|The Idea: A discussion of alternative dispute resolution mechanisms, and where they do, and do not, work.
As most of my readers know, I abhor the law. It is the handmaiden of the social and ideological repression imposed on us by those in unelected or fraudulently elected power elites, a ‘power tool’ for the rich and well-connected.
In my jaundiced view, laws are incapable of compelling people to behave more morally or reasonably than they would in their absence, and they have been introduced to wrest power from the majority in favour of the already-powerful elite, and to provide a veil of legitimacy for the extreme actions this elite takes to force compliance with their interests. Religious institutions are rewarded with handsome tax breaks and political favours for reinforcing this false legitimacy of elite law by preaching the ‘morality’ of law and order, which they are all too willing to do because preaching the morality of obedience also keeps their own subjugates in line.
This thievery of the property, freedom, well-being and personal responsibility by the rich and powerful, abetted by the legal and religious establishment, is as old as civilization.
Not surprisingly, the legal ‘system’, which has no interest whatsoever in providing anything useful to the average citizen, is completely dysfunctional. If you are rich or powerful, you can get away with murder. If you are not, you can easily be executed, tortured and interrogated indefinitely, or ‘disappeared’, for crimes you did not commit, at the pleasure of the elite’s puppet government of the day. And should you have the audacity to try to use the legal system to get compensation for wrongdoing committed against you, you will be either bankrupted (if the action is against another mere citizen) or prosecuted (if the action is against a friend of the elite) for your trouble. Worse, you will energize the lawyers in office to pass yet more laws to indemnify those that wronged you, to protect them from action by other troublesome citizens, and to allow the wrong-doers to prosecute you endlessly for the rest of your life as punishment for your insolence. If you don’t think poverty is still illegal, take a look at who’s in jail.
So the title of this article does not refer to conflicts with those who have wealth or power. There has always been only one way to resolve those conflicts, and those who have tried usually fail until the abuses of power get so extreme that it’s worth dying to try to replace them with some other group, which generally turns out to be no better than the group it replaced.
I’m referring to peer-to-peer conflicts, disputes between people of approximately equal power. These are generally of three types: financial, proximate (disputes with neighbours) or familial (disputes with family members). The legal system, as anyone who has tried to use it in these situations will tell you, is totally incompetent at handling such conflicts. The system is, after all, proudly adversarial, built on power-brokering, and rigged to benefit the more powerful adversary (once the physically strongest, now the one with the more ruthless, manipulative and expensive team of lawyers).
These three types of peer-to-peer conflicts are frequently more emotional than logical, even when money is the primary issue. As a result, those in the legal profession who actually give a shit about this unprofitable segment of practice have introduced something called alternative dispute resolution or ADR.
More specifically, they have attempted to introduce a mechanism to neutralize the emotion of the dispute, called “interest-based resolution”. This mechanism calls on the parties to set aside the principles underlying their position, and ‘settle’ for something that, when the heat of the moment has passed and the principles, rights, behaviours and morality of the parties and of the issue are long forgotten, will have reasonably satisfied the interests of all parties. To make sure all parties are motivated to do this, a refinement to interest-based resolution called variously “most reasonable offer” or “final-offer interest” arbitration is introduced. This arbitration involves selection of a tribunal of arbitrators (typically, one selected by each side and a third selected by the other two arbitrators), and a single ‘offer’ by each side of the most reasonable resolution they can suggest. The arbitrators can pick only one of the settlement offers, the one they think is the more reasonable one. The arbitrators cannot propose anything in between the offers. This prevents either side cynically staking out extreme positions to allow more room for negotiation (as is the usual legal adversarial style). It also compels each party to be as compromising as they can bear, and to imagine rationally the position of the opposing side. In some cases the offers are so close that the parties can ‘settle out of court’ and the arbitrators are not even needed.
It’s not a panacea, but it has its place. It’s an ancient way of resolving disputes, thousands of years old, and it works best when it is suggested to the opposing parties by people they each trust, rather than imposed. It can work even when there is not enough shared community spirit driving the parties to make use of more consensus- and compromise-driven collective processes.
Where it may not work is if the worldviews and frames of the opposing parties are so different that they cannot appreciate each other’s position at all, and hence cannot sublimate their emotional fury at what they see as the immorality or utter unreasonableness of the other’s position. For example, if the issue is the right of an underaged girl to get an abortion in opposition to her parents’ wishes or the right of a man living in great pain to end his life in opposition to his spouse’s or family’s wishes (even without wacko grandstanding opportunistic politicians meddling in the matter), there may be no “most reasonable offer” to consider. The decision of a tribunal in such cases will probably be arbitrary, and the wisdom of crowds will probably not apply either.
In self-selected communities such diametrically opposed worldviews are likely to be rare, and this is a good argument for selecting our communities more deliberately than we do today. But in the meantime we cannot expect collective processes or interest-based resolution to work any better than traditional adversarial law in situations where there is no shared worldview among the opposed parties. In these cases there are just two, unpalatable, conflict resolution methods: Subterfuge (one party taking an action that renders the conflict and the opposing positions moot) or power-brokering (where the side with the most power wins).
And even in these cases, the legal profession has little useful to contribute. We can learn much more about self-governance and conflict resolution from the examples of intentional communities, and from nature, than we can from the failed constructs of lawmakers and law enforcers.
[Note: A day after writing this, I have edited it to tone down my blanket criticism of lawyers — in thinking about it soberly I realized that it is the ‘legal profession’ I hate, not all the people in it, some of whom are trying to do their best to make it work as best as it can — a very noble cause that doesn’t deserve my flippant generalizations. Mea culpa.]
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