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Beyond Forms, Functions and Limits: The Interactionism of Lon L. Fuller and Its Implications for Alternative Dispute Resolution

Published online by Cambridge University Press:  20 July 2015

Helen H.L. Cheng
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Despite tributes paid to Fuller as an intellectual father of ADR, little attention has been paid within the ADR field to the broader interactionist vision that underlies Fuller’s discussion about process. A closer reading of Fuller’s study of mediation, however, reveals that he intended that study to substantiate his interactionist thesis about the nature of social ordering. He understood ordering to be generated by and to reflect a particular experience of social interaction. Fuller’s interactionist vision recognizes the creative, choice-making and purposive dimensions of human reality, emphasizes participation as a normative criterion for institutional design, and gives rise to a pluralistic notion of power arrangements. It appears in Fuller’s thinking about process as a kind of dialectic and integrative mindset that pervades his means-ends analysis, functional analytical approach and his emphasis on institutional design. This interactionist vision has particular relevance for the practice and research of ADR, for example, in helping to develop a more integrative approach to process pluralism.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 2 , July 2013 , pp. 257 - 292
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Copyright © Canadian Journal of Law and Jurisprudence 2013

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References

Thanks are due to Roshan Danesh, Paul Emond, Carrie Menkel-Meadow and Kenneth Winston for helpful comments on an earlier draft; to Mary Condon, Lisa Dufraimont and Martha Minow for support of this project, and to AmadeaEditing for editorial assistance.

1. Menkel-Meadow, Carrie, “Mothers and Fathers of Invention: The Intellectual Founders of ADR” (2000) 16 Ohio St J Disp Resol 1 at 4Google Scholar [Menkel-Meadow, “Mothers and Fathers”].

2. Ibid at 13.

3. Ibid at 13-22. See also Bush, Robert A Baruch, “Efficiency and Protection, or Empowerment and Recognition?: The Mediator’s Role and Ethical Standards in Mediation” (1989) 41 Fla L Rev 253 Google Scholar (“[t]he notion expressed in the text that different dispute resolution processes have different capacities that uniquely serve, and to some extent embody or manifest, different values, has been most profoundly explored in the work of Lon Fuller,” at 266 n 35); Teachout, Peter R, “The Soul of the Fugue: An Essay on Reading Fuller” (1986) 70 Minn L Rev 1073 Google Scholar [Teachout, “Soul”] (“[m] uch of the current scholarly interest in alternative dispute resolution and in polycentric decision-making can be directly traced to Fuller’s creative pioneering work in these areas” at 1077).

4. Lande, John, “Getting the Faith: Why Business Lawyers and Executives Believe in Mediation” (2000) 5 Harv Negot L Rev 137 at 144-51Google Scholar.

5. See, e.g., Menkel-Meadow, “Mothers and Fathers,” supra note 1 at 2. See also Menkel-Meadow, Carrie, “Peace and Justice: Notes on the Evolution and Purposes of Legal Processes” (2005) 94 Geo LJ 553 at 561-65Google Scholar [Menkel-Meadow, “Peace”] (relating Fuller’s eunomics studies to ADR).

6. Fuller, Lon L, “Mediation—Its Forms and Functions” in Winston, Kenneth I, ed, The Principles of Social Order: Selected Essays of Lon L. Fuller (Oxford and Portland: Hart, 2001) 142 Google Scholar [Fuller, “Mediation”].

7. Fuller, Lon L, “Collective Bargaining and the Arbitrator” (1963) Wis L Rev 3 Google Scholar [Fuller, “Collective Bargaining”].

8. Lon L Fuller, “The Forms and Limits of Adjudication“ in Winston, supra note 6 at 102 [Fuller, “Adjudication”].

9. See, e.g., Fuller, “Mediation,” supra note 6 at 143, 151, 171; Lon L Fuller, “The Role of Contract in the Ordering Processes of Society Generally“ in Winston, supra note 6 at 188-89 [Fuller, “Role of Contract”].

10. See, e.g., Fuller, “Adjudication,” supra note 8 at 126-36; Fuller, “Mediation,” supra note 6 at 160-61.

11. Bush, Robert A Baruch, “Dispute Resolution Alternatives and the Goals of Civil Justice: Jurisdictional Principles for Process Choice” (1984) Wis L Rev 893 at 900Google Scholar[Bush, “Jurisdictional”].

12. For instance, Frank Sander’s “multidoor courthouse” model and his subsequent “ft the forum to the fuss” idea are both built on the notion of process jurisdiction often associated with Fuller’s work. See Sander, Frank EA, “Varieties of Dispute Processing” (1976) 70 FRD 111 Google Scholar; Sander, Frank EA & Goldberg, Stephen B, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” (1994) 10 Negot J 49 CrossRefGoogle Scholar; see also Menkel-Meadow, “Peace,” supra note 5.

