Social Construction And Transformation Of Disputes Research Paper

1. Law And Disputing

Empirical research on dispute transformation developed in the late 1970s and early 1980s as a result of trends in several social science fields and in law. Anthropologists showed how a focus on ‘trouble cases’ could provide a useful framework for comparative study of law in different societies. Research reported in Nader and Todd (1978), for example, explored the factors behind parties’ choices of different methods for pursuing, or attempting to resolve, disputes in diverse societies. Relations between disputants, the location of the dispute, and the nature of the problem, along with the range of disputing alternatives, could all explain the construction and handling of disputes. The interest of anthropologists in disputant choice and the availability of different alternatives for dispute resolution overlapped with the interest of legal scholars in access to justice.

Expansion of legal services for litigants in civil cases and concern for the role of civil courts in society led analysts to examine the legal needs of citizens. What kinds of cases and what groups of citizens are not being served by the civil justice system? How can access to justice be improved? Questions such as these spurred efforts to describe and count ‘unmet legal needs.’ It is easy to count cases in court, but counting cases that have not been filed proves more problematic. The problems center on what kinds of cases should be in court, are there too many court cases, are they the wrong ones, and what populations do the courts serve? Through such questions, the very nature of what constitutes a civil court case is called into debate. Comparative studies of legal caseloads in different societies also fueled an interest in improving understanding of the relation between individual and social conflicts and court cases. Such concerns led 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 resolution. Interest in alternatives to court also led to research on dispute transformation as scholars. Interest in alternatives to court also led to research on dispute transformation as scholars explored the impact of different institutional mechanisms on disputes. Alternative dispute resolution (ADR) provides new processes such as mediation and arbitration as alternatives to adjudication in the courtroom. Those who favor ADR praise its informality, lower cost, speed, and case outcomes particularized to the needs of the disputants. ADR opponents worry about a two-tier legal system with courts reserved for wealther litigants and alternatives for others, and about the lack of legal norms guiding the resolution of disputes outside of court. Scholars on both sides of the debate have sought to bolster their positions by gathering information on how disputes are transformed through negotiation, mediation, arbitration, or adjudication.

Other interest in dispute transformation comes from sociologists studying case processing in the criminal justice system, from psychologists examining conflict resolution, and from political scientists concerned with the role of courts in resolving political issues. Criminal justice officials negotiate the meaning of events and identities of suspects as in the process of plea bargaining. Crimes are defined according to their normal situational and social features, as well as by legal codes. Sociological research shows that criminal defendants, for example, are sometimes offered a plea bargain to a lesser offense in the process of narrowing their cases into conventional categories of crime. Psychological study of negotiation in conflict resolution involves attention not only to how players try to maximize their interests, but also how they seek actively to define the nature of the issues and the scope of their conflict.

Finally, political scientists study dispute transformation as a means of understanding legal mobilization and the role of courts in society. Test case litigation involves the construction of individual lawsuits as vehicles for articulating and advocating collective political interests. In successful litigation, disputants may become important creators of law, and their lawyers are spokespersons for a cause. Court trials may be confined to the individual facts and issues in dispute, or broadened to address the normative implications and legal meaning of the dispute. As a consequence of cause lawyering, interest group activity, or media attention, political trials may result from such broadening of issues in dispute. Parties in litigation, their lawyers, and court officials may each seek to transform disputes in different ways, for different political ends.

2. The Emergence And Transformation Of Disputes

A hypothetical sexual harassment case can illustrate some of the central issues in the emergence and transformation of disputes. The sections that follow this example elaborate on some of the key contributions of dispute transformation research: the perception of a grievance; the disputing pyramid; the lawyer’s role in transformation; the role of language; how courts and institutions shape dispute transformation; and the relation between dispute transformation, politics, and law.

2.1 Sexual Harassment As An Example

Consider the situation in which a manager makes sexual overtures toward his secretary. He frequently tells crude jokes, embarrasses her with comments about her looks and dress, and invites her for afterhours dates. She is not attracted to him, but she likes her job. What would be her response? She might simply brush him off and try to live with his unpleasant behavior (‘lump it’); she might seek advice from coworkers, neighbors, friends; she might leave her job and seek work elsewhere (‘exit’); she might pursue an internal complaint within her place of work, or seek legal counsel outside the job and file a claim of sexual harassment. This suggests how the secretary’s dispute with her manager is not a discrete event, but is instead socially constructed by her perceptions, by others, and by her disputing alternatives. The conflict may or may not lead to a legal case.

