From MicroJustice

Contents 1 Dispute Resolution Systems 2 Disputes 3 Dispute resolution system design 3.1 Examples 3.2 Microjustice as Dispute System Design 3.3 Different perspectives 3.4 Relevant specializations 3.5 Recommendations 3.6 Existing Literature 4 Major Issues 4.1 Preliminaries 4.1.1 Why intervene? 4.1.2 What is the goal of interventions for the parties? 4.2 Five Essential Tasks 4.2.1 Meet: How to bring disputants to the table? 4.2.2 Talk: How to structure a negotiation environment? 4.2.3 Share: How to deliver objective criteria/norms? 4.2.4 Decide: How to link negotiation and decision making? 4.2.5 Stabilize: How to deal with enforcement? 4.3 Major Add Ons 4.3.1 How to deal with fact-finding and truth? 4.3.2 How to deal with power? 4.4 Making Dispute Systems Work 4.4.1 How to select/organize expertise, helpers and neutrals? 4.4.2 How to align monetary other incentives? 4.4.3 How to establish the cost/quality trade off? 5 List of General Literature

[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] 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.

[edit] Examples

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
• And, of course, setting up or managing a dispute system in a situation where access to justice is lacking.

[edit] Microjustice as Dispute System Design

Many people lack access to justice. According to the UN Commission on Legal Empowerment of the Poor 4 billion people live most of their lives outside the scope of the formal legal system.

Microjustice aims to strengthen the capacities of people in the realm of justice. It builds on what people organize themselves and on what official legal systems provide.

Microjustice aims to develop legal services that are tailored to the most urgent problems. Lowering the price of justice, the costs of accessing justice for users, is as important as is improving the quality. In particular, Microjustice challenges the idea that legal services can only be provided on a one client to one lawyer basis. Standardization and economies of scale have to be achieved.

Microjustice has to operate in situations where stability cannot be taken for granted. Transparency of relationships is a matter of norms, understandings, and sometimes contracts. Property rights are clarified by boundaries, long time use that is known by many people, and maybe registrations. In post conflict areas, these mechanisms for creating transparency break down. In cities, that tend to grow informally, there is also no basis of uncontested rights that can be the starting point for resolving disputes. Ownership of houses may be unclear, and slum dwellings may have to give way to roads and more sophisticated buildings.

Microjustice has to build on these social realities. Surely, large scale titling and registration projects can contribute to stability as well. The same goes for enacting formal legislation. But coping with conflict as it emerges is often the most obvious point to start. Gradually, by dealing with conflict fairly and efficiently, a more stable environment can be created.

[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] Major Issues

[edit] Preliminaries

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] Five Essential Tasks

[edit] Meet: 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] Talk: 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] Share: 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] Decide: How to link negotiation and decision making?

Negotiation and Evaluation

[edit] Stabilize: 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] Major Add Ons

[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 deal with power?

Coping with Power

[edit] Making Dispute Systems Work

[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?

Costs and Quality

[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.