ISBN-10:
0787975389
ISBN-13:
9780787975388
Pub. Date:
08/12/2005
Publisher:
Wiley
The Handbook of Dispute Resolution / Edition 1

The Handbook of Dispute Resolution / Edition 1

by Michael L. Moffitt, Robert C. Bordone
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Product Details

ISBN-13: 9780787975388
Publisher: Wiley
Publication date: 08/12/2005
Edition description: New Edition
Pages: 560
Sales rank: 1,330,124
Product dimensions: 7.25(w) x 9.50(h) x 1.00(d)

About the Author

Michael L. Moffitt is an associate professor and the associate director of the Appropriate Dispute Resolution Program at the University of Oregon School of Law.

Robert C. Bordone is the Thaddeus R. Beal Lecturer on Law at Harvard Law School and the deputy director of the Harvard Negotiation Research Project at Harvard Law School.

Read an Excerpt

The Handbook of Dispute Resolution


By Michael L. Moffitt

John Wiley & Sons

ISBN: 0-7879-7538-9


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. 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, while others see important differences between the two. Part of this derives from disciplinary differences. Social scientists are more likely to study "conflicts," while those with legal training may focus on "disputes." 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.

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 conflict in the name that caused concern among clients. The editor was once told, "We have no conflict here," by a commander of a military unit in a breakaway republic in the former Soviet Union. His statement was perhaps technically accurate, since the area under his command was in a state of fragile ceasefire. His assertion that the circumstances did not constitute "con- flict" reflected not only superficial linguistic differences but also deeply held differences in assumptions about the implications of being in a conflict. Other clients seemed to view the idea of "managing" conflict as bizarre. The firm's name reflected an approach to addressing broad-scale problems of public concern. Rather than aim for a single moment of resolution, the theory behind many of CMG's interventions was that it was better to envision an ongoing stream of disagreements to be managed. One does not "resolve" a marriage or a partnership. In any ongoing relationship (between spouses, business partners, neighbors, professional colleagues), people will have differences, and therefore they will have disputes. That no dispute exists today does not ensure that no dispute will exist next year. The sign of a healthy, productive relationship is not necessarily an absence of disputes but rather the skill with which disputes are addressed.

DISPUTE RESOLUTION: A TOPIC FOR ALL

Given the widespread interest in improving the ways in which we handle disputes, it is not surprising that scholars in many different disciplines have examined the question of dispute resolution. From these disciplinary perspectives, we have learned much about the ways in which people fight and about the ways in which people most effectively deal with their fights.

Those whose primary discipline is law have contributed to our understanding of the disputing process. The law provides the backdrop against which much of dispute resolution takes place. Each party to a dispute may view resorting to court as its alternative to voluntary resolution. If two businesses disputing over an alleged breach of contract do not resolve the matter themselves, it is likely that at least one business will call upon the power of the state, through the mechanism of the law, to resolve the dispute. The legal system is, in many ways, society's most heavily subsidized dispute resolution mechanism. It is no surprise, therefore, that those who have spent their careers studying the law have helpful observations about the ways in which people resolve disputes.

Psychology also offers an invaluable lens on the disputing process. To understand fully what occurs in the context of a dispute, one must understand something of what it means to be human. Disputes raise questions of perceptions. Disputes heighten the importance of emotions. Disputes may threaten certain aspects of the disputants' identities. Any effort at resolving disputes necessarily involves a complex pattern of communication and meaning making, about which those trained in psychology are well situated to offer helpful observations.

Ethicists have a unique and important perspective on the processes of disputing and of resolving disputes. Most disputes have some normative component-whether it is explicit or not. An employee argues that he or she should have received a different assignment from his or her boss. The argument might turn entirely on a question of law (Does the contract entitle the employee to the assignment?) or of psychology (What impact does the boss's decision have on the employee's morale and on how future actions by the boss will be interpreted?). Yet one of the important, unspoken aspects of the conversation between the boss and the employee may be an implicit argument about whether the boss's behavior was condemnable. Invoking the normative argument on the micro level (who was right in this context) raises the stakes considerably in a dispute. Ethics may constrain the behavior of disputants at the micro level; ethics may provide guidance on the normative questions of entitlement in a given dispute; and ethics may teach us something about the larger enterprise in which disputants are engaged.

