Menkel Meadow Transformation of Disputes by Lawyers
Menkel Meadow Transformation of Disputes by Lawyers
Menkel Meadow Transformation of Disputes by Lawyers
1985
Recommended Citation
Carrie Menkel-Meadow, Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us, The, 1985 J.
Disp. Resol. (1985)
Available at: https://scholarship.law.missouri.edu/jdr/vol1985/iss/4
This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been
accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository.
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
THE TRANSFORMATION OF
DISPUTES BY LAWYERS: WHAT THE
DISPUTE PARADIGM DOES AND
DOES NOT TELL US*
CARRIE MENKEL-MEADOW**
I. INTRODUCTION
Unlike many law and social science papers which begin with observations
that "there has been little exploration of. . ." or "there have been no empirical
studies of . . .," this paper begins with the observation that there has been a
great deal of thinking about and studying of disputes.' As a unit of analysis,
the dispute has the potential of being one of the most promising avenues for
the study of such law and society issues as the amount of conflict in our soci-
ety, 2 the effectiveness of our institutions in "processing" 3 such conflict,4 the
capability of a variety of "alternative ' 5 institutions in processing disputes,' the
* An earlier version of this essay was presented at the Annual Meeting of the
Law and Society Association, Denver, Colo., June 2-5, 1983. Research for this paper
was supported, in part, by grants from the National Science Foundation and the
UCLA School of Law Dean's Research Fund.
** Professor of Law, UCLA School of Law; A.B., 1971, Barnard College;
J.D., 1974, University of Pennsylvania. The author gratefully acknowledges the com-
ments and suggestions of her colleague and husband, Robert Meadow.
1. Dispute Processingand Civil Litigation 15 LAW & Soc'Y REV. 401 (1980-
81); Cain & Kulcsur, Thinking Disputes: An Essay on the Orgins of the Dispute In-
dustry, 16 LAW & Soc'y REV. 375 (1981-82).
2. Miller & Sarat, Grievances, Claims and Disputes: Assessing the Adversary
Culture, 15 LAW & Soc'v REV. 525 (1980-81).
3. I have placed in quotation marks several of the terms used by those who
employ the dispute paradigm to place in relief the significance of these terms. "Process-
ing" for example, demonstrates the emphasis placed on process or procedure rather
than the substantive result or outcome of dispute resolution. Like "dispute resolution,"
the term dispute "processing" connotes the management and control over disputes
rather than the full expression of disputing and the conflict that could be involved.
4. Trubek, Studying Courts in Context, 15 LAW & Soc'Y REV. 485 (1980-
81); Trubek, The Construction and Deconstructionof Disputes-FocusedApproach: An
Afterword, 15 LAW & Soc'y REV. 727 (1980-81).
5. Many of the new forms of dispute processing are labeled "alternative"
forms of dispute resolution, when in fact they may be in more common usage than
court dispute resolution. The use of the term "alternative" tells the disputants they are
pursuing a different form of dispute resolution than the "usual" way. Query whether
this is accurate and what effect such labeling has on the "alternative" dispute mecha-
nisms. Cf S. GOLDBERG, E. GREEN & F. SANDER, DISPUTE RESOLUTION (1985).
6. FELSTINER & WILLIAMS, COMMUNITY MEDIATION IN DORCHESTER, MAS-
SASSACHUSETTS (1980); Hofrichter, Neighborhood Justice and the Social Control
Problems of American Capitalism:A Perspective, in THE POLITICS OF INFORMAL JUS-
TICE: THE AMERICAN EXPERIENCE (R. Abel ed. 1982)[hereinafter cited as POLITICS];
Trubek, Studying Courts in Context, supra note 4, at 485; Ross & Littlefield, Com-
plaint as a Problem-Solving Mechanism, 12 LAW & Soc'y REV. 199 (1978).
