Toward a Program-Based ADR Research Agenda

Program evaluation research is often too narrowly focused to build theoryabout dispute resolution while theory-driven ADR research is frequentlytoo far removed from programmatic realities to inform practice. To developan ADR evaluation research agenda that connects theory and practice, weneed to consider: making ADR context a central focus of research; undertakinga fuller account of the processes and the work of third parties inrelation to what skills and orientations parties bring with them to ADR asnegotiators; widening our view of ADR impact or result; and reexaminingwhat research methods are best for studying ADR programs. By shiftingour perspectives, placing negotiating parties closer to the center of ourstudy of ADR, and grounding research in the contexts that matter to policy-makersand practitioners, we could significantly advance research onthird-party intervention.     

The Next Step: Research on How Dispute System Design Affects Function

Despite claims that ADR offers "better" solutions than traditional approaches (such as the courts), the field of dispute resolution has trouble proving its case. The reason is that we lack baseline data on the effectiveness of both traditional and nontraditional dispute resolution methods. Practitioners and researchers of dispute resolution should work together and in collaboration with public and private sector institutions to incorporate systemized data collection and evaluation into ADR practice. The growing subfield of dispute system design offers particularly rich ground for such collaboration between the research and practice communities.     

Mediation Practice in the South African Construction Industry: The Influence of Culture, the Legislative Environment, and the Professional Institutions

We studied mediation practice in the South African construction industry by surveying sixty-three mediators. We found that mediators are more intent on resolving disputes for the parties than on assisting the parties to find their own settlements. In addition, we found that greater emphasis by parties to the dispute is placed on technical expertise, authority, and a clear understanding of the matter in dispute than on moving the parties toward an in-depth understanding of each other's perspectives. We conclude that mediation practice in the South African construction industry is not consistent with generally accepted principles of mediation. We also argue that the fragmented and potentially adversarial traditional procurement system predominantly used in South Africa, together with the inadequate institutional response in promoting mediation as a preferred dispute resolution method, is encouraging mediation to develop in this way. This is cause for concern, not only because this practice represents a departure from the underlying philosophy of mediation — dialogue aimed at amicable and long-lasting solutions that are in everyone's best interests — but because it is incompatible with the Southern African worldview concept of ubuntu .     

Some Minor Reflections on Conflict Resolution: The State of the Field as a Moving Target

Based on several recent meetings between the scholarly and practice communities of the conflict resolution field, the author observes that our understanding of what we consider to be conflict resolution is changing rapidly, and that the context of a particular dispute is often determining. To continue to build knowledge in the field, scholars and reflective practitioners should examine such topic areas as the nature of practice; differences between in-house and external mediation; expectations of all parties about change and outcomes; and the ethics of intervention.     

Cultivating Dialogue: From Fragmentation to Relationality in Conflict Interaction

This article builds on the tendency in recent decades in the field of alternative dispute resolution (ADR) to analyze conflict and its transformation from a relational perspective. It surveys developments in twentieth‐century philosophy that support the ongoing quest to explore the self in ADR from a relational perspective. It then shows how the concept of dialogue provides a framework for understanding conflict transformation from a relational perspective, by exploring the relational foundations of dialogue. It also draws a connection between the growing use of mindfulness practices in conflict settings and the practice of dialogue, suggesting that Buddhist philosophy and practices can help cultivate relational awareness and dialogue. The article therefore suggests that incorporating dialogue and exploring its relational characteristics can assist ADR scholars and practitioners to develop further practices that can promote collaboration by shifting disputants from adversarial and fragmented orientations to more relational mindsets.     

