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The Handbook ofDispute Resolution
Michael L. Moffitt and Robert C. Bordone Editors
A Publication of the Program on Negotiationat Harvard Law School
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More Praise for The Handbook of Dispute Resolution
The Handbook of Dispute Resolution is a gold mine of insights and sound advice onall stages of dealing with conflict, from choosing the right process to implementing thesettlement agreement. It is a wonderful stimulus to new thinking. Anyone concernedwith conflict, whether as participant, third party, advisor, or observer, needs to knowthis material.Joseph Stanford, former Canadian Ambassador to Israel and High Commissioner
to Cyprus
The Handbook of Dispute Resolution has something for everyone interested inconflict, its prevention, and most importantly, its resolution. The clever arrangementinto four distinct sections with treatments by prominent professors and experiencedpractitioners offers much to advocates, academicians, human resources and riskmanagers, or neutrals. It is a first-look resource for either novices or advancedpractitioners of ADR.Robert A. Creo, founding president and fellow, International Academy of Mediators
A must-read for mediators, negotiators, and other dispute resolvers. Moffitt andBordone bring together ADRs finest to advance our understanding of conflict and itsresolution in this well-crafted collection.Charles P. Doran, executive director, Mediation Works Incorporated
Moffitt and Bordone have skillfully assembled a basket of gemseach chaptercontains fresh insights, cogently presented, brilliantly polished, from the best, thebrightest, and the most creative thinkers in the field of conflict management anddispute 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
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The Handbook of Dispute Resolution
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The Handbook ofDispute Resolution
Michael L. Moffitt and Robert C. Bordone Editors
A Publication of the Program on Negotiationat Harvard Law School
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Copyright 2005 by Michael L. Moffitt and Robert C. Bordone. All rights reserved.
Published by Jossey-BassA 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, ortransmitted in any form or by any means, electronic, mechanical, photocopy-
ing, recording, scanning, or otherwise, except as permitted under Section 107 or108 of the 1976 United States Copyright Act, without either the prior written
permission of the publisher, or authorization through payment of the appropri-ate 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 atwww.copyright.com. Requests to the publisher for permission should be
addressed to the Permissions Department, John Wiley & Sons, Inc., 111 RiverStreet, 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 haveused their best efforts in preparing this book, they make no representations orwarranties with respect to the accuracy or completeness of the contents of thisbook and specifically disclaim any implied warranties of merchantability or fit-ness for a particular purpose. No warranty may be created or extended by salesrepresentatives or written sales materials. The advice and strategies contained
herein may not be suitable for your situation. You should consult with a profes-sional where appropriate. Neither the publisher nor author shall be liable for
any loss of profit or any other commercial damages, including but not limited tospecial, incidental, consequential, or other damages.
