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1985 Mo. J. Disp. Resol. 25 (1985)
The Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us

handle is hein.journals/jdisres1985 and id is 29 raw text is: 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 processing3 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 Processing and 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 Deconstruction of Disputes-Focused Approach: 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

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