Dispute Resolution in Economics
Walton R E, McKersie R B 1965 A Beha
ioral Theory of Labor
Negotiations: An Analysis of a Social Interaction System.
McGraw-Hill, New York
H. S. Farber
Disputes, Social Construction and
Transformation of
The ‘social construction’ of disputes refers to the
process by which people perceive a wrong or an
injustice, articulate a claim against the offending party,
and assert that claim publicly before a third party.
Disputes are not concrete entities or objective events,
but are instead social constructs, the results of sub-
jective feelings and perceptions, and expressed through
language and actions. ‘Transformation of disputes’
refers to the change in form or content of disputes as
other participants become involved in the disputing
process and add their own perceptions and interests to
those of the original parties.
1. Law and Disputing
Empirical research on dispute transformation devel-
oped 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 res-
olution 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 prob-
lematic. 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
3772
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. Inter-
est in alternatives to court also led to research on
dispute transformation as scholars explored the im-
pact of different institutional mechanisms on disputes.
Alternative dispute resolution (ADR) provides new
processes such as mediation and arbitration as alterna-
tives 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 in-
formation 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 res-
olution 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 transform-
ation 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 impli-
cations 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.
For detailed treatment of these topics and for
further references see Law, Mobilization of; Public
Interest Law; Class Actions: Legal; Parties: Litigants
and Claimants; Legal Culture and Legal Consciousness;
Mediation, Arbitration, and Alternati
e Dispute Res-
olution (ADR); Law and E
eryday Life; Law as
Constituti
e.
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 contribu-
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-
ation, 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 after-
hours 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 co-
workers, 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 recog-
nizing 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 recog-
nition of their grievances and the language of federal
law introduced a new name for their grievance: ‘sexual
harassment.’ Supporters of an employee—such as co-
workers, a women’s group, or employees, union—
could broaden the scope of the conflict to transform
her individual dispute with the offending manager into
Disputes, Social Construction and Transformation of
a larger protest over sexist working conditions. Addi-
tional 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 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
perceptions, actions, and interests of various parties,
and on the alternatives provided by language and
institutions. Furthermore, the way in which the dis-
pute 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. (See Sexual Harassment:
Legal Perspecti
es.)
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 confront-
ing 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, institu-
tional 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). Institu-
tionalized 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 affect-
ing dispute transformation, psychological factors play
a role. Individuals vary in their claims consciousness
and in their propensity to assert claims or pursue legal
3773
Disputes, Social Construction and Transformation of
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 estab-
lishing what the dispute is about can go a long way
toward resolving it. Changing the normative frame-
work 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 dispu-
tants’ 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 trans-
forming 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 prob-
lems 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 ad-
vocacy 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 law-
yers 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
3774
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 transform-
ation 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 lan-
guage 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 an-
ticipate 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 ex-
ample, in a case of sexual harassment, the word
‘harassment’ itself invokes a different normative mean-
ing than, say, ‘flirting’ or ‘being friendly.’ Struggles
over language involve negotiation over which frame-
work 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 redirec-
ted away from a legal framework and into a thera-
peutic 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 pat-
terns 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 chan-
neling 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 first-
time drug defendant include discussions of the defen-
dant’s social background, family situation, and em-
ployment, 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, pro-
ducing 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 ac-
ceptable 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 proces-
ses and other organizations in society (Ynvgesson and
Mather 1983).
One response of large corporations to increased
legal regulation of employment in the United States
Disputes, Social Construction and Transformation of
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 liab-
ility 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 influ-
ence 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 trans-
formation 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 es-
tablished 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. ‘Ex-
pansion 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 deci-
sions, 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
3775
Disputes, Social Construction and Transformation of
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 frame-
works (of fraud, consumer protection, or Medicaid
reimbursement), there was some change in cases
against tobacco manufacturers. Through dispute ex-
pansion 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 liti-
gation 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 insti-
tutions. By addressing these issues, however, re-
searchers have redefined their work to include data
that allows a more complete picture of disputing and
law. The concept of dispute transformation is in-
herently interdisciplinary. Insights and methodolo-
gical advances, from for example, anthropological
linguistics, organizational studies, social network the-
ory, 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
crossculturally, and across different historical periods,
and helps to explain how law is created and maintain-
ed.
See also: Conflict: Anthropological Aspects; Conflict:
Organizational; Conflict Sociology; Dispute Re-
solution in Economics; Justice and its Many Faces:
Cultural Concerns
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L. Mather
Copyright # 2001 Elsevier Science Ltd.
All rights reserved.
Dissolution of Family in Western Nations:
Cultural Concerns
1. The Question of Family Centrality
Apprehensions about the demise of the family reach
back to biblical times (Stern 1938). Social historians
have amply demonstrated that eras of family change,
which are endemic in Western history, are invariably
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
institutions in society—although historians continue
to debate whether any of these claims are valid
(Goldthorpe 1987). The challenge of establishing the
breakdown of the family system is complicated.
ISBN: 0-08-043076-7