13. Fuller, Lon L, “American Legal Philosophy at Mid-Century” (1954) 6 J Legal Educ 457 at 477Google Scholar.

14. Fuller, “Role of Contract,” supra note 9 at 188-89.

15. Fuller often referred to the interconnection of various social processes. In Mediation—Its Forms and Functions, he remarked that:

If we were to distinguish broadly among the various processes that contribute to social ordering we might discern six: legislation, adjudication, administrative direction, mediation, contractual agreement, and customary “law”…. Even in modern societies these forms are interrelated in various complex ways and at times tend to shade into one another. In primitive society, I would suggest, they appear in still more mixed and muted forms; generally any scruple about blending or mixing them seems to be absent, perhaps they are simply not perceived as separate processes.

Fuller, “Mediation,” supra note 6 at 171-72. See also Fuller, “Role of Contract,” supra note 9 at 189, 193-98 (relating contract to a whole range of other processes, including customary law, enacted law, property, adjudication, mediation, voting, etc., to illustrate their overlap or complementarity); Fuller, “Collective Bargaining,” supra note 7 at 43-46 (discussing the interdependence between successful labor arbitration and successful collective bargaining); Fuller, Lon L, “Human Interaction and the Law” (1969) 14 Am J Juris 1 CrossRefGoogle Scholar [Fuller, “Human Interaction”] (illustrating the interactional foundation of customary law, contract, legislation and adjudication; and suggesting that adequate understanding of the latter three forms of law depends upon understanding customary law).

16. Besides being a process pluralist, Fuller was also a legal pluralist, recognizing “hundreds of thousands” of “systems of law” operating simultaneously alongside official state law in customary, informal and non-governmental domains. See, for example, his explanation for why the parietal rules of a college should be considered as “essentially a branch of constitutional law” in Fuller, Lon L, The Morality of Law, revised ed (New Haven: Yale University Press, 1969) at 124–29 Google Scholar [Fuller, Morality of Law]. See also Fuller, “Human Interaction,” supra note 15 at 1; Fuller, “Role of Contract,” supra note 9 at 192-93; Fuller, Lon L, Anatomy of the Law (Middlesex, UK: Penguin Books, 1968) at 63–120 Google Scholar [Fuller, Anatomy] (proposing a broad, pluralist conception of law by distinguishing between the “made” and “implicit” elements of law); Winston, Kenneth I, “The Ideal Element in a Definition of Law” (1986) 5 Law & Phil 89 CrossRefGoogle Scholar [Winston, “Ideal Element”] (“the important transformation is [Fuller] becoming, as he put it once in lecture, a legal pluralist.” at 108); Macdonald, Roderick A, “Legislation and Governance” in Witteveen, Willem J & Burg, Wibren van der eds, Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999) 279 Google Scholar [Macdonald, “Legislation”] (discussing how Fuller’s ideas about eunomics implicate the issue of legal pluralism).

17. The unfinished eunomics project was taken up by Kenneth I Winston, who collected various essays that were intended to be part of the eunomics project and published them in a collection called The Principles of Social Order: Selected Essays of Lon Fuller. In the introduction to the collection, Winston accounted for the background of these works as follows:

In the late 1950s and early 1960s, [Fuller] planned a systematic “essay in eunomics” entitled “The Principles of Social Order” to carry out his suggested program, but only the introductory chapter, “Means and Ends,” was actually written…. Yet, in the decade following, he devoted the bulk of his scholarly attention to the enumeration and description of a wide variety of legal processes and their diverse manifestations, including adjudication, mediation, legislation, contract and managerial direction. The result is that much of the detail of the eunomics program was actually worked out, in something of the form one might have expected, but without any extended theoretical exposition to display the unity of the program or to clarify the conception of law underlying the particular analysis. In bringing together these “exercises in eunomics” in a single volume, I expect that the connectedness of their concerns will be apparent.

Kenneth I Winston, “Introduction” in Winston, supra note 6 at 29.

18. See, e.g., Grossman, Joel B, “Judicial Legitimacy and the Role of Courts: Shapiro’s Courts” (1984) American Bar Foundation Research Journal 214 at 215-21Google Scholar; Sarat, Austin, “The ‘New Formalism’ in Disputing and Dispute Processing” (1988) 21 Law & Soc’y Rev 695 at 696-97, 705Google Scholar; Menkel-Meadow, “Mothers and Fathers,” supra note 1 at 14. Contra Macdonald, “Legislation,” supra note 16 at 299-300.

19. Fuller, “Adjudication,” supra note 8 at 104.

20. Lon L Fuller, “Irrigation and Tyranny” in Winston, supra note 6 at 208 [Fuller, “Irrigation”].

21. For further discussion on the developmental understanding of institution and society that underlies Fuller’s work, see infra note 131.

22. As Winston explained, this tendency towards despotism “touches most directly on the form of social ordering that Fuller called managerial direction,” which is characterized by “the authoritative issuance of directives to subordinates for accomplishing tasks or ends set by a superior”: Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 207. Managerial direction as a form of social ordering is typically embodied in the functioning of governmental agencies in the modern administrative state.

23. Fuller’s attention to context, social experiences, and historical contingency is acknowledged by many. For instance, Philip Selznick regarded Fuller’s perspective as “diagnostic, empirical and philosophical,” one that “led him to a keen awareness of variation in social experience.” Selznick suggested that “[a]t some point in the future, when we become more open to the moral relevance of social inquiry, more empirical in our study of philosophical issues, more capable of uniting moral and social theory, Lon Fuller’s work will stand as a landmark.” See Philip Selznick, “Preface” in Witteveen & van der Burg, supra note 16 at 10-11. See also infra Part IV.B.

