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Adjudicatory Model

Is this competitive, adjudicatory approach really the way we resolve conflict in modern American society? The answer is "yes" and "no." While popular perception holds that we resolve conflict by "doing battle," (stated in terms like: "see you in court" or "you will hear from my attorney"), the reality is that nearly 97% of all cases filed in courts nationwide are never actually tried and determined by a judge. Rather, the cases are negotiated to settlement or withdrawn. Of the cases that settle, the unfortunate fact is that nearly half of these cases settle within days of trial, on the courthouse steps, under the duress of the impending trial or hearing.

The reality then is that we do not so much have an adjudicatory system as a settlement system within a set of adjudicatory assumptions. In most of these settlements, the actual issues of law and fact, despite all of the legal negotiating, are never resolved. The parties simply come to agreement to resolve the conflict. The case simply settles, without parties agreeing on the law or the facts. With all of its costs, delays and polarization, many are now seeking a more efficient, effective and economic means of conflict resolution.

The Adjudicatory Process as Default Process
Bargaining in the Shadow of the Law -- and Other Shadows

The adjudicatory option is a necessary default process to be imposed on disputants in the event that they do not choose to resolve their dispute in some other way. As this default process is applied to only about 3% of contested cases that are filed with the courts, it seems to make sense for us to develop more direct and productive approaches to settlement for the 97% that are prepared to settle. This is the concept behind the development of collaborative negotiation and mediation.

The adjudicatory option is a necessary backdrop to negotiated and mediated resolution. As mediation is a voluntary process in which no resolution will be imposed on any party, there needs to be a forum of last resort as a backdrop to the mediation process. The legal standards that parties believe will be applied in that adjudicatory context are highly relevant to, although not determinative of, decision-making in negotiation and mediation. Disputants negotiate and mediate in the shadow of the law or, more accurately, within the context of their (sometimes wishful) perceptions of the law.

Participants' perception of "the law" is certainly one important factor in disputants' minds as they seek to negotiate or mediate settlement. There are, however, many other practical factors, other shadows, (aspects of the perceived contextual circumstances) that influence decision-making in mediation and negotiation including:

  • concerns about the impact of the dispute on the relationship;
  • time concerns;
  • expense;
  • the risk of not prevailing in a contested hearing;
  • impacts on affected others;
  • forgone opportunities;
  • stress;
  • lack of finality; and
  • uncertain compliance.


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