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.

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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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vii

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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xi

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

xii PREFACE

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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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