DISPUTE SYSTEM DESIGN
Syllabus Spring Semester 2007
Prof. Lisa Blomgren Bingham
Visiting Professor of Law
UC Hastings College of the Law
100 McAllister Street
San Francisco, CA 94102
Description: Proponents advocate alternative or
appropriate dispute resolution (ADR) as a means of providing justice other than
through the civil or criminal justice systems. They argue that these systems are
either inaccessible or ill-suited to address the interests of disputants.
Employees may seek recognition of unfair or inappropriate treatment in the
course of a long and perhaps continuing relationship. Divorcing couples need to
learn how to resolve disagreement and collaborate on parenting after the
marriage ends. Businesses may wish to turn a contract dispute into a new and
more workable long-term deal. Victims of crime may seek evidence of remorse and
want personal forms of restitution instead of prison terms. Proponents argue
that dispute resolution can provide better procedural justice; disputants with
more voice in and control over a decision-process perceive the process and its
outcome to be fair. Proponents also argue that these processes can provide
better substantive or distributive justice than a civil justice system that the
disputant needs a lawyer to navigate.
However, a case in which parties use dispute
resolution does not occur in a vacuum. It occurs in the context of a system of
rules and steps called a dispute system design. Moreover, it exists in the
shadow of traditional justice systems. The civil and criminal justice systems
represent dispute system designs created by a third party, government, in the
context of a constitutional framework and the rule of law. Critics point out
that government is not the only player that has an opportunity to shape and
control dispute system design. Some commentators have identified the
privatization of justice as a significant issue. For almost a century, the
courts have protected the rights of contracting parties mutually to create a
private justice system, for example in labor relations or commercial contracts,
in which they substitute mediation and/or binding arbitration for litigation.
More recently, the courts have enforced the right of one party to a contract to
impose dispute resolution on the economically weaker party through an adhesive
contract clause. Thus, a single disputant can unilaterally design and administer
a dispute resolution system for cases to which it is a party.
What happens to justice when different players
control the design of a dispute system? Are there differences across dispute
system designs in procedural or substantive justice? Are there differences in
the nature of the cases, processes, decision standards, discovery, or available
damages? Are there differences in which parties can access the system, when, and
where? What is the impact of dispute system design, and control over it, upon
justice? How do we compare these systems to the traditional justice systems? Is
a systematic empirical comparison possible? Is it desirable as a matter of
This class will investigate
literature that defines justice for purposes of dispute systems from the
disciplines of philosophy, law, and social science. It will examine not only
distributive or substantive and procedural justice, but also theories from
organizational behavior such as interactional, informational, and interpersonal
justice, and theories from sociology and anthropology concerning differences in
justice across individualistic and collectivist cultures. It will examine the
theory and practice of dispute system design, and identify the elements that can
vary across dispute systems. Finally it will explore the impact of varying
design choices in a dispute system on dispute processing, the perceptions and
experience of disputants, and ultimately, justice.
Readings and Required Text:
Tricia S. Jones (Editor),
Conflict Resolution in the Field: Assessing the
Past, Charting the Future, Conflict Resolution Quarterly, Volume 22,
Number 1-2. San Francisco, CA: Jossey-Bass Publishers (2004).
Course packets of additional
readings will be available from the Bookstore.
NOTICE: Please consider this syllabus to be in draft
form and subject to revision. This is a new course, and I may need to adapt
things depending on our progress through the material.
Your grade will be based upon three components:
1. Class participation. This will represent six (6) percent
of your grade.
2. Write three reflections on the reading, each one-page:
long. Over the course of the semester, select a reading upon which to reflect in
writing. Apply the contents of that reading to a particular dispute system
design or conflict resolution context or based on your experience. Share your
thoughts with the class. These will represent three (3) percent each for a total
of nine (9) percent of your grade.
- The first reflection paper is due Tuesday, January 30.
- The second is due Tuesday, February 20.
- The final one is due Tuesday, March 27.
3. A mid-term examination: This will be anonymously graded
and represent 50 percent of your grade.
4. A final research paper (10-15 pages double-spaced) on a
topic of your choice approved in advance and oral presentation on your paper to
the class: This will represent 35 percent of your grade. Your paper may take the
form of a research paper or a project. For example, you can document a
particular local dispute system design through field research and critique it in
light of the literature we read in class.
Weekly Topics and Reading Assignments:
Week 1: January 16
Tuesday: Introduction to Dispute System Design (DSD):
Naming, Blaming, and Claiming; ADR Processes, DSD Elements
- Felstiner, William L. F., Abel, Richard L., and Sarat,
Austin. The Emergence and Transformation of Disputes: Naming, Blaming,
Claiming.... 15 Law and Society Review 631-654 (1980/81).
- Bingham, Lisa B. and Nabatchi, Tina. (2003). "Dispute
System Design in Organizations." In William J. Pammer, Jr. and Jerri
Killian, eds., The Handbook of Conflict Management, 105-127. New York:
- Plapinger, Elizabeth and Stienstra, Donna. ADR and
Settlement in the Federal District Courts: A Sourcebook for Judges and
Lawyers, pages 1-12 and 59-69. Washington, DC: The Federal Judicial Center
and The CPR Institute (1996).
