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1. Argument and Alternative Dispute Resolution
Systems
GREGG B. WALKER and STEVEN E. DANIELS
Oregon State University
ABSTRACT: Alternative dispute resolution occurs outside the litigation process. The alter-
native dispute resolution (ADR) movement in North America has emphasized viable alter-
natives to the litigation framework, such as arbitration, mediation, med-arb, multi-party
facilitation, non-legal negotiation, mini-trials, administrative hearings, private judging ("rent-
a-judge"), fact finding, and moderated settlement conferences. This essay addresses argument
in the dominant alternatives: arbitration, mediation, and multi-party facilitation. Prior to
comparing argument in these ADR systems, each will be briefly described.
KEY WORDS: alternative dispute regulation, arbitration, mediation, multi-party facilitation,
argumentation.
I. INTRODUCTION
When people organize into communities, conflict is an inevitable result.
Regardless of the country or culture, communities of people develop
systems and methods for settling conflicts in fair and just ways. In western
civilizations, these systems have developed over time into elaborate sets
of laws and the institutions necessary to interpret, enforce, and apply
those laws. North American and European conceptions of law generally
follow patterns set by the classical Greek and Roman writers, as supple-
mented by powerful influences from Christianity (Rieke and Stutman, 1990,
p.30).
Throughout its almost four-century history, North America's non-indige-
nous, euro-american dominated society has tried to settle conflicts in a
formal legal system that emphasizes litigation in court as the ultimate
method of decision. Although ninety percent of the grievances filed within
the legal system may be decided without formal court action, such nego-
tiated settlements still occur within a framework that emphasizes adjudi-
cation as the ultimate end (Kritzer, 1991). Despite only one in ten cases
reaching the courts in the United States, the trial at law, is the most formal
and well developed settlement method (Rieke and Stutman, 1990). Law
school emphasizes adjudication and offers coursework concentrating on
evidence and trial advocacy.
The combination of litigation that leads to adjudication, negotiation, and
out-of-court settlements can be conceived of as a single process concerned
Argumentation 9: 693-704, 1995.
© 1995 Kluwer Academic Publishers. Printed in the Netherlands.

2. 694 GREGG B. WALKER AND STEVEN E. DANIELS
with 'the strategic pursuit of a settlement through mobilizing the court
process.' This association between litigation and settlement negotiation
expressed by the term 'litigotiation' (Galanter, 1984, cited in Kritzer, 1991,
p. 4).
Legal negotiation is often presented as an alternative to litigation
(e.g., Goldberg, Green, and Sander, 1991). To the extent that negotiation
occurs between disputants themselves, it is an option. But legal negotia-
tion generally exists as an alternative for settling disputes within the adver-
sarial legal system. The negotiation does not occur between disputants,
but rather through their hired agents, attorneys, within a litigious context.
The content of these negotiations and the decision-rules that guide them
may be no different than that which would define the dispute within the
courtroom. Consequently, negotiation can be considered part of the tradi-
tional dispute resolution system, rather than a component of the alterna-
tive dispute resolution (ADR) movement.
Argument is the central process of the formal legal system and of the
trials and settlement negotiations that occur within it. Disputants use argu-
ments to persuade the legal system's decision makers - judges, juries,
clients, and attorneys. This essay focuses the use of argument in alterna-
tive dispute resolution (ADR) systems. Within the last two decades in North
America, an ADR movement has erupted. Perhaps because of an overbur-
dened court system, the high cost of litigation, or people's dissatisfaction
with traditional legal venues, citizens have increasingly turned to ADR
methods. Law schools have recognized this trend. In the late 1970s, fewer
than five percent of law schools included ADR in their curriculum. Today,
the vast majority of law schools offer courses in mediation, arbitration,
and negotiation. While ADR methods are the focus of extensive research,
scholars have not sufficiently considered argument within the dominant
ADR systems. This essay presents a comparative analysis of argument in
arbitration, mediation, and multi-party facilitation; offers a conceptual
framework for understanding ADR argumentation and provides general
directions for specific study of argumentation in alternative dispute reso-
lution systems.
