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The Discourses of Dispute Resolution

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Edited By Vijay K. Bhatia, Christopher N. Candlin and Maurizio Gotti

This volume presents some of the findings from a project on various aspects of Alternative Dispute Resolution (ADR), including conciliation, mediation, and arbitration. To study the discursive practices of ADR today, an international initiative has been undertaken by a group of specialists in discourse analysis, law, and arbitration from more than twenty countries. The chapters in this volume draw on discourse-based data (narrative, documentary and interactional) to investigate the extent to which the ‘integrity’ of ADR principles is maintained in practice, and to what extent there is an increasing level of influence from litigative processes and procedures. The primary evidence for such practices comes from textual and discourse-based studies, ethnographic observations, and narratives of experience on the part of experts in the field, as well as on the part of some of the major corporate stakeholders drawn from commercial sectors.

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VIJAY K. BHATIA / CHRISTOPHER N. CANDLIN / MAURIZIO GOTTI Introduction 7

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VIJAY K. BHATIA / CHRISTOPHER N. CANDLIN / MAURIZIO GOTTI Introduction 1. The discourses of dispute resolution Alternative dispute resolution (ADR) refers to all forms of dispute resolution mechanisms, either assisted by specialists in ADR or direct- ly negotiated among the disputing parties, which fall outside of the jurisdictionally regulated process popularly known as litigation. Some of the major forms of ADR include conciliation, mediation and arbi- tration. The parties at dispute may initially attempt to resolve the matter themselves, if they feel that the dispute is not too polarized, and where there exists some measure of trust and goodwill among the disputing parties. In such circumstances, the parties often try to arrive at direct conciliation with or without the help of a neutral internal or external facilitator. Conciliation thus primarily involves developing a suitable framework to encourage openness and a positive understanding be- tween the parties at dispute. The job of a neutral conciliator is to faci- litate such an understanding as a basis for the resolution of the dispute, by helping the parties to set up communicative channels, by means of these to clarify some of the main misunderstandings or issues, and to develop mutual trust among the parties. Conciliation may also be used in conjunction with other methods of ADR, particularly mediation. If conciliation fails to create an adequate environment of mutual trust and understanding, the parties may wish to explore other options of ADR, such as mediation, instead of going to the courts for litigation. Mediation,...

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