7. The use of the sociological term "intervenor" in considering the role of third
parties in dispute resolution may obfuscate the differences to be found in different types
of third party intevenors. Here the attempt to find a descriptively neutral term may
make less clear the concepts sought to be defined. D. ROSENTHAL, LAWYER AND CLI-
ENT: WHO'S IN CHARGE? (1974); Abel, A Comparative Theory of Dispute Institutions
in Society, 8 LAW & Soc;Y REV. 217, 244-45 (1973); Johnson, Lawyers' Choice: A
Theoretical Appraisal of Litigation Investment Decisions, 15 LAW & Soc'Y REV. 567,
(1980-81); Felstiner & Sarat, The Transformation of Disputes: The Divorce Lawyer
(study funded by National Science Foundation 1982-present).
8. THE DISPUTING PROCESS: LAW IN TEN SOCIETIES (L. NADER & H. TODD
EDS. 1978); Abel, supra note 7, at 287-303.
9. Kidder, The End of the Road? Problems in the Analysis of Disputes, 15
LAW & Soc'Y REV. 717 (1980-81).
10. Cain & Kulcsur, supra note 1.
11. Lempert, Grievances and Legitimacy: The Beginnings and End of Dispute
Settlement, 15 LAW & Soc'Y REV. 707 (1981).
12.Engel, Legal Pluralism in an American Community.: Perpectives on a Civil
Trial Court, 1980 AM. B. FOUND. RESEARCH J. 425.
13. Miller & Sarat, supra note 2.
14. Felstiner, Abel & Sarat, The Emergence and Transformation of Disputes;
Naming, Blaming and Claiming.... 15 LAW & Soc'Y REV. 631 (1980-81).
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 2
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
cuts across most of the dispute paradigm critiques. The transformation of dis-
putes helps us to analyze and understand the social process by which difficul-
ties, problems,2 2 and troubles with the world become issues which the official
or public arena 23 must recognize and deal with by "resolution," "domination,"
"legitimation," or some other strategy. Although the legal system is only one
of the fora which could conceivably deal with disputes, in the United States it
has become the "baseline" of dispute resolution against which other dispute
mechanisms are invariably measured. 4 Because the lawyer is frequently the
transformer of a social dispute into a "legal" dispute (and sometimes vice
versa), looking at the dispute paradigm through the eyes of the principal
transformation agent should tell us something about how useful the paradigm
is.
I should begin by disclosing what it is that I hope to know by studying
disputes as a focal point of socio-legal studies. My point of view is both critical
and functionalist as well as humanistic. I want to know when, why, and how
we dispute in order to consider when and how disputes should be resolved,
recognizing that as human beings we make our disputes and conflict ourselves
and then offer each other competing world views about their utility. It is both
a social fact and a "real" fact that disputes exist; the more interesting question
is what do we do with them. Thus, the lawyer as transformation agent is a
critical actor, for the lawyer, in many ways, controls whether a bit of trouble
or a problem will be converted into a social, legal, or political dispute. This
channeling by lawyers may greatly affect, if not distort, our analysis of how
useful disputes and conflicts are. In my view, lawyers both defuse and elimi-
nate some disputes that might better be expressed as political conflicts, they
exaggerate and exacerbate other disputes that could be better resolved in other
ways, but they also productively and usefully structure and resolve disputes
and other socio-legal relationships. Looking at the dispute paradigm through
the prism of the lawyer reveals one important aspect of law and society stud-
ies-disputes are legal, social, political, and economic and any effort to clearly
demarcate these categories is likely to fail. Our study of disputes by our multi-
or trans- (if not inter-) disciplinary approach in their full contextual complex-
ity promises greater explanatory purchase than if we look simply at lawsuits (a
legal study of disputes) or problems (a social study of disputes).
22. The use of proper terms here is difficult. Many disputants and potential
disputants do not like to characterize themselves as having trouble or problems which
might ripen into disputes or require dispute handling. See MENKEL-MEADOW, THE
59TH STREET CLINIC: EVALUATION OF THE ExPERIMENT 40 (1979).
23. Gulliver, Introduction to Case Studies of Law in Non-Western Societies in
LAW IN CULTURE AND SOCIETY (L. Nader ed. 1969).