24. See, e.g., Bone, Robert G, “Lon Fuller’s Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation” (1995) 75 BUL Rev 1273 Google Scholar(“[m]y goal … is to retrieve Fuller’s complex and subtle theory from the caricature of the dispute resolution model … Fuller’s theory lies somewhere between the public law and dispute resolution poles of this dichotomy, and considerably closer to the public law end.” at 1275); Macdonald, “Legislation,” supra note 16 at 299-300, 310 (suggesting that the understanding of Fuller’s elaboration of different processes typically found in ADR discourse misconstrued the broader message underlying his study of process).

25. Fuller, “Mediation,” supra note 6 at 151 [emphasis added].

26. For instance, Fuller stated in “Reply to Critics” in Morality of Law that: “In the opening portions of this Reply I suggested that analytical legal positivism ‘lacks a social dimension.’ As a cure for this defect I have recommended ‘an interactional theory of law.’” Fuller, Morality of Law, supra note 16 at 237.

27. Fuller, “Mediation,” supra note 6 at 142.

28. Ibid.

29. Fuller, Morality of Law, supra note 16 at 145.

30. He confronted these “schisms” in The Law In Quest of Itself, in which he said, “nature does not, as the positivist so often assumes, present us with the is and the ought in neatly separated parcels. If there is to be a ‘clear distinction’ between them it will have to be brought about by the analytical efforts of the positivist.” Using the interpretation of statues as an example, he explained,

[t]he statute or decision is not a segment of being, but … a process of becoming. By being reinterpreted it becomes, by imperceptible degrees, something that it was not originally. The field of possible objectives is filled with overlapping figures, and the attempt to trace out distinctly one of these figures almost inevitably creates a new pattern. By becoming more clearly what it is, the rule of the case becomes what it was previously only trying to be. In this situation to distinguish sharply between the rule as it is, and the rule as it ought to be, is to resort to an abstraction foreign to the raw data which experience offers us.

Fuller, Lon L, The Law in Quest of Itself (Chicago: The Foundation Press, 1940) at 7, 10Google Scholar [Fuller, Quest]. See also Teachout, “Soul”, supra note 3 at 1078, 1105-26 (“[t]he most striking feature of Fuller’s jurisprudence is the powerful transformation it works in our understanding of the nature of the troublesome antinomies with which legal philosophy has traditionally been concerned. Fuller’s thought is a great master solvent of the classic antinomies of jurisprudence” at 1078).

31. Fuller, Morality of Law, supra note 16 at 221.

32. The term “law” as used here refers to Fuller’s broad conception of law, and includes official state-law, as well as rules and arrangements achieved through informal or non-governmental processes of social ordering. See supra note 16 and accompanying text.

33. Fuller, “Human Interaction,” supra note 15 at 20. Fuller was not alone in adopting an interactionist perspective. For instance, contemporaneous with Fuller was the emergence of a school called “symbolic interactionism” in the field of sociology: see, e.g., Blumer, Herbert, Symbolic Interactionism: Perspective and Method (Englewood Cliffs: Prentice-Hall, 1969)Google Scholar; Blumer, Herbert, George Herbert Mead and Human Conduct, edited by Morrione, Thomas J (Walnut Creek: AltaMira Press, 2004)Google Scholar. Like these broader sociological theories, Fuller’s interactionism was influenced by the pragmatist philosophy of John Dewey and William James: see Winston, Kenneth I, “Is/Ought Redux: The Pragmatist Context of Lon Fuller’s Conception of Law” (1988) 8 Oxford J Legal Stud 329 CrossRefGoogle Scholar [Winston, “Is/Ought”]. No attempt is made in this essay, however, to relate these broader sociological theories to Fuller’s work.

34. See, e.g., Fuller, Lon L, “The Law’s Precarious Hold on Life” (1969) 3 Ga L Rev 530 Google Scholar [Fuller, “Precarious”] (using multiple examples, including that of colonial law, to illustrate “where law fails to achieve an effective hold on life… because it projects itself upon a social terrain incapable of supporting it” at 536).

35. Kenneth I Winston, “Introduction to the Revised Edition” in Winston, supra note 6 at 2-3 [Winston, “Revised Introduction”].

36. Ibid at 3.

37. Fuller, “Human Interaction,” supra note 15.

38. Fuller, Lon L, “Law as an Instrument of Social Control and Law as a Facilitation of Human Interaction” (1975) BYUL Rev 89 at 93Google Scholar [Fuller, “Social Control”].

39. Fuller, “Human Interaction,” supra note 15 at 9.

40. Fuller, “Social Control,” supra note 38 at 93.

41. Fuller, “Human Interaction,” supra note 15 at 1.

42. See, e.g., Fuller, “Human Interaction,” supra note 15 at 1-13.

43. Fuller, “Social Control,” supra note 38 at 95.

44. Fuller, “Human Interaction,” supra note 15 at 20.

45. Fuller’s discussion of contract may be used to illustrate this point. To him, the substance of a contract may be considered a form of “law” governing the relationship between the parties. Here, he pointed out that the meaning of a contract is determined and alterable by the parties’ interaction, both before and after reaching an agreement, and that it is difficult to maintain a clear line separating the substance of a contract and the process that has generated it. Seen in this light, the written contract acquires a dynamic quality, serving more as an organic “framework for an ongoing relationship, rather than a precise definition of that relationship,” fixed and insulated from the parties’ conduct towards one another. See Fuller, “Human Interaction,” supra note 15 at 13-20.

