Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice

Tilburg University Legal Studies Working Paper No. 011/2008

TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 005/2008

21 Pages Posted: 23 Aug 2008 Last revised: 27 Mar 2013

See all articles by Maurits Barendrecht

Maurits Barendrecht

Tilburg Law School; HiiL Innovating Justice; Hague Institute for Innovation of Law; Hague Institute for Innovation of Law

Jin Ho Verdonschot

Tilburg University - TISCO; Tilburg University - Faculty of Law

Date Written: August 22, 2008

Abstract

Rules are often seen as commands that have to be observed. From the perspective of disputants, however, rules may also be tools for settling disputes. Fisher, Ury, and Patton famously recommend that negotiators look for objective criteria instead of dividing the pie by a contest of willpower. We investigate the role that objective criteria may have in dispute resolution. In particular, we study how objective criteria help parties to determine shares in liability, damages, profits, efforts, risks, timing, or other benefits and losses that have to be distributed among the parties.

We reviewed the literature on negotiation, compliance, descriptive social norms, conflict resolution, fairness, and distributive justice. We found nine suggestions for properties of objective criteria, which make them more suitable as guidelines to settle distributive issues. For each property, we also investigated which mechanism may contribute to lowering the costs of dispute resolution and to increasing the acceptance of the outcomes. On this basis, we suggest that legislators, drafters of contracts, courts, designers of dispute systems, and others wanting to contribute to conflict resolution consider investing more effort in creating and supplying objective criteria that possess the following qualities:

1. independent of willpower and allow for being applied objectively; 2. perceived as legitimate; 3. lead to outcomes that are continuous in character, not binary; 4. weigh similar elements of the situation on both sides; 5. belong to parties, reflecting their ideas about legitimacy and appropriate neutral evaluation criteria; 6. do not claim exclusivity over other objective criteria; 7. allow decision makers to tailor the outcome to the specific situation; 8. practical, in particular, requiring low-cost fact-finding; and 9. provide social information about actual application by others.

Keywords: Objective criteria, Rules, Negotiation, Dispute resolution

JEL Classification: D63, D74, K10, K40

Suggested Citation

Barendrecht, Maurits and Verdonschot, Jin Ho, Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice (August 22, 2008). Tilburg University Legal Studies Working Paper No. 011/2008, TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 005/2008, Available at SSRN: https://ssrn.com/abstract=1246697 or http://dx.doi.org/10.2139/ssrn.1246697

Maurits Barendrecht (Contact Author)

Tilburg Law School ( email )

P.O. Box 90153
NL-5000 LE Tilburg
Netherlands
0031134662298 (Phone)

HiiL Innovating Justice ( email )

Warandelaan 2
P.O. Box 90153
Tilburg, 5000 LE
Netherlands

HOME PAGE: http://www.hiil.org

Hague Institute for Innovation of Law ( email )

Den Haag
Netherlands
+31 70 762 0700 (Phone)

HOME PAGE: http://www.hiil.org

Hague Institute for Innovation of Law ( email )

Den Haag
Netherlands
+31 70 762 0700 (Phone)

HOME PAGE: http://www.hiil.org

Jin Ho Verdonschot

Tilburg University - TISCO ( email )

Warandelaan 2
P.O. Box 90153
Tilburg, 5000 LE
Netherlands
0031134668764 (Phone)
0031134662323 (Fax)

HOME PAGE: http://www.tilburguniversity.nl/webwijs/show/?uid=j.h.verdonschot

Tilburg University - Faculty of Law ( email )

P.O. Box 90153
NL-5000 LE Tilburg
Netherlands
0031134668764 (Phone)
0031134662323 (Fax)

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