24. See FELSTINER & WILLIAMS, supra note 6; Hofrichter, supra note 6.
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 4
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
19851 LAWYERS AND DISPUTES
analyze how disputes are processed using cost, quality, and transformation
measures. 3 9 Disputes have been characterized and classified in a number of
ways-by number of participants (dyadic or triadic); 40 by location of dispute
(a federal or state court, mediation, neighborhood justice center, arbitration);
by manner of resolution ("settled ' 4 1 or adjudicated 42); and by type of dispute
(civil, criminal, large stake, small stake, subject matter). 43 As social scientists,
we hope to learn from these classifications or taxonomies that dispute process-
ing varies depending on who does the disputing (socio-economic factors),44
who does the processing (parties themselves, community intervenors, or expert
intervenors such as lawyers, mediators, and judges), what type of dispute is
involved, and what remedial scheme is available. Some of these things we have
begun to learn; others await fuller data reports.
Looking at these elements of the dispute paradigm through the prism of
lawyers as agents of dispute processing what do we know and what do we not
know?
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 6
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
1985] LAWYERS AND DISPUTES
legally relevant, the lawyer defines the situation from the very beginning. 7
Rather than permitting the client to tell a story freely to define what the dis-
pute consists of, the lawyer begins to categorize the case as a "tort," "con-
tract," or "property" dispute so that questions may be asked for legal saliency.
This may narrow the context of a dispute which has more complicated fact
patterns and may involve some mix of legal and non-legal categories of dis-
pute. A classic example of such a mixed dispute is a landlord-tenant case, 8 in
which relationship issues and political issues (such as in rent control areas)
intermingle with strictly legal issues of rent obligation, maintenance obliga-
tion, and nuisance. Thus, during the initial contact the lawyer narrows what is
"wrong" by trying to place the dispute in a legal context which the lawyer
feels he can handle.
Even if the client is allowed to tell his lawyer a broader story, the lawyer
will narrow or rephrase the story in his efforts to seek remediation. Beginning
with an effort to negotiate with the other side, the lawyer will construct a story
which is recognizable to the other lawyer so that he can demand a stock reme-
dial solution. In recent social, psychological, and legal literature this process
has been called the telling of "stock stories." 5 9 The "stock stories" can be
likened to a legal cause of action with prescribed elements which must be
pleaded in a particular way in the legal system to state a "claim for which
relief can be granted." If pre-litigation negotiation fails and the lawyer begins
to craft a lawsuit, the dispute will be further narrowed by the special language
requirements of the substantive law, pleading rules, and rules of procedure.
For example, until recently in most jurisdictions (and still today in some),
relief could not be granted for a tort which caused the victim emotional dis-
tress but did not involve physical contact between the tortfeasor and the
victim.
Once negotiation commences the dispute is further narrowed,"0 the issues
become stylized, and statements of what is disputed become ritualized because
of the very process and constraints of litigation. In negotiation, lawyers begin
to demand what they will ask the court to do if the case goes to trial. Lawyers
are told to plan "minimum disposition," "target," and "reservation" points
that are based on an analysis of what would happen if the case went to trial. 61
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 8
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
19851 LAWYERS AND DISPUTES
Because a court resolution of the problem will result in a binary win/loss rul-
ing, lawyers begin to conceive of the negotiation process as simply an earlier
version of court adjudication. Thus, lawyers seek to persuade each other, using
many of the same principles and normative entreaties that they will use in
court,62 that they are right and ought to prevail now, before either party suf-
fers further monetary or temporal loss. The remedies lawyers seek from each
other may be sharply limited to what they think would be possible in a court
case considering the court's remedial powers. Thus, most negotiations, like
most lawsuits, are converted into linear, zero-sum games about money, where
money serves as the proxy for a host of other needs and potential solutions
such as apologies or substitute goods. 63 Negotiated solutions become com-
promises in which each side concedes something to the other to avoid the
harshness of a binary solution. The compromise, which by definition forces
each side to give up something, may be unnecessary and fail to meet the real
needs of the parties. Consider two children disputing about a single piece of
chocolate cake. The parental dispute resolver, like most lawyers, might seek
the "obvious" compromise solution of cutting the cake in half, thereby elimi-
nating a "better" solution if one child desires the cake, while the other prefers
the icing.
