Dispute System Design
Preventing, Managing, and Resolving Conflict
Lisa Blomgren Amsler, Janet K. Martinez, and Stephanie E. Smith

BUY THIS BOOK


Contents and Abstracts
Introduction
chapter abstract

The introduction opens with society's need for systems to manage conflict that are fair, effective, and provide meaningful justice. The phrase "dispute system design" (DSD) applies both to the product of design and the activity of designing a system for preventing, managing, and resolving conflicts and legally framed disputes. The book comprises two main sections. In the first are laid out foundations of DSD: overview of the field and the concept of justice, an analytic framework for DSD, processes used in DSD, essential tasks and skills of a designer, DSD evaluation and assessment, and DSD ethics and principles of practice. The second section comprises DSD applied to cases in various contexts: public and community justice, conflict within and beyond organizations, international and comparative systems, and multijurisdictional and complex systems.

1 What Is Dispute System Design?
chapter abstract

This chapter provides a brief chronology of DSD as a field, introduces key terms, and takes a close look at the ultimate aim of DSD: justice. It considers the general settings in which DSD occurs along with the stakeholders involved and their respective roles. The chapter presents a concise set of guiding principles for DSD before exploring the different conceptions of justice that can influence approaches to and goals for DSD.

2 Analytic Framework for Dispute System Design
chapter abstract

This chapter presents an analytic framework for interrogating an existing or prospective system for preventing, managing, or resolving disputes. To place this framework in its larger context, the chapter briefly reviews frameworks as components of institutional analysis before discussing the DSD Analytic Framework's six components: (1) goals, (2) stakeholders, (3) context and culture, (4) processes and structure, (5) resources, and (6) success, accountability, and learning. This chapter illuminates the role of the designer in its full complexity.

3 System Building Blocks: Processes for Preventing, Managing, and Resolving Conflict
chapter abstract

Depending on a DSD's goals, stakeholders, context and culture, and resources, there will be a vast array of process options available to designers. This chapter explores how to understand the process choices by their characteristics and goals, as applied in both the private and public domains. It introduces several ways to organize and characterize the similarities and differences among these processes, accompanied by ADR spectrum and policy design continuum maps to help place the system designers' options in different contexts.

4 System Design Practice
chapter abstract

How can designers apply the concepts introduced in the DSD Analytic Framework in approaching the design process? How do systems designers work with people in a specific organization to choose the best processes for a particular context? What skills does a good designer need? How does context and culture shape design? This chapter answers these questions by beginning with the ideal qualities of designers, then delving into the process by which they design. The chapter also defines and explores the concept of a conflict stream assessment (CSA).

5 Accountability: Evaluating Dispute System Design
chapter abstract

This chapter first addresses accountability in a system. It revisits the conceptual question raised in Chapter 1: To what extent should, or can, DSDs be evaluated on norms of fairness or their capacity to deliver some form of justice? The second part of the chapter explains participatory design and the functional steps of program evaluation in relation to the original conflict stream assessment (CSA). The concluding section briefly offers some ideas extending evaluation from resolving ripe disputes to considering new, broader designs for preventing or managing conflict upstream, before problems escalate.

6 Ethics in System Design
chapter abstract

This chapter identifies some of the many ethical questions that arise in DSD and provides perspective on how to address them. It explores sources for DSD ethics in professional codes and voluntary due process protocols, key issues, how a design's culture and context may affect a designer's choices, how ethical dilemmas may arise in the design setting through goal conflicts with the client or employer, and how the designer might address and minimize the number of those ethical dilemmas. In exploring these ethical questions for the designer, this chapter touches on the ethics of individual processes, especially mediation and arbitration, which may be part of the designed system.

7 Court Programs
chapter abstract

In the United States and elsewhere, courts have expanded from primarily providing trials to offering a wider range of formal and informal conflict resolution processes. This chapter explores dispute resolution in the court context and examines the tensions that arise in attempting to provide multiple dispute resolution pathways within the court system, including issues of resources, fairness, efficiency, and quality. Specialized courts for specific types of conflict are discussed—such as drug, family, or veteran-focused courts—in addition to new methods for online dispute resolution (ODR). Cases examined in this chapter are family law cases in San Mateo, California; criminal cases at the Red Hook Community Justice Center in Brooklyn, New York; responses in the UK and Italy to the EU Directive on Mediation; and experimental mediation programs in Bhutan.

