Mediation and Dispute Resolution Programs

by

Carrie Menkel-Meadow

• LAST REVIEWED: 26 October 2015
• LAST MODIFIED: 26 October 2015
• DOI: 10.1093/obo/9780195396607-0192

Introduction

Legal, political, international, social, interpersonal, and family disputes are now handled (not always “resolved”) with a variety of different processes, all with different purposes, structures, personnel, and types of outcomes. Increasingly, rather than resolving disputes in courts or other formal tribunals (with binary win-lose outcomes), disputes and conflicts may be resolved by negotiation (directly by the parties to the disputes or with their legal or other representatives), mediation (using the assistance of a third party to facilitate that negotiation), arbitration (using a third party outside of a court to make a decision with privately agreed-to rules), or some other hybrid of these processes, including mediation-arbitration (med-arb), arbitration-mediation (arb-med), consensus building (facilitated group decision making), restorative justice (alternative criminal reintegrative, restitutionary, and healing processes), transitional justice (such as using truth and reconciliation processes, indigenous conflict resolution processes [e.g., gacaca in Rwanda], whether formal or informal, to attempt to resolve postconflict and mass atrocity wrongs and harms), and specifically tailored processes to a particular conflict or set of disputes (comprising the new field of Dispute System Design). Courts and adjudication (decisions by an officer of the state, either a judge or an administrative officer) continue to be used in both nation-state and international settings in particular kinds of cases, notably in modern international criminal law. This article describes various of these modern processes, in what has been called modern “process pluralism” or “appropriate dispute resolution”; we analyze a particular dispute or conflict and seek the most appropriate process for trying to manage, handle, or resolve the dispute. The philosophy or sensibility behind these processes, sometimes called “ADR,” is that the parties might have more participation and control over the resolution of their disputes; solutions might be more specifically tailored to the needs and goals of the parties, rather than to those who decide for the larger polity, community, or state, and that different sorts of facilitators or third-party interveners might perform different functions than only pronouncing binary judgments and sentences or civil damage awards. The theory and practices of ADR have grown exponentially in recent decades in the United States and in many other legal systems throughout the world, as well as in the resolution of private disputes, both domestically and transnationally. At the same time, there are a variety of controversies and debates about the use of these less formal processes, including concerns about the privatization of justice, public accountability, the role of the state in dispute resolution, and issues of power and inequality in the uses of these processes. Empirical evaluations of the various claims made on behalf of or against these processes are often inconclusive. There is a great deal of variation of use and efficacy of these processes in different sectors of conflict and dispute resolution.

Foundational Sources and Texts

The field of dispute and conflict resolution has a variety of foundational texts describing, defining, and analyzing the uses of various processes (negotiation, mediation, arbitration, and hybrids [Menkel-Meadow, et al. 2011]) in theoretical, general (Moffitt and Bordone 2005), and more context-specific terms. Because the field is highly interdisciplinary, foundational texts of the field are derived from work in law, social and cognitive psychology (Deutsch 1973), political science, sociology (Miall, et al. 2011), history (Auerbach 1983), anthropology (Roberts and Palmer 2005), business, criminology, decision sciences, game theory, economics, cognitive sciences (Arrow, et al. 1995), international relations (Menkel-Meadow 2012), social work, and policy planning (Follett 1995). The sources in this section are both foundational textbooks and anthologies that provide both general and discipline-specified introductions and analyses of these processes and the concrete ways in which they have been institutionalized in particular programs. Most of these works attempt to define what a “dispute” or “conflict” is, in different contexts, and then provide illustrations of how the processes are structured (whether in direct negotiation or with the use of third-party facilitation or decision) (Sander 1976).

• Arrow, Kenneth, Robert Mnookin, Lee Ross, Amos Tversky, and Robert Wilson. 1995. Barriers to conflict resolution. New York: W. W. Norton.

  Exploration of the social, cognitive, behavioral, strategic, and institutional barriers and impediments to reaching good agreements in a variety of conflict settings, provided by rigorous social scientists from different disciplines, providing descriptive data observations and prescriptive and normative suggestions.

• Auerbach, Jerold. 1983. Justice without law? New York: Oxford Univ. Press.

  A history of the use of noncourt forms of dispute resolution from colonial to late-20th-century American history, focusing on religious, community, and commercial alternatives to formal adjudication.

• Deutsch, Morton. 1973. The resolution of conflict: Constructive and destructive processes. New Haven, CT: Yale Univ. Press.

  One of the classic foundational treatments of different types of conflicts, from a social psychological perspective, on the constructive use of conflict when well managed and assessed, and criteria for distinguishing among and between different kinds of constructive vs. more destructive forms of conflict and strategies for resolution.

• Follett, Mary Parker. 1995. Constructive conflict. In Mary Parker: Prophet of management; A celebration of writings from the 1920s. Edited by Pauline Graham, 67–95. Boston: Harvard Business School.

  A classic formulation of the different kinds of conflict and ideas about using conflict productively to solve social problems, from an early pioneer in business management, social work, and organizational development. How not to divide, but expand, resources and solve problems. The “mother” of integrative bargaining theory and practice. Using “friction” to produce positive individual, organizational, and social change.

• Menkel-Meadow, Carrie, ed. 2012. Complex dispute resolution. Vol. 3, International dispute resolution. Farnham, UK: Ashgate.

  Comprehensive anthology of the leading theoretical, research, empirical, and skills-based articles in the field of conflict resolution from many different subject areas; exploring the differences between “simple” foundational dyadic and triadic disputes and more complex many-party and many-issue disputes, both in domestic (deliberative democracy) and international settings. Volume 1, Foundations of Dispute Resolution; Volume 2, Multi-party Dispute Resolution, Democracy and Decision Making; Volume 3, International Dispute Resolution.

• Menkel-Meadow, Carrie, Lela Love, Andrea Kupfer Schneider, and Jean Sternlight. 2011. Dispute resolution: Beyond the adversarial model. 2d ed. New York: Aspen.

  Comprehensive text with descriptions of all basic and hybrid processes, including theory, skills, ethical, and policy issues in use of mediation, negotiation, arbitration, and a variety of hybrid processes, with problems and simulations for practice in an accompanying teacher’s manual.

• Miall, Hugh, Oliver Ramsbothom, and Tom Woodhouse. 2011. Contemporary conflict resolution. 3d ed. Cambridge, UK: Polity.

  Social theories of how conflict develops in various contexts, and ideas for resolving, managing, and using conflict for peacemaking.

• Moffitt, Michael L., and Robert C. Bordone, eds. 2005. The handbook of dispute resolution. San Francisco: Jossey Bass.

  Anthology of basic articles on uses of different conflict processes and foundational issues including confidentiality, use of third-party neutrals, online dispute resolution, organizational dispute resolution, and controversial issues in the field.

• Roberts, Simon, and Michael Palmer. 2005. Dispute processes: ADR and the primary forms of decision making. Cambridge, UK: Cambridge Univ. Press.

  DOI: 10.1017/CBO9780511805295

  Exploration of roots of dispute resolution in theory, anthropology, and comparative perspective, with attention to theories, functions, and purposes of different processes and the importance of context.

• Sander, Frank E. A. 1976. Varieties of dispute processing. F.R.D. 70:111–134.

  The article/speech that is said to be the origin of the modern ADR movement, describing how courts and legal disputes could be assigned to different processes, including mediation, arbitration, fact finding, and ombuds, rather than all being litigated; commonly described as the article that suggested the “Multi-Door Courthouse.”