Deconstructing Dispute Classifications: Avoiding the Shadow of the Law in Dispute System Design in Healthcare

The paper opens with an analysis of dispute classification under ADR theory, and highlights the ways in which the “shadow of the law” has shaped the design of systems for addressing conflict. One significant byproduct of the shadow of the law has been the motivation of dispute system designers to target legal disputes at the expense of other complaints, which do not constitute a legal cause of action. This development is ironic because in the case of non-litigable disputes, alternatives constitute the only available avenues for redress. The article then proceeds to define and characterize non-litigable disputes in Part II.A. This section explores the impact of non-litigable disputes on the wellbeing of patients, their families, and the healthcare team, as well as the effect such friction can have on the quality of health services. Subsequently, Part II.B. sets out to deconstruct the very category that Part II.A. establishes by exploring areas of convergence between what seem like distinct dispute types. The implications of the “spillover” between these two categories of disputes for dispute system design are analyzed in Part III.