The Handbook of Dispute Resolution

The Handbook of Dispute Resolution Michael L. Moffitt and Robert C. Bordone Editors A Publication of the Program on Negotiation at Harvard Law School

More Praise for The Handbook of Dispute Resolution 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, human resources 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

The Handbook of Dispute Resolution

The Handbook of Dispute Resolution Michael L. Moffitt and Robert C. Bordone Editors A Publication of the Program on Negotiation at Harvard Law School

Copyright 2005 by Michael L. Moffitt and Robert C. Bordone. All rights reserved. Published by Jossey-Bass A Wiley Imprint 989 Market Street, San Francisco, CA 94103-1741 www.josseybass.com No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600, or on the Web at www.copyright.com. Requests to the publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, 201-748-6011, fax 201-748-6008, or online at http://www.wiley.com/go/permissions. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. Readers should be aware that Internet Web sites offered as citations and/or sources for further information may have changed or disappeared between the time this was written and when it is read. Jossey-Bass books and products are available through most bookstores. To contact Jossey-Bass directly, call our Customer Care Department within the U.S. at 800-956-7739, outside the U.S. at 317-572-3986, or fax 317-572-4002. Jossey-Bass also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. The dialogue from Curb Your Enthusiasm in Chapter Ten is from episode number 15, The Thong on HBO: Larry David, Jeff Garlin, Gavin Polone, Executive Producers, 2001. Reprinted with permission of HBO. Library of Congress Cataloging-in-Publication Data The handbook of dispute resolution / edited by Michael L. Moffitt, Robert C. Bordone. 1st ed. p. cm. Includes bibliographical references and index. ISBN-13 978-0-7879-7538-8 (alk. paper) ISBN-10 0-7879-7538-9 (alk. paper) 1. Dispute resolution (Law) United States. I. Moffitt, Michael L., date. II. Bordone, Robert C., date. KF9084.H36 2005 347.73'9 dc22 2005000721 Printed in the United States of America FIRST EDITION HB Printing 10 987654321

CONTENTS Preface xi 1 Perspectives on Dispute Resolution: An Introduction 1 Michael L. Moffitt and Robert C. Bordone 2 Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution 13 Carrie Menkel-Meadow PART ONE: UNDERSTANDING DISPUTANTS 33 3 I See a Pattern Here and the Pattern Is You : Personality and Dispute Resolution 35 Sheila Heen and John Richardson 4 The Decision Perspective to Negotiation 52 Max H. Bazerman and Katie Shonk 5 Enemies, Allies, and Emotions: The Power of Positive Emotions in Negotiation 66 Daniel L. Shapiro 6 Relationship Dynamics in Disputes: Replacing Contention with Cooperation 83 Keith G. Allred vii

viii CONTENTS 7 Identity, Beliefs, Emotion, and Negotiation Success 99 Clark Freshman 8 Cultural Pathways in Negotiation and Conflict Management 118 Anthony Wanis-St. John 9 Negotiation Through a Gender Lens 135 Deborah M. Kolb and Linda L. Putnam 10 Bone Chips to Dinosaurs: Perceptions, Stories, and Conflict 150 Douglas Stone and Sheila Heen PART TWO: UNDERSTANDING DISPUTES AND DISPUTE CONTEXTS 171 11 Disputes as Opportunities to Create Value 173 Michael L. Moffitt 12 Six Principles for Using Negotiating Agents to Maximum Advantage 189 Scott R. Peppet 13 Finding Settlement with Numbers, Maps, and Trees 202 Marjorie Corman Aaron 14 Option Generation: Be Careful What You Ask For... 219 Chris Guthrie 15 Organizational Influences on Disputants 233 Corinne Bendersky 16 A Taxonomy of Dispute Resolution Ethics 244 Jonathan R. Cohen 17 The Role of Law in Settlement 254 Russell Korobkin PART THREE: UNDERSTANDING DISPUTE RESOLUTION PROCESSES 277 18 Negotiation 279 Bruce Patton 19 Mediation 304 Kimberlee K. Kovach 20 Arbitration 318 Sarah Rudolph Cole and Kristen M. Blankley

CONTENTS ix 21 Litigation as a Dispute Resolution Alternative 336 Jeffrey R. Seul 22 Consensus Building and ADR: Why They Are Not the Same Thing 358 Lawrence E. Susskind 23 Bargaining in the Shadow of Management: Integrated Conflict Management Systems 371 Howard Gadlin 24 Selecting an Appropriate Dispute Resolution Procedure: Detailed Analysis and Simplified Solution 386 Frank E. A. Sander and Lukasz Rozdeiczer PART FOUR: EMERGING ISSUES IN DISPUTE RESOLUTION 407 25 What Could a Leader Learn from a Mediator? Dispute Resolution Strategies for Organizational Leadership 409 Hannah Riley Bowles 26 Online Dispute Resolution 425 Ethan Katsh 27 Public and Private International Dispute Resolution 438 Andrea Kupfer Schneider 28 Victim Offender Mediation: Evidence-Based Practice Over Three Decades 455 Mark S. Umbreit, Robert B. Coates, and Betty Vos 29 Youths, Education, and Dispute Resolution 471 Donna K. Crawford and Richard J. Bodine 30 Institutionalization and Professionalization 487 Nancy A. Welsh 31 The Next Thirty Years: Directions and Challenges in Dispute Resolution 507 Robert C. Bordone, Michael L. Moffitt, and Frank E. A. Sander About the Editors 521 About the Contributors 523 Name Index 535 Subject Index 538

To Sander Elizabeth and Spencer Emilee, with hopes that your generation will handle disputes more wisely than ours does. M.L.M. To Mom and Dad, with love and thanks. R.C.B.

