Discussions in Dispute Resolution: The Foundational Articles (Oxford University Press 2021)

Abstract

Discussions in Dispute Resolution: The Foundational Articles is a book published in 2021 by Oxford University Press. This abstract below is an abstract of the entire book, and the entry which follows is the book's Introduction. The book itself is available both from Oxford University Press, Amazon, and academic libraries across the United States and the world.

As a serious field of academic study for approximately 40 years, Discussions in Dispute Resolution: The Foundational Articles constitutes both a celebration of the dispute resolution field’s foundational writings and a reflection of what makes these pieces so important. In this book, the editors have identified 16 foundational writings published before the year 2000. They consist of four from each of the field’s primary subfields – negotiation, mediation, arbitration, and public policy. The works appear in chronological order, and each with four commenters who are asked: why is this work a foundational piece in the field? Where possible, one of the commenters will be the piece’s author, who either reflects on the piece or simply respond to the other commenters.

Each chapter of dispute resolution’s four subfields begins with a short excerpt of the foundational piece, distilling it to its core ideas – those that made it foundational. Then four leading dispute resolution professors engage with separate aspects of these ideas as a means of both recognizing their prescience and critiquing them where appropriate.

The chapter on negotiation starts with the article that framed legal negotiation as a process known as “bargaining in the shadow of the law,” and the next piece discusses one of the key challenges of negotiation—how can we trust the other lawyer? Next, comes the article that introduced problem-solving negotiation, which shifts the focus to the client’s needs and interests rather than the story as framed by litigation. Finally, the enthusiasm over problem-solving negotiation is tempered when it limits are identified and analyzed in the last article.

The chapter on mediation begins with the article that jurisprudentially legitimized its use. The concept of mediator neutrality became sanctified and adopted into the field through the next article, and that concept is challenged by the next piece which describes the inequities mediation can impose on divorcing women. The chapter’s final piece addresses the overarching question of the mediator’s proper role along with the specific tasks, tools, and skills mediators use.

The chapter on arbitration mirrors the ongoing public debate about arbitration that continues today in the United States Supreme Court: how can the Federal Arbitration Act best be understood and applied? Is it a means to ensure enforcement of arbitration agreements negotiated on a level playing field between repeat players, such as merchants? Or, is to be understood more broadly as a dispute resolution process that routinely substitutes for litigation, even when one of the parties is unaware that the underlying agreement requires resolution of all disputes through arbitration?

An important theme in the policy section are critiques of dispute resolution. Two articles focus on the problems presented when parties and neutrals focus on underlying interests, solutions, and peace, all of which can favor inequality in the status quo. One article questions the degree of legitimacy the dispute resolution movement gained through institutionalization and legalization. The last piece is the field’s big bang moment, the presentation of the “multi-door courthouse” concept where courthouses become the purveyor of a variety of dispute resolution offerings in addition to trial.

Keywords: Dispute resolution, arbitration, negotiation, mediation, conflict resolution

JEL Classification: k10, k40,k41