The role of the Law: Negotiation to Litigation

 

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.