Few empirical studies of actual legal negotiations exist,64 but if my
description is empirically accurate, disputes are narrowed in highly dysfunc-
tional ways, both for the parties and for the larger dispute resolution mecha-
nisms. "Real" needs of the parties in dispute are not exposed, explored, and
resolved. Parties who seek apologies receive money, remain angry, and seek
other ways to get their retribution. Thus, conflict may linger long after the
dispute is officially "resolved."
In counseling clients lawyers may tell them what remedies are legally pos-
sible (money or an injunction) and thus preclude inquiry into alternatives
which the client might prefer or which might be easier to obtain from the
other party. As Engel has noted, some disputants prefer an acknowledgement
that wrong has been done to them to receiving money.65 Once lawyers are
engaged and the legal system, even if only informally, has been mobilized, the
adversarial structure of problem-solving forces polarization and routinization
of demands and stifles a host of possible solutions. Although some have argued
that courts do (comparative negligence) or should compromise ""the limited
remedies of the courts, particularly when they also structure pre-court adjudi-
cated outcomes, severely limit the quality of dispute resolution. This process,
which I have called a "court model of negotiation,"' 1 7 regresses all of the faults
of court-resolved disputes, without many of the advantages of third party de-
finitive and normative rulings. Thus, negotiated dispute resolution becomes
"second best" dispute resolution; it has no appeal except that it is slightly
faster and, perhaps cheaper.
The transformation of disputes paradigm is useful because by revealing
what is wrong with narrowing, it illuminates what could be accomplished by
an "expanding" transformative process. Mather & Yngvesson 68 and others 9
recognize that, on occasion, disputes can be expanded by lawyers. Thus, law-
yers can "rephras[e] [a dispute] in terms of a framework not previously ac-
cepted by the third party. Expansion challenges established categories for clas-
sifying events and relationships by linking subjects or issues that are typically
separated, thus, 'stretching' or changing accepted frameworks for organizing
reality."'7 0 Lawyers engage in expansive dispute resolution when they create a
new cause of action. 7 1 Lawyers may also engage in transformative expansion
of a legal dispute when they use the class action to increase the participation
of disputants or to broaden legal disputes into political or social disputes. For
example, early abortion cases sought to unite women and doctors in a common
struggle over reducing state involvement in personal and medical decisions.
The early abortion and birth control cases are also illustrative of individual
disputes which were initially legally unsuccessful, but served an educative
function, increasing both legal and societal recognition, and ultimately, accept-
ance of a controversial concept. Disputes do not necessarily become worse or
magnified by "expansion"-in a sense they are merely recharacterized and
placed in a different legal or social category.
Recent work on how lawyers might conceive of their dispute resolution
functions more broadly makes implicit, if not explicit, use of the transforma-
tion model. Thus, critics of lawyer negotiation of disputes have argued for a
broader view of legal disputes. Fisher & Ury72 and 173 have argued that law-
yers can "transform" the client's disputes back into what they were before the
legal system narrowed them. Lawyers could consider the underlying needs of
the parties, and facilitate solutions that achieve a greater number of the par-
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 10
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
1985] LAWYERS AND DISPUTES
ties' underlying needs than the solutions a court would craft if the case went to
trial. Here a transformation and socio-legal study of dispute resolution could
be girded to an important inquiry. Why do lawyers conceive their role and see
their dispute resolution options so narrowly? Why do they persist in self con-
cepts of "advocates" or "hired guns" of an adversary system, rather than a
more expansive, and presumably more interesting and creative conception of
themselves as "problem-solvers?" Attempting to find non-routine solutions"4 to
routine problems may be difficult and time consuming, but it could lead to
more satisfactory results for the disputants and for what the lawyer-dominated
dispute resolution processes offer. Indeed, much of the recent work on lawyer
participation in new mediation models is also an effort to transform the law-
yer's role from a simple conduit of court or legal system prescribed remedies
to a facilitator of more individually crafted and creative solutions.7 5 By ex-
panding the repertoire of possible solutions or remedies from beyond those
which a court would order, lawyers could expand their role in dispute resolu-
tion in useful ways.
