Over the past years, many of us have been impressed by the limitations of both institutional dispute resolution systems (i.e., courts) and their alternatives (i.e., arbitration and mediation). At the same time, I’ve been increasingly drawn to examples found in certain societies whose shared spiritual beliefs have produced systems of dispute resolution that are consciously in tune with those beliefs.
I include in these systems the Hawai’ian practice of ho’oponopono, including pule (prayer) and mihi forgiveness); Philippine practices to end clan disputes engaging spiritual authority; traditional Chinese limitations on the prosecution of individual claims in keeping with Confucian concepts of faand li; traditional Muslim teachings of Sulha to resolve conflicts among members of the community; civil resolution practices in certain Hindu societies; and direct mediation by elders in settings like the one described by a native of Burkina Faso.
So, this year, I am studying what I call, for want of a better term, conflict resolution processes that are “spiritually-infused.” I intend to write a book collecting and analyzing them. A panel on the topic will be held at the ABA Dispute Resolution Conference in Denver in April.
I also intend to share some essays as the project goes on, both to contribute to those who share my interest and to garner critical response to make the study as rigorous and reliable as it can be. Below please find the first such essay — an introduction, setting forth the scope and purpose of the effort.
We live in an Age of Reason, which our predecessors were pleased to call an Age of Enlightenment. The laws of physics and molecular chemistry, not the appearance of angels to shepherds, define our social expectations. In economics and in politics, we accept the guidance of a collective rationale, an Invisible Hand that, if it doesn’t predict, nevertheless records the aggregate of decisions made by millions of social actors, each expressing not the general welfare but their individual self-interest. Intellects as great as Adam Smith and James Madison have propounded the morality of secularism, encouraging each of us to be guided by a mixture of compassion and greed seeking a reward in this life, just as the morality of spiritual virtue used to be encouraged by a promise of reward hereafter.
What if the system stutters and fails? What secular instrumentalities are brought to bear when social relationships become dysfunctional – when the individual interests and the choices of reasonable and avaricious people come into conflict, and the process of socialization no longer works? How do we resolve disputes in a manner consistent with our enlightened self-interest and predominant rationality?
Many students of contemporary dispute resolution and management would reply, “Not well.” Conflict resolution that involves courts, social workers, lawyers, juries, document exchange, testimony, investigations and judgments are notoriously inefficient: slow, bureaucratic, expensive, erudite, abstruse, arbitrary, inaccessible to the poor and exploited by the wealthy.
We must conclude from experience that not all dispute resolution systems are the product of enlightened self-interest. That is, these systems seem, in operation, to serve purposes other than resolving the dispute at issue. The Anglo-American concept of a court, for example, purports to serve the interest, not of the disputants, but rather of an abstract “society at large” – what many of its practitioners label “justice.” Yet articulating the attributes of “justice” is a challenge for most of us, even though a very great many of lawyers purport to act in its service.
As these “systems of justice” have failed to provide disputants with either dispute resolution or justice, alternatives to courts have recently arisen in Western countries. If adjudication is sought, private judging, or arbitration, is available. The predominant non-adjudicative alternative dispute resolution method is mediation by a mutually trusted neutral.
The modern explanation of the mediation process is classically stated in the influential book Getting to Yes by Roger Fisher and William Ury. Not surprisingly, the approach emphasizes identification of disputing parties’ individual self-interests. The measurement of success of a negotiated resolution is then the extent to which each of those individual interests are satisfied, as distinguished from the extent to which one disputant “wins.”
In the course of interest-based negotiation (goes the method), it is sometimes possible to create new and unexpected value, improving the parties’ relationship in ways impossible to achieve through crude Solomonic compromise or, perhaps worse, principled adjudication on that portion of the problem that the law identifies as the “merits.”
Underlying this paradigm are fundamental values, paramount among them the primacy of the disputants’ self-interests and the virtue of the disputants’ self-determination. Other attributes of a “complete” resolution in this paradigm might include an element of acknowledgement, vindication or moral affirmation (sometimes through apology); restitution for the harm done to the claimant; forgiveness extended by the claimant; and prevention of a recurrence of the conduct causing the harm.
All of these, it may be argued, are the products of logic. There are other approaches to resolving disputes, most of them having little to do with negotiation and nothing to do with court-perceived justice.
The most frequently practiced alternative method is avoidance or denial. Individuals in close relationships with long-term objectives – marriages, business partnerships and so on – frequently prefer to endure a conflict rather than address it, on the various grounds that other things or more important, or that they might be oversensitive to a slight fault, or that they would rather serve the other person than to achieve their own benefits, or that they are especially averse to difficult conversations and prefer to avoid them at all costs.