Broadening the Evaluation of Dispute Resolution: Context and Relationships Over Time

Evaluation of negotiation outcomes tends to focus on measurable, dyadic,short-term resolutions of conflict. We review current challenges to this traditionalmodel of the evaluation of dispute resolution outcomes, and we offerfour perspectives that can help address them. First, we advocate the needfor longitudinal studies of negotiations that incorporate disputant relationshipsbefore and after a particular negotiation. Second, we highlight theincreasing importance of third parties in resolving conflict. Third, we suggesta more comprehensive conception of parties, relationships andoutcomes in negotiations research. Finally, we advance an explicit incorporationof context and culture into dispute resolution research models.     

Triangulation of Salient Studies to Date on Trust-Building in Mediation

Many studies have empirically demonstrated the importance of trust-building between mediators and parties to a dispute. We wrote this article in response to a call by Stephen Goldberg and Margaret Shaw for studies conducted in North America to be triangulated in other countries where mediation is taking off as an alternative tool in the resolution of disputes. Our objective was to test theories on the factors that increase trust-building in mediation. With this in mind, the study conducted by Jean Poitras in Montreal (Canada) was triangulated in the Balearic Islands (Spain) and an analysis was made of the similarities and differences between both studies using different methods.     

Provisions for Noncompliance and Treaty Value: A Game Theoretic Perspective

We present a game theoretic analysis of the prevention of noncompliance that deals with treaty violations whether they are intentional or not. Game theorists have developed probabilistic trigger schemes to handle such situations. We analyze dispute resolution procedures in subgame perfect trigger terms and suggest alternative designs for the handling of signatory breach. This paper shows that designs can be compared directly by evaluating their ability to keep signatories close to the cooperative goal in the long run. This criterion enables us to highlight the merits of generosity and redress for dispute resolution. Generosity avoids retaliation with certainty so that parties can settle before any retaliatory action is implemented. But if retaliation does come to pass, it is the cost to the victim of punishing the perpetrator that determines a design's value. Using a simple repeated prisoner's dilemma framework we find that, in most circumstances, a subgame perfect design that adds concern for the injured party's redress to the generosity built into a probabilistic trigger scheme yields better treaty value.     

When ADR becomes the law: A review of federal practice

Conclusion With the passage of the Administrative Dispute Resolution Act, the stage was set for innovation and change in federal agencies. Now, part way into the five-year life of the Act, a new administration has the potential to encourage even wider use of ADR at the federal level, providing still more examples from which to develop a clearer sense of best practice. Additional funds, both for ACUS and individual agencies, are vital to providing the level of experimentation, innovation, and documentation needed to ensure success.MIT ProfessorLawrence E. Susskind is director of the MIT-Harvard Public Disputes Program, 512 Pound Hall, Harvard Law School, Cambridge, Mass. 02138.Eileen F. Babbitt is associate director of the Public Disputes Program.Phyllis N. Segal is a practicing mediator with Endispute, Incorporated.The authors would like to acknowledge the federal dispute resolution specialists who contributed greatly to our work by providing interviews and materials for this article: Cathy Costantino of FDIC; David Batson of EPA; John Settle and Ron Walczak of HHS; David Drabkin of DLA; Jim Jones of DOL; Sheldon Guttman of FCC; Charles Pou of ACUS; Jeff Domber of GSA; and Diane Liff of DOT.     

Mediation within the French Industrial Relations Context: The SFR Cegetel Case

This article examines the introduction of mediation in the French industrial relations context, as illustrated by the case of the SFR Cegetel collective agreement on social dialogue, which was signed in June 2002. This article provides an overview of relevant French legislation and explores why mediation is used so infrequently in France to settle labor conflicts, examines the growing interest in mediation in France as exemplified in the implementation of alternative dispute resolution (ADR) programs in several firms, and analyzes the barriers and incentives to mediation as well as the impact of internal mediation on the relations between management and employees.
We conclude that while inherited customs and lack of information curtail the use of mediation, disputants increasingly favor mediation as an option when they wish to gain time or when the situation is filled with especially acute open conflict. In addition, we conclude that the introduction of mediation favors a more participatory style of management, improves relationships between management and employees, and induces a better social dialogue within the firm.     

