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Resolving Disputes - The Lost Art

by Sam Vaknin

Wherever interests meet - they tend to clash. Disputes are an inevitable and inseparable part of commercial life. Mankind invented many ways to settle disputes. Each way relies on a different underlying principle. Generally speaking, there are four such principles: justice, law, logic and force.

Disputes can be resolved by resorting to force. One party can force the other to accept his opinion and to comply by his conditions and demands. Obeisance should not be confused with acceptance. The coerced party is likely to at least sabotage the interests of the coercing one. In due time, a mutiny is more likely than not. Force is always met by force, as Newton discovered.

This revolution and counter-revolution has a devastating effect on wealth formation. The use of force does ensure that the distribution of wealth will be skewed and biased in favour of the forceful party. But the cake to be divided grows smaller and smaller, wealth diminishes and, in due course, there is almost nothing left to fight over.

Another mechanism of dispute resolution involves the application of the law. This mechanism also relies (ultimately) on enforcement (therefore, on force). But it maintains the semblance of objectivity and the fair (unbiased) treatment of the contestants ("level playing field" and the "rule of Law"). It does so by relegating both functions - of legislating and of adjudication - to third, uninterested parties.

But this misses the crucial point. The problem is not "who makes the laws" or "who administers them". The problem is "how are the laws applied". If a bias exists, if a party is favoured, it is at the stage of administering justice. The personal integrity of the arbitrator (the judge) at this stage does not guarantee a fair outcome.

Empirically, the results of trials have been shown to depend greatly on the ethnic identity and social and economic standing of the disputants as well as on the social background and ethnic affiliation of the judge. Above all: the more money a party to a trial has - the more the court is tilted in his or her favour.

The laws of procedure are such that wealthy applicants (represented by wealthy lawyers) are more likely to win. The substantive law contains preferences: ethnic, economic, ideological, historical, social and so on. Applying such substantive law to the settlement of disputes is tantamount to the application of force. The difference is in style, rather than in substance. When law enforcement agencies get involved - even this minor distinction tends to blur.

Perhaps a better system would be the application of the principles of justice to disputes - had people been able to agree what these are. Justice is an element in the legal system, but it is "tainted" by ulterior and overriding considerations (social, economic, etc.)

In its purified form justice is associated with an impartial administration of impartial principles of dispute resolution. The promulgation and application of just principles is entrusted to people who are thought to possess or to reify justice ("just" or "honest" people). The system is not encumbered by laws of procedure and the parties have no built-in advantages. Arbitration is an example of a justice-based dispute resolution system.

Both the law and the principles of justice tend to preserve accumulated wealth and, therefore, the social order. In many cases they tend to help to increase it. No "right" or "just" distribution is guaranteed by either system - but, at least, the destruction of wealth is avoided.

This achievement is based on the principle of consent. Embedded in both systems is the implicit agreement to abide by the rules, to accept final judgments, to succumb to legal instructions, and not to use force to try to ensure favorable outcomes. A revolution is, of course, always an option. One can always ignore or violate decisions or judgments rendered by competent, commonly accepted courts. But, in these cases, we are merely back to dealing with the application of the principle of force, rather than of law or justice.

Then there is logic. Not in its commonsensical rendition - but in the form of natural laws. By "logic" we mean the immutable ways in which the world is governed, in which forces are channeled, under which circumstances arise or subside. Natural Law should (and in many respects) does underlie all the human systems of law and order. This is the meaning of "natural justice" in the most profound sense of the phrase.

All human societies belong to either of these four categories. Indeed, a civilization can easily be summed up and judged by its adherence to one or the other of these systems and principles of dispute resolution. It is when Mankind backtracks and slides from system of Law or Justice to Force-based solutions that the end is nigh.

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