Is settlement like sex? Should it be?
How can queer theory be applied to the field of dispute resolution?
What if disputing parties were viewed as bearers of desires rather than bearers of interests (or rights)?
Do positivity, desire, consent and feeling good distinguish alternative dispute resolution from formal legal dispute resolution processes?
Would the dispute resolution field benefit from a reminder of the playful rebellious roots upon which it was founded?
Does a focus on relational interaction encourage us to abandon our attachment to the constraints of identity and self-interest?
These are just some of the contemplations invited by Daniel Del Gobbo’s article “Queer Dispute Resolution” (2019) 20 Cardozo Journal of Conflict Resolution 283. Daniel is from the University of Toronto Faculty of Law, and part of the Australasian Dispute Resolution Research Network, reflecting the international reach of our community.
The goal of the article is to ask difficult questions and expand the theoretical terrain of the dispute resolution field. This post provides an imperfect snapshot of some interesting points – I recommend that you read the full article to fully appreciate its arguments.
Daniel reminds the reader of the deliberate re-framing of disputes by the dispute resolution field from the “overly formal” rights based claims to the “more natural” interest based conversation. He suggests that a slight adjustment from a focus upon interests, to desires, opens up further potential. Queer theory explores how sexuality is articulated across identity and desire, celebrating its messy, restless, non-uniform and changeable nature. Through the embracing and celebration of these characteristics of desire, a critical gaze can be better placed upon the normative expectations that can inhibit creativity.
The problem with an over-reliance upon “a crude version of liberal economic theory” in the dispute resolution field is that the maximisation of (economic) self-interest assumes that a person’s interests are “rational, predictable, and unchanging through the settlement process.” By contrast, desire is understood by queer theorists to be “irrational, unpredictable, and at least potentially changing.” Interests are, in reality, often irrational, unpredictable and changing throughout the settlement process.
The practice of settlement, not unlike the practice of sexuality, is constituted by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass. … The subject’s interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in the parties’ lives, and the parties’ affective responses to the bargaining environment, which may or may not have a rational basis. All that matters is that the settlement process feels good – socially, culturally, economically, legally – or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way. [pp 303-304]
The mutuality of bargaining, like sex, requires that there be an ethical approach – a commitment to a process and outcomes that “feel good” for all participants. Consensual processes require recognition and support by each participant of the autonomy and self-determination of the other. This is the challenge of mutuality – it requires a commitment to act morally towards the other. Consent provides a framework to manage that problem. The basic principles of the legal doctrine of consent can be described generally as follows:
…the parties must voluntarily agree on any process that is chosen and any conclusion that is reached for the arrangement to be legal. The parties should be provided with any relevant information necessary to make informed decisions for themselves. And crucially, there must be an approximate balance of power between the parties at all times because otherwise it may be impossible to maintain the integrity of the process, prevent bad faith and unconscionable agreements, and keep the parties safe. [p 317]
However, the legal notion of consent can be critiqued (and is by critical, feminist and queer scholars) for its failure to account for societal systems of power including male dominance, capitalism, and homonormativity. Power itself is changeable, and cannot be inferred from status or identity alone – it is not possible to account for dependence and vulnerability in an orderly, fixed sense. Power can be sourced from rules, norms, and the parties’ characteristics and relationship with one another. (See discussion in our recent post about The Power of Parties in Mediation: What is the Mediator’s Role?).
Through a relational lens, the limits of “free agency” can be accounted for, without deciding for participants what a “good” outcome looks like. Rather than pretending that the complex inequalities and dynamics of power can be “balanced” between negotiating parties, “relational autonomy” recognises the influence that people have upon one another within their relationship, the growth of self within relationships, and the way care and dependence are mutually constructed. The practical challenges abound, and (unanswerable) questions are raised, including:
What relations, and legal regulation of those relations, will enable everyone to participate most freely and equally in the creative refashioning of consensual life?
What kinds of changes are required in society before we can place more trust in consent as a legal and ethical marker for human flourishing?
How might our capacity for relational autonomy be enhanced by restructuring the foreground and background rules under which consent is given?
How can we refurbish the law of consent to better promote our capabilities to codetermine the practices of sex and settlement?
Queer theory “seldom lends itself to easy solutions,” but applying its lens to settlement provides an opportunity to shake up the underlying assumptions, fears, limitations and normative expectations that influence the practice of settlement. What if there were new ways of doing dispute resolution that recognise properly the changeability, subjectivity and inherent unreasonableness of humans, and the unevenness we inevitably bring to our relationships and settlement processes?
Daniel Del Gobbo concludes:
…negotiation is not a struggle that should constrain our equality seeking, but a process that can expand our imaginative possibility and transformative reach if we conduct yourselves responsibly. In my view, that is what “queer dispute resolution” looks like. [p 327]
Theoretical examinations don’t provide neat or easy solutions, but they invite us to reflect on our field and to invent better ways of doing our work. Perhaps dispute resolution theory could benefit from a bit of “queering” to ruffle our feathers and challenge us to think in different ways. Like sex, settlement provides a wonderful opportunity for a mutually pleasurable experience, is sometimes mutually agreeable but less than fantastic, but also has risk of abuse or unfair advantage being taken by one party against the other.