Dispute Resolution and Democratic Theory
This chapter seeks to provide a theoretical overview of dispute resolution and its applications in the legal system and public policy processes. The central claim is that dispute resolution is a form of political theory and public policy that: (1) inadequately analyzes the problems of democracy; (2) embodies processes that are generally not consistent with democratic principles; and (3) may, therefore, contribute to, rather than lessen, the legitimation problems of American democracy. In pursuing this theme, we explore the problems dispute resolution poses for democratic theory in existing programs in state and local government, in its diagnosis of the problems of democratic governance, as a form of pluralist political theory, as a means of bureaucratizing and privatizing public policy conflicts and processes, and in its political uses. We then suggest a more democratic approach to public policy conflicts and their resolution.
Dispute resolution programs and processes in the legal system extend its dominant norms of negotiation and settlement ( Edwards, 1986; Menkel-Meadow, 1985). There are nearly 500 programs in state trial courts, one-half located in cities of more than 500,000 and concentrated in six or seven states, and at least 182 community dispute resolution programs ( Pipkin and Rifkin, 1984; Keilitz, et al., 1988; McGillis, 1986). Yet the evidence that the programs improve the efficiency and quality of justice and legal processes is equivocal and ambiguous, certainly not