Realizing Dispute Resolution: Meeting the Challenges of Legal Realism Through Mediation
33 Pages Posted: 9 May 2018 Last revised: 16 Oct 2018
Date Written: 2018
Recent decades have seen an explosion of interest in legal realism and mediation. At first glance, they appear not to have much to do with each other, with legal realism being a theory of jurisprudence and mediation being a form of alternative dispute resolution. In fact, however, they are closely aligned.
The realist movement flowered in the early 1930s and its continuing power has led scholars in ecent years to herald the coming of a “new legal realism.” Realism developed a range of insights that reject the idea of law as an exercise in logic. Realism holds that legal analysis and logic are ex post facto justifications for conclusions already arrived at. From a realist perspective, judges reach decisions through subconscious motivations, whether based on politics, psychology, or individual experience. Realists also argue that law arises in social and individual contexts in a particular way — a granular view focused on how law affects actual human beings.
Mediation has similarly generated an exhaustive literature of increasing volume and complexity. Mediation is profoundly different from adjudication.
One fundamental difference is that it shifts the focus of decision-making from judges to the disputants themselves. Disputants exchange perspectives and develop their own norms — whether “legal” or not — to form the basis for settlement. As a result, there is no need to conduct legal analysis, or to apply facts to law, or for judges to reach “right” results. Mediation enables disputants to engage in ways of resolution of their own choosing.
Mediation thus represents realism in action. Both focus on the specifics of what happens “on the ground.” Both have a long history of interdisciplinary research.11 Both focus on the limitations and uncertainties — if not dangers — of adjudication. However, while realism has successfully developed a powerful critique, the realists have had difficulty crafting an affirmative program that resolves the issues their critique identifies.13 In many ways, mediation is that affirmative program.
This Article, then, explores how mediation provides insights about how to respond to the enduring challenges realism first posed over eighty years ago. The Article does so in four sections. The first two sections describe the foundations of realism and mediation. The third section traces how mediation furnishes ways to answer the realist critique. The final section identifies areas where mediation does not provide all the answers to realism. The most important of these is ameliorating challenges low-income disputants face when engaged in mediation.
Keywords: Dispute Resolution, Mediation, Legal Realism
JEL Classification: K1, K4
Suggested Citation: Suggested Citation