Readers should be aware that Internet Web sites offered as citations and/orsources for further information may have changed or disappeared between the
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Jossey-Bass books and products are available through most bookstores. To con-tact Jossey-Bass directly, call our Customer Care Department within the U.S. at
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The dialogue from Curb Your Enthusiasm in Chapter Ten is from episode num-ber 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 2005347.73'9dc22
2005000721
Printed in the United States of AmericaFIRST EDITION
HB Printing 10 9 8 7 6 5 4 3 2 1
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CONTENTS
Preface xi
1 Perspectives on Dispute Resolution: An Introduction 1Michael L. Moffitt and Robert C. Bordone
2 Roots and Inspirations: A Brief History of the Foundationsof Dispute Resolution 13Carrie Menkel-Meadow
PART ONE: UNDERSTANDING DISPUTANTS 33
3 I See a Pattern Here and the Pattern Is You: Personality and Dispute Resolution 35Sheila Heen and John Richardson
4 The Decision Perspective to Negotiation 52Max H. Bazerman and Katie Shonk
5 Enemies, Allies, and Emotions: The Power of Positive Emotionsin Negotiation 66Daniel L. Shapiro
6 Relationship Dynamics in Disputes: Replacing Contention with Cooperation 83Keith G. Allred
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7 Identity, Beliefs, Emotion, and Negotiation Success 99Clark Freshman
8 Cultural Pathways in Negotiation and Conflict Management 118Anthony Wanis-St. John
9 Negotiation Through a Gender Lens 135Deborah M. Kolb and Linda L. Putnam
10 Bone Chips to Dinosaurs: Perceptions, Stories, and Conflict 150Douglas Stone and Sheila Heen
PART TWO: UNDERSTANDING DISPUTES AND DISPUTE CONTEXTS 171
11 Disputes as Opportunities to Create Value 173Michael L. Moffitt
12 Six Principles for Using Negotiating Agents to Maximum Advantage 189Scott R. Peppet
13 Finding Settlement with Numbers, Maps, and Trees 202Marjorie Corman Aaron
14 Option Generation: Be Careful What You Ask For . . . 219Chris Guthrie
15 Organizational Influences on Disputants 233Corinne Bendersky
16 A Taxonomy of Dispute Resolution Ethics 244Jonathan R. Cohen
17 The Role of Law in Settlement 254Russell Korobkin
PART THREE: UNDERSTANDING DISPUTE RESOLUTION PROCESSES 277
18 Negotiation 279Bruce Patton
19 Mediation 304Kimberlee K. Kovach
20 Arbitration 318Sarah Rudolph Cole and Kristen M. Blankley
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21 Litigation as a Dispute Resolution Alternative 336Jeffrey R. Seul
22 Consensus Building and ADR: Why They Are Not the Same Thing 358Lawrence E. Susskind
23 Bargaining in the Shadow of Management: Integrated ConflictManagement Systems 371Howard Gadlin
24 Selecting an Appropriate Dispute Resolution Procedure: DetailedAnalysis and Simplified Solution 386Frank E. A. Sander and Lukasz Rozdeiczer
PART FOUR: EMERGING ISSUES IN DISPUTE RESOLUTION 407
25 What Could a Leader Learn from a Mediator? Dispute ResolutionStrategies for Organizational Leadership 409Hannah Riley Bowles
26 Online Dispute Resolution 425Ethan Katsh
27 Public and Private International Dispute Resolution 438Andrea Kupfer Schneider
28 Victim Offender Mediation: Evidence-Based Practice OverThree Decades 455Mark S. Umbreit, Robert B. Coates, and Betty Vos
29 Youths, Education, and Dispute Resolution 471Donna K. Crawford and Richard J. Bodine
30 Institutionalization and Professionalization 487Nancy A. Welsh
31 The Next Thirty Years: Directions and Challenges in Dispute Resolution 507Robert C. Bordone, Michael L. Moffitt, and Frank E. A. Sander
About the Editors 521
About the Contributors 523
Name Index 535
Subject Index 538
CONTENTS ix
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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.
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PREFACE
This book was inspired by the remarkable work of scholars and practi-tioners in a broad range of disciplines, all of whom have been seekinganswers to critical questions about how people can best deal with theirdifferences.
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 atthis moment in time? With these questions in mind, we solicited specific con-tributions from colleagues who we thought were well-situated to answer them.To our delight and amazement, we received overwhelming support and coop-eration from our contributors.
The Handbook of Dispute Resolution therefore brings together a diverse col-lection of dispute resolution scholars who have never before appeared withinthe same volume. That they were each willing to contribute a chapter speaksvolumes about their devotion to the field, their generosity, and their leadership.Some of the chapters in this book represent the first time that certain authorshave synthesized years of their own work into a manageable form. Other chap-ters provide insight into the very cutting edge of current thinking in dispute res-olution. 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 genera-tion of dispute resolution scholars. The two of us have long wished that such acollection existed, and through the efforts of many, it now does.