Mediating public disputes: A response to the skeptics

Conclusions There are more than 75 well-documented cases of successful dispute resolution in the public sector (and a great many more that are less well-documented). The evidence attesting to the merits of non-adjudicatory approaches to dispute resolution is mounting rapidly.While there are some public disputes that do not lend themselves to informal resolution (i.e., disputes involving fundamental freedoms or rights), many involving conflicting interests and values have proven resolvable in a win-win fashion. The most important preconditions for success have been the presence of a credible nonpartisan facilitator or mediator, parties in an undeniably interdependent situation and pressure created by a decision maker who has promised to act (using traditional decision-making methods) in the absence of a consensus. In short, given these preconditions, there are a number of good reasons to forge ahead with efforts to employ mediation and other forms of dispute resolution on a more regular basis. Lawrence Susskind is Professor of Urban Studies and Planning at the Massachusetts Institute of Technology and Executive Director of the Program on Negotiation at Harvard Law School, Cambridge, Mass. 02138. Co-author ofResolving Environmental Regulatory Disputes (Cambridge, Mass.: Schenkman, 1984), he has served as a mediator of public disputes at the local, state and federal levels.     

Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements

To understand why some international institutions have stronger dispute settlement mechanisms (DSMs) than others, we investigate the dispute settlement provisions of nearly 600 preferential trade agreements (PTAs), which possess several desirable case-selection features and are evoked more than is realized. We broaden the study of dispute settlement design beyond “legalization” and instead reorient theorizing around a multi-faceted conceptualization of the strength of DSMs. We posit that strong DSMs are first and foremost a rational response to features of agreements that require stronger dispute settlement, such as depth and large memberships. Multivariate empirical tests using a new data set on PTA design confirm these expectations and reveal that depth – the amount of policy change specified in an agreement – is the most powerful and consistent predictor of DSM strength, providing empirical support to a long-posited but controversial conjecture. Yet power also plays a sizeable role, since agreements among asymmetric members are more likely to have strong DSMs due to their mutual appeal, as are those involving the United States. Important regional differences also emerge, as PTAs across the Americas are designed with strong dispute settlement, as are Asian PTAs, which contradicts the conventional wisdom about Asian values and legalization. Our findings demonstrate that rationalism explains much of international institutional design, yet it can be enhanced by also incorporating power-based and regional explanations.     

Ways of Handling Conflict: What We Have Learned, What Problems Remain

This article canvasses the principal achievements of the past twenty-five years in alternative dispute resolution and addresses some of the current challenges and how they might be addressed.     

No Sheriff in Town: Governance for Online Dispute Resolution

Online dispute resolution (ODR), the practice of resolving disputes via the Internet or digital applications, has been developing since the mid‐1990s. As the field has grown and gained traction, it has increasingly received attention from professional associations and industry leaders in the world of alternative dispute resolution (ADR). More recently, it has begun to receive recognition from sources outside of this field — in both the public and private sectors. As the field develops and individual initiatives become widely adopted, the attention it receives from external sources will undoubtedly focus on questions of quality, ethics, practitioner training, service provider qualifications, and monitoring. These questions — already beginning to be heard from within the field — derive, in essence, from one shared overall question, that of appropriate governance for the ODR field. In this article, we will explain what we mean when we discuss a field's governance and suggest that the field itself should investigate issues of its own governance. We explore and explain the current “low‐to‐no” state of governance in ODR — and the developments that are likely, should the field fail to actively address this issue. We discuss the costs of no governance, and the potential costs and disadvantages of employing a higher‐governance model. We ask whether ODR can, indeed, be governed at all, and illustrate why addressing ODR governance is a very complex venture, in terms of the web of factors to be addressed, no matter how beneficial internal governance may be. We do not, in this article, intend to decide any of these questions — but, rather, to pose them to the ODR field and to the wider fields of ADR and conflict management. We point out why the ODR field is at a developmental point that is highly suitable for discussing and deciding these questions — and why these decisions might have far‐reaching implications for a wide range of conflict‐related fields.     