II. ALTERNATIVE DISPUTE RESOLUTION SYSTEMS
The alternative dispute resolution (ADR) movement in North America
offers viable alternatives to the litigation framework, such as arbitration,
mediation, med-arb, multi-party facilitation, non-legal negotiation, mini-
trials, administrative hearings, private judging ('rent-a-judge'), fact finding,
and moderated settlement conferences (Stipanowich, 1988; Doyle and
Haydock, 1991 ). This essay features the process of argument in arbitration,
mediation, and multi-party facilitation.

3. DISPUTE RESOLUTION SYSTEMS 695
A. Arbitration
Commonly thought of as a distinct alternative to litigation, arbitration is,
like judicial decision-making, a form of adjudication (Goldberg, Green, and
Sander, 1985, p. 149). Its origins in North America date back to colonial
times (Auerbach, 1983). Fundamentally, arbitration is a settlement process
in which disputants present their issues to a neutral third party who
listens to arguments, reviews evidence, and renders a decision (Cooley,
1986, p. 264). A number of types of arbitration exist, including non-binding,
binding, final offer, interest, and grievance arbitration. Arbitration is the
most frequently used form of alternative dispute resolution. In most arbi-
trations, including binding and final-offer arbitration, the disputants give
all decision making authority to the arbitrator and agree to abide by the
decision the arbitrator makes.
B. Mediation
Mediation, regardless of context (e.g., environmental, labor management,
community, commercial), 'is third-party assistance to people who are trying
to reach agreement in a controversy' (Pruitt and Kressel, 1989, p. 1).
Mediation features the decision making of disputants; it 'is a self-empow-
ering process that emphasizes the participants' responsibility for making
decisions that affect their lives' (Taylor, 1988, p. 61). Negotiation is the
process of issue discussion that characterizes mediation interaction.
°Mediation is essentially negotiation,' Moore explains, 'that includes a third
party who is knowledgeable in effective negotiation procedures, and can
help people in conflict coordinate their activities and to be more effective
in their bargaining' (1986, p. 14). Mediators promote integrative and facil-
itated problem-solving negotiation that seeks a joint, mutually beneficial
decision among disputants.
C. Multi-party facilitation
Some disputes are complex, involving a significant number of parties and
issues. Many public policy and natural resource disputes display a high
degree of complexity. Dispute management in these cases depends less on
mediation-assisted negotiation and more on a procedure that promotes
collaborative, problem-solving dialogue. Consequently, facilitation may
be the appropriate ADR approach (Susskind and Cruikshank, 1987; Daniels
and Walker, 1993). Facilitation and mediation both represent third party
interventions in which the disputants retain their rights as decision makers,
but differ somewhat in their emphasis on process and outcome. The
mediator helps parties construct a mutually acceptable settlement to their
dispute. A facilitator manages the process of discussion, assisting the
parties to have a constructive dialogue (Gray, 1989). Still, both mediation

4. 696 GREGGB. WALKERANDSTEVENE. DANIELS
and facilitation encourage disputants to address issues, concerns, and inter-
ests openly and integratively.
III. ARGUMENTANDALTERNATIVEDISPUTERESOLUTIONSYSTEMS
Just as argument permeates the traditional court-defined dispute settle-
ment system, it occupies a significant place in alternative dispute resolu-
tion systems. But process of arguing differs among ADR systems. In order
to compare the nature of argument in arbitration, mediation, and multi-party
facilitation, nine elements will be considered: (1) audience; (2) the locus
of decision making; (3) who argues; (4) the disputant-as-arguer relation-
ship; (5) argument rules; (6) argument purpose; (7) dispute argument issues;
(8) evidence; and (9) case-building and refutation. The elements are con-
ceptual and intended to stimulate thoughtful discussion and inquiry. They
are summarized in Table 1.
A. Audience
Regardless of the forum, the audience is a crucial element in argumenta-
tion. Audience members are those from whom arguers seek adherence
(Rieke and Sillars, 1984). Argumentation is concerned with the opinions
and values of the audience the speaker addresses (Perelman, 1968, p. 18).
In alternative dispute resolution systems, the primary audience is likely
the decision maker. In mediation and multi-party facilitation, the third
parties often are the object of some influence, perhaps in an attempt to gain
an ally, but mediators and facilitators are trained to resist such influence.
