NEGOTIATING FOR JUSTICE, FIGHTING FOR LAW: THE DIALECTIC OF PROMOTING AND SETTLING DISPUTES IN THE CURRENT GLOBAL ERA

• Date: 10 December 2003
• DOI: https://doi.org/10.1016/S1059-4337(03)31003-8
• Published date: 10 December 2003
• Pages: 45-85
• Author: Michal Alberstein

NEGOTIATING FOR JUSTICE,

FIGHTING FOR LAW: THE DIALECTIC

OF PROMOTING AND SETTLING

DISPUTES IN THE CURRENT

GLOBAL ERA

Michal Alberstein

ABSTRACT

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

45

46 MICHAL ALBERSTEIN

1. INTRODUCTION

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. CONFLICT AND SETTLEMENT WITHIN LAW

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