems
- Interaction with other computer systems
- Lack of user-friendliness
- Businesses consider it as an enforcement tool for consumers instead as a dispute resolution alternative for themselves.
[edit] How to bring parties to Online Dispute Resolution?
- Providing information structures
- Procedure regulation needed
[edit] Enforcement
Enforcement of online dispute resolution outcomes
[edit] Literature
- Gabrielle Kaufmann-Kohler, Thomas Schultz, "Online Dispute Resolution - Challenges for Contemporary Justice", 2004, pp. 131 - 233.
[edit] Disputes
Dispute resolution system design can be applied to many different disputes: international business disputes, strike disputes (labor conflicts), victim-offender relationships, legal problems of the poor (Microjustice) and many more.
[edit] Dispute resolution system design
This is any deliberate action to improve the system. It can be a grand design or incremental; a large scale or small scale improvement. Examples of designing dispute resolution systems include:
- Civil procedure reform
- Setting up a Victim offender mediation program
- Management of groups of cases (setting up a class action, or a system for dealing with class action).
- Setting up of a customer complaints management system in a company.
- Designing the way a labour disputes commission will cope with a strike
- Drafting a dispute resolution clause in business contract
[edit] Different perspectives
Dispute resolution design tries to combine insights from different perspectives:
- Lawyers study procedures and the rules governing these procedures.
- Economists study institutions (the constraints on actions) and in particular the incentives on people.
- Sociologists look at the context for behaviour, and how groups behave.
- Psychologists take the perspective of the individual. They provide knowledge about how contextual factors may influence motivation in conflict and negotiation (De Dreu & Carnevale 2003).
[edit] Relevant specializations
Within these disciplines, specializations exist that are more particularly relevant for dispute resolution system design. This is in particular:
- Procedural justice research
- Conflict management research
- Negotiation theory
- Literature on access to justice
- Literature on civil procedure
- Economics of institutions
[edit] Recommendations
These disciplines and specializations are mostly organized as bodies of empirical knowledge (how do people behave in a certain situation). Design is about the best ways to do things. If the goal is dealing with disputes in a more satisfactory manner, empirical knowledge can tell us what is more or less likely to work. It is this type of recommendations that Dispute Resolution System Design looks for.
[edit] Existing Literature
Some early attempts have been made at integrating this knowledge into the design of a dispute resolution system, mostly within an organization (Ury, Brett & Goldberg 1993; Constantino and Merchant 1996; Lipsky, Seeber & Fincher 2003). But much remains to be done: *In these attempts, one important building block of a dispute resolution system, the legal environment, has not yet been integrated. The legal system is assumed. In these models, going to court is sometimes an exit-option for the disputants, if they are not satisfied with what the dispute resolution has on offer. In our study, the legal system is part of the design that can be altered in order to enhance dispute resolution systems.
- The existing literature is mainly descriptive. Many different interventions by third parties have been described, and their effects have been tested to some extent (Moore ---). Psychologists and organization theorists specializing in dispute resolution have mostly refrained from prescriptive advice, however. If they gave such advice, it often concerned the way to deal with particular disputes within the present constraints (Fisher, Ury & Patton 1982; Ury 1991; Ury 2000; Mnookin Peppett & Tulumello) or choice of intervention off the shelve (Sander & R.---).
- The literature on behavioural decision research is rich in advice to individual negotiators (Bazerman & Neale 1992, Raiffa et al. 2002), but it tends to take the negotiation situation as given. Sebenius 2003 takes the perspective from the individual negotiator’s possibilities to set up or change the elements of the game itself (game-crafting): the parties, issues and interests, no-agreement alternatives, “rules of engagement”, information and expectational structure, as well as perceptions of the situation. He calls for “negotiation design” (see also Wheeler 1994; Wheeler, Gilbert & Field, 1997). Watkins & Rosegrant (Breakthrough International Negotiation 2001) and Watkins 2002 (Breakthrough Business Negotiation, 51) call for thinking like an architect: although markets, organizations, laws and customs establish boundaries, there is always scope to influence the basic structure of your situation. But these authors still take the perspective of advice to one of the disputants, not a neutral perspective.
