(Ashgate-Dartmouth Press: Aldershot, UK and Burlington,Vt., 2003 (forthcoming) © 2002 Carrie Menkel-Meadow

Legal Process, Conflict and Justice

The essays published in this volume represent my own intellectual journey, as well as a description of the evolution of the field of dispute resolution (rooted in legal studies) to the now broader field of conflict resolution that encompasses the study of disputes and conflicts, not only when they "come to law" in legal disputes, but in all the forms of human conflict, including the interpersonal, domestic and international. While my work began in legal disputing, it quickly moved to the more interdisciplinary study of conflict resolution when I sought better solutions to human problems than those afforded by courts or unprincipled compromises in conventional negotiation processes. These essays focus on several important themes as dispute resolution in law has expanded to include the fuller study of human conflict situations: First, although necessary and important in some cases, conventional legal processes, like adjudication and adversarial negotiation, are often inadequate for a fuller satisfaction of human needs and interests and so we must look to other processes than traditional institutions or practices, depending on the nature and kind of conflict or dispute at issue. With a growing availability of different kinds of processes for different kinds of matters, we are also developing a broader array of "process institutions." This is "process pluralism" and should expand the focus of what is studied in law and jurisprudence. Second, while much of my work could be characterized as "procedural" or "process" driven, I am also concerned with exploring where our substantive solutions to human problems come from and how we can improve upon the human repertoire for problem solving. This is the "creativity" in human conflict resolution that I believe is necessary for our future survival. Third, developments in the parallel fields of legal dispute resolution and the more multi-disciplinary conflict resolution provide us with a special opportunity to explore the correspondences, contrasts and learning from domestic disputes and international conflicts, as we test whether particular concepts, approaches and processes can be generalized or have only contextual validity. Finally, my work in the field of dispute and conflict resolution has always been a movement back and forth from theory development to practice, seeking what Donald Schon has called "theory-in-use" (Schon, 1983; Schon & Rein 1994) and what I have called "ethical practice"; practice that is informed by theory and by morally legitimate uses. Disputes and conflicts are human constructs - we need theory to understand their causes, dynamics and trajectories of actions and reactions, but ultimately, we need practice to use conflict creatively and constructively, to make "justice" in legal terms and to make "peace" in human terms.

I came to law seeking justice, equality, and fairness. When I didn't always find it in conventional legal structures, I went looking in other places. My own intellectual and professional journey has coincided with (and, I believe, influenced) the modern development of legal dispute resolution as a field, (now much larger than procedure, remedies and substantive, as well as adjectival, law). I hope these essays will illuminate how the field is currently being constituted, defined, practiced, theorized, criticized and reformed as I hope to contribute to how the field matures in the future.

If recent world events have taught us anything, it is that conflict and conflicting notions of the good are inevitable for human beings. So, while many of us seek ways to establish more universal notions of the good toward which to direct our human efforts, it has, sadly, become, in the early years of the twenty-first century, more common for us to assume there will be basic value differences among us. We should, then, spend our time thinking about how we can at least develop fair and considerate processes for communicating enough with each other so that we may act with the most benefit and the least harm. Some offer hopes that "the rule of law" can be universalized as a principled way to resolve conflicts, domestically and internationally. Others of us see law as often conflictual, indeterminate and politically contested or manipulable, or so focused on the need for regulation of the aggregate that it cannot always do "justice" in particular cases. Legal justice is not always actual justice (Luban, 1995; Menkel-Meadow, 1995).

The social philosopher Stuart Hampshire has recently concluded, in his book Justice is Conflict (2000), that while we may never agree about what the content of universal justice is ("because there never will be such a harmony, either in the soul or in the city," (pg. 4), we might instead come closer to recognizing that "fairness in procedures for resolving conflicts is the fundamental kind of fairness and that it is acknowledged as a value in most cultures, places and times: fairness in procedure is an invariable value, a constant in human nature." (Pg. 4). Hampshire goes on to say - in words eloquent enough to make one feel proud of what has constituted at least half of a lifetime's work of theorizing and practice in conflict resolution - that:

[b]ecause there will always be conflicts between conceptions of the good, moral conflicts, both in the soul and in the city, there is everywhere a well-recognized need for procedures of conflict resolution, which can replace brute force and domination and tyranny....(pg. 5)

The existence of such an institution [for conflict resolution], and the particular form of its rules and conventions of procedure are matters of historical contingency. There is no rational necessity about the more specific rules and conventions determining the criteria for success in argument in any particular institution, except the overriding necessity that each side in the conflict should be heard putting its case ("audi alteram partem"). (Pg. 18)

[T]he skillful management of conflicts [is] among the highest of human skills. (Pg. 35).

Hampshire identifies several principles which are crucial to understanding the importance of procedural justice:

1. Conflict is human and ubiquitous. Conflict is actually necessary for defining what is important about oneself and the polity to which individuals belong, and for instigating important social change (e.g., the elimination of slavery, the movements toward racial and gender equality, as well as increased democratic participation in many nations). Agreement on all human values is unlikely given human diversity, deep-seated cultural norms and the variation of human needs and desires.

2. Even if we cannot all agree on substantive norms and goals we can probably agree on some processes for how to make decisions that will enable us to go forward and act. We might have some almost virtually universal ideas about procedural fairness, like the ability to "make a case" and "be heard" and to have impartiality and fairness govern any decision-making process (Tyler, 2001, Tyler & Lind, 1988). Some might go further and suggest that some participation in the process by which decisions are made is essential to the legitimacy of a process (with or without commitments to democratic political regimes).

3. There is historical (and I would add functional) variation to what those fair procedures might be in any particular context, as long as all (not just "both") parties are given an opportunity to be heard on (or, I would add, participate in) decisions affecting them. This is the principle of process pluralism (which is of defining importance to the modern dispute resolution movement and what distinguishes us, conflict theorists and practitioners, from more conventional jurisprudes who often still see conventional legal processes as the only way forward to substantive justice).

