I'd rather take my chances before an ignorant judge or jury. In Chapters Four and Five, Auerbach fleshes out the emerging duality. Non-legal forms of dispute settlement flourish only under certain conditions. There must be a unity of vision guiding the community, upholding communal goals over aspirations of the individual. The disputing parties have a need to respect the fairness and integrity of the resolution process, and a common interest in a just decision.
Mediation relies on people restraining their competitive and acquisitive impulses.
Without these conditions, Americans have turned to the legal tradition. Our law was written to favor individual rights, leading people to use it when their grievances were not placated by an appeal to community values. But most importantly, the value of the law is that it is backed by the power of the government. A disputant who felt on unequal footing with their foe, or who did not trust their opponent to abide by the results of arbitration, had need for an adjudicating disinterested outside force to impose an objective ruling. Today, the arbitration movement continues to be revived by outside social reformers as an outlet for our clogged courts.