Dispute Processing and Conflict Resolution: Theory, Practice, and Policy

Vol. 14 No. 6 (June 2004), pp.440-445

DISPUTE PROCESSING AND CONFLICT RESOLUTION: THEORY, PRACTICE AND POLICY, by Carrie Menkel-Meadow. Burlington, VT: Ashgate/Dartmouth, 2003. 540pp. Cloth $122.95 / £65.00. ISBN: 075462305X.

Reviewed by Stephen Daniels, American Bar Foundation, Chicago, IL. Email: sdaniels@abfn.org

DISPUTE PROCESSING AND CONFLICT RESOLUTION is a collection of thirteen previously published pieces by Carrie Menkel-Meadow, a law professor who has been a major figure in the world of alternative dispute resolution (ADR). The book is a part of a series published by Ashgate/Dartmouth entitled Collected Essays in Law. The series “makes available some of the most important work of scholars who have made a major contribution to the study of law. Each volume brings together a selection of writings by a leading authority on a particular subject” (p.xix). While the book is likely to be of interest to those whose work deals with courts, lawyers, alternative means of handling disputes, and justice in the practical world, its price ($120+) will mean that the primary purchasers will probably be libraries and other institutions.

The articles chosen by Menkel-Meadow for the volume span a 20-year period from 1983 to 2002, and they provide a provocative intellectual discussion that works on two levels. The first, and most important, level is Menkel-Meadow’s own intellectual journey, as she calls it. There is a very personal and reflective feel to many of the pieces as we see how her thinking has developed with regard to the resolution of disputes in the courts and evolved to include a broader concern with peace and conflict resolution. In the last and most recent article (published in 2002) she begins by saying, “When I was a young law student, then a legal services attorney and finally a clinical law teacher, practicing ‘in the interests of justice’ often meant either winning a legal case for a particular disadvantaged person or moving a legal precedent one inch forward in a larger law reform campaign for a cause. Justice . . . was tied expressly to law” (pp.479-80). She goes on to say in that same article:

I suggest that in our current world, both international and domestic, practicing “in the interests of justice” includes – indeed, should give great priority to – the “peace-seeking” and “problem-solving” aspects of lawyering . . . seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal disputes and creatively negotiating new relationships, transactions, partnerships and entities are all, for me, essential parts of practicing “in the interests of justice” (pp.481-82).

As these comments show, Menkel-Meadow’s journey has taken her a long way from moving a precedent one inch forward to a view that justice is not tied expressly to law at all.

Menkel-Meadow lays out her views on justice in a tightly reasoned introduction—“From Legal Disputes to Conflict Resolution and Human Problem [*441] Solving.” Central to her position is what she calls the “quality” of dispute resolution and what “quality” requires. An essay later in the volume argues, “the quality of dispute resolution is improved when models other than the formal adjudication models are used. Solutions to disputes can be tailored to the parties’ polycentric needs” (p.197). Needs are the focus of Menkel-Meadow’s view of justice, and in serving the needs of the many parties involved in a dispute, dispute resolution can sometimes be transformative. The key problem or impediment, in her estimation, is the adversary system, along with our larger adversary culture, and the model of two-sided, winner take all disputes based on individual maximization.

Despite her problems with the adversary system and adversary culture, Menkel-Meadow’s stated idea of justice is still procedural or process-driven. In her introduction and the final two pieces in the volume, Menkel-Meadow draws approvingly from Stuart Hampshire’s recent book JUSTICE AS CONFLICT (2000). What is important in Hampshire’s work is an argument, which mirrors her position that we (taken in the broadest human sense) “may never agree about what the content of universal justice is” (p.xii). Instead, “even if we cannot all agree on substantive norms and goals, we can probably agree on some processes for making decisions that will enable us to go forward and act” (p.xiii). The concern for some sense of procedural fairness, both she and Hampshire argue, is shared by most cultures and so holds out the possibility of a universality of sorts.

Menkel-Meadow, however, is not in favor of just any process since different processes each have their own morality. This in turn can affect outcome. And, despite her emphasis on justice as procedure, she is still concerned with the substantive matter of outcome. Her particular procedural dissatisfaction is with the adversary process as we know it, and this leads to a key disagreement with Hampshire.

Like Stuart Hampshire, I believe in procedural justice as justice because we need ways of talking to, and struggling with, each other about how to move forward when we disagree. Unlike Stuart Hampshire, I do not adopt the streamlined and universalized definition he gives of procedural justice as reducing to ‘the adversary principle’ of (merely) “hearing the other side.” Much of my work has been devoted to demonstrating that most disputes and conflicts do not have only two sides, either of parties or “players” (plaintiffs and defendants) or “issues” or arguments (“win/lose,” “yes/no”) . . . In my view, we need both new multiparty processes beyond the outmoded two-sided adversary system, and new substantively creative solutions beyond the limited remedial imaginations of courts and other legal institutions to find justice in our increasingly diverse, post-modern world (p.xv).

