Date10 December 2003
Published date10 December 2003
AuthorMichal Alberstein
Michal Alberstein
The present paper attempts to map the discursive relations between conflict
and settlement as reflected in the realms of law and mediation during the
second half of the 20th century, offering a 21st century model to combine the
mediation drive to settle through reaching inter-subjective transformation
with the legal drive to escalate and promote social conflict. Contemporary
mediation, according to this model, should involve on the one hand “nego-
tiating for justice,” according to the familiar models of problem solving and
transformation, and on the other hand “fighting for law”: acknowledging
the self-referentialand ideological quality of conflicts, while emphasizing the
pragmatic need to end them through an interpretive public act that involves
value judgments.
Studies in Law, Politics, and Society
Studies in Law, Politics, and Society,Volume 31, 45–85
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(03)31003-8
At the core of this paper stands a dichotomy between two notions of law which
might parallel two notions of negotiation and mediation.1The one is that of
“law as conflict” and the other – “law as settlement.” A parallel dichotomy
within the negotiation and the dispute resolution realm will be traced through
the notions of “mediation as settlement” and “mediation as conflict,” and the
contours of the differences between the operations of this dichotomy within the
two discourses will be addressed. My basic claim suggests that the intellectual
developments in law have produced an ironic-reflective-deconstructive approach
which emphasizes its destabilizing role, while the mediation realm has so far
developed only a first stage of this critical sequence, that which is manifested
in the idea of “transformative mediation.” The notion of “relational autonomy”
which characterizes the current discourse of mediation will be examined in this
context, suggesting impossibility and contradiction. A “next step” paradox-based
notion of mediation will be offered then as answering the contradiction.
At first glance, law and negotiation seem to suggest two diverse approaches
to social disputes. Behind the idea of negotiation and dispute settlement lies the
assumption of conflict as an anomaly needing to be contained and amended, while
behind the legal aspiration to promote human rights and transform society,conflict
is depicted as a necessary positive means to promote social change. A closer look
suggests that a fundamental split already exists within the legal discourse between
the perception of “law as conflict,” which indeed perceives conflict as crucial for
the progressive development of society, and the idea of “law as settlement,” which
focuses on the harmonizing reconciling aspects of legal decisions.2
This tension is the focus of the present paper and will be analyzed vs. its erasure
within the dispute resolution field. In the dispute resolution realm, my argument
will show, only some mild versions of the negative view of settlement might be
located, and these traces will be examined and analyzed through textual examples.
The following part of the paper will attempt to mediate the divergentdiscourses by
offering a progressive view of dispute settlement which suggests negotiating for
justice and fighting for law within the same mediating act. This idea goes together
with that of multiculturalism and corresponds to an interpretive approach to medi-
ation. The last part will offer reflections on the discursive underlying explanations
for that difference.
The following argument will seek to present the two notions of law through an
inquiry into its functions: the classic jurisprudence of law and the intellectual map
of contemporary American legal culture. In each section the analysis will show
the equivalent “missing pieces” within the discourse of mediation, and will expose
the gap, which the interpretive model tries to respond to. Following the three
Negotiating for Justice, Fightingfor Law 47
discussions on the split within law, the subsequent parts will trace the two current
notions of mediation, initially through the encounter between the ADR movement
and the sociological progressive legal writing, followed by the internal develop-
ment of the idea of “transformative mediation.”This analysis of the contemporary
intellectual map, will suggest the paradox-based model of “negotiating for justice
– fighting for law” as solving the discrepancies between the legal discourse and
that of dispute resolution, in relation to encouraging and containing disputes. The
legal negotiator will be presented then as committed to a concurrent double bind
namely, to promote while at the same time settle disputes. Finally, some general
observations on the previous sequence and analysis will be suggested.
2.1. The Social Functions of Law
The search for “the social functions” of the law already assumes a teleological
universe in which the legal operation is supposed to organize social relations and
aspire to pragmatic goals. This view ignores the more psychoanalytic aspects of
law as the basic founding moment of social organization, as well as a narrator
and symbolic medium. In general it denies the inverse relationship between “law”
and “social order,” ignoring its mourning quality, as a cultural artifact which pro-
vides a worldview of its own. This “functional” perspective does not emphasize
the paradoxical nature of law as a closed self-referential system, which does not
necessarily have direct relationship with the outside world (Teubner, 1988). Yet,
this complexity will not be addressed in the current perspective though it recurs
time and again within the realms of both law and mediation.
To present the basic functions of the law, reference will be made to Smith’s
“Reductionism in Legal Thought” in which he differentiates between three
aspects of the law: dispute resolution, coordination, and ameliorative accounts
(Smith, 1991). These three faces are described as interacting with one another,
rising and falling according to the context and time of their examination, calling
for different modes of expression and sources of argumentation in legal decision
making. The dispute resolution account of law focuses on the singular parties
appearance before the judge and their relationship. Legal discourse, according to
this account, “is best understood as a distinctive kind of rhetoric,” and offers a
backward perspective towardthe dispute that aims to persuade the community that
justice has been done (Smith, 1991, p. 71). The coordination account addresses
the forward-oriented aspect of the law in organizing society and providing people
with predictions with which they can assess the outcomes of their behavior. The

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