The emergence of a dispute depends first on recognizing and identifying a problem. For many women employees in the United States until the 1990s—and still for many worldwide—the occasional lecherous boss was part of a normal working environment. Cultural and political changes led to women’s recognition of their grievances and the language of federal law introduced a new name for their grievance: ‘sexual harassment.’ Supporters of an employee—such as coworkers, a women’s group, or employees, union— could broaden the scope of the conflict to transform her individual dispute with the offending manager into a larger protest over sexist working conditions. Additional issues could be added to the dispute, such as discrepancies in pay and working conditions between men and women employees. Advice from a civil rights lawyer could lead to a class action lawsuit, which would further broaden the scope of the conflict and add new parties to the case. Alternatively, internal processes of dispute resolution within the organization could depoliticize the dispute, remove any aspect of sex discrimination or sexual harassment, and transform 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 perceptions, actions, and interests of various parties, and on the alternatives provided by language and institutions. Furthermore, the way in which the dispute is defined—and whether it is even seen as a dispute or not—reinforces certain power relations and ideas, and links law to everyday life.

2.2 The Disputing Pyramid

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,’ with vast numbers of grievances at the bottom, fewer disputes in the middle, still fewer legal claims toward the top, and only small number of actual cases in court (Galanter 1974, Miller and Sarat 1981). The emergence of disputes depends first on perceiving an injury or problem (‘naming’), then attributing the problem to the fault of another (‘blaming’), and finally confronting the opposing party and seeking some kind of remedy (‘claiming’) (Felstiner et al. 1981). Many injuries are never perceived as such, and still others are not acknowledged because of cultural ideas, institutional barriers, or the lack of social support. Not all grievances become claims and not all claims become lawsuits in court. Movement of grievances to the top of the disputing pyramid depends in part on structual characteristics of the dispute, such as the relationship between the parties, the type of claim, and the relation parties have to the legal system. The disputing pyramid is shaped differently for various kinds of cases but demographic characteristics of the parties (e.g., class, education) may not be as significant for disputing as is commonly thought (Miller and Sarat 1981). Institutionalized procedures and remedies for handling conflicts may encourage claiming by lowering costs and making the disputing process more accessible and predictable.

In addition to social and institutional factors affecting dispute transformation, psychological factors play a role. Individuals vary in their claims consciousness and in their propensity to assert claims or pursue legal rights. This variation is associated with preferences for different modes of conflict resolution and with self-described personality attributes, but appears to be independent of demographic status (Vidmar and Schuller 1987).

Dispute transformation helps to explain not only where disputes end up in the disputing pyramid but also how changes occur in the very nature of disputes. Both the object of the dispute and the normative framework for handling it are matters to be negotiated (Mather and Yngvesson 1981). To succeed in establishing what the dispute is about can go a long way toward resolving it. Changing the normative framework for viewing events or relationships can transform disputes over them. Viewing interpersonal conflict as a cognitive bargaining process has led psychologists to pursue research on conflict frames, that is, on disputants’ cognitive interpretations of conflict. Cognitive framing influences both the process and outcomes of disputes, as well as disputant satisfaction (Pinkley and Northcraft 1994).

2.3 The Lawyer’s Role In Dispute Transformation

Lawyers play a major role in constructing and transforming disputes. Exactly what the nature of that role is, however, is a matter of considerable controversy. In one view, lawyers escalate conflict, urging their clients to pursue adversarial formal legal solutions to problems that might be more appropriately resolved informally. Thus, lawyers are said to encourage clients to take their claims higher on the disputing pyramid in order to vindicate legal rights and obtain greater compensation. Of course, such vigorous legal advocacy could also enrich the lawyer, through enhanced fees or a percentage of a larger settlement. Although this view has wide currency in the popular press, it has mixed support in empirical research on lawyers and clients.