When a disputant acts as a representative, his or her constituency is a salient
audience, but still not a participant with decision power. But beyond
decision making authority, what distinguishes ADR audiences is knowl-
edge. In arbitration, for example, audiences have specialized knowledge
in areas of both content and process; in mediation and facilitation, audi-
ences have specialized knowledge about process and general content.
All third party neutrals in ADR systems are process experts, but only
arbitrators are content, subject are experts. Arbitrators and arbitration panels
are often selected because of their subject area expertise. Most arbitrators
are attorneys and retired judges, individuals who may have detailed knowl-
edge of the content area of the dispute as well as a strong background in
the law. For example, a labor-management grievance arbitration uses a labor
law attorney as an arbitrator. A health insurance arbitration often uses a
health area legal expert, possibly a retired judge with experience in health
industry cases. Consequently, arguments in arbitration involve substantive
issues presented to an audience with specialized knowledge.

5. DISPUTE RESOLUTION SYSTEMS
Table 1. Elementsof argument in Alternative Dispute resolution Systems
697
ADR argument elements Arbitration Mediation Multi-party
Audience; Arbitrator;
knowledge specialized
Locus of Arbitrator
decision making
Who argues? Arbitrator(s) Disputants;
and disputants some mediator
The disputant - Adversarial Collaborative;
as - arguer some
relationship adversary
Argument rules Formal; Semi-formal;
Regulative Regulative &
Constitutive
Argument Advocacy Advocacy;
purpose: some inquiry
Advocacy -
inquiry
Disputants Disputants;
and mediator; general
general
Disputants Disputants/
Agency
Disputants
Collaborative
Informal;
Constitutive
Inquiry and
advocacy
Dispute Argument Substantive Substantive; Substantive;
Issues relational relational;
procedural
Evidence Essential; Desirable; Desirable;
public; informal informal
formal
Case-building Structured; Semi- Unstructured;
and Refutation central structured; peripheral
peripheral
B. Locus of decision making
Argumentation is a process in which arguers seek to gain adherence for
their claims from relevant decision makers (e.g., Rieke and Sillars, 1984).
In arbitration, the relevant decision maker is the arbitrator; that is, an impar-
tial judge (or panel), generally of the disputants' selection, whose decision
is based on the merits of the case and is final and binding to the partici-
pants (Elkouri and Elkouri, 1985, p. 2). Both disputing parties seek the
adherence of the arbitrator, rather than each other.
In contrast to arbitration, the disputants are the decision-makers in both
mediation and multi-party facilitation. While the intervening third party
may influence the disputants to progress toward a settlement decision, the
third party has no decision authority. Consequently, disputants seek adher-
ence from the other parties in the conflict.

6. 698 GREGGB. WALKERAND STEVENE. DANIELS
C. Who argues?
Within the traditional court-defined legal system, any potential actor - the
disputants, disputants' agents (attorneys), judges, witnesses, juries, and
other relevant officers of the court - may assume the role of arguer.
However, in arbitration disputing parties as well as the arbitrator(s) both
actively argue. Much of the disputants' argumentation occurs in the way
they prepare and present their cases. Generally, most of an arbitrator's
knowledge and understanding of the dispute 'is based on the evidence and
arguments presented at the arbitration hearing' (Elkouri and Elkouri, 1985,
p. 237). The arbitrators' explicit arguments appear in the decisions they
make. In labor disputes, arbitrators provide a written rationale for their
decision. 'A well reasoned opinion can contribute greatly to the acceptance
of the award by the parties by persuading them that the arbitrator under-
stands the case and that his [or her] award is basically sound' (Elkouri
and Elkouri, 1985, p. 281). Since an arbitrator's opinion surfaces after the
arbitration hearing has occurred, it is a post-decision argument.
Arbitrators create arguments and intervene directly in disputes in contrast
to mediators and facilitators who regulate arguments by promoting inte-
grative, collaborative interactive reasoning (Walker and Cue, 1987; Walker,
1991). At times mediators engage disputants by advocating issues and by
clarifying issues through asking questions, and raising doubts, and pressing
for oral commitments (Allen and Donohue, 1987; Walker, 1991; Carnevale,
1986).