This clearly reflects a concern beyond procedural justice. Menkel-Meadow’s concern with the substance of outcomes reappears in a number of the pieces in the volume where she occasionally alludes to “the kind of sensitive, caring, and quality (Pareto-efficient) solutions I seek” (p.269). Unfortunately, these concerns with substance are not thoroughly addressed, and it leaves an important part of Menkel-Meadow’s story of her journey untold.

[*442] Menkel-Meadow’s introduction also outlines a series of themes that cover “the challenges, cleavages and consensuses” that have emerged in the field – an outline that provides a context for her own work. The remainder of the volume is loosely organized around these themes. She breaks the volume into six sections: some basic theory on the purposes and processes of process pluralism; some basic history; the uses and abuses of dispute resolution processes; philosophical and policy disagreements within the field; ethical issues for lawyers working in the field; and the future. The use of these themes as an organizing device takes us to the second level on which Menkel-Meadow’s story of her intellectual journey works. But, this second level is not just an intellectual history or analysis of dispute resolution, and her own intellectual journey is not simply a scholarly or theoretical journey.

Menkel-Meadow’s intellectual journey is also a political one. It is one infused with her normative concern with justice and her dissatisfaction with the adversary system and our adversary culture for not serving what she calls “actual justice” (p.xii). The story of her journey is, in effect, her argument for change – change in the legal profession, in the legal system, and perhaps beyond. The articles chosen for inclusion in the volume are the extended and detailed version of her argument on why and how things need to change if we are even to approach justice. This is not to say that articles are merely position papers. They are sophisticated and well-grounded discussions. Menkel-Meadow is extremely well-read in a wide variety of fields, not just her own; and she is probably at her best in synthesizing materials from differing disciplines and applying them to dispute resolution.

Still, her argument is as much a result of her experience in the practical world of law and dispute resolution as it is a result of scholarship. This is not a detached, scholarly observer of dispute resolution, but someone deeply engaged in trying to change the world about which she writes. She notes in her introduction, “my work in the field of dispute and conflict resolution has always been a movement back and forth from theory to practice, seeking what Donald Schon has called ‘theory-in-practice’ and what I have called ‘ethical practice’ – practice that is informed by theory and morally legitimate uses” (pp.xi-xii). Pointing to this is not meant as a criticism; rather it is important in understanding Menkel-Meadow’s purpose and her argument.

With regard to purpose, Menkel-Meadow is always the advocate building the argument for her position. She seeks to persuade us by sharing with us her intellectual journey. And, of course, she wants to persuade us as a part of her goal of seeing her version of justice put into practice. With regard to the argument itself, while there is always optimism on Menkel-Meadow’s part about success, it is an optimism colored by facing the facts of the hard realities on the ground as seen by someone who has been working on the ground. This may explain, in part, her emphasis on justice as procedures of a certain kind rather than explicitly on justice as substantive goals. Procedural justice may not be the ideal, but it may have a better chance, and perhaps it is better to fight for what we may actually be able to achieve in the real world.

[*443] Menkel-Meadow’s position is not without critics and opposing arguments, and she includes pieces in the volume which acknowledge and respond to a number of them, especially the articles in Part Three, “Uses and Abuses of Dispute Resolution Processes,” and those in Part Four, “Conflicts About Conflict Resolution: Philosophical and Policy Issues in Dispute Resolution.” She responds to those who are opposed to or at least skeptical of any idea of alternative dispute resolution. Most important are those, like Owen Fiss (1984), who seek to defend the adversary process as an essential part of our legal system and who see alternative dispute resolution as dangerous because it may undermine the very logic of our legal system. She also responds to opposing views within dispute resolution regarding the purposes of alternative dispute resolution and the means chosen. Most important here are those, like Chief Justice Warren Burger (1982), who see alternative dispute resolution as being nothing more than a means for achieving greater efficiency in the courts. And finally, Menkel-Meadow references those who criticize her position specifically—among them Susan Silbey and Austin Sarat (1989), who argue that her version of alternative dispute resolution (her idea of “quality” resolutions) emphasizes people’s needs rather than their rights (pp.269-70). With regard to her own position on alternative dispute resolution, Menkel-Meadow at one point remarks ruefully, “I find myself in an awkward position – considered by some [in particular, Silbey and Sarat] to be an unmitigated apologist for ADR, and by others to be downright hostile to ADR” (p.269).