8 Claims Facilities
chapter abstract

"Claims resolution facility" is a term used to describe entities that are organized to process and compensate mass injury claims. This chapter considers the range of triggers, resources, designs, and evaluation processes for claims facilities. A facility may derive from a range of circumstantial and legal triggers, from natural disasters to terrorist acts or defective products. Cases explored in the chapter are asbestos exposure, the Dalkon Shield birth control device, the Deepwater Horizon oil spill, Hurricane Katrina, the September 11th Victim Compensation Fund, and the One Fund Boston organized to compensate those affected by the bombing of the Boston Marathon.

9 Communities and Justice
chapter abstract

Communities create dispute systems outside of, substituting for, or augmenting formal legal structures. This arena of DSD reflects both long-standing cultural traditions worldwide and contemporary efforts to design innovative and flexible systems. This chapter examines how community dispute systems handle conflicts in a specified community—for instance, among family members or neighbors or within or among businesses or nonprofit organizations. Questions considered in this chapter include how community mediation can be used to pursue reconciliation through restorative justice, how some fields of business use DSD to settle disputes within their communities, and what DSD can offer communities looking to address entrenched problems like homelessness and unmet health needs. Cases explored in this chapter are victim-offender mediation (VOM), the New York Diamond Dealers Club, and the Community Justice and Mediation Center in Monroe County, Indiana.

10 Labor Relations: The Birthplace of Dispute System Design
chapter abstract

The field of labor relations was the founding discipline for the modern concept of DSD; it provided models for using mediation, interest arbitration, rights arbitration, and consensus building to handle an ongoing stream of disputes, particularly between unions and management. Today, however, the United States has one of the lowest union density rates among OECD countries. This chapter briefly reviews the history of DSD in labor relations and examines grievance mediation in the coal mining industry, teacher bargaining, public sector bargaining impasse resolution, labor-management cooperation, and the transportation company FirstGroup. Key issues considered include how public-sector forms of DSD in collective bargaining differ from those in the private sector, how contemporary employment practices are changing labor relations, and whether collectively bargained DSDs can withstand the economic forces changing the workplace.

11 Managing Conflict in Employment
chapter abstract

As union membership has declined, and with it access to the traditional collectively bargained grievance procedure, employers and consultants have experimented with a wide variety of designs for organizational justice. This chapter explores how employment DSDs vary across multiple dimensions including scope, goals, stakeholders, and processes. Issues examined are employer-employee power imbalance, perceptions of fairness, the role of voice in a workplace DSD's success, and the delivery of organizational justice. The chapter explores in some depth the case of the U.S. Postal Service REDRESS program in addition to discussing ombuds programs.

12 Arbitration in Consumer and Employment Designs
chapter abstract

Arbitration is a fast-evolving and highly controversial area of law and DSD practice in the United States. This chapter focuses on forms of arbitration in the private sector that have become increasingly common in the United States, although not permitted in many other national legal systems: U.S. employers and businesses adopt mandatory, "adhesive," binding arbitration clauses to manage the risk of perceived extreme jury awards or what business interests characterize as abusive class action litigation. This chapter examines baseline considerations for arbitration system design, how strategic choices contrast with ethical ones, and the implications of adhesive arbitration for fairness and justice. Supreme Court cases discussed in the chapter illustrate the degree of latitude given to employers designing arbitration systems that favor their interests, while recent efforts to counter this influence are explored, including the Consumer Financial Protection Bureau and the MeToo movement.

13 Commercial Disputes
chapter abstract

This chapter examines the handling of dispute streams in the commercial domain, specifically in relationships between businesses and their suppliers, venture partners, and government agencies. Key issues considered include the unique DSD context business-to-business relationships present, the role ADR currently plays in large organizations such as corporations and the federal government, and the benefits of early case assessment and dispute resolution in contrast to downstream approaches. Cases explored are construction disputes, early dispute resolution at General Electric, and the adoption of ADR in federal procurement.

