Medicine and ADR

“The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption.”< BR> – Sir Henry Maine, Ancient Law 1861

Sir Henry got it exactly right. In earlier times physics and medicine were arts. The physicist and the physician proceeded by light of intuition and inspiration. In more recent times first physics and then medicine became sciences. Notwithstanding the recent fascination with “alternative” treatments and a revival of interest, in some quarters, in ancient mumbo-jumbo, real medicine, like physics, now proceeds on the basis of data.

When you go to a doctor she takes a history and conducts a physical examination. Based on the history and physical and your presenting symptoms, she orders tests. And based on the results of those tests she orders appropriate treatment.

In contrast, consider what happens when you go to a mediator. Suddenly we’re back in the middle ages. The mediator proceeds guided by intuition. Mediators have nothing even remotely equivalent to a history and physical to guide us at the beginning of an intervention; and we have nothing like an autopsy to act as a corrective at the end of one.

We have no idea when to use caucus and when to use joint sessions, when to be evaluative and when to be facilitative, when to allow venting and when to cut it off, when to be active and when to be passive. We do it by feel.

Some of our cases settle, to be sure. And it is enormously satisfying when they do. But some patients used to get better following primitive medical procedures. What we do not know, just as our ancestors did not know, is whether those results occurred because of our efforts or in spite of them.

Like ancient physicians, we are happy to take the credit when things go well, and we’re happy to collect our fees in any event. But if we are honest even the most experienced of us have to admit we don’t really know what we’re doing. Certainly not in the sense that a doctor administering a medication knows what she is doing.

Some people will tell you that a scientific understanding of dispute resolution is impossible. Human beings are just too complicated, they will say, or there are just too many variables. This is nonsense. It is the argument always raised by witch doctors when their livelihood is threatened by scientific medicine.

There are only two possible ways the field of dispute resolution can become more scientific. One is that we can do the necessary work. The path from speculation and intuition to firmly grounded science comes through careful measurement and collection of data. If dispute resolution is ever going to take its place as a legitimate area of study concerned with a meaningful body of knowledge, it is going to have to do the same. We are going to have to develop measurement instruments and consistent data collection protocols. We are going to have to test our hypotheses in randomized, controlled, double-blind studies. We’re going to have to do the math. There is nothing sexy about this kind of work. It’s much more fun to stride in like a witch doctor in a puff of colored smoke.

The other possibility is that we can steal the work of others. Happily, a great deal of real science has been done in economics, psychology, evolutionary theory, game theory, decision theory, cognitive science and elsewhere that can have direct application to the field of dispute resolution.


Barry Goldman

Barry Goldman is a Michigan-based arbitrator and mediator of workplace disputes. He is also an adjunct professor at Wayne State University Law School where he teaches courses in negotiation and ADR and the author of The Science of Settlement: Ideas for Negotiators, published by ALI-ABA in 2008. He can be reached… MORE >

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