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Abstract

For more than two decades, some of the most respected scholars in the field of dispute resolution have questioned the apparently intrinsic bias of litigation against cooperative, problem-solving outcomes for clients. The continuing discussion focuses on the increasingly adversarial and "uncivil" character of much civil litigation, especially commercial litigation;' the abuse of discovery practices to extend and escalate conflict and costs; the pressure to compete rather than to cooperate when facing the uncertainty of the other side's next move (the classic prisoner's dilemma described by Mnookin and Gilson); an observed tendency towards a reduction of counseling and "deliberative wisdom" provided by private corporate lawyers in favor of specialist technical advice; and the absence of an established discourse and set of cultural behaviors to enable lawyers to speak to one another about the potential for cooperation. What, if anything, can be done to change these characteristics of litigation, assuming that lawyers continue to play a crucial role as party representatives? In particular, what is the potential for changing the rules of the litigation game in a way that can change the culture of disputing and dispute resolution?

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