14 Consumer Disputes
chapter abstract

Consumer disputes occur when an individual or group of individuals conflict with a firm or organization over the provision of services or products. This domain features unique relationships between disputants, some of which occur largely in cyberspace. This chapter explores how these disputes are affected by power imbalances in experience, information, and resources as well as tensions between efficiency and fairness. Three primary case examples illustrate these issues: Kaiser Permanente's predispute mandatory arbitration process for medical malpractice claims; mortgage foreclosure mediation between borrowers and lenders in Arizona, Florida, Illinois, Nevada, and Wisconsin; and eBay's online dispute resolution system.

15 Transitional Justice
chapter abstract

Transitional justice focuses on seeking accountability for the crimes of war or other widespread violence, often centering on retributive justice: bringing perpetrators to trial. The possible goals of transitional justice extend beyond punishment, however, to include reconciliation, psychological healing, rule of law, and good government to support a stable, just society. Questions explored in this chapter are: What are the appropriate goals for transitional justice and who should decide? How should designers prioritize and sequence the timing of transitional justice processes with other postconflict security, development, governance, and infrastructure needs? In evaluating the success of a transitional justice design, should the outcome be measured against an ideal or what was possible under the real-world circumstances? Cases considered are transitional justice processes in Rwanda, Timor-Leste, South Africa, Chile, Cambodia, and the United States.

16 International Dispute Resolution
chapter abstract

In the domain of international disputes, cross-border DSD involves a tremendous diversity of goals, stakeholders, and processes, coupled with constraints on enforcement. No one country can unilaterally impose a design goal or structure on another—a DSD must be negotiated to become an accepted norm with any chance of broad compliance. This chapter discusses DSD in the context of four types of cases: sports, foreign investments, international trade, and cross-border e-commerce. Key issues considered include the types of organizations that provide cross-border DSD, the shared or conflicting goals among parties in cross-border disputes, and whether greater upstream focus (policy making) can improve downstream dispute resolution. The chapter focuses on four case studies: the Court of Arbitration for Sport, bilateral investment treaties, the World Trade Organization, and the United Nations Commission on International Trade Law.

17 Collaborative Governance and Dispute System Design
chapter abstract

DSD applies not only to courts and organizational grievance procedures but equally to systems for governance, and particularly systems that use collaboration and consensus building. Collaborative governance is in this sense is a form of public sector DSD. This chapter introduces collaborative governance and applies the DSD Analytic Framework to public engagement, deliberative democracy, collaborative public management, and networks. It examines three examples: a large-scale energy infrastructure project within a United States public agency, negotiated rulemaking, and participatory budgeting.

18 Designing Dispute Systems for the Environment
chapter abstract

Environmental conflict resolution (ECR) concerns differences among disputants involving the environment (air, water, soil, flora, and fauna), natural resources, or public lands. This chapter discusses what distinguishes environmental disputes from other conflicts, examining how such conflicts have multiplied with increasing knowledge about environmental impacts and with changing values and institutions. The analysis of two cases illustrates both upstream and downstream system design. The downstream case is drawn from a community in Maine that struggled to address a seeming increase in cancer incidence that some residents suspected was correlated with the local paper mill (although the mill was in compliance with applicable regulations). The upstream case involves implementation of California's Marine Life Protection Act to designate reserve, conservation, and recreational areas along its coast.

Conclusion
chapter abstract

The conclusion notes how the chapters in the "Foundations of System Design" and "Case Applications" units together underscore the importance of delivering justice, while balancing competing needs: interests and rights, equity and efficiency, voice and administrative feasibility, and prevention and enforcement. These competing needs raise the question: Who has what control of DSD and over process and outcome in its constituent parts? Drawing on organizing principles for society, the six elements of the DSD framework are revisited, with closing comments on power as control in differing dispute systems according to control at the individual case level and control over the overall system design.