4. Conflict resolution is a human skill (to be theorized about, taught, learned and practiced) and a difficult, but highly valued, one at that. (I would add it is more than a "single" skill, constituting a multi-dimensional set of skills, implicating abilities to listen, articulate, advocate, empathize, analyze, facilitate, create, manage and care about people and their problems, issues, values and material well-being.) Process Pluralism

Yet, if procedural justice is important to modern justice seekers, it is also important to recognize that particular processes do affect outcomes. This is what drew me away from focusing on limited legal remedies to thinking more broadly about substantive problem solving and conflict resolution in deeper and richer sociological and psychological contexts, (Menkel-Meadow, 1983). While process pluralism allows us to choose different processes for functional or other reasons, we must also consider that the choice of a particular process will almost certainly affect the outcome we produce. This is the basic principle of my own work in negotiation - to choose an adversarial process, (whether litigative or negotiable) is to limit the field of possible outcomes to distributive arrangements (binary or zero or negative sum solutions, stalemates, or unprincipled compromises). To choose another process may allow for more creative, joint-gain, wealth creating and satisfactory possibilities to emerge (Menkel-Meadow, 1984, ch. 3 this volume). Thus, process pluralism has both a darker and a lighter side. While more choices of process might appear to improve substantive outcomes, especially with more party participation, each process produces its own morality (an insight we owe to legal philosopher and practitioner Lon Fuller, (2001) and structures its own solutions and outcomes. Critics suggest that coercive pushes toward participatory processes seeking consensus and false "harmony" may be just as unjust as the harder-edged and more hierarchical conventional institutions (Nader, 1993).

With increasing sensitivity to the notion that different processes produce different outcomes, modern analysts are now looking at how particular conflict and dispute resolution or democratic processes (rational-principled vs. preference trading-bargaining, open vs. closed, plenary vs. committee) produce different results, even in such value-laden deliberations as constitution making (Rakove, 1987; Elster, 1995; Lansky, 2000) and in such complex settings as private and governmental organizations, as well as in both private and public international settings.

For me, a focus on how we deal with human conflicts in a wide range of contexts, (from the individual to the dyadic; group, organizational, social and relational; commercial as well as political; local, domestic and international), raises issues of inevitable tensions among and between the very values about which we have conflicts: Can peace be achieved without justice? Can justice be achieved without peace? Is law a proper measure of justice? If not law, what is? How much should individual or group parties be able to craft their own arrangements or agreements to proceed with social, economic and political life without consideration of the effects of their arrangements on others? Must all dispute or conflict resolution be accountable to those outside of the dispute itself? When is a "dispute" between two parties really a "poly-centric" conflict, affecting others, or implicating more enmeshed social values? If there is process pluralism, how are we to judge if the "proper" process has been chosen for the particular matter at hand? These are some of the questions this introductory essay and the articles that follow it explore.

Like Stuart Hampshire, I believe in procedural justice as justice because we need ways to talk to and struggle with each other about how to move forward when we disagree. Unlike Stuart Hampshire, I do not adopt the streamlined and universalized definition he gives of procedural justice as reducing to "the adversary principle" of (merely) "hearing the other side." Much of my work has been devoted to demonstrating that most disputes and conflicts do not have only two sides, either of parties or "players" (plaintiffs and defendants) or "issues" or arguments ("win/lose", "yes/no"). In our post-modern and fractured world, many disputes and conflicts are, in fact, characterized by complicated issues (e.g. resource allocation), multiple party responsibility (are we past single fault attributions and simplistic causal assumptions in law yet, or do we lag so far behind science?), and generational and other "third party" impacts (such as in environmental and family dissolution matters). In my view, we need both new multi-party processes (beyond the outmoded two-sided adversary system, Menkel-Meadow, 1996b) and new substantively creative solutions (Menkel-Meadow, 2001, ch. 11 this volume) (beyond the "limited remedial imaginations of courts and other legal institutions," Menkel-Meadow, 1984) to find justice in our increasingly diverse, post-modern world.

In this introductory essay I outline the challenges, cleavages, and consensuses that have emerged as the field of dispute processing or conflict resolution has attempted to create, define and implement institutions and processes of procedural justice, as I outline my own contributions to this field in the essays and articles that follow. Throughout, a few important themes recur.

Of Disputes and Conflicts and Dispute Processing and Conflict Resolution

The field is now variously referred to as "dispute resolution" "alternative dispute resolution" (assuming all processes other than adjudication are "alternative"), or "appropriate dispute resolution" (assuming functional fits of "forums to fusses" (Sander & Goldberg, 1994). More broadly, conflict resolution. demonstrates, in its multifarious nomenclature, its rather promiscuous or multiple-heritage ancestry. Many different intellectual disciplines have contributed basic concepts, research agendas, institutional forms and professional roles, enactments and practices. For purposes of some (perhaps artificial) clarity, I suggest here, as I review the history of the development of the field and its key ideas and concepts, that "disputes" and "dispute resolution" have been constituted by the legal field (Bourdieu, 1987, 1993), and "conflicts" and "conflict resolution" by the broader pastiche of the social sciences (anthropology, political science, international relations, sociology, psychology, history, economics and game theory) and their more multi-disciplinary social activist spin-offs, such as peace studies (Lederach, 1995), social movement theory and practice (Ackerman & Duvall, 2000) and conflict resolution, (Miall, Ramsbotham, Woodhouse, 1999; Kriesberg, 1998). While 'disputes' may be about legal cases, conflicts are more broadly and deeply about human relations and transactions. Conflict 'handling' may be both more and less involving and complicated than 'dispute settlement' or 'conflict management.'

The study of "dispute processing" is a sort of bridge terminology and field, having been constituted by legal anthropologists (some of whom were and are lawyers) to move the focus away from legally constructed "cases" to the broader notion of culturally and contextually embedded "disputes" having existences, before, during and after formal legal disputes (Llewellyn & Hubbell, 1941; Abel, 1973, Felstiner, 1974; Felstiner, Abel & Sarat, 1980-81; Nader & Todd, 1978). This rich line of both theorizing and empirical study of dispute processing in the tradition of socio-legal studies (Law & Society Rev. 1980-81) has sought to study disputants, their representatives, the context and content of their disputes and the varieties of processes chosen to "process" (not necessarily to resolve or manage) their disputes in order to uncover what social processes and relationships, in addition to, or other than, "law," influences what actually happens to disputes.

