DecidingHelping parties make a decision or adjudicating for them

Parties that are locked together in conflict may find it difficult to agree on a resolution. Mediators can guide the problem-solving process, but they lack the authority to make decisions for parties who are unable or unwilling to compromise. When parties to conflict get stuck, or when one party’s rights have been violated, a neutral adjudicator who is familiar with the type of problem they are facing is needed to make a decision and move the process forward.

Why is this a fundamental dispute resolution practice?

Conciliatory approaches to dispute resolution such as negotiation and mediation only go so far. Mediators and facilitators rely on the parties involved to brainstorm solutions and make decisions to resolve their conflict. This may not be possible or appropriate in disagreements that involve complex distributive issues, legal technicalities, or a power imbalance between the parties. Serious criminal cases, land grabbing or land ownership disputes, and domestic violence cases for example typically require intervention by a judge.

For this reason, it is important that parties have access to a trusted third party who can make informed decisions on their behalf and ensure that those decisions are enforced. Parties who lack access to a decision-maker and leave important disagreements unresolved run the risk of right being violated, violent escalation, or new conflicts later on.

In less complex disputes that can be resolved through negotiation and mediation, the threat of intervention by a third party decision-maker and the costs associated with that provide powerful incentives for parties to come to the table to talk things through.

What are the active ingredients of deciding?

A neutral decision-maker

Depending on the nature of the dispute, this may be a teacher, a parent, a boss, an arbitrator, a committee, a jury, or a judge. This person should be able to make decisions on technical issues and be available to the parties at a low cost.

Growing towards a decision

Ideally, parties listen to one another and jointly grow towards a decision. Neutral third parties can facilitate this by giving them adequate time and space to participate and determine what they want (or can live with). When parties are unable to make a decision for themselves, third parties can use decision analysis2 and informed decision-making3 to do it for them.

A therapeutic approach

A problem-solving1 judge who uses “therapeutic jurisprudence” to understand and address the underlying needs of the parties can help move the decision-making process forward. A therapeutic approach to adjudication results in a more comprehensive solution that promotes the well-being of those involved.

Mild time pressure

Some amount of time pressure helps parties to reach reasonable decisions. That said, there should not be so time pressure much much that the decision-making process becomes stressful.

Integration and loop-backs

Ideally, negotiation, mediation, and adjudication are integrated and take place near each other. This allows parties to loop-back between different processes as needed. For example, from mediation to arbitration or vice versa.

What are people actually doing to make this happen?

Parties are working to resolve their disagreements and bringing in a neutral decision-maker when they are unable to reach resolution themselves. Once a decision is made, they are accepting that decision.
Mediators and facilitators
Mediators and facilitators ​are giving parties the time and space they need to grow towards a decision. They are using strategies to encourage cooperation. Using non-adversarial language and making use of rewards, for example, can help motivate parties to make decisions together. Mediators and facilitators are also recognizing when parties are unable to reach a resolution themselves and helping them to access a low-cost adjudicator.
Mediators and facilitators
Judges and other adjudicators
Judges and other adjudicators are making decisions in a procedurally just way that builds on the collective intelligence of the parties involved and the support of the broader community.
Judges and other adjudicators
Judges leaders
Judges leaders are ensuring that parties to conflict can access neutral and informed decision-makers and get their most difficult disagreements resolved in a fair way.
Judges leaders
Innovators are making integrated, one-stop-shop dispute resolution procedures available online to facilitate decision-making. They are also re-designing courtrooms to make them more user-friendly and increase their capacity for collaborative problem-solving.

What indicators can be used to monitor this practice?

Procedural justice (voice, neutrality, respect)
Low-cost access to a neutral

What makes deciding difficult?

Behavioral barriers

In the heat of conflict, a third party decision-maker or the parties themselves may be tempted to impose a decision rather than growing towards a decision together. Decisions that do not address the underlying needs of those involved are unlikely to be sustainable, even if they are enforced.

Cost barriers

The costs of involving a third party decision-making (court costs, time spent, and all the associated stress) are often prohibitively high. To ensure that parties reach out for help when needed, the total costs of litigation should not exceed 10-15% of the value at stake in the dispute. Simplifying and streamlining court procedures helps to bring down these costs and make decision-makers more accessible.

More Resources

  1. Cynthia Lee et al., “A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center,” National Center for State Courts (2009)
  2. Center for Public Resources (CPR) Institute for Dispute Resolution, “The Value of Decision Analysis in Mediation Practice,” Negotiation Journal 11 (1995)
  3. Michaela Keet, “Informed Decision-Making in Judicial Mediation and the Assessment of Litigation Risk,” Ohio State Journal of Dispute Resolution (2017)