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

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INTRODUCTION

AS OUR GLOBAL SOCIETY BECOMES increasingly connected, we face challenges that demand creativity and innovation, from access to justice in local courts to consumer recourse in an online market and from international trade policies to the management of environmental resources. Such challenges inevitably engender conflict as we seek to effectively interact in society and govern ourselves. We need systems that empower people to manage conflict in ways that enable them to tackle challenges together. How do we design systems for managing conflict? What is most fair? What provides meaningful justice? Who has control over the final design? How do systems vary and why? What is most effective? These are the central problems that dispute system design seeks to address. Accordingly, this book is about creating processes and structures that enable people to have access to voice and justice.

The phrase “dispute system design” (DSD) applies to both the product of design (the noun DSD) and the activity of designing a system for preventing, managing, and resolving conflicts and legally framed disputes (the verb to do DSD). DSD covers systems within all types of organizations: business firms, nonprofit organizations, international and transnational bodies, systems that entail conflict in governance, and public agencies or organizations. It also covers systems designed by groups of people who form social associations or organizations by reason of proximity, shared religion or ethnicity, professional affiliation, or other shared interests in community.

This book provides both a general introduction to DSD practice and a collection of cases that illustrate how DSD applies in specific arenas of conflict. In the first unit of the book, “Foundations of System Design,” the six chapters describe broadly applicable bedrock concepts. The second unit of the book, “Case Applications,” comprises chapters with case examples that explore DSD across a range of contexts and experiences. Chapters 7 through 18 contain discussion questions that relate to challenges in each system. The case chapters are clustered into four parts: Part I, “Public and Community Justice”; Part II, “Conflict Within and Beyond Organizations”; Part III, “International and Comparative Systems”; and Part IV, “Multijurisdictional and Complex Systems.”

The first unit of the book provides a basic introduction and substantive information for understanding how a dispute system is built. Chapter 1 presents an overview of the DSD field and discusses the multifaceted concept of justice. Chapter 2 provides a DSD Analytic Framework for understanding different systems. Chapter 3 describes the array of processes used in constructing a DSD. Chapter 4 presents essential tasks and skills needed for the design process, and Chapter 5 discusses DSD evaluation and assessment using social science tools. Chapter 6 explores DSD ethics and principles of practice. These six chapters provide core information that applies to the full range of DSD contexts.

The balance of the book consists of case chapters examining specific systems within a particular substantive context or at a defined scale, whether organizational, local, regional, national, or international. These chapters illustrate how to use the foundations to analyze the DSD context, identify strategic choices, assess how the design might affect the outcome, and consider how well a particular system addresses the goals of the respective parties, users, and society. Paired with the foundations, each case chapter can stand independently of the others and be read or taught in any order.

Part I focuses on the systems people encounter where they live when conflict involves broadly applicable rules such as law, neighborhood social norms, and religious or ethical codes. Chapter 7, on court programs, explores judicial systems in multiple countries and courts of different jurisdictions. Chapter 8, on claims facilities, examines systems created in the shadow of courts to manage mass torts or other collective, large-scale litigation. Chapter 9, on communities and justice, addresses community mediation centers, schools, religious institutions, and indigenous peoples’ systems of justice.

Part II examines private, nonprofit, and public sector organizations and systems. Within organizations, it explores the fundamental relationship between employer and employee, beginning with Chapter 10, on labor relations, and moving to Chapter 11, on managing conflict in employment, which investigates systems apart from labor relations. Chapter 12, on arbitration in consumer and employment designs, bridges systems inside and outside organizations by examining how arbitrators address both employment conflict and organizations’ conflict with consumers, contractors, and other organizations. Chapter 13, on commercial disputes, focuses on systems for disputes between businesses and their partners, suppliers, and government agencies, and Chapter 14, on consumer disputes, looks at disputes between organizations and those who consume their products or services.

Part III brings the discussion to a national and international level. Chapter 15, on transitional justice, addresses systems for countries emerging from war or authoritarian rule. Chapter 16, on international dispute resolution, examines systems aimed at disputes that cross national boundaries, including investment treaties and international arbitration courts.

Part IV addresses systems entailing networks, collaborative public management, and collaborative governance. Chapter 17, on designing systems for collaborative governance, provides an overview of the range of system designs across the policy continuum, including the legislative, executive, and judicial powers of government in a nation, state, province, or municipality. Chapter 18, on designing dispute systems for the environment, illustrates how wickedly complex problems of public policy—like managing a limited water supply or cleaning up a massive toxic waste spill—can involve DSD across the governance continuum.1

DSD is a new field, emerging as a synthesis of ideas and skills from a number of professional fields. This is the first book to cover DSD across such an extensive range of contexts across diverse academic disciplines. While each chapter references core scholarship on each topic, the relevant literature is both broad and interdisciplinary. For example, court systems and claims facilities are the subject of legal scholarship. Systems in collective bargaining are covered in labor and industrial relations. Social psychology, conflict management, and human resources literature in business and nonprofit management address employment systems. Transitional justice is a subject of many fields, including law, political science, and sociology. Systems for managing conflict over land use and the environment relate to environmental economics and science, public policy, planning, and public administration. These are a few specific examples; many chapters cross disciplines. This book thus brings multiple academic perspectives to bear on the field of DSD. An in-depth review of each academic literature is beyond the scope of this book. However, readers can use this volume to facilitate deeper inquiry and make connections across the disciplines.

This book is intended for anyone who is interested in the theory or practice of DSD; who uses or wants to understand negotiation, mediation, arbitration, adjudication, or other dispute resolution processes; or who designs or improves existing processes and systems. It aims to do the following:

• Provide a comprehensive introduction to an emerging body of practice and expertise
• Help readers understand the contexts in which conflict arises
• Help readers identify the strategic advantages and disadvantages posed by different processes, structures, and systems
• Present a practical framework for analyzing available options to prevent, manage, and resolve that conflict

DSD is a catalyst for innovation—private, public, nonprofit, and civic—that can shape how we interact globally, promote participatory processes that can lead to integration across difference and boundaries, and help an increasingly interconnected world address the question of “power over” versus “power with” others.2 Designing is about creating. Accordingly, this is a practical book for empowering those who want to design systems that are fair and just.

NOTES

1. “Wicked” problems are described in Horst W. J. Rittel and Melvin M. Webber, “Dilemmas in General Theory of Planning,” Policy Sciences 4 (1973): 155–69.

2. Mariana Hernandez-Crespo Gonstead stresses the need to distinguish “power over” and “power with,” particularly in system design. “Power with” views all parties as contributors, prioritizing the relationship, incentives, and