In this essay I will examine the dispute paradigm and its critique through the prism of one of the agents of dispute processing--the lawyer. This is not a simple task because in some studies of dispute processing, the dispute is the independent variable and the lawyer (the agent of dispute transformation) is the dependent variable. In other studies the reverse is true or the relationship is unclear. Are divorces made worse because of lawyers' or do the dynamics of divorce disputes force lawyers to become particularly adversarial and antagonistic? I choose this prism because the transformation of disputes conception not only illuminates a great deal about disputes, it is responsive to and cuts across most of the dispute paradigm critiques. The transformation of disputes helps us to analyze and understand the social process by which difficulties, problems, and troubles with the world become issues which the official or public arena must recognize and deal with by "resolution," "domination," "legitimation," or some other strategy. Although the legal system is only one of the fora which could conceivably deal with disputes, in the United States it has become the "baseline" of dispute resolution against which other dispute mechanisms are invariably measured. Because the lawyer is frequently the transformer of a social dispute into a "legal" dispute (and sometimes vice versa), looking at the dispute paradigm through the eyes of the principal transformation agent should tell us something about how useful the paradigm is.
Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us, The,
1985 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol1985/iss/4