Thursday, September 6, 2018

Resolving Disputes Without Resorting to Battle



Introduction
When a dispute arose in times gone by, the disputants agreed to fight a duel to settle the score, or perhaps more accurately, to eliminate a disputant (rather a resourceful way of resolving a dispute!). These duels did not involve any conversation, discussion or legal polemics, but were purely based on a match of marksmanship where the better shooter won.

Today we have advanced somewhat by settling these scores in the battle of the courtroom. Although not usually as lethal as the duel, it certainly is still very costly and ineffective for the most part. Moreover, the disputants live another day to file an appeal (a problem which the duel addressed quite well!).

A shortcoming of resolving disputes through litigation, although necessary at times to be sure, is that it only resolves the issues on the mono-dimensional level of legal principles and doctrines.

Disputes, however, are seldom only about the legal strengths and weaknesses, or winner and loser. There are multi-dimensions to a dispute below the surface, which are neglected and remain unresolved in most litigated cases. This means that in litigation, the symptoms of the dispute may be band-aided, but the underlying dynamics are most likely exacerbated. Hence the high rate of appeal.

These below-the-surface dimensions of a dispute can be broadly distilled into three elements: narratives; emotions; and attributions.

In this column, I will explore these elements and suggest ways of putting them to use in resolving differences without resorting to battle.

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