From MicroJustice

Contents 1 The Problem 2 Issues 2.1 Practices in Current Dispute Resolution Systems 2.2 What May Induce an Opponent to Come to the Table? 2.2.1 Other tools that may induce parties to come to the table 2.3 What if Disputants Cannot Agree on the Process? 3 Possible Approaches 3.1 Threat of a Default Judgment 3.2 Rules Regarding Costs 3.3 Sanctions 3.4 Pressure and referral 3.5 Free Services 3.6 Organize Referral System 3.7 Let Plaintiff Choose 3.8 Premediation 3.9 Other Systems and Incentives? 4 What Can the System Do Without Direct Contact Between Opponents? 4.1 Prevent 4.2 Resolve 4.3 Contain 5 Recommendations

[edit] The Problem

Somehow, the parties have to interact. Around a negotiation table, in a court room, through e-mail, or through shuttle diplomacy.

• A conflict can only be solved if at least one of the parties moves and communicates this to the other party.
• Moreover, in complex conflicts intensive discussions between the parties are necessary to build trust, to exchange information about interests and to brainstorm about possible solutions (Lewicki et al 2003). Communication can also be used to create a shared understanding which reduces egocentrism (Bazerman et al. 2000, 285). There is much research supporting that face to face communication is an important factor in building trust.
• Parties pick up many kinds of clues from non-verbal communication.
• If a neutral decides, he has to be informed by the parties, and both parties have to know the information the other party has submitted to the neutral.

However, it is very human to retreat from a difficult relationship and stop communicating. Communication can also be difficult because of the threat of violence, or verbal abuse. So the issue is: how to bring the parties together for communication?

Back to Dispute Resolution System Design

[edit] Issues

[edit] Practices in Current Dispute Resolution Systems

Presently, dispute resolution systems not always support face to face communication and negotiation. Social norms sometimes still label the willingness to negotiate as a sign of weakness. In international conflicts, the peer pressure to return to the negotiating table is present, but not as forceful as it could be. The norms and practices of the legal system are that each party goes to his own lawyer, who often communicates formally and in writing with the other side. Face to face communication and negotiations, with neutral help or personal coaching, are not the norm in personal injury claim negotiations.

[edit] What May Induce an Opponent to Come to the Table?

What can I offer that will persuade others to come to me? (social science research on formality/informality, power distance)?

[edit] Other tools that may induce parties to come to the table

Before parties consider to take a step towards Alternative Dispute Resolution they evaluate their BATNA. To evaluate their BATNA parties need to analyze the risks of going to court or negotiate with the help of for example mediation. To analyze the chances and risks parties are likely to make use of a decision tree, a tool of decision alanlysis. Judges may come more or less with the help of their years of experience to a intuitive decision, but ‘normal’ people are less professional in decision making (Jeffrey M. Senger: Italic text Decision Analysis in negotiation). This does not mean that ‘normal’ people cannot make suitable decisions, but if you use a mathematical decision you have a better understanding what happens, especially in a more complex situation. The outcomes of risk analysis and decision tree can create opportunities to choose the way of Alternative Dispute Resolution or (if a party already has chose this way) to settle. It’s like an reality check. Parties will be confronted with a better survey. During the Alternative Dispute Resolution mediators and negotiators can also use Systematic Risk Analysisfor litigator. This method may also be helpful by valuing objective criteria.

[edit] What if Disputants Cannot Agree on the Process?

Will information help? Are people sufficiently familiar with the availability of processes? Is there need to educate about mediation and other ways to solve disputes?

[edit] Possible Approaches

[edit] Threat of a Default Judgment

The trick of courts: Tell the parties that there will be a decision anyhow. The power of courts to issue a default judgment, is a powerful incentive for the defendant to come to the court room and give his views on the case. Rules for default judgment (Rule 55 Federal Rules of Civil Procedure)

This is an incentive that does not apply to mediation, and other forms of voluntary intervention.

[edit] Rules Regarding Costs

Dutch Code Civil Procedure art. 237 (“Needless costs”)

[edit] Sanctions

Rule 11, 16, 37 Federal Rules CP Rules regarding statements, hearings, trials No show = no voice

[edit] Pressure and referral

• By judge
• Friends, doctors, superiors

[edit] Free Services

Offering mediation for free, does that help?

Knowing procedure will be tough/judge will be rough

[edit] Organize Referral System

Neutral selection system

• Intake and diagnosis
• Neutral decides where dispute goes

Example: Multidoor Courthouse (Sander)

[edit] Let Plaintiff Choose

• Unless objection from defendant
• Then neutral decision

Example: jurisdiction by courts

[edit] Premediation

Common models for getting to mediator:

• One party consults mediator, mediator contacts other party and …
• Mediator takes initiative and offers service
• Referral
• Mediation is the rule. Contract or policy in company.

Premediation is always key:

• Parties often come in with hesitations
• Build commitment to process gradually

[edit] Other Systems and Incentives?

Are there other incentives for a defendant to cooperate with a neutral dispute resolution process? Other systems?

[edit] What Can the System Do Without Direct Contact Between Opponents?

See Ury, The Third Side.

[edit] Prevent

1. Provide (enable people to meet their needs)
2. Teach (give people skills)
3. Bridge-building (forcing relationships across lines of conflict)

[edit] Resolve

1. Equalize (democratize power)
2. Heal (repair injured relationships)

[edit] Contain

1. Witness (pay attention to escalation)
2. Referee (setting limits to fighting)
3. Peacekeeper (providing protection)

Contact needed? Can you give examples?

[edit] Recommendations

What should be the recommendations here??

Instead of being the exception to written communication, face to face meetings could become the central communication and negotiation form, with written communication as a support, for instance in order to exchange uncontroversial information about facts. A dispute resolution system should entail strong incentives to meet and talk.