Introduction: The Resolution of Disputes

• Jurisdiction: United States

This is a book about dispute resolution. It seeks to describe in simple terms the ways in which American society has tried to formally resolve disputes between people or businesses.

We get glimpses of such dispute resolution all the time. Half of all television shows involve a courtroom scene filled with lawyers and judges. But that leaves a false impression for two reasons. First, not all disputes are of a legal nature (though all need to be resolved). Some disputes are simply personal. I want to watch a movie, but my spouse wants to watch a reality show. There is no law involved in this, just a preference. Second, very few legal disputes are actually resolved in court. In fact, somewhere around 80 percent are resolved by some other process.¹ And a substantial number are simply dropped or rejected by the courts as having been filed too late or because of some other technical defect.

Formal resolution of disputes, through the courts or through processes such as arbitration and mediation, is actually a rarely used form of dispute resolution. It is much more common to resolve disputes informally. We will illustrate that below, but it is important to understand why that context is important.

When we get to the main parts of the book, about "alternative dispute resolution" and court systems, we will see that these activities are highly organized, with everyone playing specific roles and legalistic rules governing how things proceed. We will see that often the decision made is binding on the parties and so the process and the results can be very serious.

That may give us a false impression that dispute resolution requires marble halls and wood-paneled rooms with stern authority figures glaring down at the disputing parties. Nothing could be further from the truth. Dispute resolution can be, and often is, carried out by one party choosing to not argue about something. That context about informal dispute resolution is important to understand the nature of formal dispute resolution. So, let us take a brief look at it, focusing on four variations on an ordinary scenario and the consequences of each variation.

The Scenario

Two parties (Carol and Joe) jointly own a vacation timeshare for two months a year. They have used it in alternating months for a year or two. By coincidence one has always been busy in the month the other one wants and so no disputes have arisen. But this year both Carol and Joe are free in July. Based on what happened the year before, Joe has...