A NOTE ON TERMINOLOGY

The sociological and legal literature uses many different terms to describe the role of law in disputes. Terms such as conflict resolution, conflict regulation, conflict management, dispute processing (Chase, 2007), dispute settlement (O’Connell, 2003), and dispute resolution (Coltri, 2010) are used more or less interchangeably.

Some scholars contend that disputes are processed rather than settled and that conflicts are managed or regulated rather than resolved (Abel, 1973; Menkel-Meadow, 2003). In these scholars’ view, third-party intervention, whether through legal or nonlegal means, represents only the settlement of the public component of the dispute or conflict, rather than the alleviation of the underlying forces or tensions that created the conflict. Reflecting this view, Richard L. Abel (1973:228) chided sociolegal scholars who “have tended to write as though ‘settlement’ must be the ultimate outcome of disputes, ‘resolution’ the inevitable fate of conflicts.” He added that many disputes generate other disputes.

Other authors point out that the disputing process consists of several stages. According to Laura Nader and Harry F. Todd (1978:14-15), three distinct stages exist: (1) the grievance or preconflict stage, (2) the conflict stage, and (3) the dispute stage. The grievance or preconflict stage refers to situations that an individual or a group perceives to be unjust and considers grounds for resentment or complaint. The situation may be real or imaginary, depending on the aggrieved parties’ perception. If this grievance is not resolved, it enters into the conflict stage, in which the aggrieved party confronts the offending party and communicates its resentment or feelings of injustice to the offending party. If the grievance is not resolved at this stage, it enters into the final, dispute stage, which is when the conflict is made public.

The legal approach to dispute resolution entails the transition from a dyad of the conflicting parties to the triad, “where an intermediary who stands outside the original conflict has been added to the dyad” (Aubert, 1963:26). The three stages discussed by Nader and Todd are not always clear-cut or sequential. A person may file a lawsuit without ever confronting the offender, or one party may quit or concede at any stage in the disagreement.

Although sociolegal scholars continue to debate which terms involving dispute resolution make the most sense to use, this chapter will, for the sake of simplicity, use terms such as conflict resolution, dispute settlement, and dispute processing interchangeably At the same time, it is worth reiterating that the law at best resolves only the legal components of conflicts and disputes, rather than ameliorating the underlying causes of these disputes. Any legal resolution of conflict does not necessarily reduce the antagonism between the aggrieved parties. In this regard, sociolegal work on divorce as a legal resolution of marital conflict clearly shows that divorce does not necessarily reduce the spousal tensions that lead to divorce (Sarat and Felstiner, 1995).

 
Source
< Prev   CONTENTS   Source   Next >