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.     

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.     

Chronicling the Complexification of Negotiation Theory and Practice

The essay reviews the content of twenty-five years of Negotiation Journal , identifying themes and issues explored on its pages in the past, the current issues challenging the field's scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to public responsibility.     

Designing Ethical Online Dispute Resolution Systems: The Rise of the Fourth Party

As the pandemic forces public and private institutions to move online, many court and business leaders are looking to the field of online dispute resolution (ODR) for best practices and lessons learned. Developed over the last twenty years, largely in response to the growth of e‐commerce, the ODR field has generated a deep well of theory and practice while also identifying potential ethical dilemmas and risks. The application of technology, the “fourth party,” plays an increasingly integral role in how we negotiate resolutions to our disputes, with or without a third party. A brief overview of the history of ODR’s development will set the context for the exploration of the range of tools and techniques encompassed by online dispute resolution. Consideration of the ethical challenges raised by ODR practice will illuminate key questions and choices that need to be made in designing ODR systems and in governing their use.     

Labor–Management Relations: Understanding and Practicing Effective Negotiations

Periodic collective bargaining between employers and unions, combined with contract administration and workplace dispute resolution, has provided many core insights for the broad field of negotiations. Over the past twenty-five years, this arena has advanced knowledge regarding the interdependence of integrative and distributive bargaining, the concurrent shaping of attitudes, the management of internal relations (within a party), and the roles of elected and appointed agents. Public sector negotiations have provided new insights into the dynamics of multilateral bargaining as well as a broad array of mediation and arbitration models. While the number of labor agreements negotiated each year has declined over the past half century, at least 23,000 private sector agreements are still executed each year and fundamental changes in industrial relations systems make continued attention to labor–management negotiations of increasing importance. In particular, this arena now features highly structured approaches applying interest-based bargaining principles and presents profound challenges as power relations shift in multiple ways.     

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.     

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.     

What Dispute Systems Design Can Learn from Project Management

The discipline of project management (PM), a well‐recognized management approach to large‐scale, high‐cost projects, has much to offer the field of dispute systems design (DSD). This article explores the core concepts of each discipline, noting similarities and differences, with a particular focus on stakeholder management, scope management, risk management, and quality management. Two case studies, General Electric's early dispute resolution program and Chevron's corporate social responsibility initiative in the Niger Delta, demonstrate the application of project management priciples in two DSD scenarios: one with internal corporate stakeholders and one with external community stakeholders. The authors identify five key lessons that dispute systems design can draw from project management and identify areas for further study.     

Control,Communication, and Power: A Study of the Use of Alternative Dispute Resolution of Enforcement Actions at the U.S. Environmental Protection Agency

Two decades after pioneering the use of alternative dispute resolution techniques, practices, and processes, the U.S. Environmental Protection Agency (EPA) has emerged as the leader among federal agencies. As such, the EPA provides a useful setting for testing conventional wisdom and theories about alternative dispute resolution. This essay takes data collected as a part of an assessment of the agency's enforcement ADR program and examines how well it reflects or illuminates current theory and conventional wisdom about conflict resolution. In particular, we examine why parties to a dispute choose ADR, and the key elements needed for the successful resolution of environmental conflicts, including the dynamics between the parties at the table and mediator characteristics.     

Plaintiffs by proxy: A firm-level approach to WTO dispute resolution

Lobbying by multinational business firms drives the agenda of international trade politics. We match Fortune Global 500 firms to WTO disputes in which they have a stake and to their political activities using public disclosure data. The quantitative evidence reveals traces of a principal-agent relationship between major MNCs and the US Trade Representative (USTR). Firms lobby and make political contributions to induce the USTR to lodge a WTO dispute, and once a dispute begins, firms increase their political activity in order to keep USTR on track. Lobbying is overwhelmingly patriotic—the side opposing the US position is barely represented—and we see little evidence of MNCs lobbying against domestic protectionism. When the United States is targeted in a dispute, lobbying by defendant-side firms substantially delays settlement, as the affected firms pressure the government to reject concessions. Lobbying on the complainant side does not delay dispute resolution, as complainant-side firms have mixed incentives, to resolve disputes quickly as well as to hold out for better terms.     

Designing a dispute resolution system for water policy and management

Conclusions The Montana state water planning process represents one example of how a government agency with decision-making responsibilities can design and facilitate a dispute resolution system. Dispute resolution systems can increase the participation of all affected interests in developing and implementing public policy. This, in turn, should increase their ownership in the final decision and in seeing that it is implemented. A dispute resolution system may not decrease the volume of conflicts, per se, but it should reduce the high costs of conflict and realize the benefits of conflict more efficiently.The use of dispute resolution systems to address complex, multi-party public policy issues also provides other benefits, including the consideration of diverse perspectives and interests; the cooperative and systematic analysis of technical and scientific information; the formation of more pragmatic, equitable, and mutually acceptable goals and alternatives; and the improvement of relationships among diverse, often competing interests, government agencies, and policymakers. Matthew McKinney is a policy analyst and facilitator with the State of Montana Department of Natural Resources and Conservation, 1520 East Sixth Avenue, Helena, Mont. 59620.An earlier version of this article was presented at a conference titled Innovation in Western Water Law and Management, held at the Natural Resources Law Center, University of Colorado School of Law, 5–7 June, 1991.     

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.     

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.     

Compensation Schemes and Dispute Resolution Mechanisms: Beyond the Obvious

Because compensation and dispute resolution lie at the core of most resettlement proposals, this panel had two main objectives: to get an accurate grasp of the current Israeli approach to these challenges and to glean insights from relevant experiences in other settings. Before reading our panelists' presentations, one might be forgiven for reasonably thinking that "compensation equals cash" and "dispute resolution equals court." As our panelists discussed, however, such a straightforward view is simply inadequate to the needs of the resettlement problem — a much richer view of compensation and dispute resolution is required.     

The Reform of Military Education: Twenty-Five Years Later

When considering how to make the war colleges more effective, it should be remembered that first and foremost, the job of the war colleges is to educate students to make them better defenders of the United States of America and its interests and its allies around the world. However, the author gives many recommendations on how these colleges can better educate, rather than train.     

Municipal Leadership of Climate Adaptation Negotiations: Effective Tools and Strategies in Houston and Fort Lauderdale

Negotiation analysis of climate change–related issues has largely focused on public dispute resolution mechanisms that are typically applied in the face of specific environmental crises, or on multiparty diplomacy relating to international climate agreements. Mayors and other municipal leaders, however, are increasingly taking steps to negotiate urban planning efforts with stakeholders to implement policies for managing the intensifying impact of climate change. In this article, we analyze negotiations in Houston, Texas, and Fort Lauderdale, Florida, to identify which methods municipal leaders employed to conduct negotiations to implement climate adaptation policies and also consider whether those methods were effective. The two cities present two differing city management structures: Houston has a strong mayor‐driven system, while Fort Lauderdale uses a city commission and city manager system. In this article, we examine the barriers that leaders must overcome and consider their options for negotiating lasting agreements.     

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.     

Reconnecting Systems Maintenance with Social Justice: A Critical Role for Conflict Resolution

With roots in both the field of labor-management negotiation and the civil rights movement of the 1950s and 1960s, practitioners and theorists of conflict resolution have been guided by two main theories concerning the objectives of alternative dispute resolution. On the one hand is the objective of systems maintenance, with an emphasis on stability and rational decision making. On the other hand is the objective of social justice, which emphasizes changing social institutions and organizations to support the protection of basic human rights and needs. This article analyzes the assumptions of both objectives and concludes with recommendations for how to make the goals of systems maintenance and social justice mutually supporting.     

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.