Academic journal article Brigham Young University Law Review

Thinking of Mediation as a Complex Adaptive System

Academic journal article Brigham Young University Law Review

Thinking of Mediation as a Complex Adaptive System

Article excerpt

To shed light on the source and nature of law, matters of intense debate in legal philosophy for centuries, Professor Lon Fuller asked his readers to imagine a society of shipwrecked, amnesiac sailors.1 What would law mean to them? he asked, and how would it be laid down? Given the traditional focus of legal philosophy on the nature of the sovereign, the role of common law courts, and the function of legislatures,2 it was reasonable for Fuller to direct his answers toward the importance the hapless sailors would place on the selection of judges3 and the methods the judges would use to decide questions and disputes arising in the social context.4 But in so doing, Fuller implied that it would never have occurred to the sailors to devise a system of dispute resolution that relied on no judges at all.5 In other words, Fuller presented it as a given that the sailor society would naturally evolve toward a dispute resolution system that had as its central mechanism the adjudicative model that predominated at the time and continues to predominate in the United States today.6

If Fuller's sailors truly were amnesiac, however, they would have no predisposition toward any particular model of dispute resolution and thus would not view the adjudicative model as "normal" and nonadjudicative models7 as "alternative dispute resolution" (ADR). Let us imagine, therefore, that they remained stranded on their island for many generations (it was a co-ed ship), all the while (owing to their cooperative disposition) without ever having had the need to devise a social system for resolving disputes over the application of the few rules of "law" they had found necessary to establish over the years. In the past few months, however, disputes over farming rights, consumer goods, family matters, and similar civil issues8 have simmered without resolution through the normal process of unstructured, unfacilitated, voluntary, one-on-one negotiation that has served them until now. Fortunately, several crates of laptop computers and cellular phones have washed up on the island's shores in recent years, and the islanders are now fully "on-line." They email you for advice on how to design their civil dispute resolution system.9

The island society is not entirely unsophisticated in these matters, however, and has specified certain qualities they want the dispute resolution system to satisfy. Their list of conditions is as follows:

1. The dispute resolution system must be sufficiently flexible to address all types of civil disputes that might arise between island inhabitants;

2. The dispute resolution system must ensure that all persons who have an interest in a dispute are able to be heard;

3. The dispute resolution system must be capable of fashioning outcomes that are lasting in effect; and

4. The dispute resolution system should disrupt the relationships of the parties involved only to the degree desired by the parties or otherwise necessary to effectuate justice.

Though you might not have expressed the same desired conditions, the islanders' list probably would not strike you as unreasonable.10 Their conditions express the kind of flexibility, inclusiveness, duration, and sensitivity to human relations that any society might hope of its legal system. But what may strike you as unusual about the conditions is the absence of any reference to laws, judges, rules of procedure, or other mechanics of the dispute resolution system. In this sense the conditions are stated as performance standards, not as structural qualities.11 They do not presuppose what Fuller's story did-that the island society would naturally adopt a system structured around the model of litigation and judicial resolution. The islanders have asked you to throw away that assumption in order to advise them about the underlying structure of the dispute resolution system with the performance-based criteria of their work order in mind.

One of the difficulties you will face in fulfilling their request is that the islanders have no particular reference point or "baseline"12 from which you can work to explain the comparative qualities of different dispute resolution system models. …

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