46. See also infra notes 84-95 and accompanying text.

47. Lon L Fuller, “The Case Against Freedom“ in Winston, supra note 6 at 320 [Fuller, “Case Against Freedom”] [emphasis in original].

48. Ibid at 320-21.

49. Fuller, “Social Control,” supra note 38.

50. Fuller, “Human Interaction”, supra note 15 at 2-3 [emphasis in original].

51. Fuller, “Case Against Freedom,” supra note 47 at 322 [emphasis in original].

52. Fuller, Lon L, “Freedom—A Suggested Analysis” (1955) 68 Harv L Rev 1305 at 1312CrossRefGoogle Scholar [Fuller, “Freedom”].

53. For instance, Fuller stated that, “In so far as we are able to make sense out of human behavior in its larger aspects, it is still in terms of purpose; that is, we assume that men are acting clearly or vaguely in an effort to achieve something, even if it is only the preservation of accustomed ways.” See ibid at 1308. See also Fuller, Lon L, “Human Purpose and Natural Law” (1958) 3 Natural Law Forum 68 Google Scholar [Fuller, “Human Purpose”].

54. Fuller, Morality of Law, supra note 16 at 145. This insistence on the purposiveness of law is a key factor that distinguished Fuller from his positivist critics. HLA Hart once described Fuller to be “in love with the notion of purpose” and pointed to Fuller’s “passion” with this “idée maîtresse“ as “blinding” his understanding of law. See Hart, HLA, “Book Review” (1965) 78 Harv L Rev 1281 at 1296CrossRefGoogle Scholar (reviewing Fuller’s Morality of Law). See also Bone, supra note 24 (“Fuller rested his entire theory of institutions on the fundamental assumption that all human activity is oriented toward purposes,” at 1284); Peter R Teachout, “Uncreated Conscience“ in Witteveen & van der Burg, supra note 16 at 240 [Teachout, “Uncreated Conscience”] (noting that discovering and elaborating “the civilizing purposes served by the law” form the heart of Fuller’s jurisprudence).

55. Fuller, “Human Purpose,” supra note 53 at 72.

56. For instance, he said that “[t]he meaning of any given purpose is always controlled by latent purposes in interaction with it”: ibid at 71.

57. Fuller’s contribution to legal theory is most often associated with his debate with HLA Hart on the morality of law. He is often thought of as belonging to the natural law tradition, given his own admission that the principles of legality he proposed may be viewed as “a procedural version of natural law.” See, e.g., Summers, Robert S, Lon L. Fuller (Stanford: Stanford University Press, 1984)Google Scholar (“[Fuller] is unquestionably the leading secular natural lawyer of the twentieth century in the English speaking world” at 151). However, it is being increasingly recognized that the conception of law Fuller developed goes beyond the positivism vs. natural law divide and occupies a distinct category, characterized by an interactionist focus. See, e.g., Willem J Witteveen, “Rediscovering Fuller: An Introduction” in Witteveen & van der Burg, supra note 16 at 32 (noting that Fuller has “developed a conception of law that falls outside of the scope of the positivism-natural-law distinction altogether. This conception is one of law as interactionism,“); Gerald J Postema, “Implicit Law“ in Witteveen & van der Burg, supra note 16 at 257-58 (“[The] essentially interactive dimension of implicit law is the hallmark of Fuller’s jurisprudence”); Bone, supra note 24 at 1286 (“Fuller believed that the most basic unit of social life was not the isolated individual, but relationships of interaction among and between individuals”).

58. Fuller, Morality of Law, supra note 16 at 223.

59. Fuller, “Human Interaction,” supra note 15.

60. Witteveen, supra note 57 at 34. This view conficts with Marc Hertogh’s suggestion that while Fuller emphasized interaction in mediation, he regarded ordering by authority as defining adjudication and managerial direction. See Marc Hertogh, “The Conscientious Watermaster: Rediscovering the Interactional Concept of Law” in Witteveen & van der Burg, supra note 16 at 381-85. Hertogh appears to have missed Fuller’s point that even in processes where decisions are made based on an exercise of authority, the force of that decision ultimately is derived from and sustained by an ongoing interaction between the lawgiver and its subjects over time.

61. Menkel-Meadow, Carrie, “Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution” in Mofftt, Michael L & Bordone, Robert C, eds, The Handbook of Dispute Resolution (San Francisco: Jossey-Bass, 2005) 13 at 26Google Scholar.