D. The disputant-as-arguer relationship
In traditional legal forums, disputants are rivals or competitors in search
of legal victory. Parties define the legal conflict as a zero-sum interaction,
in which there can be only one clear winner (or perhaps two losers). Such
is also the case with arbitration. The parties in dispute present their indi-
vidual cases to the arbitrator(s) whom they have selected to settle their
dispute. Each party attempts to 'win' her or his case at the expense of the
other. In final-offer arbitration, the arbitrator selects one party's settlement
solution and applies it to all parties. Conventional arbitration makes an
award that likely falls between the extreme case positions of the disputants,
with the effect that one party declares victory or both parties feel like com-
promise losers (Adams, 1987).
Mediators and multi-party facilitators structure disputes to encourage
integrative, collaborative negotiation and dialogue. In doing so, these
third parties encourage the disputants to see their relationships as joint
decision makers rather than adversaries. When the emphasis of media-
tion is on the settlement, the disputants may still be inclined to see one
another as rivals. Both mediation (Walker, 1991) and multiparty facilita-
tion (Daniels and Walker, 1993) emphasize collaborative argument, which

7. DISPUTERESOLUTIONSYSTEMS 699
features disagreement and diversity of views within a temporary disputant
'partnership.'
E. Rules of argument
Some communication theorists distinguish between regulative and consti-
tutive rules (Shimanoff, 1981; Pearce and Cronen, 1980). In simple terms,
rules that govern communication interaction are regulative if they are per-
ceived by disputants to be imposed on the parties by context or situation.
In contrast, constitutive rules emerge within the interaction relationship
itself. This distinction appears in arbitration as regulative rules. In ways
similar to litigation, arbitration features structure, procedures, and con-
ventions that govern how disputants argue their cases, cross-examine wit-
nesses, and relate to the arbitrator. Within the arbitration, argumentative
rules are not negotiable.
Some regulative rules may govern mediation; mediators present and
enforce ground rules governing disputant interaction (Moore, 1986; Keltner,
1993). Still, rules of argument in mediation, as in multiparty facilitation,
can be generated by the disputants themselves. In both mediation and multi-
party dialogue, processes and procedures are legitimate areas for discus-
sion and negotiation. The difference then is that arbitration imposes rules;
meditation and facilitation invite disputants to generate their own rules for
constructive argumentation.
F. Argument issues
Argumentative rules relate to the content and issues of the dispute, such
as issues of substance, procedure, relationship, and identity (Walker, 1992).
The formal, regulative rules of arbitration generally limit disputant concerns
to the tangible, substantive issues of the conflict. Mediation and multi-party
facilitation accommodate disputant-generated constitutive rules and
welcome dialogue about procedural, relational, and identity concerns. The
disputant's need to preserve face, a relational and identity issue, is not dealt
with in arbitration but received immediate attention in mediation and multi-
party facilitation.
G. Argument purpose and emphasis: Advocacy versus inquiry
Contemporary argumentation theorists, often drawing upon classical
traditions, distinguish between rhetorical and dialectical perspectives of
argument. Argument as rhetorical stresses persuasion and adherence as
fundamental goals. Argument as dialectic values procedures that promote
critical, constructive discussion (Wenzel, 1990). Most argumentative situa-
tions, such as disputes, involve aspects of both perspectives; rhetorical
argument emphasizes advocacy in order to reach a favorable decision, and

8. 700 GREGGB. WALKERAND STEVENE. DANIELS
dialectic argument makes inquiry its priority for interaction. Argumentative
interaction is 'dialectical' to the degree that it is motivated by the desire
to examine issues critically by means of fair, just, and orderly procedures
(Wenzel, 1990, p. 21). This view of a constructive, regulated argumenta-
tive discussion seems particularly relevant to the settlement of disputes (van
Eemeren and Grootendorst, 1984; 1990).
The argumentation in arbitration is a type of advocacy. The disputants
present their cases and seek to 'win' support from the arbitrator. Inquiry -
learning, discovery, testing ideas - has a limited function in arbitration. A
disputant's goal concerns getting the best settlement possible for himself
or herself and a willingness to give up decision-making power to accom-
plish this goal.
