CHAPTER ONE

Perspectives on Dispute Resolution

An Introduction

Michael L. Moffitt and Robert C. Bordone

Disputes are a reality of modern life. Each of us has our own perspectives, our own interests, our own resources, our own aspirations, and our own fears. It is no wonder, then, that as we run into each other, we sometimes find ourselves in disagreement about what has happened or about what ought to happen. We each have times when we feel others have hurt us, and we each have times when we are moved to act against real or perceived injustices.

That disputes arise is not remarkable. What is remarkable is the extraordinary variety of ways in which people choose to deal with these differences when they arise. It is this diversity of experiences and approaches that makes the study of dispute resolution so rich, so rewarding, and sometimes so frustrating.

Most people involved in disputes do not enjoy the experience. For many of us, disputes are emotionally draining. Disputes take up time and mental energy. Disputes distract us from the things we would rather be doing. Disputes force us into contact with others—often with others who would not make our list of preferred people with whom to spend time. Dealing with disputes often costs us resources. In short, those caught in a dispute generally view resolution as an attractive goal (assuming the resolution is on some favorable term).

Similarly, society generally treats disputes as costly occurrences—ones that should be avoided if possible, and ones that should be addressed quickly when they cannot be avoided. Society tends to view disputes as threats to the preservation of order. We collectively prefer neighborhoods not to be in strife. We prefer for commerce to flow without the interruptions posed by disputes. We generally prefer for individuals and for groups to live their lives without having disputes tear at the relationships that bind us as a society.

Yet, not all disputes are necessarily bad. Sociologist Laura Nader has suggested that disputes are a helpful vehicle for casting light onto that which is wrong with the status quo.1 If all disputes are avoided or suppressed, society might ignore wrongs, might perpetuate injustice, and might leave the aggrieved uncompensated. At the macro level, therefore, in a world in which injustice and the abuse of power still exist, disputes can play a useful function as agents of change.

Still, despite the capacity for disputes to function as vehicles for positive social change, most of us experience disputes as burdensome. After all, apart from the macro level, we live our lives at home, where disputes with our partners are emotionally costly. We live our lives at work, where disagreements with our bosses risk damaging our self-images and our financial well-being. We live our lives in our neighborhoods, where disputes can transform mutually supportive networks into cold and unwelcoming factions. Most of us live lives in which it would be nice to have better ways to resolve disputes.

WHAT WE MEAN BY DISPUTE RESOLUTION

In a book explicitly focused on dispute resolution, it is only reasonable to expect some clarity about what is meant by the terms dispute and resolution. Yet the interdisciplinary nature of this undertaking produces more disagreements (disputes?) than clarity on this question. For purposes of this book, we suggest that readers consider dispute resolution in its broadest, most inclusive sense. It would be a shame to have wisdom from one or more disciplines screened out of our inquiry because of a narrow filter on what is “relevant.”

Disputes and Conflicts

Are disputes and conflicts the same thing? Some scholars use the terms interchangeably,2 while others see important differences between the two.3 Part of this derives from disciplinary differences. Social scientists are more likely to study “conflicts,” while those with legal training may focus on “disputes.”4 Neither discipline has settled on a single definition of either term, however. In the Dictionary of Conflict Resolution, for example, the definition of the term conflict occupies more than twenty paragraphs, even without considering its many compound usages.5

If there is a difference between popular uses of the terms dispute and conflict, it might roughly be described as one of magnitude. Most observers would intuitively say that a border war is a conflict, and an argument with a hot dog vendor is a dispute. Conflicts are often seen as broader (involving more people), deeper (extending beyond surface issues into questions of value, identity, fear, or need), and more systematic (reaching beyond a single interaction or claim). Yet such line drawing in real life is rarely so obvious.

Even more important, we are not convinced that the work of precisely differentiating between disputes and conflicts merits the effort. No body of knowledge or advice should hinge on whether the condition being described falls into the category of dispute or conflict. We do not interest ourselves with questions about what labels observers put on the dynamics they study, but instead focus on what insights observers have to offer about the people experiencing the problem, their views of the problem, and the processes by which they are seeking to resolve their differences. Throughout most of this book, we and the contributing authors describe disputants, dispute contexts, and dispute resolution processes. We hope that those readers trained in disciplines that are most accustomed to treating questions of conflict will join us in looking past terminological differences.

Even beyond questions of definitional boundaries, one often sees disagreement about how best to describe a dispute. Disputants may differ in the timeline they use to describe a set of circumstances underlying a dispute. Figuring out who has the most legitimate claim or who is at fault can depend on when one begins the story. (“The project is late because you committed us to an unrealistic deadline without consulting me” versus “If you had managed your workload better last month, we would have been done with the project on time.”) Disputants may differ in the characters they would include in the list of relevant participants or decision makers. (“This has nothing to do with him; leave him out of this.”) Disputants sometimes use different labels for each other. The other person may be an opponent, an adversary, a counterpart, or a partner, for example. Disputants may have different visions of the scope of the dispute. For example, each may have a different view of which facts, feelings, issues, and concerns are relevant and appropriate to be included in the description of the dispute.

“Resolution” and Other Elusive Notions

In a simple dispute, the concept of resolution may be perfectly clear. I bump into you, causing you some injury. We talk about how I can make amends for having caused you pain, and we agree that I will make a particular payment in exchange for you releasing me from any further responsibility. I pay you, and you release me. Perhaps this resolves all aspects of the dispute. Or perhaps this payment leaves other issues “unresolved,” such as emotions or the effects of the injury or the settlement on parties who were not part of our agreement. Still, in a simple dispute such as this, it is possible to imagine that we might address these other issues as well. When the dispute in question becomes more complex, however, so does the concept of resolution.

The language of resolution implies a level of finality that is only occasionally a realistic condition. Sometimes a dispute is so simple that it is possible to describe a dispute as fully and finally resolved in all senses—legal, emotional, financial, relational, logistical, and so on. A consumer has a complaint about a product and wants to return it. After some discussion, the merchant refunds the consumer’s purchase price. Perhaps this dispute can be accurately described as resolved.

Particularly in complex circumstances, however, “resolution” is not a single event—assuming resolution is even possible. At what point in a piece of institutional reform litigation (such as that which led to school desegregation) is the dispute “resolved”? Even legal scholars—those who tend to have the narrowest definition of resolution—would agree that such a dispute is not fully resolved at the moment a court enters a consent decree. Years of supervised implementation remain, making the idea of resolution slippery. When is a collective bargaining dispute resolved? In one sense, the dispute is resolved when a new contract is signed. Yet management and labor will continue to work with one another on an ongoing basis for years. Aspects of the dispute that resulted in the current contract will undoubtedly carry forward, coloring the way the two sides interact between the time when this contract is ratified and the next set of bargaining begins.

Resolution is a tricky notion. One of the editors of this book used to work with a nonprofit consulting firm called Conflict Management Group. In the field, particularly outside of the United States, the name of the firm was the cause of such surprise and concern that the editor occasionally used the acronym CMG to ward off uncomfortable conversations. In some contexts, it was the word...