62. Proponents of ADR often refer to self-determination and participation as justifications for ADR processes. See, e.g., Menkel-Meadow, Carrie, “Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases)” (1995) 83 Geo LJ 2663 Google Scholar [Menkel-Meadow, “Whose Dispute”] (claiming that “settlement can be defended as being participatory, democratic, empowering, educative, and transformative for the parties” at 2693); Bush, Robert A Baruch & Folger, Joseph P, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994)Google Scholar (suggesting that mediation responds to conflict through strengthening the parties themselves by helping them develop greater capacities of self and for relating to others); Shonholtz, Raymond, “Justice From Another Perspective: The Ideology and Developmental History of the Community Boards Program” in Merry, Sally Engle & Milner, Neal, eds, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor: University of Michigan Press, 1993) 201 Google Scholar (describing a major aim of the Community Boards Program to be the empowerment of grassroots communities for self-governance); Milne, Anne & Folberg, Jay, “The Theory and Practice of Divorce Mediation: An Overview” in Folberg, Jay & Milne, Anne, eds, Divorce Mediation: Theory and Practice (New York: Guilford Press, 1988) 3 Google Scholar (referring to party self-determination as a major benefit of divorce mediation); Susskind, Lawrence E, “Deliberative Democracy and Dispute Resolution” (2009) 24 Ohio St J Disp Resol 395 Google Scholar (referring to public participation as a core value that underlies consensual approaches to public decision making); Bingham, Lisa B, “Why Suppose? Let’s Find Out: A Public Policy Research Program on Dispute Resolution” (2002) J Disp Resol 101 Google Scholar (suggesting to broaden the notion of self-determination in the ADR context to include not only party self-determination over process and outcome, but also control over dispute system design). See also Welsh, Nancy A, “The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?” (2001) 6 Harv Negot L Rev 1 at 15-21Google Scholar (reviewing the importance of self-determination and party participation to the contemporary mediation movement); Riskin, Leonard L, “Decision-Making in Mediation: The New Old Grid and the New New Grid System” (2003) 79 Notre Dame L Rev 1 Google Scholar (providing a framework for understanding party decision-making in mediation).

63. The notion of diffusion of power is increasingly being used as a narrative of power. See, e.g., Nye, Joseph S, The Future of Power (New York: Public Affairs, 2011)Google Scholar (employing a diffused notion of power to describe international power relations in the twenty-first century).

64. This idea has been extensively explored in the study of legal pluralism. See, e.g., Moore, Sally Falk, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7 L & Soc’y Rev 719 CrossRefGoogle Scholar (exploring the plurality of normative ordering through the notion of semi-autonomous social fields); Galanter, Marc, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law” (1981) 19 J Legal Pluralism 1 CrossRefGoogle Scholar (challenging “legal centralism” and identifying the interactions between official legal system and other indigenous normative systems); Merry, Sally Engle, “Legal Pluralism” (1988) 22 L & Soc’y Rev 869 CrossRefGoogle Scholar (noting that “plural normative orders are found in virtually all societies;” legal pluralism focuses on the interactive relationship between official and unofficial forms of ordering); Weisbrod, Carol, Emblems of Pluralism: Cultural Differences and the State (Princeton: Princeton University Press, 2002)Google Scholar (offering an account of the relations between individuals, groups, and the state, with an emphasis on cultural resonances of those relationships; contrasting an account that emphasizes centralization and vertical relationships typically found in legal discourse with a pluralist, horizontal counter-story).

65. Fuller, “Irrigation,” supra note 20 at 215.

66. Ibid at 214.

67. Ibid.

68. This relational framework of power has increasingly been explored in the context of conflict resolution. See, e.g., Coleman, Peter T, “Power and Conflict” in Deutsch, Morton & Coleman, Peter T, eds, The Handbook of Conflict Resolution (San Francisco: Jossey-Bass, 2000) 108 Google Scholar (“[p]ower can be usefully conceptualized as a mutual interaction between the characteristics of a person and the characteristics of a situation,” at 113); Adler, Robert S & Silverstein, Elliot M, “When David Meets Goliath: Dealing with Power Differentials in Negotiations” (2000) 5 Harv Negot L Rev 1 Google Scholar (“[p]ower as discussed in this article is a relational concept, pertaining to use between two or more people. Without social relationships, power becomes a fairly limited and uninteresting topic,” at 10).

69. Fuller, Morality of Law, supra note 16 at 216. See also ibid at 19-27, 33-94, 200-24; Fuller, “Irrigation,” supra note 20 at 215-16.

70. These questions about power capture one of the central debates in the literature on power. See Haugaard, Mark, “Rethinking Power” (August 21, 2011), online: http://ssrn.com/ab-stract=1913739 Google Scholar; Göhler, Gerhard, “‘Power to’ and ‘Power over’” in Haugaard, Mark & Clegg, Stewart R, eds, The SAGE Handbook of Power 27 (London: SAGE Publications, 2009)CrossRefGoogle Scholar. At one end of the debate is the widely circulated view that understands power as an ability to prevail over others. See, e.g., Weber, Max, Economy and Society: An Outline of Interpretive Sociology, Roth, Guenther & Wittich, Claus, eds, (Berkeley & LA: University of California Press, 1978)Google Scholar; Dahl, Robert, “The Concept of Power” (1957) 2 Behavioural Science 201 CrossRefGoogle Scholar. Against this predominant perspective is an alternative view that sees power as a capacity, a basis for human agency, and emancipation: see, e.g., Arendt, Hannah, On Violence (San Diego: A Harvest Book, 1970)Google Scholar, Parsons, Talcott, Essays in Sociological Theory (New York: The Free Press, 1954)Google Scholar. Others call for a synthesis of these competing views: see, e.g., Clegg, Stewart R, Frameworks of Power (London: SAGE Publications, 1989)CrossRefGoogle Scholar, Giddens, Anthony, The Constitution of Society: Outline of the Theory of Structuration (Berkeley & LA: University of California Press, 1984)Google Scholar, Allen, Amy, The Politics of Our Selves: Power, Autonomy, and Gender in Contemporary Critical Theory (New York: Columbia University Press, 2008)Google Scholar. Recognizing the complexity of power as a category of thought, some in the conflict resolution field are calling for a broader definition of power, focusing on not only “power over,” but also “power to” and “power with,” see, e.g., Coleman, supra note 68 at 111.