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Every contribution to this book builds on the works of a remarkable set ofscholars, practitioners, and innovatorspeople who engaged in dispute resolu-tion research, theory, and practice at a time when the concept of dispute reso-lution as an organizing concept for disparate disciplinary inquiries wasunknown. The two of us did not have the opportunity to know or work withsome of the earliest pioneers in this field, though we continue to be inspired bythe words of figures such as Mary Parker Follett and Lon Fuller. We have beenblessed to have had the opportunity to learn from, to work with, and to beinspired by some of the figures who have most shaped the modern understandingof dispute resolutionthe prominent names in the field. These include not onlymany 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 ofthose before us who created the institutions that have allowed work on disputeresolution to thrive. Some of the relevant institutions are conspicuouscentersand programs at major universities, for example. The forces behind them areless formal, but nonetheless importantdeans, department chairs, and facul-ties who have supported work in this still-not-entirely-established field. Not allof those who contribute to the successes of a project like this one receive theattention they deserve.
Two institutions supporting work in dispute resolution deserve specific men-tion regarding this project. First, the Program on Negotiation at Harvard LawSchool (PON). Both of us received our initial professional training through PON.Michael has maintained his affiliation with PON in various capacities ever sincehe began working there as a first-year law student. Bob continues his full-timeaffiliation at PON as a faculty member at Harvard Law School and as the deputydirector of the Harvard Negotiation Research Project, one of PONs nine inter-disciplinary research centers. The Program on Negotiation is a remarkable placewith tremendous energy, talent, and promise. It draws an extraordinary collec-tion of scholars, practitioners, and students together, creating opportunities forprecisely the kinds of cross-disciplinary fertilization on which our field (and thisbook) depend. PON provided logistical, institutional, and significant financialsupport for this project. Quite simply, without PON, this project would neverhave gotten off the ground.
Second, the Appropriate Dispute Resolution Program at the University ofOregon deserves very special mention. The University of Oregonwhere Michaelnow teacheshas taken enormous and rapid strides to develop a top-notch ADRprogram, and the schools support for this project can barely be overstated. Thedean of the law school provided research stipends and teaching leave to support
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the creation of this book. The Walker-Weiner Endowed Research Fund at the Uni-versity of Oregon provided additional financial support for the project. And thefaculty of Oregon, through formal faculty colloquia and through informalconsultation, has provided invaluable advice on ways to improve the book.
As with most significant endeavors, the efforts that made this book as impres-sive as it is took place largely behind the scenes. A group of talented and dedi-cated research assistants were integral to the quality of this volume. Fourteenof our law students spent a total of several thousand hours helping to researchand to polish these chapters. Every single author in this book owes a debt ofgratitude to these students for the many ways in which they helped to make thechapters clearer and cleaner. To David Baharvar, Benjamin Clark, ElizabethConklin Dority, Jeremy Dickman, Katherine DeVore, Megan Evans, PamelaHardy, Gina Hambrick, Robyn Kali Bacon, Christopher Ledford, Mimi Luong,Adam Motenko, Jeffrey Sagalewicz, and Jennifer Welch, we extend our mostsincere thanks. We also received generous and skilled support from Jill Forcier,from Florrie Darwin, and from our Jossey-Bass copyeditor, David Horne. Youare true professionals, and you should be proud of this collection.
We would like to extend our special thanks to our teacher, mentor, and col-league, Frank Sander of Harvard Law School. Frank first suggested to us thepossibility that the two of us might work to create a book like this. Throughoutour work together, he graciously offered his services as a sounding board,consultant, and adviser. We are grateful for his professional mentorship, hisfriendship, and most immediately, for his help with this project.
Finally, we again thank the authors who contributed chapters to thisbook. No single individualno matter how well-educated, no matter howexperiencedcould have produced a volume as rich as this one. We aregrateful to have had this opportunity to work with you, and we look forwardto continuing to learn with you in the years to come.
Michael L. Moffitt and Robert C. Bordone
PREFACE xiii
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