Another approach to dispute resolution is coercion, or resort to force. Many rational disputants will decline to discuss resolution with a counterparty they can safely ignore, or overcome. So the utility of engaging a disputant necessarily involves an analysis of the likelihood of success using unilateral means instead. These may range from ignoring a complaint, to punching the person in the nose (or asserting a counterclaim) to remind them of who has the power, to exterminating them.
This study addresses yet another species of dispute resolution – methods and processes that are not the product of rational analysis and that do not seek to satisfy the self-interest of the disputants, or of the utilitarian social values of the larger community. The primary subjects of this essay are the culturally accepted dispute resolution methods that arise from spiritual urges. The study collects and describes several such conflict approaches; articulates to the extent possible the nature of their spiritual genesis; observes shared attributes, objectives, and social consequences among them; and compares societies that recognize such spiritually-based practices with societies that do not. The hope is to yield a taxonomy that will permit more informed assessment of the virtues and utility of such widely embraced concepts as “interest-based bargaining,” “alternatives to negotiated outcomes,” and even “fairness” and “justice.”
Throughout the study an effort will be made to distinguish between “religious” and “spiritual” impulses and influences. A major source of religious curiosity is spiritual experience, and spirituality often ripens into religious structure. Nevertheless, the two concepts are distinct. The edicts of religious canonical law may be viewed, for the purposes of this study, as just another form of “justice.” By contrast, shared spiritual constructs are broad in scope and consequence, and myths arising from shared spiritual impulses in many cases influence the behavior of families and communities in a way that priests, imams and prophets cannot.
Another difficult distinction lies between spiritual and philosophical principles that are embraced by, and guide, communities. In the section of this essay discussing Chinese conflict resolution methods, for example, reference is made to the influence of Confucius, who may or may not be considered a spiritual leader. Nevertheless, the evidence of Confucian assumptions in modern Chinese social behavior is as evident to many as the impact of the myth of the Bowl of Light is to traditional Hawai’ians.
George Fox, founder of the Quaker sect of Christian Protestantism, wrote about a series of insights to which he was privileged as a young man, and concluded their description with the phrase, “And this I knew experimentally.” The words are understood to mean that the young man Fox discerned a spiritual truth not through study or deduction, but through actual experience. Stories of “experiential” spiritual enlightenment are told of many spiritual leaders: Paul before the gates of Tarsus, Buddha under the Bodhi tree, Jesus in the desert. This essay subsists in the assumption that the “spiritual” in fact exists in our lives, and plays a formidable influence on those able and willing to experience it and allow it to effect their life decisions. It assumes, without any effort to prove, that human history includes, among its core motivating determinants, spiritual (as distinct from religious or logical) impulses. And it seeks to gather examples of conflict resolution methods that arise from the spirit, hold those methods to the light, and consider how they may compare with other, more rational, more modern structures.
The ultimate question posed is this: We know what happens when the goal of conflict resolution is to attain justice. What happens when, instead, the goal is healing?
 Indeed, the absence of broadly embraced religious doctrine and the rise of rational thinking may be said to mean that “there is no shared set of values we all absorb as preconscious assumptions. In our world, individuals have to find or create their own meaning. … Individuals are usually not capable of creating their own lives from the ground up.” David Books, The Arena Culture, New York Times December 31, 2010, available at http://www.nytimes.com/2010/12/31/opinion/31brooks.html?_r=1&ref=opinion .
 Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books 1991 (2d ed. with Bruce Patton).
 Id. at pp. 40-55.
 See The Bible, 1 Kings 3:16-28. Two women presented themselves to a judge, each claiming to be the mother of an infant. The judge decreed that there was insufficient evidence to find in favor of either, and ordered the infant to be cut and divided between the disputants. The disputant who objected and conceded rather than witness the infanticide was deemed to be the deserving mother, as proven by her own compassion. In almost all commercial civil cases involving compromise, the baby is simply split, leaving the disputants without vindication, without justice, and without a useful outcome. Despite empirical evidence to the contrary (see, e.g., a 2007 report of the American Arbitration Association available at http://www.adr.org/sp.asp?id=32004) many disputants leave arbitration perceiving that, rather than adjudicating the matter, the arbitrator “split the baby.”
 Id. at pp. 56-80.
 See, e.g., Karl A. Slaikeu, When Push Comes to Shove, Jossey-Bass 1996, at pp. 35-38.
 Such an option is not without its own costs and limitations, of course. See, e.g., Steven C. Welsh, “Preemptive War and International Law,” Center for Defense Information (December 5, 2003) (available at http://www.cdi.org/news/law/preemptive-war.cfm).