71. For example, Fuller explained that,

Every departure from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination. Conversely, when the view is accepted that man is incapable of responsible action, legal morality loses its reason for being. To judge his actions by unpublished or retrospective laws is no longer an affront, for there is nothing left to affront—indeed, even the verb “to judge” becomes itself incongruous in this context; we no longer judge a man, we act upon him.”

Fuller, Morality of Law, supra note 16 at 162-63. See also supra notes 53-56 and accompanying text.

72. Fuller, “Freedom,” supra note 52 at 1314.

73. Fuller, Morality of Law, supra note 16 at 163.

74. This positive conception of human nature is the basis for the distinction Fuller drew between duty and aspiration in Morality of Law. For a discussion of Fuller’s morality of aspiration and its implication for law and governance, see Wibren van der Burg, “The Morality of Aspiration: A Neglected Dimension of Law and Morality” in Witteveen & van der Burg, eds, supra note 16 at 169.

75. Lon L Fuller, “Means and Ends” in Winston, supra note 6 at 72 [Fuller, “Means and Ends”].

76. Lon L Fuller, “The Lawyer as an Architect of Social Structures” in Winston, supra note 6 at 290 [Fuller, “Architect”].

77. For a discussion by Fuller on the interconnection and interaction of “the individual, the group and the state,” see Fuller, “Freedom,” supra note 52 at 1321-22. For a similar, yet more elaborated view, see Weisbrod, supra note 64.

78. Fuller, Quest, supra note 30 at 34.

79. Although beyond the scope of this essay, the diffused notion of power suggested by Fuller’s in-teractionism also gives rise to the question of how social change may be pursued. To the extent that such a view recognizes the individual’s power to effect change, it suggests that strategies for social change must involve not only governmental actions, but also transformation at the individual, institutional, and cultural level. In a way, it takes seriously the now-familiar adage that “the personal is political,” and highlights the need for, and potential of, individual and private institutional transformation in a multitude of approaches to social change. For further discussion on this issue, see: Macdonald, Roderick A, “Unitary Law Re-form, Pluralistic Law ReSubstance: Illuminating Legal Change (2007) 67 La L Rev 1113 Google Scholar (“The burden of this article is to deploy the hypothesis of legal pluralism to provide an alternative account of legal change in contemporary official normative regimes,” at 1121); Macdonald, Roderick A, Lessons of Everyday Law (Montreal: McGill-Queen’s University Press, 2002)Google Scholar; Jutras, Daniel, “The Legal Dimensions of Everyday Life” (2001) 16 CJLS 45 CrossRefGoogle Scholar; Tomasi, John, “Can Feminism Be Liberated from Governmentalism?” in Satz, Debra & Reich, Rob, eds, Toward a Humanist Justice: The Political Philosophy of Susan Moller Okin (New York: Oxford University Press, 2009) 67 CrossRefGoogle Scholar; Sturm, Susan, “Activating Systemic Change Toward Full Participation: The Pivotal Role of Boundary Spanning Institutional Intermediaries” (2010) 54 St Louis ULJ 1117 Google Scholar (“Activism’s center of gravity has shifted from a singular focus on federal government action to a multilevel, public/private array of local, regional, national and international arenas,” at 1118).

80. Fuller, “Freedom,” supra note 52 at 1322.

81. For further discussion on the importance of participation in Fuller’s theory of law, see Eisenberg, Melvin Aron, “Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller” (1978) 92 Harv L Rev 410 CrossRefGoogle Scholar [Eisenberg, “Participation”] (identifying in Fuller’s work on adjudication a “Participation Thesis” that emphasizes the norms of “attention, explanation and responsiveness”); Bone, supra note 24 at 1283, 1301-10 (noting that “Fuller believed…the effort to secure a good social order was a never-ending process that required the active participation of all citizens” and that he defined “the essence of adjudication in terms of participation”); Macdonald, “Legislation,” supra note 16 at 293-300 (suggesting to understand the different processes of social ordering Fuller proposed through the lens of process participation); see also infra note 88 and accompanying text.