PREFACE This book was inspired by the remarkable work of scholars and practitioners in a broad range of disciplines, all of whom have been seeking answers to critical questions about how people can best deal with their differences. Two questions guided us as we crafted the table of contents for this book: What topics are most important to cover in an overview of dispute resolution? And what questions about dispute resolution are most important to answer at this moment in time? With these questions in mind, we solicited specific contributions from colleagues who we thought were well-situated to answer them. To our delight and amazement, we received overwhelming support and cooperation from our contributors. The Handbook of Dispute Resolution therefore brings together a diverse collection of dispute resolution scholars who have never before appeared within the same volume. That they were each willing to contribute a chapter speaks volumes about their devotion to the field, their generosity, and their leadership. Some of the chapters in this book represent the first time that certain authors have synthesized years of their own work into a manageable form. Other chapters provide insight into the very cutting edge of current thinking in dispute resolution. Some chapters are written by the most prominent names in our field, and some are written by those who appear most likely to lead the next generation of dispute resolution scholars. The two of us have long wished that such a collection existed, and through the efforts of many, it now does. xi

xii PREFACE Every contribution to this book builds on the works of a remarkable set of scholars, practitioners, and innovators people who engaged in dispute resolution research, theory, and practice at a time when the concept of dispute resolution as an organizing concept for disparate disciplinary inquiries was unknown. The two of us did not have the opportunity to know or work with some of the earliest pioneers in this field, though we continue to be inspired by the words of figures such as Mary Parker Follett and Lon Fuller. We have been blessed to have had the opportunity to learn from, to work with, and to be inspired by some of the figures who have most shaped the modern understanding of dispute resolution the prominent names in the field. These include not only many of the contributors to this volume, but also Chris Argyris, Roger Fisher, Christopher Honeyman, Bob Mnookin, Howard Raiffa, Len Riskin, Nancy Rogers, Jeff Rubin, Jim Sebenius, Michael Wheeler, and Bill Ury. To these people, we (personally and on behalf of the field generally) extend our heartfelt thanks. This book would not have been possible without the pathbreaking work of those before us who created the institutions that have allowed work on dispute resolution to thrive. Some of the relevant institutions are conspicuous centers and programs at major universities, for example. The forces behind them are less formal, but nonetheless important deans, department chairs, and faculties who have supported work in this still-not-entirely-established field. Not all of those who contribute to the successes of a project like this one receive the attention they deserve. Two institutions supporting work in dispute resolution deserve specific mention regarding this project. First, the Program on Negotiation at Harvard Law School (PON). Both of us received our initial professional training through PON. Michael has maintained his affiliation with PON in various capacities ever since he began working there as a first-year law student. Bob continues his full-time affiliation at PON as a faculty member at Harvard Law School and as the deputy director of the Harvard Negotiation Research Project, one of PON s nine interdisciplinary research centers. The Program on Negotiation is a remarkable place with tremendous energy, talent, and promise. It draws an extraordinary collection of scholars, practitioners, and students together, creating opportunities for precisely the kinds of cross-disciplinary fertilization on which our field (and this book) depend. PON provided logistical, institutional, and significant financial support for this project. Quite simply, without PON, this project would never have gotten off the ground. Second, the Appropriate Dispute Resolution Program at the University of Oregon deserves very special mention. The University of Oregon where Michael now teaches has taken enormous and rapid strides to develop a top-notch ADR program, and the school s support for this project can barely be overstated. The dean of the law school provided research stipends and teaching leave to support

PREFACE xiii the creation of this book. The Walker-Weiner Endowed Research Fund at the University of Oregon provided additional financial support for the project. And the faculty of Oregon, through formal faculty colloquia and through informal consultation, has provided invaluable advice on ways to improve the book. As with most significant endeavors, the efforts that made this book as impressive as it is took place largely behind the scenes. A group of talented and dedicated research assistants were integral to the quality of this volume. Fourteen of our law students spent a total of several thousand hours helping to research and to polish these chapters. Every single author in this book owes a debt of gratitude to these students for the many ways in which they helped to make the chapters clearer and cleaner. To David Baharvar, Benjamin Clark, Elizabeth Conklin Dority, Jeremy Dickman, Katherine DeVore, Megan Evans, Pamela Hardy, Gina Hambrick, Robyn Kali Bacon, Christopher Ledford, Mimi Luong, Adam Motenko, Jeffrey Sagalewicz, and Jennifer Welch, we extend our most sincere thanks. We also received generous and skilled support from Jill Forcier, from Florrie Darwin, and from our Jossey-Bass copyeditor, David Horne. You are true professionals, and you should be proud of this collection. We would like to extend our special thanks to our teacher, mentor, and colleague, Frank Sander of Harvard Law School. Frank first suggested to us the possibility that the two of us might work to create a book like this. Throughout our work together, he graciously offered his services as a sounding board, consultant, and adviser. We are grateful for his professional mentorship, his friendship, and most immediately, for his help with this project. Finally, we again thank the authors who contributed chapters to this book. No single individual no matter how well-educated, no matter how experienced could have produced a volume as rich as this one. We are grateful to have had this opportunity to work with you, and we look forward to continuing to learn with you in the years to come. Michael L. Moffitt and Robert C. Bordone