Andrea Kupfer Schneider, The Intersection of Dispute Systems Design and Transitional Justice, 14 Harv. Negot. L. Rev. 289 (2009). Copyright © 2009 by the Harvard Negotiation Law Review, Program on Negotiation at Harvard Law School, and the Present and Fellows of Harvard College.
14 Harvard Negotiation Law Review 289 (2009)
Dispute Systems Design (DSD), the process of creating structures to deal with repeated or systemic disputes, can be applied to both the most mundane and the most horrific of conflicts. We know that human rights violations can be perpetrated by governments or non-state actors, can be regional or national, and can be targeted against a particular group or have random victims. We know that these violations can occur as a spurt of extreme violence over a short time or can last for generations. We also know, historically, of many different methods by which to deal with human rights violations.
The goal of this article is to bring together different experiences around the world and different threads of the law - in international, human rights, transitional justice, restorative justice, and dispute resolution - in order to outline the challenges lawyers face when dealing with these complex international situations. Among the many challenges that dispute systems designers face when dealing with human rights violations are the following:
(1) Should we be setting up a DSD at all? How can we design systems that both acknowledge the need for justice and promote peace on the ground as soon as possible?
(2) Who designs and implements the DSD? How can we design systems that are almost inevitably implemented from the top down while recognizing that the best healing occurs from the bottom up?
(3) How is the system designed? How can we as designers be efficient and use the best practices of the past while still customizing each dispute system to take unique account of each individual conflict?
(4) What values are promoted by the DSD? How can we explain the push for judicialization of international disputes at the same time that trial rates in the U.S. continue to drop?
(5) What remedies are provided by the DSD? How can we design systems for the future while recognizing that the people most affected often need to cope with the past violations before looking to the future?
This essay will first explain the challenge posed by each of the questions above, and then suggest some approaches to these challenges based on what we have seen thus far in international and domestic DSD.
Schneider, Andrea Kupfer, "The Intersection of Dispute Systems Design and Transitional Justice" (2009). Faculty Publications. Paper 269.