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Dispute Resolution in Economics

Walton R E, McKersie R B 1965 A Behaioral Theory of Labor debate. Comparative studies of legal caseloads in
Negotiations: An Analysis of a Social Interaction System. different societies also fueled an interest in improving
McGraw-Hill, New York understanding of the relation between individual and
social conflicts and court cases. Such concerns led
H. S. Farber scholars to focus explicitly on the social construction
of disputes and their emergence in court.
Recognition that courts provide only one way to
resolve conflicts, and a costly way at that, led some
observers to propose alternative processes for dispute
Disputes, Social Construction and resolution. Interest in alternatives to court also led to
Transformation of research on dispute transformation as scholars. Inter-
est in alternatives to court also led to research on
The ‘social construction’ of disputes refers to the dispute transformation as scholars explored the im-
process by which people perceive a wrong or an pact of different institutional mechanisms on disputes.
injustice, articulate a claim against the offending party, Alternative dispute resolution (ADR) provides new
and assert that claim publicly before a third party. processes such as mediation and arbitration as alterna-
Disputes are not concrete entities or objective events, tives to adjudication in the courtroom. Those who
but are instead social constructs, the results of sub- favor ADR praise its informality, lower cost, speed,
jective feelings and perceptions, and expressed through and case outcomes particularized to the needs of the
language and actions. ‘Transformation of disputes’ disputants. ADR opponents worry about a two-tier
refers to the change in form or content of disputes as legal system with courts reserved for wealther litigants
other participants become involved in the disputing and alternatives for others, and about the lack of legal
process and add their own perceptions and interests to norms guiding the resolution of disputes outside of
those of the original parties. court. Scholars on both sides of the debate have
sought to bolster their positions by gathering in-
formation on how disputes are transformed through
1. Law and Disputing negotiation, mediation, arbitration, or adjudication.
Other interest in dispute transformation comes from
Empirical research on dispute transformation devel- sociologists studying case processing in the criminal
oped in the late 1970s and early 1980s as a result of justice system, from psychologists examining conflict
trends in several social science fields and in law. resolution, and from political scientists concerned
Anthropologists showed how a focus on ‘trouble cases’ with the role of courts in resolving political issues.
could provide a useful framework for comparative Criminal justice officials negotiate the meaning of
study of law in different societies. Research reported in events and identities of suspects as in the process of
Nader and Todd (1978), for example, explored the plea bargaining. Crimes are defined according to their
factors behind parties’ choices of different methods for normal situational and social features, as well as by
pursuing, or attempting to resolve, disputes in diverse legal codes. Sociological research shows that criminal
societies. Relations between disputants, the location defendants, for example, are sometimes offered a plea
of the dispute, and the nature of the problem, along bargain to a lesser offense in the process of narrowing
with the range of disputing alternatives, could all their cases into conventional categories of crime.
explain the construction and handling of disputes. The Psychological study of negotiation in conflict res-
interest of anthropologists in disputant choice and the olution involves attention not only to how players try
availability of different alternatives for dispute res- to maximize their interests, but also how they seek
olution overlapped with the interest of legal scholars actively to define the nature of the issues and the scope
in access to justice. of their conflict.
Expansion of legal services for litigants in civil cases Finally, political scientists study dispute transform-
and concern for the role of civil courts in society led ation as a means of understanding legal mobilization
analysts to examine the legal needs of citizens. What and the role of courts in society. Test case litigation
kinds of cases and what groups of citizens are not involves the construction of individual lawsuits as
being served by the civil justice system? How can vehicles for articulating and advocating collective
access to justice be improved? Questions such as these political interests. In successful litigation, disputants
spurred efforts to describe and count ‘unmet legal may become important creators of law, and their
needs.’ It is easy to count cases in court, but counting lawyers are spokespersons for a cause. Court trials
cases that have not been filed proves more prob- may be confined to the individual facts and issues in
lematic. The problems center on what kinds of cases dispute, or broadened to address the normative impli-
should be in court, are there too many court cases, are cations and legal meaning of the dispute. As a
they the wrong ones, and what populations do the consequence of cause lawyering, interest group
courts serve? Through such questions, the very nature activity, or media attention, political trials may result
of what constitutes a civil court case is called into from such broadening of issues in dispute. Parties in

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Disputes, Social Construction and Transformation of

litigation, their lawyers, and court officials may each a larger protest over sexist working conditions. Addi-
seek to transform disputes in different ways, for tional issues could be added to the dispute, such as
different political ends. discrepancies in pay and working conditions between
For detailed treatment of these topics and for men and women employees. Advice from a civil rights
further references see Law, Mobilization of; Public lawyer could lead to a class action lawsuit, which
Interest Law; Class Actions: Legal; Parties: Litigants would further broaden the scope of the conflict and
and Claimants; Legal Culture and Legal Consciousness; add new parties to the case. Alternatively, internal
Mediation, Arbitration, and Alternatie Dispute Res- processes of dispute resolution within the organization
olution (ADR); Law and Eeryday Life; Law as could depoliticize the dispute, remove any aspect of
Constitutie. sex discrimination or sexual harassment, and trans-
form it into a personality conflict between the two
parties. In short, both the meaning and the course of
the dispute are contingent. They depend on the
2. The Emergence and Transformation of perceptions, actions, and interests of various parties,
Disputes and on the alternatives provided by language and
institutions. Furthermore, the way in which the dis-
A hypothetical sexual harassment case can illustrate pute is defined—and whether it is even seen as a dispute
some of the central issues in the emergence and or not—reinforces certain power relations and ideas,
transformation of disputes. The sections that follow and links law to everyday life. (See Sexual Harassment:
this example elaborate on some of the key contribu- Legal Perspecties.)
