Power Imbalances in Dispute Resolution (From Study of Barriers to the Use of Alternative Methods of Dispute Resolution, P 137-158, 1984 - See NCJ-97339)

• NCJ Number: 98563
• Author(s): M I Levine
• Date Published: 1984
• Length: 22 pages
• Sale Source: Vermont Law School
• Language: English
• Country: United States of America

Annotation

Following definitions of power and a delineation of types of potential power imbalances, the effects of such imbalances in the litigation and the alternative dispute settlement processes are examined.

Abstract

Basic expressions of power include condign (coercion), compensatory (reward), and conditioned power (persuasion). Power may be derived from personality, property/wealth, or organization (unity of purpose). While inequalities of power can take many forms, they fall into two major categories: individual and structural imbalances. Within the legal system, attempts to ensure equality have centered on procedural safeguards, constitutional guarantees, and common law/doctrinal safeguards. Despite these attempts, inequalities exist with poverty creating perhaps the greatest inequality within the legal system. At first glance, alternative dispute resolution strategies, such as mediation and arbitration, may seem to provide a panacea for the disenfranchised grievant. However, this informal justice appears ill-suited for handling disputes among parties of unequal strength and may actually foster and preserve such imbalances. A rethinking of the entire dispute resolution process is needed. A hierarchy of societal problems must be constructed, followed by an organization of interests based on the hierarchy. Block solutions should be attempted where feasible either through political/legislative process or negotiation along a continuum of dispute resolution techniques. Finally, safeguards must be strengthened to ensure greater fairness within formal adjudications. Footnotes and references are provided.