Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market for Dispute Resolution Services?

Authors

Maurits Barendrecht, Tilburg University
Berend R. de Vries, Tilburg University

Abstract

"Fitting the forum to the fuss" - i.e., finding the optimal way to deal with every dispute - is an appealing slogan of proponents of alternative dispute resolution ("ADR"). The phrase also summarizes the contract one would expect rational disputants to make once they are embroiled in a conflict they cannot resolve together. Disputants can "buy" dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. These difficulties are assessed in this article. The barriers to dispute resolution are well researched. These barriers are behavioral regularities that qualify the assumption that rational parties would solve their dispute efficiently through negotiations. Barriers to solving the dispute itself through negotiations, however, may have analogous effects on negotiations regarding a procedure to resolve a dispute. The possible psychological (cognitive) barriers, strategic/tactical barriers, and institutional/structural barriers will be discussed. We will argue that the barriers to jointly deciding on a dispute resolution procedure are likely to be substantial and similar to the barriers of solving the dispute itself.

Disciplines

Dispute Resolution and Arbitration | Law | Law and Economics | Legal Profession

Recommended Citation

Maurits Barendrecht & Berend R. de Vries, Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market for Dispute Resolution Services?, 7 Cardozo J. Conflict Resol. 83 (2005).
Available at: https://larc.cardozo.yu.edu/cjcr/vol7/iss1/6