tions of dispute transformation research: the per-
ception of a grievance; the disputing pyramid; the
lawyer’s role in transformation; the role of language;
how courts and institutions shape dispute transform-
ation; and the relation between dispute transform- 2.2 The Disputing Pyramid
ation, politics, and law. Why are some grievances ignored but others become
disputes? And why do some disputes in American
society end up as court cases but the vast majority do
not? There is a ‘disputing pyramid,’ or ‘legal iceberg,’
2.1 Sexual Harassment as an Example
with vast numbers of grievances at the bottom, fewer
Consider the situation in which a manager makes disputes in the middle, still fewer legal claims toward
sexual overtures toward his secretary. He frequently the top, and only small number of actual cases in court
tells crude jokes, embarrasses her with comments (Galanter 1974, Miller and Sarat 1981). The emergence
about her looks and dress, and invites her for after- of disputes depends first on perceiving an injury or
hours dates. She is not attracted to him, but she likes problem (‘naming’), then attributing the problem to
her job. What would be her response? She might the fault of another (‘blaming’), and finally confront-
simply brush him off and try to live with his unpleasant ing the opposing party and seeking some kind of
behavior (‘lump it’); she might seek advice from co- remedy (‘claiming’) (Felstiner et al. 1981). Many
workers, neighbors, friends; she might leave her job injuries are never perceived as such, and still others are
and seek work elsewhere (‘exit’); she might pursue an not acknowledged because of cultural ideas, institu-
internal complaint within her place of work, or seek tional barriers, or the lack of social support. Not all
legal counsel outside the job and file a claim of sexual grievances become claims and not all claims become
harassment. This suggests how the secretary’s dispute lawsuits in court. Movement of grievances to the top
with her manager is not a discrete event, but is instead of the disputing pyramid depends in part on structual
socially constructed by her perceptions, by others, and characteristics of the dispute, such as the relationship
by her disputing alternatives. The conflict may or may between the parties, the type of claim, and the relation
not lead to a legal case. parties have to the legal system. The disputing pyramid
The emergence of a dispute depends first on recog- is shaped differently for various kinds of cases but
nizing and identifying a problem. For many women demographic characteristics of the parties (e.g., class,
employees in the United States until the 1990s—and education) may not be as significant for disputing as is
still for many worldwide—the occasional lecherous commonly thought (Miller and Sarat 1981). Institu-
boss was part of a normal working environment. tionalized procedures and remedies for handling
Cultural and political changes led to women’s recog- conflicts may encourage claiming by lowering costs
nition of their grievances and the language of federal and making the disputing process more accessible and
law introduced a new name for their grievance: ‘sexual predictable.
harassment.’ Supporters of an employee—such as co- In addition to social and institutional factors affect-
workers, a women’s group, or employees, union— ing dispute transformation, psychological factors play
could broaden the scope of the conflict to transform a role. Individuals vary in their claims consciousness
her individual dispute with the offending manager into and in their propensity to assert claims or pursue legal

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rights. This variation is associated with preferences for long-term relationship between ex-spouses, because
different modes of conflict resolution and with self- cooperative settlement is seen to be cost-effective, or
described personality attributes, but appears to be because the law encourages equitable division of
independent of demographic status (Vidmar and property and shared parenting.