- Exercise: Definitions of Justice
Week 2: January 22-23
Monday: DSD in Labor Relations as the Model System
- Bingham, L. B. and Chachere, D. R. “Dispute Resolution
in Employment: The Need for Research”. In Eaton, A. E. and Keefe, J. H.
(eds.), 1999 Industrial Relations Research Association Research Volume:
Employment Dispute Resolution and Worker Rights in the Changing Workplace,
95-135. Champaign, IL: Industrial Relations Research Association (1999)
Tuesday: Repeat Players
Galanter, Marc. Why the “Haves” Come out Ahead: Speculations on the Limits
of Legal Change. Law & Society Review, Vol. 9, No. 1, Litigation and Dispute
Processing: Part One (Autumn 1974), pp. 95-160 (you can skip the footnotes).
Carrie Menkel-Meadow, Do the "Haves" Come out Ahead in Alternative
Judicial Systems?: Repeat Players in ADR, 15 Ohio St. J. on Disp. Resol.
19-61 (1999). In Lexis format, just read the first 18 pages and the footnote
pages are optional.
Week 3: January 29-30
Monday: Control over DSD: One, Two, and Third-Party Designs
- Bingham, L. B. Why Suppose? Let’s Find Out: A Public
Policy Research Program on Dispute Resolution. Journal of Dispute
Resolution, Vol. 2002(1), 101-126 (2002).
- Bingham, L. B. (2004). Control over Dispute System
Design and Mandatory Commercial Arbitration. Law and Contemporary
Problems, Vol. 67(1&2): 221-251.
Tuesday: Third Party Designs: DSD in Civil Litigation the
State and Federal Courts using Mediation and Arbitration
- Deborah R. Hensler, Suppose It's
Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81-99 (2002)
- John Lande, Using Dispute
System Design Methods to Promote Good-Faith Participation in Court-Connected
Mediation Programs. 50 UCLA L. Rev. 69-139 (2002). In the Lexis printout,
read the first 36 pages and skip footnotes at the end.
- Wissler, Roselle, The Effectiveness of Court-connected
Dispute Resolution in Civil Cases. Conflict Resolution Quarterly Special
Issue Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp.
Week 4: February 5-6, 8
Monday: Justice in Jurisprudence
- Richard A. Posner, The Problems of Jurisprudence,
Chapter 11 and a portion of Chapter 12: 313-62. Cambridge, MA: Harvard
University Press (1990).
Tuesday: More Justice in Jurisprudence
Rawls, John. A Theory of Justice, Chapter 2: 54-117.
Cambridge, MA: The Belknap Press of Harvard University (1971).
Week 5: February 12-13
Monday: Justice in Social Science
- E. Allan Lind and Tom R. Tyler, The Social
Psychology of Procedural Justice pp. 7-40 and 221-242 (1988).
- Robert J. MacCoun, Voice, Control, and Belonging: The
Double-edged Sword of Procedural Fairness. Annual Review of Law and
Social Science Vol. 1, 35 pages (2005).
Tuesday: Compared to
What? Macrojustice and Microjustice: Empirical Approaches to Evaluating ADR
- David Lipsky, Ronald Seeber, and Richard Fincher,
Emerging Systems for Managing Workplace Conflict, pp. 263-295. San
Francisco, CA: Jossey-Bass (2003). This is a very light read.
- Marc Galanter & Mia
Cahill, SYMPOSIUM ON CIVIL JUSTICE REFORM: "Most Cases Settle": Judicial
Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339-1391 (1994).
Skip the footnotes, and in the Lexis printout, read first 41 pages.
- Lind, et al. In the Eye of
the Beholder: Tort Litigants’ Evaluations of Their Experiences in the Civil
Justice System. Law & Society Review, Vol. 24, No. 4, pp. 953-996 (1990).
Week 6: February 20
Tuesday: DSD and Employment Law: Arbitration
- Bingham, L. B. McGeorge Symposium on Arbitration: On
Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial
Review of Arbitration Awards. McGeorge Law Review, Vol. 29(2),
- The Due Process Protocol for Mediation and
Arbitration of Employment Disputes (www.adr.org.)
Week 7: February 26-27
Monday: DSD and Employment Law: Mediation
- Bingham, Lisa B. Mediation at Work: Transforming
Workplace Conflict at the United States Postal Service, 5-35. Arlington,
VA: IBM Center for the Business of Government (October 2003).
- EEOC (website materials)
Tuesday: Efforts to Regulate or Self-regulate to Protect
- Nancy A. Welsh, The Thinning
Vision of Self-Determination in Court-Connected Mediation: The Inevitable
Price of Institutionalization? 6 Harv. Negotiation L. Rev. 1-94 (2001). Read
first 46 pages in Lexis printout and skip footnotes.
