Reviewing some of the anthropological and other literature regarding other societies' resolution of disputes, I saw that historically many societies have placed far greater emphasis on harmony and healing, and far less emphasis on individualistic adversarial approaches, than we do in the United States today. Just as settlements occur in the "shadow of the law," that is, that the possibility of a litigated solution is often what drives disputants to resolve the dispute through mediation or negotiation, so too does litigation take place in the shadow of settlement. Despite the entanglement of various forms of dispute resolution, significant choices must be made among the forms of dispute resolution recognizing that various forms of dispute resolution are intertwined by no means implies that they are the same, or that it does not matter how a society chooses to resolve its disputes. Clearly, various forms of dispute resolution have different impacts on individual disputants and on society as a whole.
Thus, even though it may be impossible to make sharp delineations between various forms of dispute resolution, it is clear that societies must make self-conscious choices as to which dispute resolution methods should be preferred for particular disputes. Drawing on laboratory and field research, these studies have shown that perceptions of procedural justice are more influential than perceptions of distributive justice, with respect to how disputants will assess the fairness and legitimacy of the entire system. As we first try to assess our goals for a system of justice, and then design the system that fulfills these goals, I believe policy makers will benefit from considering the interrelated nature of various types of dispute resolution, the preferences of disputants, and the multiple societal interests that are and can be served by a procedural system of justice.
3 Nev. L.J. 289 (2003).
Sternlight, Jean R., "ADR Is Here: Preliminary Reflections on Where it Fits in a System of Justice" (2003). Scholarly Works. Paper 274.