Some lawyers have always viewed their roles in the dispute resolution ma-
chinery as being transformative. The civil rights and poverty movements pro-
duced a new generation of lawyers who describe themselves as explicitly seek-
ing to translate individual cases into cases of larger numerical and social
import. 76 Typical is this comment by a legal services lawyer: " I am trying to
make things better, out of a sense of social and economic justice for all peo-
ple."177 Individual cases are transformed into class actions, legal disputes are
transformed into political confrontations, 78 and individual dispute cases are
transformed into opportunities to "resolve potential disputes" or change the
rules for large numbers of people by explicitly seeking rule change, rather
than "simple" dispute resolution between the parties. 7 9 Here, the lawyers serve
an important transformative function of changing the nature of the lawsuit
structure while the court continues to play its very traditional and conven-
tional role of resolving disputes by enunciating the principles by which individ-
74. Bellow, Turning Solutions Into Problems: The Legal Aid Experience 34
BRIEFCASE 106 (1977).
75.Friedman, Mediation: Reducing Dependence on Lawyers and Courts to
Achieve Justice in PEOPLE'S LAW REVIEW (R. Warner ed. 1981); Riskin, Mediation
and Lawyers, 43 OHIO ST. L. J. 29 (1982).
76. J. HANDLER, E. HOLLINGSWORTH & H. ERLANGER, LAWYERS AND THE
PURSUIT OF LEGAL RIGHTS (1978).
77. Interview with legal services lawyer (1981), Menkel-Meadow and Meadow,
The Origins of Political Commitment: Social Background Factors and Ideology Among
Legal Services Attorneys, paper presented to the 1982 Annual Meeting of the Law &
Society Association, Toronto, Canada.
78. Wexler, PracticingLaw for Poor People, 79 YALE L. J.1049 (1970).
79. J. KATZ, POOR PEOPLE'S LAWYERS IN TRANSITION (1982); Menkel-
Meadow, The Professionalizationand Politicization of Legal Services in the 1980's:
Legal Aid in the United States, 22 OSGOODE HALL L. J. 29 (1984).
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 12
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
19851 LAWYERS AND DISPUTES
institutional competence or consciousness that can, but very often does not,
expand a client's awareness of the transformation of his or her own dispute.
84. H. O'GORMAN, supra note 20; Felstiner & Sarat, supra note 7.
85. Johnson, supra note 7.
86. Menkel-Meadow, supra note 60.
87. Bellow, supra note 74.
88. P. UTZ, SETTLING THE FACTS (1978); Forst & Brossi, A Theoretical and
Empirical Analysis of the Prosecutor,6 J. OF LEGAL STUD. 177 (1977); A. BLUMBERG,
CRIMINAL JUSTICE (1967).
89. Similiarly, we have learned how insurance adjustors and the police settle
disputes. See, e.g., L. Ross, supra note 41.
90. See supra note 7.
91. See supra note 64.
92. Fitzgerald, The Contract Buyers League and the Courts: A Case Study of
Poverty Litigation, 9 LAW & Soc'Y REV. 165 (1975).
93. Cain, The General Practice Lawyer and the Client; Towards A Radical
Conception, 7 INT'L J. OF SOC. OF LAW 331 (1979).
94. H. RAIFFA, supra note 61, at 66-77; T. SCHELLING, THE STRATEGY OF CON-
FLICT (1960).
95. Fitzgerald & Dickens, supra note 54, at 700.
96. Abel, The Contradictions of Informal Justice in POLITICS, supra note 6;
Cain & Kulcsur, supra note I.
97. Wexler, supra note 78.
98. D. ROSENTHAL, supra note 7; Kritzer, supra note 32; Spiegel, Lawyering
and Client Decisionmaking: Informed Consent and the Legal Profession 128 U. PA. L.
REV. 41 (1979).
99. See E. Abel, Collective Protest and the Meritocracy: Faculty Women and
Sex Discrimination Lawsuits, FEMINIST STUDIES (1981). Abel reports that those seek-
ing vindication and job reinstatement in employment discrimination suits frequently
concede by settling for money, which in many cases is not the principally desired
solution.
