Menkel-Meadow, C --- "From Legal Education to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context" [2005] LegEdDig 9; (2005) 13(3) Legal Education Digest 12

From Legal Education to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context

C Menkel-Meadow

[2005] LegEdDig 9; (2005) 13(3) Legal Education Digest 12

54 J Legal Educ 1, 2004, pp 7–29

Several important themes have emerged as dispute resolution in law has expanded to include the fuller study of human conflict situations. First, although necessary and important in some cases, conventional legal processes, like adjudication and adversarial negotiation, are often inadequate for a fuller satisfaction of human needs and interests, and so we must look to other processes than traditional institutions or practices, depending on the kind of conflict or dispute at issue. Second, the author is also concerned with exploring where our substantive solutions to human problems come from and how we can improve upon the human repertoire for problem solving. Third, developments in the parallel fields of legal dispute resolution and the more multidisciplinary conflict resolution provide us with a special opportunity to explore the correspondences, contrasts, and learning from domestic disputes and international conflicts, as we test whether particular concepts, approaches and processes can be generalised or have only contextual validity.

If procedural justice is important to modern justice seekers, it is also important to recognise that particular processes do affect outcomes. This is what drew the author away from focusing on limited legal remedies to thinking more broadly about substantive problem solving and conflict resolution in deeper and richer sociological and psychological contexts. While process pluralism allows us to choose different processes for functional or other reasons, we must also consider that the choice of a particular process will almost certainly affect the outcome we produce.

With increasing sensitivity to the notion that different processes produce different outcomes, modern analysts are now looking at how particular conflict and dispute resolution or democratic processes produce different results. This essay outlines the challenges, cleavages, and consensuses that have emerged as the field of dispute processing or conflict resolution has attempted to create, define, and implement institutions and processes of procedural justice. Throughout, a few important themes recur, with implications for how dispute resolution should be taught. The field is now variously referred to as dispute resolution, alternative dispute resolution or appropriate dispute resolution. More broadly, conflict resolution demonstrates, in its multifarious nomenclature, its rather promiscuous or multiple-heritage ancestry.

The study of ‘dispute processing’ is a sort of bridge terminology and field, having been constituted by legal anthropologists to move the focus away from legally constructed ‘cases’ to the broader notion of culturally and contextually embedded ‘disputes’, having existences before, during and after formal legal disputes. The socio-legal focus on ‘disputing processes’ de-centres — but does not eliminate — law as the primary variable explaining how disputes are resolved. The study of conflict and conflict resolution clearly predates the focus on disputes and dispute resolution institutions in the law.

Social psychologists took up the study of conflict, in both its ‘destructive’ and ‘constructive’ forms, as they focused on both individual and group behaviours in preventing, making, escalating, resolving and reconciling conflict. They have more recently focused on how human cognitive errors both produce conflict and prevent us from resolving conflicts in rational and efficient ways, identifying a group of heuristic and strategic errors we make in processing information and forming preferences when we interact with others. To the extent that the new multidisciplinary field of conflict resolution has been born out of these different disciplines, there is an interesting mix of individual, organisational, theoretical, empirical, and professional levels of theory, practice and policy.

It was precisely because the legal field’s focus on ‘legal disputes’ or cases was so narrow and explained so little that the author first began to think and write about legal disputes and the search for justice in a broader disciplinary framework. In order to understand how legal disputes might better be resolved, she turned to a number of different disciplines for theoretical frameworks to help understand how human problems were resolved in realms outside of law. This multidisciplinary literature was studied for insights into two aspects of dispute and conflict resolution in law, that (1) dispute resolution involves both process and substance, and that (2) these elements of any human problem interact and are constitutive of each other. In short, conflict resolution involves both cognitive and behavioural components.

In trying to reorient lawyers to a different set of assumptions about legal problems, expanding and enhancing their substantive problem-solving skills, the author found that, while others had gone before her, both inside and outside law, lawyers seemed to need to be reminded of this important work. Precisely because we will never be able to fully answer the question of whether litigation or particular forms of alternatives to litigation are always ‘better’ or ‘fairer’ or ‘more just’, the suggestion is made that it might give us greater explanatory purchase to study the conditions under which particular forms or institutions of process might be more advantageous than others.

The issues surrounding appropriate use of different forms of dispute and conflict resolution depend enormously on the context. As various forms of ADR have been institutionalised and their animating principles or sensibilities have been distorted, from the importation of consensual dispute resolution forms to commanded and compulsory use in courts and contracts, the author has raised issues about the appropriate regulations, rules, and standards that should be applied when legal dispute resolution conflates compulsory legal process and coerced participation with true consent and party self-determination.

The author’s theoretical work has come to focus on how interdisciplinary conflict resolution theory can be reunited with legal and political theory, jurisprudence, and constitutional law to explore how these newer forms of conflict resolution and dispute processing can perhaps become a fifth branch of governance to a form of ad hoc democracy of participation that marries modern democratic discourse theory to conflict resolution theory. Her own recent work attempts to organise and explicate the differences in process and process institutions that can be mapped according to the modes of discourse and different forms of process for different kinds of entities in conflict.

Just as legal dispute resolution has begun to evolve from traditional adversary adjudication in the courts as the exclusive or preferred method for legal dispute resolution, human conflict resolution now requires a variety of substantive domains to search for ways to create peace and justice. The outlines of new substantive ideas and solutions may still be obscure or illusory. The forms of process we can use to come together are more varied and interesting than ever before. We will need to develop new theory, experiment with new institutions, practices, and policies and then study and evaluate them for generalisability and applicability to new and different situations.