Studies of lawyer client interaction, particularly in the areas of divorce, personal injury, and criminal law, suggest that lawyers more frequently dampen conflict than escalate it. Financial incentives discourage lawyers from pursuing extensive formal legal action and encourage quick, informal settlements of cases. Where clients have the resources to support it, it is they—not their lawyers—who may insist on extended legal combat. Thus, O. J. Simpson spared no expense for his defense lawyer, but the vast majority of criminal defendants lack such resources and plead guilty.

In divorce, some of the most bitter and highly contested trials occur between very wealthy spouses who can underwrite the fees of their attorneys. But in most divorces in the United States only one spouse can afford a lawyer and the other is pro se or else neither party is represented by counsel. Even in two-lawyer divorces, attorneys typically seek to cool out their clients, to protect the children, and to preserve the long-term relationship between ex-spouses, because cooperative settlement is seen to be cost-effective, or because the law encourages equitable division of property and shared parenting.

An important question about lawyers’ interactions with clients is the extent to which clients’ stories and objectives are heard by counsel. One thing that lawyers clearly do is translate clients’ problems into legal language. Lawyers rephrase auto accidents into torts, domestic violence into assaults, and racist actions into civil rights violations. In lawyers’ offices, clients may want to pour out stories in their full social and personal context. But details that clients see as highly relevant are dismissed by counsel as not germane to the legal case. Lawyers are trained to focus on particular issues, leading to frustration in clients (who are not being ‘heard’) and possibly to overlooking key details. Variation in the lawyers’ role in dispute transformation by different areas of law and by different types of lawyers and clients remains a crucial topic for further study.

2.4 Language And Dispute Transformation

As social constructs, disputes depend upon the language used to describe them. Yet language is not neutral. It orders ‘facts’ and invokes ‘norms’ in ways that reflect the interests of the parties, or that anticipate the reactions of others (Mather and Yngvesson 1981). By including or excluding certain facts, or by selecting particular words, parties are situating their conflict in a certain normative framework. For example, in a case of sexual harassment, the word ‘harassment’ itself invokes a different normative meaning than, say, ‘flirting’ or ‘being friendly.’ Struggles over language involve negotiation over which framework to apply, and such negotiations are integral to the disputing process. How a dispute is defined has consequences for the identity and relations between the parties, and for whether and how a dispute is resolved. Working-class Americans seeking to obtain legal redress in court often have their disputes redirected away from a legal framework and into a therapeutic framework of mental health or social welfare concerns (Merry 1990).

An analytic framework that examines language and disputing not only applies in modern legal systems, but also to smaller societies and even ancient ones. For instance, research on litigation in ancient Athens has produced powerful insights about Athenian law and democracy. The rhetoric and procedures of litigation there were used to transform broad conflicts into two-party disputes, impose specialized roles and identities, create new political resources, and foreclose other options—thus effecting the reproduction of Athenian democracy (Johnstone 1999).

Anthropological studies in different cultural settings also reveal how particular linguistic definitions of conflict affect individual disputes and reinforce patterns of social order. Narratives in a Fiji Indian community, for example, aid in the management of social conflict by constructing identities, transforming personal experiences, and constituting knowledge. By ‘telling troubles’ to various different audiences, the Indian villagers construct their social relationships, privileging some accounts over others (Brenneis 1996).

2.5 How Courts And Other Institutions Shape Dispute Transformation

Institutional structures influence disputing by channeling the ways in which conflicts can be transformed. Courts, for example, often have strict rules of evidence that limit what kinds of information may be included in the construction of a case during trial. But informal negotiations outside of court, such as plea bargaining or settlement talks, have few such limits. When informal plea negotiations over disposition of a firsttime drug defendant include discussions of the defendant’s social background, family situation, and employment, lawyers may lean toward lenient treatment. But none of this material might be admitted in adjudication and the resulting sentence could be much harsher after conviction at trial. Different institutional procedures transform cases in different ways, producing variation in case outcomes.

In theory, a distinguishing feature of mediation—in contrast to adjudication—is the ability of mediators to range widely over different issues in a conflict. Whereas judges are supposed to narrow their focus to particular legal elements of a case, mediators (who are not bound by law) may encourage the emergence of new issues in their effort to formulate an agreement that is acceptable to both parties. Divorce mediators sometimes comment on the ‘strange-looking agreements’ that result from such wide-open mediation sessions. Some observers believe that the individualized agreements produced by mediation are more effective in resolving specific issues in dispute and also lead to increased compliance with the outcome. But critics of mediation worry that the agreements come at a high price—that is, through possibly overpowering the weaker party or through the lack of legal norms shaping the final agreement.