Argumentation is both advocacy and inquiry in mediation and multi-
party facilitation, but inquiry receives more prominence. Disputing parties
certainly argue in an attempt to persuade one another. But they also, when
encouraged by the mediator or facilitator, use argumentation as a means
for learning and discovering the best joint decision possible. Whereas
arbitration responds to individual gain, mediation and facilitation accen-
tuate mutual benefit, a goal that leads disputants to argue collaboratively
and as equals (Walker, 1991). Disputants argue in a manner consistent
with Wenzel's 'four Cs' of dialectical argumentation: cooperation, com-
prehensiveness, candor, and criticism (1990, p. 24). The parties' interac-
tion reflects mutual respect and bilaterality, allows disputants to present
their ideas for scrutiny, and recognizes that while they want to influence
the views of others, they may be changed as well (Johnstone, 1982; Wenzel,
1990).
H. Evidence
Evidence is central to legal argument and a dominant feature of course
content in law schools; state and federal governments codify rules for the
use of evidence. Evidence also is a focal point for distinguishing arguments
in alternative dispute resolution systems. The use of evidence in arbitra-
tion parallels its use in judicial argument and plays a critical role in the
development of a settlement. Arbitrators read briefs prepared by disputants
and listen to testimony and cross-examination. The evidence supports the
claims of disputants and receives careful review by arbitrators who evaluate
the merits of evidence in competing cases. Standards for the use of evidence
in arbitration are drawn from legal criteria and are not negotiated by
disputants. As Hill and Sinicropi explain, 'The arbitrator should possess
a working knowledge of the basic considerations underlying the tradi-
tional rules of evidence,' rules drawn from years of judicial experience.
Furthermore, the disputants have a right to know what general standards
an arbitrator employs to evaluate evidence (1980, pp. 2-3). Still, part of
the appeal of arbitration is its ability to deviate from or even disregard

9. DISPUTE RESOLUTION SYSTEMS 701
'courtroom' evidentiary rules (Murray, Rau, and Sherman, 1989). The arbi-
trator determines the admissibility, credibility, and weight of evidence but
is not constrained as a judge might be in a court of law (Elkouri and
Elkouri, 1985).
The argumentation of mediation and multi-party facilitation relies on
evidence, but the disputants provide the standards for its evaluation.
Evidence, like the arguments themselves, may be presented casually and
evaluated informally. In community mediation, as Rieke and Stutman
explain, 'most of the reasoning used by disputants consists of arguments
based on their own authority; they tell what they experienced first-hand
and offer themselves [and others] as witnesses. They make occasional
reference to some documentary evidence . . .' (1990, p. 19). Mediators
and facilitators, though, control their respective dispute resolution processes
and can decide that certain witnesses and documentary evidence are not
pertinent to reaching a settlement (Rieke and Stutman, 1990, p. 18).
I. Case building and refutation
Evidence, case building, and refutation in arbitration approximate that in
the legal system much more so than disputant-centered ADR systems like
mediation and facilitation. Regardless of the arbitration type, disputing
parties rely principally on the cases they (or their agents) have developed
to persuade the arbitrator. This 'case building' generally corresponds to
arbitration procedures for a fair hearing established in law. Under the
Uniform Arbitration Act, disputants are entitled to he heard, to present
evidence relevant to the controversy, and to cross examine witnesses who
appear at the hearing (Murray, Rau, and Sherman, 1989).
Arbitration does not accommodate detailed extemporaneous refutation
of an opponent's arguments. At the arbitration hearing, disputants' and/or
their agents' refutation is limited to cross-examination of witnesses, objec-
tions to evidence, and limited closing statements. Consequently, refutation
may occur in the case itself, in anticipation of arguments the adversary will
present. This work may include determining 'whether there is some 'key'
point upon which the case might turn,' and concentrating on that point
(Elkouri and Elkouri, 1985, p. 239). Rebuttal or post-hearing briefs provide
further opportunity for refutation of the arguments of disputants although
no new evidence is permitted (Elkouri and Elkouri, 1985).
