COURTS AND CONFLICT RESOLUTION - PROBLEMS IN THE MOBILIZATION OF ADJUDICATION (FROM AMERICAN COURT SYSTEMS, 1978, BY SHELDON GOLDMAN AND AUSTIN SARAT SEE NCJ-55128)

• NCJ Number: 55129
• Author(s): A SARAT; J B GROSSMAN
• Date Published: 1978
• Length: 9 pages
• Corporate Author: W H Freeman and Co
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM AMERICAN POLITICAL SCIENCE REVIEW, V 69 (1975), P 1200-1217

Annotation

A TYPOLOGY OF DISPUTE RESOLUTION MECHANISMS VARYING IN LEGAL STATUS, FORMALITY OF STRUCTURE, VISIBILITY, AND SUBSTANTIVE CONCERN IS PRESENTED.

Abstract

THERE ARE TWO GENERIC TYPES OF CONFLICT-RESOLVING TENDENCIES IN POLITICAL INSTITUTIONS: NONADJUDICATIVE (E.G., LEGISLATURES) AND ADJUDICATIVE (E.G., COURTS). UNLIKE NONADJUDICATIVE BODIES, WHICH CAN SEARCH OUT OR TRY TO ANTICIPATE PROBLEMS, ADJUDICATIVE BODIES ARE ALMOST TOTALLY REACTIVE. THEY MUST RELY ON PRIVATE INDIVIDUALS, GROUPS, OR OTHER GOVERNMENT AGENCIES TO BRING PROBLEMS TO THEM. ADJUDICATIVE BODIES CAN TAKE NO PART IN DEFINING, INTERPRETING, AND MANAGING CONFLICT UNTIL THEY ARE MOBILIZED. FOUR TYPES OF ADJUDICATIVE DISPUTE RESOLUTION MECHANISMS MAY BE DISTINGUISHED: (1) PUBLIC-FORMAL (E.G., COURT TRIALS), (2) PUBLIC-INFORMAL (E.G., POLICE INTERVENTION IN QUARRELS, PLEA BARGAINING), (3) PRIVATE-FORMAL (E.G., COLLEGE DISCIPLINARY BOARDS, LABOR DISPUTE ARBITRATION), AND (4) PRIVATE-INFORMAL (E.G., MARRIAGE COUNSELING, DEBT ADJUSTMENT). THESE TYPES OF MECHANISMS MAY EXIST SEPARATELY OR IN COMBINATION. WHERE THEY ARE FOUND IN COMBINATION, THEIR FUNCTIONING IS NOT INSULATED OR DISTINCT. OFTEN ADJUDICATION IS MERELY A PHASE IN AN ONGOING PROCESS OF CONFLICT RESOLUTION. IN FACT, A COMMON STRATEGY OF ADJUDICATION IS TO PROLONG AND WIDEN A DISPUTE RATHER THAN TO SETTLE IT, THE RESULT BEING THAT OFTEN ADJUDICATION IS CONCLUSIVE FOR THE PARTIES BUT NOT FOR THE ISSUE. THE PROCESSES BY WHICH DISPUTES ARE RESOLVED CAUSE THE FRAGMENTATION OF SOME CONFLICTS. FRAGMENTATION, WHICH OFTEN IS A FUNCTION OF THE NORMS AND PROCEDURES OF DISPUTE RESOLUTION AGENCIES, MAY HELP TO ACCOUNT FOR THE LACK OF FINALITY OFTEN ASSOCIATED WITH COURT DECISIONS. DISPUTE-SETTLING ALTERNATIVES MAY BEST BE DEPICTED STRUCTURALLY IN THE FORM OF A PYRAMID, WITH THE MORE NUMEROUS PRIVATE-INFORMAL MECHANISMS AT THE BOTTOM AND THE LESS NUMEROUS, MORE RESIDUAL PUBLIC-FORMAL DEVICES AT THE TOP. IT MAY BE THAT THE LIKELIHOOD THAT A DISPUTE WILL REACH THE COURTS VARIES INVERSELY WITH THE AVAILABILITY OF LESS FORMAL, LESS PUBLIC ALTERNATIVES. (LKM)