Arbitration and adjudication have proven to be effective means of producing long-lasting settlements on contentious issues, but states are generally reluctant to use such legal forms of dispute resolution, especially in resolving issues of national security. To understand when policymakers can and should promote the use of legal mechanisms, they need to understand the political reasons behind the reluctance of states to use these forums. This essay identifies five factors that significantly influence the willingness of states to relinquish decision control and pursue arbitration or adjudication: third-party bias, salience, uncertainty, bargaining power, and armed conflict. To promote the use of arbitral and legal forums, policymakers should focus on reducing the costs of giving up decision control by encouraging the selection of unbiased judges and reducing the stakes and the level of uncertainty in arbitration and adjudication. However, legal dispute resolution is not a panacea for all conflicts. Arbitration and adjudication will generally only be attractive when they produce settlements that reflect the political realities on the ground. When such conditions are not like to be met, policymakers should instead turn to alternative methods of conflict management.
2 Penn St. J.L. & Int'l Aff. 66 (2013).
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