The socio-legal focus on "disputing processes" de-centers - but does not eliminate - law as the primary variable explaining how disputes are resolved. It was a natural derivative of the school of legal realism which, in its own time, de-centered doctrine in legal studies and indeed, provided the first generation of dispute resolution scholars and practitioners, among them Lon Fuller, Soia Mentshikoff, and Karl Llewellyn, who studied legal institutions, where doctrine was made, enforced, and sometimes resisted or transformed in practice (see Menkel-Meadow, 2000, ch. 1, this volume).

The study of conflict and conflict resolution clearly pre-dates the focus on disputes and dispute resolution institutions in the law. Sociologists, such as Durkheim, Marx, Simmel (1955) and Lewis Coser (1956) among others, were interested in both the structure and function of various forms of conflict in society. It was sociologists who first argued for the constructive role of conflict and the positive social change dimensions of conflict in society.

Social psychologists took up the study of conflict, in both its "destructive" and "constructive" forms (Deutsch, 1973; Lewin, 1948) as they focused on both individual and group behaviors in preventing, making, escalating, resolving and reconciling conflict (Pruitt & Rubin, 1986). A different group of social psychologists studied and created a new field, "procedural justice" which empirically examined differences with respect to expectations and performances in different process settings (contrasting, for example, adversarial structures with inquisitorial ones, Tyler & Lind, 1988; Thibaut & Walker, 1975, and now mediation and arbitration forms with adjudication). These social scientists have documented that participants in dispute resolution processes have a strong desire for "procedural fairness," that may be more robust than their satisfaction or concerns about actual outcomes (Lind, et.al., 1990).

Social psychologists have more recently focused on how human cognitive errors both produce conflict and prevent us from resolving conflicts in rational and efficient ways, identifying a group of heuristic and strategic errors we make in processing information and forming preferences when we interact with others (Arrow et. al. 1995; Reason, 1990; Nisbett & Ross, 1980; Ross & Nisbett, 1991; Kahneman, Solvic & Tversky, 1982; Bazerman & Neale, 1992; Bazerman, 1998).

Sociologists and social psychologists together have produced a variety of typologies and taxonomies of types of conflicts, specifying such variations as material vs. non-material (value or needs based) conflicts; perceptual, behavioral, and attitudinal conflicts; malleability or changeability of the res in conflict; numbers of parties in conflict (dyadic vs. multi-party); inter-group (e.g., nation-state) vs. intra-group (organizational) conflicts; and intrapersonal vs. interpersonal conflicts. Efforts at cataloguing types of conflicts, replicated in political science for both domestic and international disputes and conflicts, and now law, are based on the rationalistic hopes that taxonomies of characteristics will enable us to collect data, identify patterns or "indicators" and make predictions for the trajectory of a conflict and perhaps for its "treatment" in various forms of prescriptive conflict resolution interventions.

Cultural variations in how conflicts are defined, experienced and acted on have engaged anthropologists since at least the nineteenth century (Avruch, 1998, 2002). Now the old debates about cultural differences have reared their heads again in claims of "clashes of civilizations," both in the definitions of and the "processing" (including interpretation or "meaning-making") of conflicts, at nation-state, cultural, ethnic, religious, group and individual levels (Huntington, 1997). Some of our Americanized - "newer" - forms of dispute resolution are derived from older forms in other cultures and some would say, "lose something in the translation," derived from African moots (Gulliver, 1979) or Asian mediation (Lubman, 1997) even as they try both to adopt new cultural forms and "mediate" cultural diversity within one nation and its internal disputes (Chew, 2001).

International relations theorists, who were among the first to formally study negotiation processes (along with game theorists and mathematicians, developing models for strategic interactions in war and cold-war settings), have re-emerged as organizers of both theoretical and empirical propositions to test in modern international crisis (Crocker, et.al., 1999,2001) (see, e.g. the role of deadline and "ripeness"in dispute settlement (Zartman, 1985, 2000; Malley & Agha, 2001; Mitchell, 2000,). Roger Fisher, key developer of the "principled negotiation" model of integrative negotiation in Getting to Yes (1982), although a law professor at the time, developed many of his insights from international and diplomatic service in the US State Department, (Fisher, 1969).

Looking at choices about how to behave in conflict situations, theorists (from game theory, mathematics, economics and political science, e.g. von Neuman & Morgenstern, 1944; Schelling 1960; Luce & Raiffa, 1957; Nash, 1950, 1953; Axelrod, 1984; Brams & Taylor, 1996) have inspired both laboratory and empirical studies of strategic behavior and interaction focusing on how participants in a conflict or dispute situation respond, both to inner needs and interests, those of clients or principals (in representative settings, Mnookin & Susskind, 1999; Menkel-Meadow, 1993b, Ch. 7, this volume) and to the "others" (adversaries or partners) in settings where more than one person is needed to coordinate action or respond to a conflict. Some of the earliest and best work in conflict theory has been derived from organizational management (Follett, 1996; Blake, Shepard and Mouton, 1964; Thomas, 1976), labor relations (Walton & McKersie, 1965) and the applied sciences of decision- making (Hammond, Keeney & Raiffa, 1999; Klein, 1999; Zeckhauser, Keeney & Sebenius, 1996) and problem solving (Adams, 1974)

A new turn in political theory and practice, with implications (see below) for legal dispute resolution, has focused on processes that foster democratic discourse and enhance opportunities for participation in decisions that effect the polity. Informed by the moral and social philosophy of Jurgen Habermas (1996, 1990, 1984) seeking "ideal speech conditions," this new theory attempts to describe alternative processes to maximize citizen participation in policy making and resolution of contested disputes where inevitable value differences occur with increasingly diverse populations. Political theorists (Dahl, 1998; Guttman & Thompson, 1996; Mansbridge, 1980; Bohman, 1996; Fishkin, 1991) and policy activists (Sirianni & Friedland, 2001; Susskind & Zion, N.D.) have suggested new ways for developing alternative processes to our formally constitutionalized governmental institutions of executive, legislative and judicial power, ranging from ad hoc policy making groups (Susskind, 1999); negotiated rule-making (Harter, 1982, Freeman, 1997), regionalized or substantively organized decision-making (Sabel & Dorf, 1998; Kaye, 1997; Berman & Feinblatt, 2001) and "public conversations" that seek to enhance human understanding, if not effectuate particular outcomes or agreements (LeBaron & Carstarphen, 1999), all based on different notions of "negotiated" agreements of the polity.

