The Three Pursuits of Dispute Settlement
CZECH (& CENTRAL EUROPEAN) YEARBOOK OF ARBITRATION, Vol. 1, p. 227, 2010
18 Pages Posted: 10 Apr 2011
Date Written: December 8, 2010
What is dispute settlement? What should we expect or ask from a dispute resolution mechanism? To what extent and with what consequences can we buy dispute resolution, privatise it and remove it from society’s purview? Should arbitration be seen as a mechanism that merely does away with disputes, or rather as an instrument of governance? These are some of the principal questions on which this essay seeks to provide some basic structuring reflections. To this effect, the essay envisions three functions that dispute settlement may pursue: the individualised and isolated maximisation of the parties’ satisfaction; the sustainment of the rule of law and of predictability; and the enforcement of substantive societal values.
Keywords: role of dispute resolution, arbitration, mediation, negotiation, settlement, rule of law, justice, satisfaction of the parties, Owen Fiss
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