Courts

Triadic Spectrum and Conflict Processing: From Consent to Office and Law

The basic means of defense for two against one, running across the whole spectrum of triadic devices, is consent. When the initial two parties both consent to go to a third, they must agree to the choice of the third and must agree to the outcome proposed by the third, and thus the perception of two against one can hardly arise. In this case, the go-between shuttles between parties, providing communication, only until they arrive at a mutually satisfactory outcome. The mediator proposes a succession of outcomes until a mutually agreeable one emerges.

When the parties perceive that their relationship is or ought to be governed by rules, they may, as in early Roman law, agree on a rule to govern their disputes and then submit that rule along with their disputes to a triadic figure. Therefore, a modern contract may register agreements by the two parties as to specific rules contained in the contract itself, such as agreeing to resort to a mediator or arbitrator should a contract dispute arise, who that third party shall be, and what body of general contract laws (for example, German, New York) the third party shall apply. The invocation of rules has particular potential for avoiding two-against-one situations, for the triadic figure may say to a perceived loser, “It was not I but the rule that decided against you, and, given that the rule preexisted the dispute, the rule itself was not framed or chosen to disfavor you in the particular dispute that arose.”

Indeed, one can see the triadic spectrum ranging from an end that is almost purely consensual to the court end where the proportion of third party imposition is very high and the proportion of consent is very low. Even go-betweens exercise some degree of control by reshaping the tone and content of the messages they convey between parties. Mediators make choices of what solutions they propose in what sequence. When we reach binding arbitration under a detailed contract in jurisdictions where courts enforce arbitration awards almost without question, about the only consent element remaining is the preconsent by both parties to go to binding arbitration.

One may see courts in terms of progressive changes in the relative proportions of consent to coercion, as law and office increasingly substitute for consent. The laws of the state replace rules generated by the parties themselves. As a government official, the judge replaces the private third person chosen by mutual consent of the parties. Only one, not both, of the parties in conflict need voluntarily invoke the triad.

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