Formal case-building and refutation typically are not emphasized in
mediation and multi-party facilitation. In fact, written guidelines for medi-
ation and multi-party conflict rarely address case development or discuss
argumentative processes. Lovenheim, for example, advises disputants in
mediation to prepare a 'case' or opening statement or 'story' that features
evidence relevant to the dispute. In detailing the mediation process, though,
he does not explain constructive argumentation and refutation as part of
disputant negotiation (1989).

10. 702 GREGG B. WALKER AND STEVEN E. DANIELS
The processes of mediation and facilitation can be enhanced by knowl-
edge of case-building and refutation strategies. For example, in the early
phases of the dispute settlement process, third-party intervenors could ask
parties to organize their thoughts into 'cases' that conveyed their inter-
ests, concerns, and goals. In later stages, parties could construct a 'case'
for a preferred settlement alternative. Cases the disputants, present can
identify 'commonplaces' (Makau, 1990) that are the assumptions that
disputants share with one another. The mediator may assist disputants
to discover similar points that may promote integrative negotiation and
collaborative argumentation (Walker, 1991).
Correspondingly, mediators and facilitators can guide interaction that
invites constructive refutation. Refutation activity can be a part of the
critical evaluation process of discovering and evaluating issues that will
be part of the best possible settlement decision. With mediator guidance
and direction, likely via questions and ground rules, disputing parties can
answer directly one another's ideas and arguments. Such refutation should
promote active, attentive listening, respect for different views, the valuing
of disagreement, balance between inquiry and advocacy; and a deliberate
process leading to collaborative argumentation. Mediation and multi-party
facilitation enjoy the freedom absent in arbitration to adapt interaction rules
for argumentation to the requirements of the mediation or the facilitation
of the dispute situation. Both mediation and facilitation, in featuring col-
laborative interest-based case building and constructive refutation, enact a
collaborative argument process consistent with civil, rational, and dialec-
tical approaches for settling disputes (e.g., Feteris, 1990).
IV. CONCLUSION
Dispute resolution systems share a common commitment to a fair, just
settlement of conflict and to the preservation of community. All systems
reflect the view that in civil, ordered societies, nonviolent methods of
conflict resolution are essential. The legal arena, with its court and legal
negotiation options, endures as the centerpiece of the North American
justice system. In recent years, however, alternative dispute resolution
approaches have emerged, and they can preserve disputants' power as
decision-makers.
Each dispute resolution system is a decision-making system within
which argumentation plays a significant part. Just as legal argument is
central to courtroom decisions, argumentation guides decisions in alterna-
tive dispute resolution systems. This essay has featured three alternative
systems - arbitration, mediation, and multi-party facilitation - and has
focused on nine conceptual areas appropriate for an initial comparison
of argument in these alternative systems. The analysis reveals that argu-
ment differs from system to system. Arbitration argument, in many ways,

11. DISPUTE RESOLUTION SYSTEMS 703
parallels legal, judicial argument. Mediation and multi-party facilitation
argument, in contrast, attends little to the formality and regulation of legal
argument.
The distinction seems to hinge on the locus of decision-making. In both
court system dispute resolution and arbitration, the disputants surrender
their right to decide, turning over this power to judges, juries, and arbi-
trators. In giving up their decision authority, the disputants comply with
the rules of the system that govern their conflict and accept regulation about
the manner and design of arguments from authorities outside of their
disputant relationship. In mediation and multi-party facilitation, parties
maintain power as decision-makers, holding final authority for settlement.
Although some rules are imposed on their interaction, the disputants can
influence the structure of the settlement process, including the ways in
which they will argue with one another. Given this control, parties in
conflict, as guided by third parties, can engage argument collaborativety,
as both advocates and learners.
An American poet and philosopher, Walt Whitman, once asked: 'Have
you learned lessons only of those who admired you, and were tender with
you, and stood aside for you? Have you not learned great lessons from
those who braced themselves against you, and disputed the passage with
you?' Conceptual analyses, case studies, and empirical investigations of
argumentation in alternative dispute resolution systems further refine our
understanding of argumentation processes. North American dispute reso-
lution systems, in theory, promote justice, equality, and community. In
alternative dispute resolution systems, particularly those that empower dis-
putants, argumentation promotes these values in practice.
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