To the extent that the new multi-disciplinary field of conflict resolution (Kriesberg, 1998; Deutsch & Coleman, 2000) has been born out of these different disciplines, there is an interesting mix of individual, organizational, theoretical, empirical and professional levels of theory, practice and policy. Conflict resolution theory, research and practice now focus on the development of professionals in negotiation, mediation, facilitation, consensus building and other conflict resolution skills; the empirical study of particular kinds of conflicts (domestic, as well as international), and the institutional design and evaluation of particular approaches to structuring conflict resolution or management.

Legal Processes, Legal Institutions and the Law in Conflict Resolution
It was precisely because the legal field's focus on "legal disputes" or cases was so narrow and explained so little that I first began to think and write about legal disputes and the search for justice in a broader disciplinary framework (Menkel-Meadow, 1983). As a practicing lawyer for the poor and then as a legal clinician teaching law students how to be lawyers, I was struck by the insufficiency of legal remedies at solving clients' underlying problems and addressing underlying needs. (Menkel-Meadow, 1984). Legal disputes were a much narrower sub-set of actual human, social, political and economic conflicts.

In order to understand how legal disputes might better be resolved I turned to a number of different disciplines (sociology, political science, psychology, economics, mathematics, game theory, international relations and the newer peace studies and conflict resolution) for theoretical frameworks to help me understand how human problems were resolved in realms outside of law. My "Legal Negotiation: A Study of Strategies In Search of a Theory" (1983, ch. 2, this volume) essay was a review of this literature, both scholarly and popular, to demonstrate that other fields had gone much further than law, jurisprudence and even the newer clinical study of law to develop models and frameworks for studying negotiation processes for human dispute resolution and problem solving.

The strategic work of game theorists to understand interactions of, first, two parties, and then, more than two parties, in situations of perfect, mixed or no information seemed to have great resonance for legal disputes which, culturally at least, are most often conceived of as competitive, distributive games of allocation of limited resources (mostly money in lawsuits, but also stock, land and even children in child custody cases and other "tangibles" that might not be divisible at all). Strategic "moves" to maximize money or tangibles, on behalf of a client, seemed the lawyer's most common default behavior, based on assumptions of resource scarcity and goals of client maximization. If the law's purpose was to declare right and wrong then disputes resolved in legal institutions, like courts or legislatures, were likely to have binary outcomes (or compromises - typically "split the difference" compromises - based on binary claims). The conventional adversarial lawyer's job, like the pay-off maximizing game player, was to gather as much of the goods or goodies for the client as possible. Advocacy in court was seen as directly transferable to adversarial persuasion techniques in negotiation, where only the audience differed (see e.g., Cohen, 1980).

From a broader perspective, much of this emphasis on competitive strategies in negotiation mirrored strategic, if deterrent, approaches to larger political conflicts in the Cold-War era. Many social commentators have suggested that although law may be the leading "adversarial" institution, much in Anglo-American culture is based on adversary argument, from the media, to politics, to education, to gender relations (Tannen, 1998). Social psychologists, labor negotiators, organizational development specialists and anthropologists, however, focused on a broader catalogue of human behavior, suggesting, at the very least, that there were a greater variety of human approaches to negotiated problems, differentiating integrative possibilities (substantive "trades" of differentially valued items) with use of different human interactional processes (cooperation, collaboration and adaptation, Hopmann, 2001).

I studied this multi-disciplinary literature for insights into two aspects of dispute and conflict resolution in law that remain present in my work today: 1) dispute resolution involves both process and substance and 2) these elements of any human problem interact and are constitutive of each other. Thus, to the extent that one considers the res of a problem to be an indivisible tangible item or an uncompromisable principle or belief, then competition is likely to be the process chosen. In turn, this choice of process (adversarialism or competition) will affect (and limit) the possible outcomes to binary, compromised or stalemated or impasse solutions (see page 760 of Menkel-Meadow, 1984). Different orientations, mind-sets, frameworks, approaches or assumptions (after analysis about the res, the number of parties, etc.) about what the matter is about (the "science" of negotiation, Raiffa, 1982) should cause the skilled negotiator to choose appropriate processes (to be enacted in the artful practice or behavioral aspects of conflict resolution) for the kind of matter at hand.

In short, as I have now written many times (and taught thousands of students over the years), conflict resolution involves both cognitive (the "science" or analysis of any conflict or dispute) and behavioral (the "art" and practice of conflict resolution and problem solving) components. We must learn to analyze and understand what conflicts and disputes are about, in their full contextual complexity (including a variety of contextual factors specified in Menkel-Meadow, 1983 at 927-28) before we can choose the appropriate behavioral response. Once we have decided on our goals and desired outcomes, we can seek to achieve them with a broader repertoire of processes and behaviors (whether goals are defined as maximizing individual or joint gain, or seeking Pareto-optimal or "just" solutions). That broader repertoire of behaviors (communication skills, creative problem solving, questioning, as well as persuading, listening, synthesizing, as well as analyzing) can and must be taught (Menkel-Meadow, 2001b, 1999c, 1994, 1993). Legal problem solving is not just about adversarial argument or persuasion about what is "right" for the client; it is about understanding a range of possible goals for clients and those with whom they interact, and seeking both substantive outcomes and appropriate processes to satisfy the needs and interests of clients and those engaged in activity with the client.

But mere analysis of the status quo was not all that I had in mind. In one of those wonderful moments of intellectual convergence (more pretentiously described as a "paradigm shift" in legal problem solving (Kuhn, 1970), many critics of the legal system were focused not only on the increasing cost, and time-delays of the litigation system (Sander, 1976) (what I have labeled the "quantitative" approach to legal conflict resolution), but on the quality of the solutions or resolutions produced by court orders or settlements negotiated in their "shadow" (Mnookin & Kornhauser, 1979). At about the same time that I sought to reorient lawyers to a "problem-solving" approach to negotiation (Menkel-Meadow, 1984), Roger Fisher and the newly created Program on Negotiation at Harvard University focused on "principled negotiation" (Fisher & Ury,1981; Raiffa, 1982; Lax & Sebenuius, 1986) to develop models for negotiators to successfully pursue joint gain and agreements that are wise, efficient and improve - rather than destroy - relationships by looking for different kinds of "solutions" to legal, social, political and economic problems. I called it "creative problem-solving" (1984), but in more technical disciplinary terms, this work asked lawyer-negotiators who had cultural default assumptions about scarce resources and competitive behaviors to think instead in terms of integrative solutions and wealth creating, rather than wealth destroying solutions (the negative-sum games of litigation and sunk transaction costs).