[edit] Twelve Major Issues
The following list of issues is in particular relevant for designing dispute resolution systems.
[edit] Why intervene?
Here we study what motives people can have to help other people to deal with their disputes, see Motives to intervene in conflicts
[edit] What is the goal of interventions for the parties?
The Goals of Dispute Interventions can differ. What do the disputants want to achieve? Sometimes interventions aim to solve a dispute, with a win-win solution that fits the interests of both parties. Sometimes a right of one of the parties will be enforced.
[edit] How to bring disputants to the table?
One of the difficulties is that disputants stop talking to each other. They may even be afraid to meet. So Bringing Disputants Together for Interaction is a major issue.
[edit] How to structure a negotiation environment?
Disputants need to discuss issues, talk about what happened, show emotions to each others, find solutions that are acceptable to them both, and much more. Designing the setting for their communication negotiation is essential, see Negotiation and Communication Setting.
[edit] How to deal with fact-finding and truth?
Knowing and understanding what happened Fact-finding is essential. Facts are often the basis for finding solutions. But finding out what happened may be difficult. Fact-finding also encompasses what will probably happen in the future. Whether solutions are appropriate, will often depend on facts.
[edit] How to deliver objective criteria/norms?
Many disputes are also about dividing things: property, damage, work, tasks, time. These distributive issues are often the most difficult to decide on. It helps if there are Objective criteria that guide the distributive negotiations. Also see Delivering objective criteria.
[edit] How to deal with power?
[edit] How to deal with enforcement?
Enforcement in general is the issue of how to let disputants live up to a settlement or a judgment.
The settled agreement as the final goal of mediation forms a contract that falls under private law such as contract law, law of obligations and freedom of contract.
Since mediation has not been regulated by the law, the final contract has to hold out against The Enforcement of the Mediated Agreement by the parties in dispute.
[edit] How to link negotiation and decision making?
[edit] How to select/organize expertise, helpers and neutrals?
Dispute Resolution Tasks and People
[edit] How to align monetary other incentives?
Making the System Work: Incentives
[edit] How to establish the cost/quality trade off?
[edit] List of General Literature
- Arrow, Kenneth J., Robert H. Mnookin, Lee Ross, Amos Tversky, and Robert B. Wilson eds. 1995. Barriers to Conflict Resolution. New York: W.W. Norton & Company.
- Barendrecht, Maurits, Cooperation in Transactions and Disputes: A Problem-Solving Legal System? Research Paper 2003, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=404960
- Bazerman Max H., Jared R. Curhan, Don A. Moore, and Kathleen L. Valley, Negotiation, Annu. Rev. Psychol. 2000. 51:279–314
- Bingham, Lisa B. 2002. "Why Suppose? Let’s Find Out: A Public Policy Research Program on Dispute Resolution." Journal of Dispute Resolution, pp. 101.
- Bush, Robert A. Baruch. 1996. "Alternative Futures: Imagining How ADR May Affect the Court System in Coming Decades." The Review of Litigation, 15, pp. 455-75.
- Conbere, John P. 2001. "Theory Building for Conflict Management System Design." Conflict Resolution Quarterly, 19, pp. 215.
- Costantino, Cathy A. and Christina Sickles Merchant. 1996. Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations. San Francisco: Jossey-Bass.
- Daughety, Andrew F. 2000. "7400 Settlement," in Encyclopedia of Law and Economics. Boudewijn Bouckaert and Gerrit De Geest eds. Cheltenham: EdwardElgar.
- Fisher, R., W.Ury, and B.Patton. 1991. Getting to Yes: Negotiating an Agreementwithout Giving in.
- Funken, Katja. 2002. "The Pros and Cons of Getting to Yes, Shortcomings andLimitations of Principled Bargaining in Negotiation and Mediation." Zeitschrift fuer Konfliktmanagement.
- Gilson, Ronald J. and Robert H. Mnookin. 1994. "Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation." Columbia Law Review, 94, pp. 509.
- Guthrie, Chris. 2001. "The Lawyer’s Philisophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering." Harv. Negotiation L. Rev, 6, pp. 145-89.
