Object Lessons: The Materiality of Legal Practices

Abstract

The COVID-19 pandemic has raised important questions about how legal work is done. I argue that this moment of transformation in legal practices offers an opportunity to analyze how working with things generates legal effects. Good laws and robust ethics rules—the usual concerns of legal scholarship—are necessary for an effective legal system but are not sufficient; legal scholars must also pay close attention to a long-neglected factor to fully understand how legal practices generate their effects: the objects that populate the legal system.
This article focuses on the role of objects in mediation. Mediation theory’s emphasis on human communication makes it an ideal context for studying the importance of objects. This article uses methodologies of Science & Technology Studies to bring contemporary online dispute resolution (ODR) into dialogue with the main currents of dispute resolution. Contrasting traditional mediation with the technologically rich practice of ODR underscores how communication is (and always has been) also mediated by objects.
This article’s novel contribution to mediation theory is to explain that the traditional “third party” of the mediator is insufficient to explain how mediation works. Analogues to the technological “fourth party” and “fifth party” of ODR theories also exist in traditional mediation and are essential to how mediation works. The core ethical principles of mediation—self-determination and impartiality—cannot be understood without looking beyond the third-party mediator to the objects and contexts that comprise mediation’s fourth and fifth parties. This article also explains that virtual ODR processes must consider their physical contexts; far from eliminating concerns about the setting of dispute resolution, ODR multiplies those concerns.
Understanding the mechanics of novel legal technologies, such as ODR, matters not only to identify how the law might develop, but also as a lens through which to gain insights into fundamental legal principles. Studying the role of objects in the production of legal effects provides a new direction for legal scholarship.

Keywords: dispute resolution, legal theory