The role of the Law: Negotiation to Litigation
Law
remains an integral part of the dispute resolution process. When disputants can not settle their own
disagreements, it becomes necessary to involve negotiation agents in effort to
achieve a resolution, be it out-of-court or within. Lawyers and judges are relied upon due to the
fact that there exists an “increased likelihood that the process will unfold as
it should, with the right issues and claims being presented and addressed
according to established procedures and protocols” (Moffitt & Bordone,
2005, p. 346). Cases such as divorce and
lawsuits are prime examples of disputes requiring litigation, while contractual
or court-ordered arbitration may be essential in others. In addition, “when disputants are deeply
estranged from one another or have no expectation of further interaction apart
from the lawsuit, they may appreciate the fact that litigation largely spares
them from having to deal with each other” (Moffitt & Bordone, 2005, p.
348).
Utilizing
the law to resolve conflict can be beneficial.
First, it may be easier for a third party to negotiate the proceedings
due to the fact that they are emotionally detached from the situation, and they
possess the experience and expertise required to carry out the process. Second, the law balances out the bargaining
power between the disputants, so that neither party is convinced to offer
concessions that she (or he) would rather not (Moffitt & Bordone, 2005). The law aids in protecting the weaker
party. Also, the law protects disputants
from voluntarily disclosing information to their opposition and sets limits on
the ability of either party to gain bargaining power through the use of threats
(Moffitt & Bordone, 2005). Furthermore, absolute privilege wards off
deceit and unfairness which may be abused during an alternative dispute
resolution.
“Well established
rules and procedures address nearly every detail of the process…the parties are
aware of the basic stages of the process, the steps within them, and related
deadlines…it helps ensure that legitimate grievances are resolved, and that
they are resolved relatively peacefully”
(Moffitt &
Bordone, 2005, p. 344-5, 353).
On
the other hand, the law may be manipulated through lies or factual
misrepresentations. An attorney may
embellish a story or conditions in effort to make the opposition reconsider
their platform. This deception, or false
statement, may allot bargaining power to the plaintiff, persuading the
defendant to propose a higher settlement amount than she (or he) otherwise
would” (Moffitt & Bordone, 2005). However,
either side may exploit the interests of the opposition. Additionally, utilizing the law to settle
disputes is costly and time consuming.
“Litigants are often tempted to engage in tactical gamesmanship to delay
the process, force their adversaries to incur unnecessary costs, or gain other
advantages unrelated to the merits of the case” (Moffitt & Bordone, 2005,
p. 345).
References:
Moffitt, M.L. & Bordone, R.C.
(2005) The Handbook of Dispute Resolution.
San Francisco, CA:
Jossey-Bass.