82. Findings in the field of social psychology point to a direct relationship between the level of participation by citizenry in a given institution and the effectiveness of that institution. See, e.g., Tyler, Tom R, Psychology and the Design of Legal Institutions (Nijmegen, Netherlands: Wolf Legal Publishers, 2007), online: http://www.stanford.edu/evwayne/workshop/Tyler_ paper.pdf Google Scholar (suggesting that motivation to comply and cooperate with the law is generated, in part, by the level of participation afforded by a given institutional arrangement). As well, this view of Fuller also echoes some of the chief concerns among those in the rapidly developing field of deliberative democracy and consensus building, whose aim is to encourage an active democratic participation in the deliberation, creation and implementation of social policy. See generally Menkel-Meadow, Carrie, “Introduction” in Carrie Menkel-Meadow, ed, Complex Dispute Resolution: Volume II: Multi-Party Dispute Resolution, Democracy and Decision Making (Ashgate, 2012), available at: http://ssrn.com/abstract= 2152688 Google Scholar; Mansbridge, Jane et al, “Norms of Deliberation: An Inductive Study”, online: (2006) 2 J Public Deliberation 1 http://www.publicdeliberation.net/jpd/vol2/iss1/art7 Google Scholar; Susskin, Lawrence E & Cruikshank, Jeffrey, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (New York: Basic Books, 1987)Google Scholar; Kahane, David et al, eds, Deliberative Democracy in Practice (Vancouver: UBC Press, 2010).Google Scholar

83. Fuller, “Freedom,” supra note 52 at 1325.

84. See Fuller, “Freedom,” supra note 52; Fuller, “Case Against Freedom,” supra note 47. See also Winston, Kenneth I, “Legislators and Liberty” (1994) 13 Law and Phil 389 CrossRefGoogle Scholar [Winston, “Legislators”]; Winston, “Revised Introduction,” supra note 35 at 16-23.

85. For a similar view, see Sen, Amartya, Development as Freedom (New York: Anchor Books, 1999).Google Scholar

86. Fuller, “Freedom,” supra note 52 at 1312.

87. See Winston, “Ideal Element,” supra note 16 at 109-11; Macdonald, “Legislation,” supra note 16 at 293-300; David Luban, “Rediscovering Fuller’s Legal Ethics” in Witteveen & van der Burg, supra note 16 at 193 (analyzing the implications of Fuller’s ideas on the ethics of the legal profession).

88. Winston, “Revised Introduction,” supra note 35 at 18; see also Winston, “Legislators,“ supra note 84 at 403.

89. Macdonald, “Legislation,” supra note 16 at 298.

90. See, e.g., Rundle, Kristen, Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller (Oxford: Hart, 2012)Google Scholar (suggesting that the basis for Fuller’s claims about the internal morality of law lies in the connection he perceived between the legal form and human agency).

91. Fuller, Morality, supra note 16 at 185.

92. Ibid.

93. Ibid at 185-86. Winston captured Fuller’s optimism in the following:

With his special focus on institutional structures that foster decency and fairness in human relationships, Fuller was sufficiently confident in the good nature of men and women to be optimistic about their ability to achieve a program of living together that would be satisfactory for everyone. This meliorism infused his idea of democracy, which presupposes that conficts can be resolved by people’s talking with and understanding one another. When citizens engage each other and are compelled to explain and justify their actions publicly, the effect, he thought, is generally to pull them towards goodness, however that is conceived.

Winston, “Revised Introduction,” supra note 35 at 23.

94. Hobbes, Thomas, Leviathan, Or The Matter, Forme, and Power of a Common-wealth Ecclesiasticall and Civil, edited by Ian Shapiro, (New Haven: Yale University Press, 2010) 78.Google Scholar

95. Winston, “Legislators,” supra note 84 at 417 (quoting Fuller).

96. See Teachout, “Soul,” supra note 3 at 1079 (observing Fuller’s “integrative” tendency and that he “took to be his central jurisprudential task: to free us from the phony oppositions that shackle inherited language and thought”).

97. E.g., Fuller, Quest, supra note 30 at 120-28. For an overview of postwar legal thought, see Landauer, Carl, “Deliberating Speed: Totalitarian Anxieties and Postwar Legal Thought” (2000) 12 Yale J L & Human 171 Google Scholar; Horwitz, Morton J, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992) 247–68 Google Scholar.

98. Horwitz, supra note 97 at 253.

99. See Hart, Henry M Jr & Sacks, Albert M, The Legal Process: Basic Problems in the Making and Application of Law, tentative edition (1958)Google Scholar.

100. As Horwitz explained,

The Legal Process materials symbolize the moment in post-war history at which the New Deal lawyers’ conception of the “common interest” came to be thoroughly transformed from one of substance to one of procedure. Whether due to fear of conservative attacks on the ideal of “collaborative, cooperative living” or anxiety that any substantive conception of the common interest might degenerate into totalitarianism, The Legal Process expresses the belief of a dominant post-war generation of elite legal thinkers that “procedures … are obviously more fundamental than … substantive arrangements….”

Horwitz, supra note 97 at 255.

