The 'Nature' of Legal Dispute Bargaining
17 Cardozo Journal of Conflict Resolution (2016 Forthcoming)
26 Pages Posted: 2 Sep 2015 Last revised: 12 Jan 2016
Date Written: August 31, 2015
The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break the logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance can be difficult to appreciate, resist, and control, but it is something all dispute bargaining theory, adversarial and communitarian alike, must take into account. Theories that ignore it are limited to telling only part of the dispute bargaining story.
Keywords: conflict resolution, social cooperation, tribal, moral mind, meta-moral
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