Schuller 1987). An important question about lawyers’ interactions
Dispute transformation helps to explain not only with clients is the extent to which clients’ stories and
where disputes end up in the disputing pyramid but objectives are heard by counsel. One thing that lawyers
also how changes occur in the very nature of disputes. clearly do is translate clients’ problems into legal
Both the object of the dispute and the normative language. Lawyers rephrase auto accidents into torts,
framework for handling it are matters to be negotiated domestic violence into assaults, and racist actions into
(Mather and Yngvesson 1981). To succeed in estab- civil rights violations. In lawyers’ offices, clients may
lishing what the dispute is about can go a long way want to pour out stories in their full social and personal
toward resolving it. Changing the normative frame- context. But details that clients see as highly relevant
work for viewing events or relationships can transform are dismissed by counsel as not germane to the legal
disputes over them. Viewing interpersonal conflict as a case. Lawyers are trained to focus on particular issues,
cognitive bargaining process has led psychologists to leading to frustration in clients (who are not being
pursue research on conflict frames, that is, on dispu- ‘heard’) and possibly to overlooking key details.
tants’ cognitive interpretations of conflict. Cognitive Variation in the lawyers’ role in dispute transform-
framing influences both the process and outcomes of ation by different areas of law and by different types of
disputes, as well as disputant satisfaction (Pinkley and lawyers and clients remains a crucial topic for further
Northcraft 1994). study.

2.3 The Lawyer’s Role in Dispute Transformation 2.4 Language and Dispute Transformation
Lawyers play a major role in constructing and trans- As social constructs, disputes depend upon the lan-
forming disputes. Exactly what the nature of that role guage used to describe them. Yet language is not
is, however, is a matter of considerable controversy. In neutral. It orders ‘facts’ and invokes ‘norms’ in ways
one view, lawyers escalate conflict, urging their clients that reflect the interests of the parties, or that an-
to pursue adversarial formal legal solutions to prob- ticipate the reactions of others (Mather and Yngvesson
lems that might be more appropriately resolved 1981). By including or excluding certain facts, or by
informally. Thus, lawyers are said to encourage clients selecting particular words, parties are situating their
to take their claims higher on the disputing pyramid in conflict in a certain normative framework. For ex-
order to vindicate legal rights and obtain greater ample, in a case of sexual harassment, the word
compensation. Of course, such vigorous legal ad- ‘harassment’ itself invokes a different normative mean-
vocacy could also enrich the lawyer, through enhanced ing than, say, ‘flirting’ or ‘being friendly.’ Struggles
fees or a percentage of a larger settlement. Although over language involve negotiation over which frame-
this view has wide currency in the popular press, it has work to apply, and such negotiations are integral to
mixed support in empirical research on lawyers and the disputing process. How a dispute is defined has
clients. consequences for the identity and relations between
Studies of lawyer\client interaction, particularly in the parties, and for whether and how a dispute is
the areas of divorce, personal injury, and criminal law, resolved. Working-class Americans seeking to obtain
suggest that lawyers more frequently dampen conflict legal redress in court often have their disputes redirec-
than escalate it. Financial incentives discourage law- ted away from a legal framework and into a thera-
yers from pursuing extensive formal legal action and peutic framework of mental health or social welfare
encourage quick, informal settlements of cases. Where concerns (Merry 1990).
clients have the resources to support it, it is they—not An analytic framework that examines language and
their lawyers—who may insist on extended legal disputing not only applies in modern legal systems,
combat. Thus, O. J. Simpson spared no expense for his but also to smaller societies and even ancient ones. For
defense lawyer, but the vast majority of criminal instance, research on litigation in ancient Athens has
defendants lack such resources and plead guilty. produced powerful insights about Athenian law and
In divorce, some of the most bitter and highly democracy. The rhetoric and procedures of litigation
contested trials occur between very wealthy spouses there were used to transform broad conflicts into two-
who can underwrite the fees of their attorneys. But in party disputes, impose specialized roles and identities,
most divorces in the United States only one spouse can create new political resources, and foreclose other
afford a lawyer and the other is pro se or else neither options—thus effecting the reproduction of Athenian
party is represented by counsel. Even in two-lawyer democracy (Johnstone 1999).
divorces, attorneys typically seek to cool out their Anthropological studies in different cultural settings
clients, to protect the children, and to preserve the also reveal how particular linguistic definitions of

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conflict affect individual disputes and reinforce pat- has been to create internal processes of dispute
terns of social order. Narratives in a Fiji Indian resolution. As a condition of employment, workers
community, for example, aid in the management of may even be prohibited from using courts for their
social conflict by constructing identities, transforming disputes in order to favor internal organizational
personal experiences, and constituting knowledge. By complaint procedures and avoid external legal liab-
‘telling troubles’ to various different audiences, the ility for the employer. The result of such policies is the
Indian villagers construct their social relationships, transformation of civil rights in the workplace from an
privileging some accounts over others (Brenneis 1996). issue of public law to an issue of private employee
relations (Edelman et al. 1993). The object of dispute
shifts from the working conditions provided by the
2.5 How Courts and Other Institutions Shape
employer to the personal relations among employees.