Perhaps the more important matter for Menkel-Meadow is trying to take into account the empirical literature on settlement practices in civil cases. She has long called for and supported empirical research in this area, but the literature has posed challenges for her as she readily admits. In an essay from the 1990s discussing the empirical literature, she notes that “empirical work on negotiations in a variety of legal contexts remains relatively paltry, but is depressingly consistent. The picture that is painted of actual negotiations bears little resemblance to the more nuanced discussions of goals and means alluded to above [referring to theoretical discussions like her own]” (p.279).

In the same article Menkel-Meadow also discusses a small study of mediation in California with which she was involved (done through the UCLA mediation clinic). The findings were sobering: “Our most troubling observation was . . . that people (including parties and lawyers) did seem to exhibit almost predetermined tendencies toward dichotomized approaches to the dispute problems they faced” (p.286). As a consequence, she argued in favor of mandatory alternative dispute resolution (a change for her) because exposure to such mechanisms offers the possibility “of self-reflection and self-criticism that may motivate lawyers to examine their much entrenched behavior” (p.289).

In a later essay in the final section of the volume regarding prospects for the future, Menkel-Meadow addresses the problems left by that troubling observation. She does so by exploring the question stated in the title of the essay, “Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education?” Menkel-Meadow [*444] draws inspiration from wide-ranging sources that touch on creativity, especially the idea of “memes” – “the cultural equivalent of genes, units of information that are passed on to future generations and that can be changed. Like successful mutations, if a changed meme is accepted by enough people in the culture, the culture will change” (p.423). She is searching for legal memes that can demonstrate that her vision still has a chance to succeed.

Menkel-Meadow finds a host of examples of legal creativity, ranging from the work of legal thinkers as diverse as Richard Posner, Catherine Mackinnon and Charles Reich, to cases like BROWN v. BOARD OF EDUCATION and ROE v. WADE, to innovations like the joint custody of children. This gives her hope that creativity – or at least a framework that allows for creativity to arise – can be taught as a part of legal education. The key to creativity is thinking outside the box and learning multiple intelligences. She outlines her ideals for a new form of legal education that would teach students multiple intelligences and allow them to think less like traditional lawyers and more like the creative legal problem solvers she hopes to see.

In effect, and consistent with her critique of the adversary system, Menkel-Meadow is arguing for a new and different version of the legal profession and the legal system itself. The problem is that it is not clear that any individual, or group of individuals, could succeed at the task Menkel-Meadow lays out. The lawyer is to identify the multiple needs for his/her client, to identify similar needs for all of the other parties involved, and then to craft solutions that maximize collective gain (p.417). The needs of the parties that must be identified and dealt with are indeed daunting in this scheme. They include the numerous parties’ legal needs, economic needs, social needs (including family, workplace, organizational, joint responsibility or community), psychological needs (including risk preferences, reputational, emotional, mental and physical health concerns, needs to assert, fear or shame, guilt), political needs (including rule change, justice, internal or public organizational concerns, precedent setting, relation to other problems, constituents), and moral, ethical or religious needs (including concerns about tradition and fairness) (pp.417-418). As appealing a vision as this might be, could any lawyer actually succeed?

At the end of Menkel-Meadow’s journey I find myself sympathetic to her concerns, yet unpersuaded by her argument. Nonetheless, hers is a vision of the legal profession and the civil justice system that political scientists whose work deals with courts, lawyers, alternative means of handling disputes, and justice in the practical world need to consider seriously. This volume is the ideal summary of her work over the past 20 years.

There is a final thing that we political scientists interested in law and politics should take from Menkel-Meadow’s journey – recognition of how narrow our research focus has been. Menkel-Meadow deals with core issues in the civil justice system and the way in which it does and should work – with important issues directly related to who gets what, when, and how. Yet, she cites the research of only a handful of political [*445] scientists. This is because we have done too little work in this area and have effectively ceded the study of much of the legal system to other disciplines. If we define our area of interest as law and politics, how can we ignore the concerns that have productively occupied a scholar like Menkel-Meadow for the last 20 years?

REFERENCES:

Burger, Warren. 1982. “Isn’t There a Better Way?” 68 AMERICAN BAR

ASSOCIATION JOURNAL 274.

Fiss, Owen. 1984. “Against Settlement.” 93 YALE LAW JOURNAL 1073.

Hampshire, Stuart. 2000. JUSTICE AS CONFLICT. Princeton, NJ: Princeton University

Press.

Menkel-Meadow, Carrie. 2003. DISPUTE PROCESSING AND CONFLICT RESOLUTION: THEORY, PRACTICE AND POLICY. Burlington, VT: Ashgate/Dartmouth.

Susan Silbey and Austin Sarat. 1989. “Dispute Processing in Law and Legal Scholarship:

From Institutional Critique to the Reconstruction of the Juridical Subject.” 66

DENVER UNIVERSITY LAW REVIEW 437.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

ROE v. WADE, 410 US 113 (1973).

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