From the Spring 2013 DR Magazine: Welsh and Lipsky
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This Spring’s Dispute Resolution Magazine is filled with great articles exploring whether and how we should regulate ADR. Among these articles is a piece by Nancy Welsh (Penn St.) and David Lipsky (Cornell) called, “‘Moving the Ball Forward’ in Consumer and Employment Dispute Resolution: What Can Planning, Talking, Listening and Breaking Bread Together Accomplish?” I found this piece particularly striking as an example of the value of learning conversations.
The article starts off with a provocative story. Faced with the Supreme Court’s endorsement of mandatory pre-dispute arbitration in contracts of adhesion, the Dispute Resolution Section’s Council puts forth a compromise in 2009: mandatory pre-dispute arbitration clauses are acceptable so long as they have meaningful opt-out provisions. Apparently this compromise was, to put it mildly, not popular. The authors describe the reaction afterward as “a firestorm of opposition” from pro- and anti-arbitration proponents so intense that the Council was forced to “abstain from expressing any position at all.”
I recently have been thinking and writing about compromise, and here we see an excellent example of our modern antipathy toward what Gutmann and Thompson call “classic compromises.” In a classic compromise, each side must sacrifice something, and moreover the resultant agreement (the compromise) is often internally inconsistent because it is an amalgam of disparate positions. Because they involve sacrifices and inconsistency, compromises generally do not sit well with us, and perhaps especially with those of us who are integrative bargainers and ADR types seeking to avoid positional struggles. The Council’s proffered compromise — mandatory with opt-out — is an example of a classic compromise, because it requires both sides to sacrifice something of value and leads to an apparently inconsistent result. How can participation be mandatory and voluntary at the same time?
Read original articleTags: ADR, David Lipsky, Dispute Resolution, Dispute Resolution Magazine, Nancy Welsh
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