Dispute Transformation
Institutional mechanisms for resolving problems influ-
Institutional structures influence disputing by chan- ence the ability of disputants to negotiate over issues
neling the ways in which conflicts can be transformed. and set limits on how legal norms penetrate everyday
Courts, for example, often have strict rules of evidence disputes. Conflict in organizations is increasingly
that limit what kinds of information may be included handled by procedures that more closely resemble the
in the construction of a case during trial. But informal imposition of authority than third party facilitation of
negotiations outside of court, such as plea bargaining dispute resolution (Kolb and Putnam 1992).
or settlement talks, have few such limits. When
informal plea negotiations over disposition of a first-
2.6 Dispute Transformation, Public Order and Law
time drug defendant include discussions of the defen-
dant’s social background, family situation, and em- A focus on the normative framework and definitions
ployment, lawyers may lean toward lenient treatment. of a dispute reveals the political aspects of disputing
But none of this material might be admitted in and links the routine disputing processes to broader
adjudication and the resulting sentence could be much questions of power, order, and law. Dispute trans-
harsher after conviction at trial. Different institutional formation thus bridges consideration of individual
procedures transform cases in different ways, pro- agency and social structure. When a secretary pursues
ducing variation in case outcomes. a harassment claim against her supervisor, she is
In theory, a distinguishing feature of mediation—in pursuing an individual dispute while simultaneously
contrast to adjudication—is the ability of mediators to her case is reproducing the social structure of gender
range widely over different issues in a conflict. Whereas relations in the workplace. By providing the language
judges are supposed to narrow their focus to particular of law and certain institutions for handling disputes,
legal elements of a case, mediators (who are not bound the social structure makes resources available to
by law) may encourage the emergence of new issues in challenge and change that very structure. Those
their effort to formulate an agreement that is ac- resources, however, are then countered by others (e.g.,
ceptable to both parties. Divorce mediators sometimes internal complaint mechanisms) that may sustain
comment on the ‘strange-looking agreements’ that existing power relationships.
result from such wide-open mediation sessions. Some Most disputes are narrowed or rephrased in es-
observers believe that the individualized agreements tablished categories of discourse. But, on occasion,
produced by mediation are more effective in resolving new meanings are given to disputes. When a dispute is
specific issues in dispute and also lead to increased expanded—rephrased in terms of a new normative
compliance with the outcome. But critics of mediation framework—it challenges the prevailing order. ‘Ex-
worry that the agreements come at a high price—that pansion of individual disputes is one way that social
is, through possibly overpowering the weaker party or change is linked to legal change’ ( Mather and
through the lack of legal norms shaping the final Yngvesson 1981, p. 779). Agents of dispute expansion
agreement. include the parties themselves, lawyers (especially
Mediators may have more in common with judges cause lawyers), interest groups or supporters, third
than with other mediators in terms of how they parties, or the audience to the dispute. Judges, or other
actually handle cases, and negotiation is frequently third parties, may expand disputes in order to further
intertwined with adjudication. Instead of assuming their own political interests. In appellate court deci-
differences across processes, a more productive focus sions, judges sometimes introduce new legal rules or
centers instead on how processes influence dispute ways of interpreting conflicts. For example, a dispute
transformation—for example, through specialized or over obscenity in the lower courts became the famous
general language, through closed or open dispute Mapp . Ohio case of illegal police behavior in the
hearings, or through linkages between dispute proces- appellate court.
ses and other organizations in society (Ynvgesson and Litigation against tobacco manufacturers illustrates
Mather 1983). both dispute narrowing and dispute expansion. When
One response of large corporations to increased ill cigarette smokers initially filed claims against the
legal regulation of employment in the United States cigarette industry, their cases were narrowed into

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established normative frameworks that insulated the Edelman L B, Erlanger H S, Lande J 1993 Internal dispute
industry from attack. Smokers were said to have resolution: The transformation of civil rights in the workplace.