Mediators may have more in common with judges than with other mediators in terms of how they actually handle cases, and negotiation is frequently intertwined with adjudication. Instead of assuming differences across processes, a more productive focus centers instead on how processes influence dispute transformation—for example, through specialized or general language, through closed or open dispute hearings, or through linkages between dispute processes and other organizations in society (Ynvgesson and Mather 1983).

One response of large corporations to increased legal regulation of employment in the United States has been to create internal processes of dispute resolution. As a condition of employment, workers may even be prohibited from using courts for their disputes in order to favor internal organizational complaint procedures and avoid external legal liability for the employer. The result of such policies is the transformation of civil rights in the workplace from an 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 employer to the personal relations among employees. Institutional mechanisms for resolving problems influence the ability of disputants to negotiate over issues and set limits on how legal norms penetrate everyday disputes. Conflict in organizations is increasingly handled by procedures that more closely resemble the imposition of authority than third party facilitation of dispute resolution (Kolb and Putnam 1992).

2.6 Dispute Transformation, Public Order And Law

A focus on the normative framework and definitions of a dispute reveals the political aspects of disputing and links the routine disputing processes to broader questions of power, order, and law. Dispute transformation thus bridges consideration of individual agency and social structure. When a secretary pursues a harassment claim against her supervisor, she is pursuing an individual dispute while simultaneously her case is reproducing the social structure of gender relations in the workplace. By providing the language of law and certain institutions for handling disputes, the social structure makes resources available to challenge and change that very structure. Those resources, however, are then countered by others (e.g., internal complaint mechanisms) that may sustain existing power relationships.

Most disputes are narrowed or rephrased in established categories of discourse. But, on occasion, new meanings are given to disputes. When a dispute is expanded—rephrased in terms of a new normative framework—it challenges the prevailing order. ‘Expansion of individual disputes is one way that social change is linked to legal change’ ( Mather and Yngvesson 1981, p. 779). Agents of dispute expansion include the parties themselves, lawyers (especially cause lawyers), interest groups or supporters, third parties, or the audience to the dispute. Judges, or other third parties, may expand disputes in order to further their own political interests. In appellate court decisions, judges sometimes introduce new legal rules or ways of interpreting conflicts. For example, a dispute over obscenity in the lower courts became the famous Mapp . Ohio case of illegal police behavior in the appellate court.

Litigation against tobacco manufacturers illustrates both dispute narrowing and dispute expansion. When ill cigarette smokers initially filed claims against the cigarette industry, their cases were narrowed into established normative frameworks that insulated the industry from attack. Smokers were said to have ‘assumed the risks’ of tobacco harm, and were thereby responsible for their own illnesses. With the release of damaging internal evidence from the tobacco industry, and with the introduction of new normative frameworks (of fraud, consumer protection, or Medicaid reimbursement), there was some change in cases against tobacco manufacturers. Through dispute expansion anti-tobacco lawyers succeeded in transferring responsibility for smoking-related injuries back to tobacco manufacturers. With sizable jury verdicts the normative claims of anti-tobacco advocates assumed greater strength (Mather 1998). Indeed, through litigation and other forms of disputing, the meaning and scope of law are actively constructed in the process of defining individual disputes.

3. Problems And Prospects For Studying Dispute Transformation

The dispute transformation perspective can be faulted for its overemphasis on process to the exclusion of dispute outcome, a failure to examine the political significance of disputing, its individualistic focus, the methodological difficulty of identifying or measuring transformations, and its insufficient concern for institutions. By addressing these issues, however, researchers have redefined their work to include data that allows a more complete picture of disputing and law. The concept of dispute transformation is inherently interdisciplinary. Insights and methodological advances, from for example, anthropological linguistics, organizational studies, social network theory, psychology of negotiation, legal mobilization, 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 dispute resolution and the macropolitics of disputing in society. The transformation perspective is useful cross culturally, and across different historical periods, and helps to explain how law is created and maintained.

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