100. Bellow, supra, note 74.
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 14
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
19851 LAWYERS AND DISPUTES
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 16
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
some may be required for needed innovation, but how often do we need dis-
putes that call for a rethinking of the whole system?
Related to the issue of the role of disputes in our legal and social systems
is the slightly larger question of the role conflict should play in these systems.
Have lawyers who "play the game" within the "old boy network" Isicl re-
duced the conflict in the legal system; by conspiring to settle cases have they
eliminated any real "adversary" system that produces truth by conflict? Or, as
others have argued, do we have too much conflict in the legal system-an
unnecessary amount of adversarial posturing and conflict that prevents us
from finding more creative solutions by speaking to each other in real terms,
not those "stylized" by court rhetoric.' 08 We are constantly accused of being
an overly litigious society, but do we have any true idea of what too much
litigation means?' 09
What is the relationship between disputes and conflict? If disputes remain
individualized through the work of lawyers and others in the dispute process-
ing system, do we prevent some useful conflicts from emerging by failing to
aggregate claims that produce group conflict? The development of such com-
munity groups as Mothers Against Drunk Drivers (MADD) represents an ef-
fort to collectivize action where individualistic treatment in the legal system
appears to be inadequate to a particular interest group. Is there any way we
can speculate about what disputes should or will expand into broader, socially
productive conflict? Can or should such disputes be narrowed, individualized,
or submerged or is it productive to have such conflicts ripen into social war-
fare? Are some disputes made unnecessarily conflictive by the way they are
characterized? Does the adversary system and the structure of third party
payments make more adversarial than necessary the settlement of an automo-
bile accident, particularly in cases where no one is "at fault" or the one "at
fault" already accepts moral responsibility? There are a number of questions
which we do answer by looking at disputes as discrete events or happenings,
but such studies necessarily are intertwined with a number of normative and
political issues that we should not ignore. Only after we have considered what
is meant by productive or unproductive disputes and conflict can we decide
whether there is too much disputing or whether lawyers make disputes better
or worse. Description of the disputing process only takes us so far, we also
need to know why we are studying it.
My final comment on what the disputing paradigm does not tell us is a
far more fundamental criticism which derives from my work on lawyers, al-
though others have make the point from other perspectives."' By studying
disputes do we focus too intensively on only the tip of the law and society
Il. Id.; Schwartz, The Other Things That Courts Do,28 UCLA L. REV. 438
(1981).
112. Macaulay, Non-Contractual Relations in Business: A PreliminaryStudy,
29 AM. Soc. REV. 55 (1963).
113. See, e.g., P. HOFFMAN, LIONS IN THE STREET (1973).
114. M. GLENDON. MARRIAGE, FAMILY AND THE STATE (1979); Prager, Sharing
Principles in Marital Property Law, 25 UCLA L. REV. 1 (1977); Schultz, The Con-
tractual Ordering of Marriage, 70 CAL. L. REV. 2 (1982).
115 R. CLOWARD & F. PIVEN, supra note 101; J. HANDLER, SOCIAL MOVE-
MENTS & THE LEGAL SYSTEM (1978); Wexler, supra note 78.
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 18
Menkel-Meadow: Menkel-Meadow: Transformation of Disputes by Lawyers:
19851 LAWYERS AND DISPUTES
I end this essay as most law and social science papers end, with a call for
more research, but not just any research, on disputing. The implications of the
observations in this essay suggest a number of concrete directions in which our
research and thinking about disputes should proceed.
First, we should continue to explore the role that lawyers, along with
other intervenors and supporters, play in the transformation of disputes. How
does a "lay story" become converted to a "law story?" How is a lay story
different from a law story? Do disputants (clients) have different expectations
of what they hope to achieve in disputing than what lawyers, mediators, or
judges give them? Such inquiries are important because present research has
explored dispute resolution on an institutional level, perhaps too much to the
exclusion of the individual, human level. The lawyers who narrow or expand
disputes are individuals with social backgrounds, political ideologies, and so-
cial networks, which are conventional, but important categories in social anal-
ysis. The question of how lawyers come to narrow some disputes and broaden
others should be pursued on many different levels and in many different ways.