Economists, mathematicians, and game theorists also offer a significant perspective on the disputing process. Formal analytics can provide clarity in contexts of enormous complexity, when multiple parties are involved, when multiple interests are in play, or when multiple options or issues face the disputants. Even if no individual actor in a dispute behaves in a perfectly rational manner, it is important for those charged with resolving disputes to understand the incentive structures within which disputants operate. The elegance of mathematical models can provide insight not only on the question of whether resolution is possible, but also on the important question of how one can maximize the benefits each of the disputants receives from potential solutions.

This list is not exhaustive. Indeed, a scan of almost any curriculum in any department on a university campus yields disciplinary perspectives with critical insights to offer to those who care about dispute resolution. Sociologists and anthropologists contribute important observations on disputes. A careful examination of different societies' mechanisms for resolving disputes offers us a window not only into societal differences but also into the nature of disputes and that which might be possible. Historians provide invaluable context for understanding the behaviors of those in disputes. Scholars of journalism have long understood the important role(s) of the media in shaping the views of those in disputes. Scientists recognize patterns in the ways in which broad-scale scientific disputes have been resolved in the past. Political scientists have long studied the effects of various structures within which policy disputes are raised and resolved. Theologians offer insight into religious approaches to the management of differences. The history of world religions provides examples of how various faith traditions resolve their disagreements both internally and with other faith traditions that have different or at times even incompatible beliefs. Even literature is filled with vivid and telling stories of the human condition-virtually always accentuated by the introduction (and resolution) of some dispute or conflict.

THE BLESSINGS AND CHALLENGES OF INTERDISCIPLINARY INQUIRY INTO DISPUTE RESOLUTION

Having this many different scholars from this many different disciplines working on the question of dispute resolution is enormously helpful. Interdisciplinary work has provided more and better tools, frameworks, and language for describing disputes. Without the capacity to do high-quality observation of that which exists, it is difficult to imagine how we could develop any sort of useful prescriptions. Without these interdisciplinary perspectives, none of us would understand dispute resolution as well as we do.

Furthermore, interdisciplinary work has increased the quantity and quality of prescriptive strategies. A strategy for dealing with disputes that might be immediately obvious to one discipline might not occur to those in another. The psychologist sees an opportunity to heal emotional scars. The economist sees an opportunity for mutually beneficial trades. The lawyer sees an opportunity for the joint development of norms of behavior. The political scientist sees a way to structure decision making to maximize legitimacy. The communications specialist sees an opportunity to give narrative voice to a perspective that is too often silenced. We who focus on dispute resolution would not be as good at what we do, were it not for the contributions of different disciplines.

(Continues...)



Excerpted from The Handbook of Dispute Resolution by Michael L. Moffitt Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Preface.

1. Perspectives on Dispute Resolution: An Introduction (Michael L. Moffitt and Robert C. Bordone).

2. Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution (Carrie Menkel-Meadow).

PART ONE: UNDERSTANDING DISPUTANTS.

3. “I See a Pattern Here and the Pattern Is You”: Personality and Dispute Resolution (Sheila Heen and John Richardson).

4. The Decision Perspective to Negotiation (Max H. Bazerman and Katie Shonk).

5. Enemies, Allies, and Emotions: The Power of Positive Emotions in Negotiation (Daniel L. Shapiro).

6. Relationship Dynamics in Disputes: Replacing Contention with Cooperation (Keith G. Allred).

7. Identity, Beliefs, Emotion, and Negotiation Success (Clark Freshman).

8. Cultural Pathways in Negotiation and Conflict Management (Anthony Wanis-St. John).

9. Negotiation Through a Gender Lens (Deborah M. Kolb and Linda L. Putnam).

10. Bone Chips to Dinosaurs: Perceptions, Stories, and Conflict (Douglas Stone and Sheila Heen).

PART TWO: UNDERSTANDING DISPUTES AND DISPUTE CONTEXTS.

11. Disputes as Opportunities to Create Value (Michael L. Moffitt).

12. Six Principles for Using Negotiating Agents to Maximum Advantage (Scott R. Peppet).

13. Finding Settlement with Numbers, Maps, and Trees (Marjorie Corman Aaron).

14. Option Generation: Be Careful What You Ask For . . . (Chris Guthrie).

15. Organizational Influences on Disputants (Corinne Bendersky).

16. A Taxonomy of Dispute Resolution Ethics (Jonathan R. Cohen).

17. The Role of Law in Settlement (Russell Korobkin).

PART THREE: UNDERSTANDING DISPUTE RESOLUTION PROCESSES.