- Richard C. Reuben, Public
Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85
Calif. L. Rev. 577-641 (1997). In Lexis printout, read first 33 pages and
- The Consumer Protocol (www.adr.org.)
- The Health Care Protocol (www.adr.org).
Week 8: March 5-6
Monday: CATCH UP AND REVIEW
Tuesday: MIDTERM EXAM
Week 9: SPRING BREAK
Week 10: March 19-20
Monday: Justice and DSD in Family Courts
- Joan Kelly, Family Mediation: Is There Empirical
Support for the Field? Conflict Resolution Quarterly Special Issue,
Vol. 22(1-2), pp. 3-36 (2004).
- Donald T. Saposnek, The Future of the History of
Family Mediation Research. Conflict Resolution Quarterly Special Issue,
Vol. 22(1-2), pp. 37-53 (2004).
Tuesday: Justice and DSD in Community Mediation
- Timothy Hedeen, The Evolution and Evaluation of
Community Mediation: Limited Research Suggests Unlimited Progress.
Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 101-133
- Christine B. Harrington, Shadow Justice,
105-136. Westport, CT: Greenwood Press (1985).
- Freshman, Clark. The Promise and Perils of “Our”
Justice: Psychological, Critical, and Economic Perspectives on Communities
and Prejudices in Mediation. 6 Cardozo J.
Conflict Resol. 1-18 (2004). Read first 11 pages in Lexis printout and skip
Week 11: March 26-27
Monday: Family and Community in other cultures
- Laverne F. Hill, Comment:
Family Group Conferencing: An Alternative Approach to the Placement of
Alaska Native Children under the Indian Child Welfare Act. 22 Alaska L. Rev.
89-112 (2005). Read first 13 pages and skip footnotes in Lexis printout.
Tuesday: Justice and DSD in the Schools
- Nancy A. Welsh, Stepping Back
Through the Looking Glass: Real Conversations with Real Disputants About
Institutionalized Mediation and Its Value, 19 Ohio St. J. on Disp. Resol.
573-678 (2004). In Lexis printout, read first 56 pages of Lexis printout and
- Tricia S. Jones, Conflict Resolution in Education: The
Field, the Findings, and the Future. Conflict Resolution Quarterly
Special Issue, Vol. 22(1-2), pp. 233-267 (2004).
Week 12: April 2-3, 6
Monday: Justice and DSD in Criminal Law: Restorative
- Mark Umbreit, Robert B. Coates, and Betty Vos.,Victim-Offender
Mediation: Three Decades of Practice and Research. Conflict Resolution
Quarterly Special Issue, Vol. 22(1-2), pp. 279-303 (2004).
Tuesday: DSD and Justice for the Environment
- E. Franklin Dukes, What we Know about Environmental
Conflict Resolution: An Analysis Based on Research. Conflict Resolution
Quarterly Special Issue, Vol. 22(1-2), pp. 191-220 (2004).
- US Institute for Environmental Conflict Resolution,
Policy Consensus Initiative Evaluation Project and skim reports and surveys
to understand evaluation (www.ecr.gov/multiagency/program_eval.htm).
explore website and wealth of case studies on public policy and
environmental conflict resolution
Friday: Cultural and Demographic Differences in DSD
- William Bradford, Beyond
Reparations: An American Indian Theory of Justice, 66 Ohio St. L.J. 1-104
(2005). Read 62 pages of Lexis printout and skip footnotes.
- Michelle Hermann, The Metro Court Study (3
Week 13: April 9-10
Monday: Truth and Reconciliation Commissions
- Website Materials from America’s first TRC:
Greensboro, NC (http://greensborotrc.org/)
- Website Materials from South
- Jay Tidmarsh, Mass Tort
Settlement Class Actions: Five Case Studies, pp. 1-31.
Washington, DC: Federal Judicial Center (1998).
- Elizabeth Berkowitz, The
Problematic Role of the Special Master: Undermining the Legitimacy of the
September 11th Victim Compensation Fund, 24 Yale L. & Pol'y Rev. 1-41
Tuesday: Comparative and International DSD
- Bingham, Lisa Blomgren. (2007). Governance and
Conflict Resolution in A Global and Comparative Perspective. In
Proceedings of KDI-World Bank Conference on Vision 2030. Seoul, South
Korea: Korea Development Institute.
- International arbitration, website materials
- DSD for nation states and the UN, website materials:
Week 14: April 16-17
Monday: DSD and the Policy Process
- Bingham, L.B., Nabatchi, T., and O'Leary, R. (2005).
The New Governance: Practices and Processes for Stakeholder and Citizen
Participation in the Work of Government. Public Administration Review,
Vol. 65(5), 547-558.
Tuesday: Paper presentations
Week 15: April 23-24
Monday: Paper presentations continued
Tuesday: Concluding lecture and discussion
Final Papers Due May 1, 2007.
Copyright 2007 Lisa Blomgren Bingham. Teachers are free to copy these materials for
educational use in their courses only, provided that appropriate acknowledgment
of the author is made. For permission to use these materials for any other
purpose, contact the author.