The Idea: A discussion of alternative dispute resolution mechanisms, and where they do, and do not, work.
As most of my readers know, I
abhor the law. It is the
handmaiden of the social and ideological repression imposed on us by
those in unelected or fraudulently elected power elites, a 'power tool' for the
rich and well-connected.
In my jaundiced view, laws are incapable of compelling people to behave
more morally or reasonably than they would in their absence, and they
have been introduced to wrest power from the majority in favour of the
already-powerful elite, and to provide a veil of legitimacy for the
extreme actions this elite takes to force compliance with their
interests. Religious institutions are rewarded with handsome tax breaks and political
favours for reinforcing this false legitimacy of elite law by preaching
the 'morality' of law and order, which they are all too willing to do
because preaching the morality of obedience also keeps their own
subjugates in line.
This thievery of the property, freedom, well-being and personal
responsibility by the rich and powerful, abetted by the legal and religious establishment, is as old as civilization.
Not surprisingly, the legal 'system', which has no interest whatsoever
in providing anything useful to the average citizen, is completely
dysfunctional. If you are rich or powerful, you can get away with
murder. If you are not, you can easily be executed, tortured and
interrogated indefinitely, or 'disappeared', for crimes you did not
commit, at the pleasure of the elite's puppet government of the day.
And should you have the audacity to try to use the legal system to get
compensation for wrongdoing committed against you, you will be either
bankrupted (if the action is against another mere citizen) or
prosecuted (if the action is against a friend of the elite) for your
trouble. Worse, you will energize the lawyers in office to pass yet more laws to
indemnify those that wronged you, to protect them from action by other troublesome
citizens, and to allow the wrong-doers to prosecute you endlessly for
the rest of your life as punishment for your insolence. If you don't
think poverty is still illegal, take a look at who's in jail.
So the title of this article does not refer to conflicts with those who
have wealth or power. There has always been only one way to resolve those
conflicts, and those who have tried usually fail until the abuses of
power get so extreme that it's worth dying to try to replace them with
some other group, which generally turns out to be no better than the
group it replaced.
I'm referring to peer-to-peer conflicts,
disputes between people of approximately equal power. These are
generally of three types: financial, proximate (disputes with
neighbours) or familial (disputes with family members). The legal
system, as anyone who has tried to use it in these situations will tell
you, is totally incompetent at handling such conflicts. The system is,
after all, proudly adversarial, built on power-brokering, and rigged to
benefit the more powerful adversary (once the physically strongest, now
the one with the more ruthless, manipulative and expensive team of
lawyers).
These three types of peer-to-peer conflicts are frequently more
emotional than logical, even when money is the primary issue. As a
result, those in the legal profession who actually
give a shit about this unprofitable segment of practice have introduced
something called alternative dispute resolution or ADR.
More specifically, they have attempted to introduce a mechanism to
neutralize the emotion of the dispute, called "interest-based
resolution". This mechanism calls on the parties to set aside the
principles underlying their position, and 'settle' for something that,
when the heat of the moment has passed and the principles, rights,
behaviours and morality of the parties and of the issue are long
forgotten, will have reasonably satisfied the interests of all parties.
To make sure all parties are motivated to do this, a refinement to
interest-based resolution called variously "most reasonable offer" or
"final-offer interest" arbitration is introduced. This arbitration
involves selection of a tribunal of arbitrators (typically, one
selected by each side and a third selected by the other two
arbitrators), and a single 'offer' by each side of the most reasonable
resolution they can suggest. The arbitrators can pick only one of the
settlement offers, the one they think is the more reasonable one. The arbitrators cannot
propose anything in between the offers. This prevents either side
cynically staking out extreme positions to allow more room for
negotiation (as is the usual legal adversarial style). It also compels
each party to be as compromising as they can bear, and to imagine
rationally the position of the opposing side. In some cases the offers
are so close that the parties can 'settle out of court' and the
arbitrators are not even needed.
It's not a panacea, but it has its place. It's an ancient way of resolving disputes, thousands of years
old, and it works best when it is suggested to the opposing parties by
people they each trust, rather than imposed. It can work even when there is not enough shared community
spirit driving the parties to make use of more consensus- and
compromise-driven collective processes.
Where it may not work
is if the worldviews and frames of the opposing parties are so
different that they cannot appreciate each other's position at all, and
hence cannot sublimate their emotional fury at what they see as the
immorality or utter unreasonableness of the other's position. For
example, if the issue is the right of an underaged girl to get an
abortion in opposition to her parents' wishes or the right of a man
living in great pain to end his life in opposition to his spouse's or
family's wishes (even without wacko grandstanding opportunistic
politicians meddling in the matter), there may be no "most reasonable
offer" to consider. The decision of a tribunal in such cases will
probably be arbitrary, and the wisdom of crowds will probably not apply
either.
In self-selected communities such diametrically opposed worldviews are
likely to be rare, and this is a good argument for selecting our
communities more deliberately than we do today. But in the meantime we
cannot expect collective processes or interest-based resolution to work
any better than traditional adversarial law in situations where there
is no shared worldview among the opposed parties. In these cases there
are just two, unpalatable, conflict resolution methods: Subterfuge (one
party taking an action that renders the conflict and the opposing
positions moot) or power-brokering (where the side with the most power
wins).
And even in these cases, the legal profession has little useful to contribute. We
can learn much more about self-governance and conflict resolution from
the examples of intentional communities, and from nature, than we can
from the failed constructs of lawmakers and law enforcers.
[Note: A day after writing this, I have edited it to tone down my
blanket criticism of lawyers -- in thinking about it soberly I realized
that it is the 'legal profession' I hate, not all the people in it,
some of whom are trying to do their best to make it work as best as it
can -- a very noble cause that doesn't deserve my flippant
generalizations. Mea culpa.]
|
MADE IN CANADA
trust your
instincts 
