Pachao, Diane Blake B.

ALTERNATIVE DISPUTE RESOLUTION

2-B

Reaction Paper No. 2

The Neurophysiology of ADR and Process Design: A New Approach to Conflict

Prevention and Resolution?

The brain is one of the most complex objects known to man. Scientists have
exerted every effort to be able to understand it. This study tries to explain how
understanding brain functions can help in settling disputes.
In this study ADR means Appropriate Dispute Resolution instead of Alternative
Dispute Resolution. The authors deliberately used the word appropriate to separate
litigation from conciliation and other processes so that the counsel and parties will think
of it as mutually exclusive options. They also put Kalowskis range of spectrum which is
their basis for measuring how these processes work. They said that men tend to
operate at extreme ends when faced with a problem. They jump straight from
negotiation to litigation without seeking to resolve it optimally when considered from a
neurobiological perspective.
The study also mentioned the three levels of brain system. It also mentioned that
the natural form of disputants is to act adversarial or competitively. I think that men are
inclined to think that way because they believe that they are threatened. The first level
of the brain system is activated which houses our survival instincts. It was not until later
that we developed our emotions and our cognitive thinking.
Negotiation, as seen in the range spectrum, is the most consensual and allows
the parties to be in control but it is also the least evaluative, least structured and least
formal. This is least used because men have the tendency to use the power of
persuasion to elevate their cause. This is why there is still a need for third parties to
intervene. This shows that we are afraid of being being the weak party because we
need to be strong in order to survive. The study suggested that in order to negotiate, the
threats must be eliminated. This is to allow the parties to be at ease and empathize
more with each other. Therefore, settling the dispute.
The authors also found out that parties to a dispute want different ways to settle
it. This shows individuality of every person and of every case. Not everything can be
settled through the same process. Therefore lawyers must be able to scrutinize every
detail to be able to find out what method best suits the case.
Understanding how the brain functions helps in finding out what process to use
for different types of people and circumstances. This is to facilitate and accelerate the
process of settling disputes.