- Hensler, Deborah R. 2002. "Suppose It’s Not True: Challenging Mediation Ideology." University of Missouri Journal of Dispute Resolution, pp. 81-100.
- Kobayashi, Bruce H. and Jeffrey S. Parker. 2000. "Civil Procedure: General," in Encyclopedia of Law and Economics. Boudewijn Bouckaert and Gerrit De Geest eds. Cheltenham: Edward Elgar, pp. 1-26.
- Korobkin, Russell. 2000. "A Positive Theory of Legal Negotiation,." GeorgetownLaw Journal, 88:1789.
- Kupfer Schneider, Andrea. 2002. "Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style." Harv. Negotiation L. Rev, 7, pp. 143-233.
- Lande, John. 2002. "Using Dispute System Design Methods to Promote Good-FaithParticipation in Court-Connected Mediation Programs." UCLA Law Review, 50, pp. 69.
- Lewicki, Roy J., David M. Saunders, and John W. Minton. 2006. Negotiation. Boston: Irwin/McGraw-Hill.
- Lind, A.E., R.J. MacCoun, P.A. Ebener, W.L.F. Felstiner, D.R. Hensler, and T.R. Tyler. 1990. "In the Eye of the Beholder: Tort Litigants’ Evaluations of the Experience in the Civil Justice System." Law and Society Review, 24, pp. 953-96.
- Lind, A.E. and T.R. Tyler. 1988. The Social Psychology of Procedural Justice. NewYork: Plenum.
- Madoff, Ray D. 2002. "Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution." Southern California Law Review, 76, pp. 161-88.
- Menkel-Meadow, Carry. 1984. "Toward Another View of Legal Negotiation: The Structure of Problem Solving." UCLA Law Review, 31, pp. 754.
- Mnookin, R. H. and L. Kornhauser. 1979. "Bargaining in the Shadow of the law: TheCase of Divorce." Yale Law Journal, 88, pp. 950-97.
- Mnookin, Robert H., Scott R. Peppet, and Andrew S. Tulumello. 2000. Beyond winning : negotiating to create value in deals and disputes. Cambridge, Mass.: Belknap Press of Harvard University Press.
- Mnookin, Robert H., Lawrence Susskind, and Pacey C. Foster. 1999. Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else. Thousand Oaks, Calif.: Sage Publications.
- Raiffa, Howard, John Richardson, and David Metcalfe. 2003. Negotiation Analysis;The Science and Art of Collaborative Decision Making. Cambridge, Mass.: The Belknap Press of Harvard University Press.
- Resnik, Judith. 2002. "Litigant Preferences for Process and Judicial Preferences forSettlement." Journal of Dispute Resolution, pp. 155-70.
- Ross, Lee and Constance Stillinger. 1991. "Barriers to Conflict Resolution." Negotiation J, 7, pp. 389-409.
- Schauer, Frederick. 1991. Playing by the Rules: A Philosophical Examination of Rule-Based Decisionmaking in Law and in Life. New York: Oxford University Press.
- Schwartz, Warren F. 2000. "0790 Legal Error," in Encyclopedia of Law and Economics. Boudewijn Bouckaert and Gerrit De Geest eds. Cheltenham: EdwardElgar, pp. 1029-40.
- Shavell, Steven. 2004. Foundations of Economic Analysis of Law. Cambridge, Mass.: Harvard University Press.
- Shaver, Kelly. 1985. The Attribution of Blame. New York: Springer.
- Ury, William. 1991. Getting Past No: Negotiating with Difficult People. New York: Bantam Books.
- Ury, William L., Jeanne M. Brett, and Stephen B. Goldberg (Author). 1988. GettingDisputes Resolved: Designing Systems to Cut the Costs of Conflict: Jossey-Bass.
- Ury, William L., The Third Side,
- Wall, James, Callister, Conflict and Its Management, Journal of Management, 1995, Vol. 21, No. 3, 515-558
- Wissler, Roselle L. 2002. "Court-Connected Mediation in General Civil Cases: What we Know from Empirical Research." Ohio St. J. on Disp. Resolution, 17, pp. 641-703.