Lawyer and client interactions must be observed and lawyers and clients inter-
viewed separately. In addition, we might take a critical look at the materials
produced by lawyers for lawyers which purport to teach them their trade and
inform them how to resolve disputes because this is the "legal culture" from
which lawyers learn their dispute transformation processes.
Second, we need to learn more from survey research why and when dispu-
tants dispute and why and when they do not. Have they given up on a system
of dispute resolution they think is no longer workable (if it ever was for those
who have trouble affording it or playing in it)?"' Why do they avoid seeking
redress?" 7 Is disputing of more concern to lawyers and social scientists than it
is to the parties or are there ways that will permit those who want to to pro-
ceed to seek redress of grievances? We must be careful of our defini-
tions-there may be whole classes of grievances or claims in the world that we
are unaware of because of our own narrowing of the concept by its definition.
Third, we should begin to confront the sociology of knowledge questions
in this research agenda. Why do we want to know about disputes? What polit-
ical uses can be made of this work? Already an important body of work has
criticized the diversion of some disputes, particularly those involving the pow-
erless, from mainstream dispute resolution institutions.'" Legal representation
in dispute processing has played an important role in the access to justice
movement and in seeking support for government-funded legal services pro-
grams. But, are we clear (can we be?) about whether more law and more
116. See Galanter, Why the Haves Come Out Ahead: Speculations on the Lim-
its of Legal Change, 9 LAW & Soc'Y REV. 95 (1974).
117. Felstiner, supra note 16.
118. Abel, supra note 96.
disputing is required? I think the answers to these questions are complex. Dis-
pute and conflict is essential for social change and thus, those of us who are
critics of a static system functionalism seem to be arguing for the function of
conflict in our legal and political systems."" Yet some conflict and dispute is
clearly unnecessary, unhealthily, and unproductively exacerbated by our sys-
tem of dispute resolution. Is there any systematic way to explore which dis-
putes are socially useful and which are not? This is a question posed by those
who ask us to consider our theories of society while we are busily collecting
data on the dispute process.12
Fourth, some evaluation research might be in order. Are disputants satis-
fied with the solutions the dispute resolution mechanisms provide? Are there
ways we can think about and explore the outcomes of dispute resolution mech-
anisms? Some have argued that it is difficult, if not impossible to compare
court outcomes and processes with non-court outcomes,1 21 but we need some
outcome measures to determine whether dispute resolution or management in
various contexts is doing what it purports to be doing. Do "solutions" endure
differentially? Are court orders enforced more easily than mediation or arbi-
tration awards? Do "solutions" in which the parties participate have greater
legitimacy than those which do not involve the parties? These are all questions
which can be explored empirically.
Finally, we should continue our dispute research and thinking, but we
also need to broaden our focus to look at everyday transactions in the legal
and social system. The dispute paradigm owes some of its history to the an-
thropological study of cases, but the anthropological experience also includes
the negotiation of transactions as well as disputes. 12 2 The transactional pro-
cess, which may turn out to be more creative and less narrowing, may give us
cause to be less pessimistic about the role of law in society.
In my study of lawyers, the dispute paradigm has been very useful as a
unit and method of analysis. The lawyer's role in transforming disputes by
both narrowing them and expanding them is one of the most critical roles that
lawyers play in the legal system. This role has great implications for what
disputes in society are resolved or processed and which are not. Yet the dis-
pute paradigm does not tell us all we need to know, either about lawyers or
about the role that disputes and conflict play in our larger social system. The
dispute paradigm should continue to inform our research, but we also need to
think about what else we need to know and why we are seeking the knowledge
we are pursuing.
119. Cain & Kulcsur, supra note I; Kidder, supra note 96.
120. Cain & Kulcsur, supra note 1.
121. Engel, supra note 12.
122. See, e.g.. P. GULLIVER, supra note 40.
https://scholarship.law.missouri.edu/jdr/vol1985/iss/4 20