What is dispute settlement? What should we expect or ask from a dispute resolution mechanism? To what extent and with what consequences can we buy dispute resolution, privatise it and remove it from society’s purview? Should arbitration be seen as a mechanism that merely does away with disputes, or rather as an instrument of governance? These are some of the principal questions on which this essay seeks to provide some basic structuring reflections. To this effect, the essay envisions three functions that dispute settlement may pursue: the individualised and isolated maximisation of the parties’ satisfaction; the sustainment of the rule of law and of predictability; and the enforcement of substantive societal values.
arbitration
mediation
negotiation
settlement
rule of law
justice
satisfaction of the parties
Owen Fiss
Senior Lecturer, University of Geneva, seconded in part to the Graduate Institute of International and Development Studies; Executive Director, Geneva Master in International Dispute Settlement (MIDS); Managing Editor, Journal of International Dispute Settlement. An earlier version of this essay has been published as ‘Theoretical Musings on the Roles of Dispute Resolution Systems – With Special Consideration of Online Dispute Resolution’, in ADR IN BUSINESS (A. Ingen-Housz, ed, 2010). Research supported by the Swiss National Science Foundation.