Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution

Abstract

Mediation - with its promise of less contentious, less expensive and more satisfying resolution of disputes - has been widely recommended for disputes in all areas of the law. Yet its successes have been far from uniform. While it has flourished in some areas - most notably divorce and child custody - it has met with much greater resistance in others. This is particularly puzzling for areas of the law such as will disputes, for which mediation would seem to provide so many benefits.

In this essay I argue that the answer to this conundrum can be found in doctrine - the statutory and common law rules governing a particular dispute. Although legal doctrine is sometimes seen as mere window dressing that is applied to cover up what really goes on in the law - I argue that doctrine plays an important role in structuring how lawyers and parties involved in a dispute conceive of the dispute and its proper mode of resolution. In particular, I argue that the acceptance of mediation in the divorce field would not have been possible without the changes in doctrinal law known as the no-fault revolution. By contrast, wills law doctrine encourages lawyers and parties to seek judicial resolution of their disputes through its focus on testamentary intent, its opportunity for moral condemnation or vindication and its winner take all system. In this essay I also identify those features of the law that would encourage mediation or negotiation of disputes and consider the costs of adopting such a system.

Keywords: Dispute resolution, mediation, divorce, child custody, wills law, probate

JEL Classification: D74, K40, K41