Resolving Mass Wrongs: A Command-Consensus Perspective

Abstract

This article explores how contemporary Western society conceptualizes and tries to resolve civil disputes arising from mass wrongs (a term that encompasses, but is broader than, mass torts). After reviewing complexities arising from such wrongs, including asymmetries in the size of parties, differential access to resources and power, and the tendency of at least some mass wrongs to cross political and geographic boundaries, the article sets out a spectrum of resolution options - called the command-consensus model - that are available to the parties.

At the left end of the spectrum (the consensus end) are options with the highest degree of participant control and public scrutiny over process and outcome. These include such things as negotiation and boycotting of consumer products. The middle of the spectrum includes options that offer less party control and that usually involve a neutral third party, such as a mediator. Farther to the right are options such as arbitration and adjudication. At the extreme right (the command end) are public inquiries and democratic rule-making through legislation and regulation. These options are highly public and give the parties little individual control over the process or outcome.

The spectrum, in fact, is anything but static: there is a significant interplay between its different parts. Using the example of mass wrongs, the article shows how resolutions achieved on one part of the spectrum can influence other parts. The emphasis is on the dynamic nature of the command-consensus model, the importance of being aware of a variety of options and of creative mixing of processes, and the advantages and disadvantages that various approaches can bring to the dispute resolution process.

Keywords: mass wrongs, mass torts, class actions, dispute resolution

JEL Classification: K4