‘assumed the risks’ of tobacco harm, and were thereby Low and Society Reiew 27: 497–534
responsible for their own illnesses. With the release of Felstiner W L F, Abel R L, Sarat A 1981 The emergence and
transformation of disputes: Naming, blaming, claiming. Law
damaging internal evidence from the tobacco industry,
and Society Reiew 15: 631–54
and with the introduction of new normative frame- Galanter M 1974 Why the ‘‘haves’’ comes out ahead: Specula-
works (of fraud, consumer protection, or Medicaid tions on the limits of legal change. Law and Society Reiew 9:
reimbursement), there was some change in cases 95–160
against tobacco manufacturers. Through dispute ex- Johnstone S 1999 Disputes and Democracy: The Consequences of
pansion anti-tobacco lawyers succeeded in transferring Litigation in Ancient Athens. University of Texas Press, Austin,
responsibility for smoking-related injuries back to TX
tobacco manufacturers. With sizable jury verdicts the Kolb D M, Putnam L L 1992 The multiple faces of conflict in
normative claims of anti-tobacco advocates assumed organizations. Journal of Organizational Behaior 13: 311–24
greater strength (Mather 1998). Indeed, through liti- Mather L 1998 Theorizing trial courts: Lawyers, policymaking,
gation and other forms of disputing, the meaning and and tobacco litigation. Law and Social Inquiry 23: 897–940
scope of law are actively constructed in the process of Mather L, Yngvesson B 1981 Language, audience, and the
transformation of disputes. Law and Society Reiew 15:
defining individual disputes. 775–821
Merry S E 1990 Getting Justice and Getting Een: Legal
Consciousness among Working-Class Americans. University of
Chicago Press, Chicago, IL
3. Problems and Prospects for Studying Dispute Miller R E, Sarat A 1981 Grievances, claims, and disputes:
Transformation Assessing the adversary culture. Law and Society Reiew 15:
525–65
The dispute transformation perspective can be faulted Nader L, Todd H F 1978 (eds.) The Disputing Process: Law in
for its overemphasis on process to the exclusion of Ten Societies. Columbia University Press, New York
dispute outcome, a failure to examine the political Pinkley R L, Northcraft G B 1994 Conflict frames of reference:
significance of disputing, its individualistic focus, the Implications for dispute processes and outcomes. Academy of
methodological difficulty of identifying or measuring Management Journal 37: 193–205
transformations, and its insufficient concern for insti- Vidmar N, Schuller R A 1987 Individual differences and the
pursuit of rights. Law and Human Behaior 11: 299–317
tutions. By addressing these issues, however, re- Yngvesson B, Mather L 1983 Courts, moots, and the disputing
searchers have redefined their work to include data process. In: Boyum K, Mather L (eds.) Empirical Theories
that allows a more complete picture of disputing and About Courts. Longman, New York, pp. 51–83
law. The concept of dispute transformation is in-
herently interdisciplinary. Insights and methodolo- L. Mather
gical advances, from for example, anthropological
linguistics, organizational studies, social network the- Copyright # 2001 Elsevier Science Ltd.
ory, psychology of negotiation, legal mobilization, All rights reserved.
and judicial decision making have broadened the
application of the transformation perspective.
Viewing how disputes emerge and are transformed
contributes to understanding both the micropolitics of Dissolution of Family in Western Nations:
dispute resolution and the macropolitics of disputing
in society. The transformation perspective is useful Cultural Concerns
crossculturally, and across different historical periods,
and helps to explain how law is created and maintain-
ed. 1. The Question of Family Centrality
Apprehensions about the demise of the family reach
See also: Conflict: Anthropological Aspects; Conflict: back to biblical times (Stern 1938). Social historians
Organizational; Conflict Sociology; Dispute Re- have amply demonstrated that eras of family change,
solution in Economics; Justice and its Many Faces: which are endemic in Western history, are invariably
Cultural Concerns accompanied by fears of family breakdown. The
Industrial Revolution introduced a widespread
anxiety that the family was losing its centrality—kin-
ship was becoming less salient, elders were losing
authority, and functions were being replaced by other
Bibliography institutions in society—although historians continue
Brenneis D 1996 Telling troubles: Narrative, conflict, and to debate whether any of these claims are valid
experience. In: Briggs C L (ed.) Disorderly Discourse. Oxford (Goldthorpe 1987). The challenge of establishing the
University Press, New York, pp. 41–52 breakdown of the family system is complicated.

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International Encyclopedia of the Social & Behavioral Sciences ISBN: 0-08-043076-7