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Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot perfectly know what is the “correct” result in a dispute, it is unwise to attempt to construct a yardstick for evaluating substantive outcomes. However, we can construct a system of procedures that may be followed from case to case. The outcomes of each case may be that the chips fall where they may, but this is of less concern than knowing that the system producing these falling chips followed an announced neutral format. For others, the decisional framework governing disputes and the quality of outcomes in disputes is paramount. In extreme cases of this view, the end justifies the means. Recall the famous comment from the Vietnam War, where one soldier was infamously quoted saying “we destroyed the village to save it.” One can find numerous historical examples where preference for a substantive outcome turned into the atrocities of the zealot. As something of a cheerleader for evaluation as a legitimate part of eclectic mediation, I do not intend to suggest that evaluators are so committed to a certain result or range of results to inflict similar violence on proper mediation procedure in order to ensure that mediated settlements meet their substantive criteria. However, I think it is fair to say that those supporting the right of mediators to introduce some element of evaluation where necessary (myself included) are suggesting that for them substantive rules of decision and outcomes are as important as fidelity to a non-adversarial or nonjudgmental procedure. When it falls short of mania, a commitment to substantively good outcomes often results in a useful commitment to fairness and justice. Similarly, if fidelity to agreed procedure is not carried to extremes or used to blind the proceduralist to the overall quality issues, a commitment to procedure provides many benefits. But either orientation alone or applied to the extreme can prove problematic. In practice, we should not be surprised that most lawyers and other dispute resolvers (indeed, most people) are eclectic in their approach to the proper balance of substance and procedure. Despite the everyday eclecticism of society in this regard, it can clarify our thinking about dispute resolution to take into account this procedure-substance division among the profession. The divide between those who privilege procedure and those who prefer substance may explain the facilitative-evaluative division as well as any other factors, including the historical and sociological divisions addressed in the primary article.

Publication Citation

2000 J. Disp. Res. 371 (2000).