In trying to reorient lawyers to a different set of assumptions about legal problems, expanding and enhancing their substantive problem solving skills, I found that while others had gone before me, both inside and outside of law, lawyers seemed to need to be reminded of this important work. At the level of searching for creative ways to manage conflict, to seek integrative solutions and to create "pie-expanding" - rather than pie diminishing - solutions (I use many food metaphors in my work!), the early work of administrative scientist Mary Parker Follett and related work in labor management relations (Walton & McKersie, 1965) were key. Foundationally significant were social psychologists Abraham Maslow (1972 ) and George Homans (1961) whose important work suggested that basic human needs must be met for human flourishing and may be complementary for different human beings, rather than always conflicting, for satisfactory human interaction and problem solving.

At the level of process, the Legal Realists, Lon Fuller, Soia Mentschikoff and Karl Llewellyn, among others, suggested that different legal processes and institutions (adjudication, arbitration, mediation and "common business practices" or social norms) served different functions and produced different kinds of outcomes (often with their own jurisprudential justifications, integrity or "morality"). I trace these, and other earlier "roots" of modern legal dispute resolution theory in the first essay which appears in this volume ("The Mothers and Fathers of Invention: The Intellectual Founders of ADR," Menkel-Meadow, 2000). My aspiration has been to continue this work to add other processes to the mix (negotiation, facilitation, consensus-building and other multi-party processes) to analyze, understand and implement both process values (more participation and legitimacy of result) and substantive justice values (better "quality" and more tailored and creative solutions to legal problems).

Viewing negotiation as one of the foundational blocks (in both theory and practice) of good dispute resolution, I have focused on some counter-legal-cultural notions. While compromise or "split the difference" solutions between two high and opposite offers or demands is a common approach to traditional legal negotiations (and, sadly, serves as the model for what is called "Lloyds of London" settlement brokerage by judges in judicial settlement conferences (see "For and Against Settlement: The Uses and Abuses of the Mandatory Settlement Conference," Menkel-Meadow, 1985, ch. 5 this volume), compromise is often an unprincipled result in legal negotiations where parties or lawyers fail to explore the full panoply of their various needs and interests, including legal, economic, social, psychological, emotional, moral, political, and religious (see "Toward Another View of Legal Negotiation: The Structure of Problem Solving," Menkel-Meadow, 1984, ch. 3, this volume).

Although Fisher, Ury and Patton's template focuses on going behind "positions" to look for parties' real "interests," which can often be met by "efficient trades" of compatible, but not conflicting interests (e.g. different valuations of time, money, things, tax leveraging, etc.), I have urged a focus on "needs" (in my case from a feminist focus on human needs, but compatible with John Burton's focus on human needs in the international dispute context (Burton, 1990). As "needs" may stand behind or "under" even interests (often self-proclaimed and still assumed to be mostly economistically instrumental), the lawyer can probe for (in interviews and other interactions with the client, see "The Transformation of Disputes By Lawyers, What the Disputing Paradigm Does and Doesn't Tell Us," Menkel-Meadow, 1985) longer term needs beyond the short-term, case-based "interests." The lawyer may help uncover the needs of the client and other affected third parties. This broader, social welfare (if perhaps somewhat maternalistic) approach to determining what actually may be at issue in a dispute is consistent with the approach of many mediators and conflict resolvers to go beyond the "framed" dispute to look at what the underlying conflict is really about and "reframe" it. With a deeper and perhaps longer list of "needs", efficient trades continue (perhaps there are more or less of them) but parties' and their lawyers can attempt to negotiate for deeper, and ultimately, more stable satisfaction among the parties. Here, "compromise" is often only a last resort, after principles and satisfaction or "trades" of needs are fully pursued or, in the language of conventional bargainers, "exploited."

As I have argued on these and other pages (see "Whose Dispute Is It Anyway? A Philosophical and Democratic Defense of Settlement (in some cases)," Menkel-Meadow, 1995a), "compromise" need not be seen as anathema to juridsprudes who view principle and law as the sole measure of justice. John Coons (1979, 1964) argued quite eloquently, long before the current work in legal dispute resolution, that some legal matters are not capable of binary solutions (e.g., child custody, now institutionalized in joint legal custody, comparative fault, now institutionalized in comparative negligence regimes, and mixed questions of law and fact with mixed legal responsibility or factual uncertainty, the jury compromise) and so, in some cases "compromises" or negotiated resolutions are actually more "just" than more extreme binary solutions, precisely because of their distributed "precision". I have argued a somewhat related point that while legal principles (especially statutory law, passed by legislatures for the "average" "aggregate" or "typical" situation) may serve as "general" justice, in particular cases, justice may better be served by tailored "departures" from the general rule (as long as the negotiated solutions are not otherwise unlawful (Menkel-Meadow, 1984, 1995). Negotiated justice may, then, for the individuals involved, be more "just" than legislated or court-ruled justice.

To the extent that negotiation (and mediation), with its assumptions of compromised results, have often appeared distasteful to principled and pure jurisprudes, more recent extensions of some of Lon Fuller's work usefully have explored the internal (and external) integrity of both such processes and such outcomes. Where issues or items are multi-faceted or value is embedded or connected in a web of other issues or parties (as in Fuller's classic division of an art collection, Fuller, 1971), trades, tailor-made solutions or contingent agreements, linking past to future in dynamic and changeable solutions, are often preferable to rigid, past-focused adjudication of "rights and responsibilities" from rigid legal principles. At the macro societal level, even the much derogated Machiavelli (1961, pp.90-92, 101) has much to teach us about the value of compromise - to hold the polity together, the prince or leader (or lawyer) may not be too "virtuous" (or principled) himself - it is his job to hold together a widely divergent population with outcomes or solutions that are satisfactory to "most of the people, most of the time" and he must, above all, be flexible. The politician, who must work with others with different values from himself, like the lawyer, must consider long-term goals, future "deals" and the peace and harmony of the larger community, while acknowledging that to "compromise" is often to apprehend and recognize the reality of the needs of the "other" (Golding,1979).