18. Negotiation (Bruce Patton).

19. Mediation (Kimberlee K. Kovach).

20. Arbitration (Sarah Rudolph Cole and Kristen M. Blankley).

21. Litigation as a Dispute Resolution Alternative (Jeffrey R. Seul).

22. Consensus Building and ADR: Why They Are Not the Same Thing (Lawrence E. Susskind).

23. Bargaining in the Shadow of Management: Integrated Conflict Management Systems (Howard Gadlin).

24. Selecting an Appropriate Dispute Resolution Procedure: Detailed Analysis and Simplified Solution (Frank E. A. Sander and Lukasz Rozdeiczer).

PART FOUR: EMERGING ISSUES IN DISPUTE RESOLUTION.

25. What Could a Leader Learn from a Mediator? Dispute Resolution Strategies for Organizational Leadership (Hannah Riley Bowles).

26. Online Dispute Resolution (Ethan Katsh).

27. Public and Private International Dispute Resolution (Andrea Kupfer Schneider).

28. Victim Offender Mediation: Evidence-Based Practice Over Three Decades (Mark S. Umbreit, Robert B. Coates, and Betty Vos).

29. Youths, Education, and Dispute Resolution (Donna K. Crawford and Richard J. Bodine).

30. Institutionalization and Professionalization (Nancy A. Welsh).

31. The Next Thirty Years: Directions and Challenges in Dispute Resolution (Robert C. Bordone, Michael L. Moffitt, and Frank E. A. Sander).

About the Editors.

About the Contributors.

Name Index.

Subject Index.

What People are Saying About This

Michael Wheeler

This wide-ranging, stimulating, and eminently practical collection both reflects and advances the best thinking on alternative dispute resolution.  Essays by ADR pioneers and a new generation of scholars provide a comprehensive introduction for students and practitioners new to the field, yet also offer veteran teachers and mediators concise applications of groundbreaking research. In this fractious and divisive age, The Handbook of Dispute Resolution is an especially welcome and hopeful contribution to society overall. (Class of 1952 Professor of Management Practice, Harvard Business School)

Ambassador Charlene Barshefsky

From the historic foundations of dispute resolution, to personality and the behavior of disputants, to the effects of globalization on the successful resolution of transborder disputes, this remarkable and thought-provoking compilation of scholarly work and practical observations is a must-read for students and practitioners of conflict resolution. This handbook adds immeasurably to our understanding of the ways in which people fight and the circumstances by which peaceful resolution can be achieved.  In today’s world, no set of insights is more valuable. (senior international partner, Wilmer Cutler Pickering Hale & Dorr, LLP; former U.S. trade representative and presidential cabinet member)

Roger Fisher

This is the best guide I know on dispute resolution. Everyone interested in the field should have a copy on hand. (coauthor, Getting to Yes: Negotiating Agreement Without Giving In; director, Harvard Negotiation Project; and Williston Professor of Law Emeritus, Harvard Law School)

David Hoffman

Moffitt and Bordone have skillfully assembled a basket of gems--each chapter contains fresh insights, cogently presented, brilliantly polished, from the best, the brightest, and the most creative thinkers in the field of conflict management and dispute resolution. This is a must-read handbook for both scholars and practitioners. (chair, the ABA Section of Dispute Resolution; founder, Boston Law Collaborative, LLC )

Joseph Stanford

The Handbook of Dispute Resolution is a gold mine of insights and sound advice on all stages of dealing with conflict, from choosing the right process to implementing the settlement agreement. It is a wonderful stimulus to new thinking. Anyone concerned with conflict, whether as participant, third party, advisor or observer, needs to know this material. (former Canadian Ambassador to Israel and High commissioner to Cyprus)

Robert A. Creo

The Handbook of Dispute Resolution has something for everyone interested in conflict, its prevention, and most importantly, its resolution.  The clever arrangement into four distinct sections with treatments by prominent professors and experienced practitioners offers much to advocates, academicians, HR and Risk managers or neutrals. It is a first-look resource for either novices or advanced practitioners of ADR. (founding president and fellow, International Academy of Mediators)

