Three Ways of Looking at Dispute Resolution
59 Pages Posted: 14 May 2019 Last revised: 14 Jul 2020
Date Written: April 29, 2019
At the heart of contemporary dispute resolution theory stands the method of interest-based negotiation. The reliance on interests to resolve disputes has been seen by critics over the years as minimizing the protections of legal rights, and as corrosive to concepts of group solidarity. Taking a broader view of dispute resolution reveals three distinct strands of the theory: a liberal, state-centric, rights-based approach; a neoliberal, individualistic, interest-based approach; and an anti-liberal, communitarian, relationship-based approach. The origins of these strands of dispute resolution theory can be located within the political and legal landscape of the United States in the late 1970s and early 1980s, when contemporary dispute resolution theory began to take shape. While the structure of dispute resolution theory (and its privileging of the interest-based framework) continues to reflect the concerns of that era, it no longer speaks to the immediate concerns of the present. Instead, current questions in dispute resolution theory signal growing interest in more relationship-oriented approaches. Developing such approaches requires understanding the tensions inherent in dispute resolution theory, lest the shortcomings of relationship-based theories create new problems for the practice of dispute resolution. This Article charts a path to rethink the foundational structures of dispute resolution theory.
Keywords: negotiation, alternative dispute resolution, legal history
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