Thus, in modern negotiation theory consideration of "the other" is as important as consideration of gain for one's principal. "Getting to Yes" means creating conditions so that the "other" will want to do what you ask of him, by providing him with enough gain or needs satisfaction to render an agreement better than the condition of no agreement at all. In negotiation parlance, the negotiated agreement must be better than the BATNA (the Best Alternative To a Negotiated Agreement). Focus on achieving joint gain then inspires the good negotiator to be creative and look for substantive solutions that are satisfactory or welfare enhancing for all parties. This is why working on mutually agreed to (truly "consented" to) solutions seems so much more appealing to me than the coerced or commanded outcomes of formal legal institutions, which, even when ordering "just results," are so often resisted by hostilely defeated parties. (Though I would never argue that Brown v. Board of Education (1954) was not a necessary court decision that enunciated an important social and constitutional norm of non-discrimination, its failure to be immediately complied with is a product of resistance (and, sadly, popular will) to a commanded court order).

Much of negotiation and other non-adjudicative forms of legal dispute resolution, thus, are justified on philosophical and political grounds of consent. The claim made on behalf of such non-adjudicative forms of dispute resolution is that when commands from government-sponsored institutions, like courts, are not required, decisions reached by the parties themselves or facilitated by "wise elders" (as in many forms of mediation) (Shapiro, 1981) will have greater legitimacy and longevity as the product of the parties' own agreements, rather than commanded from on high.

This key underlying value of "consent" is itself contested, as many commentators have suggested that negotiation is more often a product of the power (economic, legal, social or other "endowments") that parties bring to the negotiation, and thus may not always reflect either "principled" negotiation, problem solving impulses or even "fair trades" (see, e.g., Grillo, 1991; Fiss, 1984, Delgado et.al., 1985). For such critics, the use of private negotiation or now the more institutionalized forms of ADR (mediation, arbitration and related processes) may be dangerous because there is no state supervision to ameliorate such power imbalances and to assure that important legal principles are followed. Issues of social differences in negotiated processes, including race (Ayres,1991), gender (Kolb & Williams, 2000) and class (Young, 2001), have also called into question the possibility that negotiation can really serve disempowered parties to create value or make better outcomes than they would receive in more formal legal institutions.

As a feminist, I have been a sympathetic participant in these critiques but I have also argued the important point that alternatives to litigation must also be measured against the fairness and power distributions in more conventional litigation venues. So, in various of the articles that appear in this volume ("When Dispute Resolution Begets Disputes Of Its Own," Menkel-Meadow 1997, ch. 8, this volume; Menkel-Meadow, 1995a), I have talked about the "baseline" problem of being clear about what is being measured against what. In my parlance, "litigation romanticists" often presume equality of legal resources (both economic and competency) or judges willing to step out of their passive role to ensure equal representation of all parties. Litigation, in my view, is no more likely, than alternatives to litigation, to produce complete "fairness." We do not yet have definitive empirical studies of these matters as it is virtually impossible to subject the same case to two different treatments (litigation or some alternative) to test which outcomes are "better," (even if we could agree on appropriate metrics). Is a "better" of "fairer" solution one that tracks the law? Redistributes resources equitably among the parties? Maximizes joint gain for the parties? Causes the least harm to the parties or those outside of the dispute? Or maximizes gain (or provides clearer precedent) for those outside of the dispute? Alas, in my view, while game theory permits easier measurement of pay-off schemes (especially in distributive games, but also in integrative games), the real legal world must consider not only the game players, but also those affected by the game (the "human externalities" of any dispute) and the longer term effects on the system itself.

From Dyadic Negotiation to Mediation and Multi-Party Processes
It is precisely because I have argued that we will never be able to fully answer the question of whether litigation or particular forms of alternatives to litigation (and there are many of them) are always "better" or "fairer" or " more just" that I have followed in the path of Lon Fuller, and my own sociological training, to suggest that it might give us greater explanatory purchase to study the conditions under which particular forms or institutions of process might be more advantageous than others. Thus, as the study of negotiated solutions expanded to suggest facilitated negotiation (mediation) when the parties are unable to craft their own solutions, I examined the different forms that mediation, like negotiation, might take in different contexts ("The Many Ways of Mediation," Menkel-Meadow, 1995b, ch. 4, this volume; Menkel-Meadow, 2001e).

When parties negotiate (even when attempting to solve problems or maximize joint gain) they are still subject to a host of strategic problems (e.g., the giving and getting of information, whether and when to trust others, how quickly to come to agreement versus pursuing long-term or dynamic issues in a negotiation). The use of a third party neutral to "manage" the negotiation process, to facilitate communication and to aid in the crafting of solutions has increased the use and study of mediation in recent decades, even in the most conventional of legal matters. Whether used in the pure Fullerian case-types of on-going relationships (business, labor, family) or now, even in one-shot small claims matters in lower courts (Menkel-Meadow, 1993b, ch.7, this volume), mediation is used not only to facilitate communication and improve relations among the parties, but to prevent "waste" at the negotiation table and to produce more Pareto-optimal solutions.

Like the efforts to categorize and generalize about different frameworks or mind-sets in negotiation, mediation has also been subjected to efforts at taxonomies and typologies. Pure mediators are "facilitators" (of human communication, negotiation techniques), but never "decide" anything for the parties (and are called therapeutic, by those outside of the field, Silbey & Merry, 1986). More recently, at least in legal practice, it has been recognized that mediators, though not deciding anything, as third party neutrals would in arbitration, may be "evaluators" (Riskin, 1996) of parties' claims, arguments and the likely legal outcome should cases go to full adjudication, before a judge or jury. Mediators often serve as "reality-testers," asking the parties to consider how realistic and reasonable their plans are for the enforcement of the agreement. Mediation, like negotiation, thus has the power to create relationships, rules, agreements and plans for the future (unlike the backward focus of most court decisions).