Electronically-Mediated Dispute Resolution and E-Commerce

Although the volume of internet commerce continues to increase, some consumers hesitate to conduct business transactions on the internet because of concerns about the trustworthiness of on-line merchants. The presence of readily available, on-line dispute resolution services can send a reassuring signal to consumers that allays their fears and encourages them to do business on-line. However, on-line dispute resolution systems designed to address disputes arising from e-commerce transactions rely on a communication medium that is impoverished, which can lead to lower trust in the process, and to the escalation of negative emotion and negative attributions about the other participants in the dispute resolution process, making successful resolution of the dispute more difficult. A mediator or arbitrator in an on-line setting who is aware of these potential problems can try to avert them by engaging in simple rapport-building procedures. However, facilitating acceptance of on-line dispute resolution decisions may be more difficult than in a traditional face-to-face environment because of the absence of cues that communicate the trustworthiness and neutrality of the third party, as well as acknowledgment of the societal standing of the disputant.     

美日FTA/EPA:进程、焦点、前景

拟议中的美日FTA/EPA对两国而言具有重要意义,它是区域经济合作中"竞争性自由化"的体现,也是日本推进农业自由化和加速国内规制改革的重要机制,对于亚太地区的日美同盟以及推动多哈回合多边贸易谈判同样具有积极的意义.但相比与第三方的经济合作协议,美日FAT/EPA谈判进程仍相对滞缓,目前尚停留于国内政策讨论的初始阶段.农产品市场开放等焦点问题仍是难以跨越的障碍,同时,美日FTA/EPA谈判还受到两国国内政局变动的深刻影响.推动美日FTA/EPA的若干积极因素主要表现为两国产业界的支持、较为完善的既有谈判架构、日本国内对美国经贸外压的善意接纳等.     

Overcoming the weight of history: 'Getting to yes' in the Peru-Ecuador border dispute

This article presents and analyzes the elements of the Western Hemisphere's longest standing boundary dispute and the crucial role of the region's oldest multilateral conflict resolution mechanism in working out an historic agreement in October 1998. Other factors in combination were also critical for success: an existing international legal framework, multilevel bilateral and multilateral diplomacy, decisive leadership and statecraft, and public diplomacy. The analysis suggests that the final settlement is a significant milestone in international diplomacy, demonstrating that even the most deeply ingrained differences between states can be resolved by the patient and persistent efforts of all parties involved.     

Strategic issues in structuring multi-party public policy negotiations

Conclusion The protocols suggested here provide a framework for addressing the major strategic issues encountered in structuring multi-party public policy negotiations. A careful consideration of the procedures before substantive negotiations begin is the best assurance that these issues will not emerge as dilemmas and crises during the process itself. The protocols should be created by the parties to derive the full benefits of relevance and commitment. To borrow protocols created for another negotiation may result in both unrealistic and missing provisions.Having a good dispute, where the appropriate parties effectively explore and address their most essential and difficult differences, is the critical first step in effective dispute settlement. Gerald W. Cormick is regional director of The Mediation Institute, 15629 Cascadian Way, Mill Creek, Wash. 98012 and research associate professor at the Graduate School of Public Affairs, the University of Washington.An earlier version of this column was presented by the author during a panel on environmental and natural resource dispute resolution at a research conference sponsored by the Association for Public Policy and Management, 30 October 1987, in Bethesda, Md.     

Intervenors with Interests and Power

This article presents a framework for understanding the roles that interested and powerful intervenors play in resolving disputes. Called an intervention role grid, this framework can be used to analyze the dispute resolution functions that third parties can perform. It may also be used to shed light on the difficult choices that confront intervenors with interests and power. The article uses case material from five recent international conflicts to illustrate how the intervention role grid works.