Section of Dispute Resolution

American Bar Association
Section of Dispute Resolution

Dispute Resolution Magazine
Spring 1998

It has to be a two-way street

By Bryant G. Garth

We selected the theme of diffusion and transformation in part to reflect on the movement outward of "dispute resolution" as developed and defined in the United States. Dispute resolution is not the only example of this process. It is evident in the export of fast-food technologies, in the ways economies are organized, and in the conduct of elections. Not surprisingly, therefore, the articles in this issue provide many illustrations of how U.S. advisors -- including academics, consultants, and judges -- and U.S. funding sources -- including U.S. A.I.D and the major foundations -- are heavily involved in helping gain attention and interest in dispute resolution as a "made in the U.S." technology.

Indeed, some of the articles understandably are oriented toward the question of how best to encourage other countries to "incorporate the use of dispute resolution techniques" into their legal systems. Such articles reflect the growing transnational experience of the dispute resolution community in the United States and the process of learning what can be exported best in which local contexts. The articles by Melinda Ostermeyer and by Christine Cervenak, David Fairman, and Elizabeth McClintock are quite self-conscious about their efforts to promote ADR abroad -- and increasingly sophisticated about what it will take to bring about a successful transplant. The success of this new export business -- and the eagerness of many importers to gain a local franchise -- can make the U.S. dispute resolution community proud. Nevertheless, it may be useful in this introduction to suggest that we should pay more attention to the potential negative implications of what often appear to be one-way flows.

Our theme of transformation, which can be divided into two sub-themes, seeks to address some of the concerns raised by one-way flows. In one respect, the theme of transformation is about what inevitably happens when diffusion is successful. The foreign transplant in effect becomes local. It therefore grows, prospers, and transforms as part of a local context. It may end up looking very different from the institution upon which it may have been modeled. The other theme of transformation, which we offer as a challenge to the mainly U.S. dispute resolution community, can be seen through the articles that concern arbitration more than mediation. The challenge is to ensure that the techniques and approaches promoted as dispute resolution incorporate and respond to the concerns of those outside the U.S. Those outside the United States should become part of the processes of building and transforming how we think more generally about the field in the U.S. -- making it a more international field.

The story related by Charles Nupen documents a tremendous success in South Africa. The impetus for the incorporation of new dispute resolution mechanisms into South Africa appears to have come through interactions with the U.S. and with non-governmental organizations supported through philanthropic foundations. As it turned out, dispute resolution processes became incorporated into the approach of the African National Congress when it came to power in 1994. These processes have had an important impact on South African society, and it is clear that they have taken hold and become local and indigenous -- adapting successfully to the rapidly changing local context. It is now fair to say that the U.S. has much to learn from the way that South Africans are handling what are potentially explosive issues.

The challenge for those in the U.S. and elsewhere who support the approaches and technologies of dispute resolution is to find ways to draw on experiences such as that in South Africa in order to refine and improve the techniques and approaches that are taught, studied and promoted. If we consider the examples provided in the field of business disputing -- especially arbitration -- by James Carter and Jacques Werner, we can begin to appreciate the challenge and what it may require. Werner explores the international commercial arbitration industry, showing how it has become much more competitive in recent decades. He also suggests that the success of this transnational system of private justice has come in part through the development of a cadre of professional arbitrators, well-versed in arbitration techniques.

This group of arbitrators is no doubt centered in the traditional places of arbitration expertise -- especially London, Paris, and Switzerland. But it has demonstrated an openness to the individuals, approaches, and concerns of those who come from outside the arbitration mainstream -- e.g., China, Japan, the Middle East. The legitimacy (and success) of international commercial arbitration comes from the fact that the major centers -- through conferences, scholarly articles, and special forums -- have mechanisms to ensure that the flow of ideas and approaches, if not exactly symmetrical, is not just one-way.

James Carter's article about NAFTA, also concerned mainly with business disputing, suggests that the Article 2022 committee provides an opportunity to use NAFTA to work out approaches that fit all three of the NAFTA countries, not merely one or the other. The processes of discusssion, comparison and institutional construction make it possible to find approaches that build on two and three-way exchanges. The Mnookin and Greenberg article on the IBM-Fujitsu arbitration, in some respects, illustrates the same process. While the lawyers and arbitrators handling the arbitration were all from the U.S., the personal relations that Mnookin and Greenberg describe as a result of the process helped to facilitate and develop processes and rules that could be acceptable in Japan and in the United States -- bridging two very different corporate cultures.

The challenge for the more general dispute resolution community in the United States is to find ways -- intellectually and personally -- to facilitate the kinds of transformations that the preceding examples illustrate. U.S. style dispute resolution is going global, but so far there has not been very much global conversation about what dispute resolution techniques are, and need to be, to address the different sets of problems and contexts that are found outside the United States -- which also may be quite relevant to certain problems in the U.S. The questions that Abram Chayes raises about the "booming business" in international environmental law can be expressed more generally. If successful approaches are to be worked out for the highly charged issues he describes, and indeed for other areas such as the family disputes described by James Boskey, it will require that all the potential disputants participate in defining what the processes should entail and who the third parties ought to be.

This issue of Dispute Resolution Magazine, and the Conference on "Resolving Disputes in the Global Marketplace" scheduled for April 2-4, 1998, mark the initial efforts of the Dispute Resolution Section of the ABA to help construct a more open forum for the international discussion and adaptation of the processes and techniques of dispute resolution. For a variety of reasons, which we need not examine here, this field developed in the United States. It is understandable that the enthusiastic pioneers of this field are anxious to become missionaries to other parts of the globe. We need to be careful about that impulse. I admit to a kind of knee-jerk hostility to the "imperial" aspects of one-way diffusion, whatever the motives, but there is also a more general point about the development of the field of dispute resolution as an international field. Dispute resolution in the U.S. and in other areas will gain from the more open process of study and debate that this issue of Dispute Resolution Magazine hopes to encourage.