Efforts to demarcate various schools of mediation, such as "transformative mediation" ("recognition and empowerment" of parties differentiated from "problem-solving/settlement" of the dispute (Bush & Folger, 1994), when deracinated from the context of the dispute or conflict, have seemed less useful to me than the deeper, contextually-based analysis of older scholars like Fuller and Mentschikoff. There are different mediation technologies, techniques, practices and approaches. For example, there are issues of more directive questioning, use of separate meetings or caucuses, whether mediators should be totally "neutral" or merely "unbiased" or actually "enmeshed" in and knowledgeable about the dispute or disputants). The more interesting question to me has been whether there are universal or generalizable principles to be used in applying these techniques to particular disputes or whether context must determine appropriate forms and techniques. In recent work I have explored this difficult question of the generalizability of our propositional knowledge bases with respect to particular forms of dispute resolution (e.g., the role of "deadline" and privacy in both domestic and international disputes, Menkel-Meadow, 2002d) and in particular contexts (Menkel-Meadow, 2001e). And, as more fully explored below, issues of techniques, practices and forms of participation may change depending on how many parties or stakeholders are engaged in a dispute or conflict and whether the conflict is a private matter (as in many, but not all lawsuits) or a question of public import (such as in multiple party class actions or governmental regulation or public policy setting).

The Morality and Legitimacy of Process: Macro and Micro Ethics Issues in Dispute Resolution
The issues surrounding appropriate use of different forms of dispute and conflict resolution depend enormously, in my view, on the context. Thus, as various forms of ADR have been institutionalized and their animating principles or sensibilities have been distorted ("Pursuing Settlement in an Adversary Culture: The Co-optation of Innovation,"Menkel-Meadow, 1991, ch. 6, this volume), such as in the importation of consensual dispute resolution forms to commanded and compulsory use in courts and contracts, (Menkel-Meadow, 2002b, 1999), I have been raising issues about the appropriate regulations, rules and standards (the "ethics" of ADR, Menkel-Meadow, 2001d) that should be applied when legal dispute resolution conflates compulsory legal process and coerced participation with true consent and party self-determination (see, e.g., "Ethics and Professionalism in Non-Adversarial Lawyering, Menkel-Meadow, 1999, ch. 9, this volume, and Menkel-Meadow, 1997a,b). Using different kinds of dispute and conflict resolution processes in different contexts (personal, organizational, contractual, voluntary, litigative, compulsory, court-annexed, private, public, international) presents enormous difficulties in different expectations of roles (for third parties, disputing parties and their lawyers, (see "Ethics in ADR Representation" Menkel-Meadow, 1997c, ch. 10, this volume) and for duties owed to those affected by the dispute, as well as presenting concerns about the legitimacy about the processes used. While I have written a great deal about the specific issues of ethical practice in legal dispute resolution, including confidentiality, conflicts of interests, conflicts and choice of laws, fees, accountability and liability, competence, credentialing and candor (and participated in the drafting of several model ethics codes, see CPR-Georgetown Commission on Ethics and Standards in ADR, Proposed Model Rule for the Lawyer as Third Party Neutral (2002b) and Principles for ADR Provider Organizations (2002a) (available at www.cpradr.org), it is not the specifics of rules that I most worry about - it is the integrity of the choices made by those in conflict and those seeking to help resolve conflict to choose appropriate processes for their matters and then to utilize those processes with a sense of integrity and fairness. In short, it is the foundational values, and intent of the parties, rather than the specific rules, that matter most (see Menkel-Meadow, 2001c).

If, as Lon Fuller suggested decades ago, each process has its own uses and "morality," then we must exert our best efforts in theory development and practice to study what the morality of each process should be. This project has become increasingly complex as the number of processes continues to increase and "hybridize" (from mediation to med-arb, to early neutral evaluation in courts, to private mini-trials, to public summary jury trials to mini-jury trials, to consensus building fora to facilitated policy making and negotiated rule-making) (Scanlon, 2002) , thus making process-specific morality perhaps more difficult to elucidate.

The Future of Dispute Processing and Conflict Resolution: Of Multiple Parties, Creative Solutions and New Institutions for Resolving Conflict
As the 21st century has begun with some of the most horrific and seemingly insoluble conflicts before us as human beings, beyond the individual disputes and conflicts of lawsuits to "virtual" or "viral" conflicts both larger and more permeable than the nation-state, we will need all of the forms of conflict resolution we can muster to attempt a peaceful future for the human race. This seems a most propitious time for the further development of the field of conflict resolution.

For me, the hope to solve problems through conflict resolution has always seemed a sort of optimistic "sensibility" or "leitmotiv," informing the way I look at conflicts at both the individual and international level. Decades of inter-disciplinary study has given me hope that we are continuing to make progress on some key concepts - that we cannot solve problems with an exclusive focus on self-interest or top-down command, but must consider the needs, interests and participation of others with whom we come into contact. I believe and hope that there are possibilities to create solutions and resources in lieu of destroying them in our interactions with each other. We must "create wealth" in the sense of enhanced human well-being if we are to continue to inhabit the planet with others who materially have less than us. Sometimes we will need help from wise intervenors and those wise intervenors can develop more knowledge about what is effective in their practice. I also believe that, while we need experts to help in conflict resolution, being able to truly participate in the decisions that affect our lives is a human necessity for legitimate societal outcomes and for peaceful co-existence of people with divergent values, so there is some tension between the aspirations of democratic participation and expert facilitation in conflict resolution theory and practice.

In the context of these large and general assertions there are many interesting and concrete intellectual and practical projects to pursue. As we recognize that many disputes now involve multiple parties (if even only the insurer in a conventional two party- plaintiff-defendant lawsuit and the increased use of class actions in a variety of legal contexts) and many issues, negotiation theorists have appropriately turned their attention to development of theory for multi-party, multi-issue negotiations (drawn from legal, business, political and international disputes and conflicts), studying such issues as coalition formation, group dynamics, negotiation in dynamic settings, the role of leadership and coordination, information processing and the different dynamics of competition, collaboration, cooperation and coordination in multi-party settings (Sebenius, 1996; Sunstein, 2000). This theory is currently being tested in such fora as negotiated rule-making before administrative tribunals, in public policy setting (Carpenter & Kennedy, 2001 and Susskind, 1999), in community disputes, in Truth and Reconciliation Commissions (Minow, 1998; Marks, 2000; Helmick & Petersen, 2001), in public conversations and dialogue projects all over the world (see Search for Common Ground at www.sfcg.org), as well as in new forms of conventional law courts, seeking multi-disciplinary solutions to common problems (drugs, family dysfunction, etc., Kaye, 1997).