From the Publisher

"This is the best guide I know on dispute resolution. Everyone interested in the field should have a copy on hand."
— Roger Fisher, coauthor, Getting to Yes: Negotiating Agreement Without Giving In; director, Harvard Negotiation Project; and Williston Professor of Law Emeritus, Harvard Law School

"This wide-ranging, stimulating, and eminently practical collection both reflects and advances the best thinking on alternative dispute resolution.  Essays by ADR pioneers and a new generation of scholars provide a comprehensive introduction for students and practitioners new to the field, yet also offer veteran teachers and mediators concise applications of groundbreaking research. In this fractious and divisive age, The Handbook of Dispute Resolution is an especially welcome and hopeful contribution to society overall."
— Michael Wheeler, Class of 1952 Professor of Management Practice, Harvard Business School

"From the historic foundations of dispute resolution, to personality and the behavior of disputants, to the effects of globalization on the successful resolution of transborder disputes, this remarkable and thought-provoking compilation of scholarly work and practical observations is a must-read for students and practitioners of conflict resolution. This handbook adds immeasurably to our understanding of the ways in which people fight and the circumstances by which peaceful resolution can be achieved.  In today’s world, no set of insights is more valuable."
—Ambassador Charlene Barshefsky, senior international partner, Wilmer Cutler Pickering Hale & Dorr, LLP; former U.S. trade representative and presidential cabinet member

"The advice in this book captures in an accessible way much of the wisdom that I’ve acquired from years of negotiating in the entertainment industry. Here are the gems that really work to move others to want to say ‘yes.’"
— Marshall M. Silverman, vice president and senior motion picture production counsel, Warner Brothers. Pictures, Inc.

"Mediators, lawyers, diplomats—indeed anyone concerned with dispute resolution—will discover in this handbook a helpful distillation of what scholars and experienced practitioners know about conflicts."
—Robert H. Mnookin, Williston Professor of Law, Harvard Law School; chair, executive committee, Program on Negotiation at Harvard Law School; director, Harvard Negotiation Research Project, Harvard Law School

"The Handbook of Dispute Resolution is a gold mine of insights and sound advice on all stages of dealing with conflict, from choosing the right process to implementing the settlement agreement. It is a wonderful stimulus to new thinking. Anyone concerned with conflict, whether as participant, third party, advisor or observer, needs to know this material."
— Joseph Stanford, former Canadian Ambassador to Israel and High commissioner to Cyprus

"The Handbook of Dispute Resolution has something for everyone interested in conflict, its prevention, and most importantly, its resolution.  The clever arrangement into four distinct sections with treatments by prominent professors and experienced practitioners offers much to advocates, academicians, HR and Risk managers or neutrals. It is a first-look resource for either novices or advanced practitioners of ADR."
— Robert A. Creo, founding   president and fellow, International Academy of Mediators

"A must read for mediators, negotiators and other dispute resolvers. Moffitt and Bordone bring together ADR's finest to advance our understanding of conflict and its resolution in this well-crafted collection."
— Charles P. Doran, executive director, Mediation Works Incorporated

"Moffitt and Bordone have skillfully assembled a basket of gems—each chapter contains fresh insights, cogently presented, brilliantly polished, from the best, the brightest, and the most creative thinkers in the field of conflict management and dispute resolution. This is a must-read handbook for both scholars and practitioners."
— David Hoffman, chair, the ABA Section of Dispute Resolution; founder, Boston Law Collaborative, LLC 

Marshall M. Silverman

The advice in this book captures in an accessible way much of the wisdom that I’ve acquired from years of negotiating in the entertainment industry. Here are the gems that really work to move others to want to say ‘yes.’ (Vice president and senior motion picture production counsel, Warner Brothers. Pictures, Inc.)

Charles P. Doran

A must read for mediators, negotiators and other dispute resolvers. Moffitt and Bordone bring together ADR's finest to advance our understanding of conflict and its resolution in this well-crafted collection. (executive director, Mediation Works Incorporated)

Robert H. Mnookin

Mediators, lawyers, diplomats—indeed anyone concerned with dispute resolution—will discover in this handbook a helpful distillation of what scholars and experienced practitioners know about conflicts. (Williston Professor of Law, Harvard Law School; chair, executive committee, Program on Negotiation at Harvard Law School; director, Harvard Negotiation Research Project, Harvard Law School)

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