My own theoretical work has come to focus on how interdisciplinary conflict resolution theory can be re-united with legal and political theory, jurisprudence and constitutional law to explore how these newer forms of conflict resolution and dispute processing can become perhaps a "fifth branch" of governance (beyond executive, legislative, judicial, and administrative) to a form of "ad hoc democracy" of participation by the "acted-upon" that marries modern democratic discourse theory to conflict resolution theory (Menkel-Meadow, N.D.). At the theoretical level, this work asks how we can form conflict resolution processes that enable all forms of human discourse to be "heard" in Hampshire's terms. Can we create "space" for human communication that simultaneously allows for expression of 1) reasons, principles and persuasion; 2) preference trading and bargaining; and 3) passions, emotions and beliefs and that can find a way for such expressions to enrich our understandings of each other and find ways of solving specific problems.

Can we find ways to address the more general problem of co-existence with varied and diverse needs and values (Lederach, 1995; Ackerman & Duvall, 2000; Crocker, Hampson and Aall (1999, 2001)? These are the future process and jurisprudential issues - how can we develop processes that allow in and legitimate more than one form of discourse? Some new legal, governmental and private processes are already experimenting with these multiple levels of discourse - negotiated rule-making, problem-solving courts, and public conversations or dialogues to name a few (see "When Litigation is Not the Only Way," Menkel-Meadow, 2002e, ch. 12 this volume, for some further examples). New process institutions must be responsive to foundational process values of participation, assent, self-determination and mutual responsiveness and respect, while aspiring to achieve both peace and justice. Many international efforts, like those in simple legal dispute mediation now proceed at both "informal" and "formal" levels simultaneously. Two-track diplomacy plays out in the international arena as caucuses are used in private mediation, exploring both "bottom-up," informal, private and task oriented problem solving, with more formal, facilitated or orchestrated public, transparent and joint meetings.

My own recent work attempts to organize and explicate the differences in process and process institutions that can be mapped according to the modes of discourse (principled reasons, bargaining and emotions) and different forms of process (open/closed; plenary/committee; expert-facilitator/leaderless(naturalistic) for different kinds of entities in conflict (permanent, constitutive, temporary/ad hoc), with some examples as indicated in the following chart:

MODES OF CONFLICT RESOLUTION

Mode of Discourse	Principled (Reasons)	Bargaining (Interests)	Passions (needs/emotions/relig)
Forms of Process
Closed	Some court proceedings; arb.	Negotiations-US Constitution; diplom.	Mediation (e.g. divorce)
Open	French Constitution; courts; arb	Public Negotiations; some labor	Dialogue Movement
Plenary	French Constitution	Reg-Neg	Town meetings
Expert/Facilitator	Consensus Building	Mini-Trial	Public Conversations
Naturalistic			Grassroots Organizing/WTO protests
Permanent	Government, Institutions	Business Organizations, Union	Religious Org; AA,
Constitutive	UN, National Const.	Nat. Const./Prof. Assoc.	Civil justice movements, peace
Temporary/Ad Hoc	Issue org./social justice	Interest groups	Yippies, New Age, vigilantes

Principles = reasons, appeals to universalism, law
Bargaining = interests, preferences, trading, compromises

Open = public or transparent meetings or proceedings
Closed = confidential, secret process or even outcomes (settlements)

Plenary = full group participation, joint meetings

Committee s= task groups, caucuses, parts of the whole

Expert-facilitator = led by expertise (process or substantive or both)
Naturalistic = leaderless, grassroots, ad hoc

Permanent (organizational, institutional),
Constitutive ("constitutional")
Temporary/ad hoc groups or disputants

At the substantive level, I think we have also learned that even in the largely generalist domain of law, we need more multi-disciplinary forms of problem solving. It is not enough to create new process institutions if we do not know what problems they are supposed to solve.

In "Aha? Is Creativity Possible in Legal Negotiation and Teachable in Legal Education?" (Menkel-Meadow, 2001b, ch. 11, this volume), I explore how new scientific work in creativity (Csikszentmihalyi, 1996) and multiple forms of human intelligence (Gardner, 1999, 1983) can be harnessed to legal problem solving to develop new legal concepts, tropes, entities and solutions to legal problems if we can really learn to "think outside of the box." Traditional legal thought, categories, remedies and institutions have served us moderately well in the Anglo-American world, with well developed constitutional (both written and unwritten), common law and statutory solutions to many intra- and inter-national legal disputes. But, these institutions and ways of thinking have also been limiting (some are focused on the past and are not flexible enough to adapt to rapidly changing social, scientific and political conditions; others are too binary in how "truth" is established and how remedies can be awarded; still others exclude too many of the people whose lives are affected by decisions taken on their behalf, whether truly "representative" or not). Some of these processes may not appeal to our human need for healing, or spiritual or ethical "wholeness" or deeper values of human connection.

In the parable of the good camping trip that we now use to teach the value of human diversity, we are asked to consider whom we would want to take on a moderately arduous trek through the mountains. Clearly we need a map-reader, navigator, astronomer, cook, storyteller, medical expert, botanist, wood cutter, animal lover (and tamer or hunter, should we encounter hostile forms of animal life), strong pack-carriers and perhaps a musician or clergy person for the campfire at day's end. To whatever list any group makes up, I would now add a "conflict resolver" or "process expert" who would be able to handle, facilitate and manage whatever internal conflicts such a diverse range of talent would inevitably encounter (until such time as all of us, as human beings are "expert" in resolving our own conflicts, or at least have sufficient skills to do it on our own). We need many substantive (and creative) approaches to questions of survival; we also will need to coordinate how we reach solutions, answers or agreements, even if they are only provisional, until dynamics change, new information is learned.

Just as legal dispute resolution has begun to evolve from conventional, traditional adversary adjudication in the courts as the exclusive or preferred method for legal dispute resolution, human conflict resolution now requires a variety of substantive domains (science, physical, human, social, cultural, spiritual, artistic) to search for ways to create peace and justice. The outlines of new substantive ideas and solutions may still be obscure or illusory; the forms of process we can use to come together are more varied and interesting than ever before. We will need to develop new theory, experiment with new institutions, practices and policies and then study and evaluate them for generalizability and applicability to new and different situations. Our very survival depends on it. What an exciting, if challenging time, to be a conflict resolution theorist, teacher, practitioner and "process architect."

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