101. See, e.g., Fuller, “Mediation,” supra note 6 at 144.

102. Fuller, “Means and Ends,” supra note 75 at 69.

103. Fuller, “Means and Ends,” supra note 75 at 68. See also Fuller, “Human Purpose,” supra note 53 at 75-76.

104. One example Fuller referred to is that of the legal profession:

We may say, for example, that the institutional role of the professional advocate is to insure that the deciding tribunal will have a full and sympathetic understanding of his client’s situation…. A necessity of his professional role, that of understanding fully his opponent’s position and of anticipating his arguments, develops an attitude of mind that carries over to questions arising outside the advocate’s practice. An institutional license of partisanship becomes, then, the source of a habit of mind that can rise above partisanship. Our best institutions are, I believe, pregnant with these side effects. It is chiefly for this reason that I have so vigorously objected to the view that institutions are mere inert conduits directing human energies, with much frictional waste en route, toward certain desirable end-states.

Fuller, “Means and Ends,” supra note 75 at 72. See also Teachout, “Uncreated Conscience,” supra note 54 (noting that “[b]y refocusing attention upon the purposes that have motivated the courts in the development of the law,” Fuller invites “lawyers and legal scholars to join in the activity of seeking to rationalize and harmonize inherited doctrine around a core of fundamental principles”; in this way, his purposive analysis serves to restore and carry forward “the civilizing potential of the law” at 252).

105. Fuller, “Means and Ends,” supra note 75 at 72.

106. Fuller’s concern for the interaction of means and ends has profound implications for the development and direction of ADR. The complexity of this topic warrants a far more substantial discussion than the scope of this essay would allow. Nonetheless, it is worth noting that some commentators have suggested that this means-ends connection has yet to be fully appreciated by proponents of ADR, see, e.g.,: Macdonald, “Legislation,” supra note 16 (“The failure of the legal-process approach, especially in its contemporary garb of ADR theory, has proved to be its relative lack of concern with ends. Current scholarly critiques are, in my view, likewise heading for failure, but for the opposite reason—their relative disinterest in means. Both perspectives dissociate means and ends and take law to be pliable to all human purposes, errors Fuller recognized in the 1930s and to which he constantly made allusion in his subsequent writings,” at 281). There are, however, some instances of appreciation shown by some scholars and practitioners of ADR of the idea that processes are not only a means to an end, but are themselves an embodiment of values and substantive goals. One example would be to look at discussions surrounding deliberative democracy and consensus building: see, e.g., supra note 82. Another example refers to attempts made by some ADR proponents to situate their discussion of process in a broader discourse about values and world views, explicitly connecting their proposed processes to substantive perspectives on the perceived underlying causes of conficts: see, e.g., Bush & Folger, supra note 62 at 229-59 (suggesting that ignorance—with respect to self and others—as a cause of conflict, and that a greater awareness of one’s own efficacy and openness to others would lead to a better resolution of conflict); Danesh, Hossain B & Danesh, Roshan, “Has Conflict Resolution Grown Up? Toward a New Model of Decision Making and Conflict Resolution”, online: (2002) 7 Int’l J Peace Stud 59 http://www.gmu.edu/programs/icar/ijps/vol7_1/Danesh.html Google Scholar (suggesting “conflict as the absence of a condition of unity” and “a conflict-free situation is, as such, not a void, but a substantive condition constructed around an alternate life-sustaining force”).

107. Fuller, “Mediation,” supra note 6 at 144-45. For an empirical study on how often mediation serves to “terminate” rather than “cement” a relationship, see Golann, Dwight, “Is Legal Mediation a Process of Repair—or Separation? An Empirical Study, and Its Implications” (2002) 7 Harv Negot L Rev 301 Google Scholar.

108. Fuller, “Mediation,” supra note 6 at 145.

109. Fuller, “Adjudication,” supra note 8 at 113-18.

110. Ibid at 107.

111. Ibid at 114.

112. Ibid.

113. Ibid at 117.

114. Ibid at 116-18.

115. Ibid at 117-18.

116. For a discussion of this issue, see Davis, Kevin E & Trebilcock, Michael J, “The Relationship between Law and Development: Optimists versus Skeptics” (2008) 56 Am J Comp L 895 CrossRefGoogle Scholar.

117. See, e.g., Fuller, Lon L, “Consideration and Form” (1941) 41 Colum L Rev 799 at 800-06CrossRefGoogle Scholar (considering the functions performed by legal formalities in the area of contract law); Fuller, Lon L & Perdue, William R Jr, “The Reliance Interest in Contract Damages I” (1936) 46 Yale LJ 52 at 53-57CrossRefGoogle Scholar (analyzing the purposes pursued in awarding contract damages); Fuller, “Mediation,” supra note 6 at 148 (proposing to analyze how the need for and the functions performed by a mediator are affected by the characteristics of the collective bargaining situation); Fuller, “Role of Contract,” supra note 9 at 188 (asking “what specific functions contract performs in the ordering of human relations generally”).

118. Fuller, “Human Interaction,” supra note 15 at 5.

119. Ibid at 27.

120. Fuller, “Precarious,” supra note 34 at 530.

121. See, e.g., Cohen, Felix, “Transcendental Nonsense and the Functional Approach” (1935) 35 Colum L Rev 809 CrossRefGoogle Scholar.

122. Horwitz, supra note 97 at 184.

123. Fuller, “Adjudication,” supra note 8 at 138.

124. Fuller, “Mediation,” supra note 6 at 145.

125. Fuller often used examples to develop a certain proposition, rather than explicating it directly. For a similar observation, see Eisenberg, “Participation,” supra note 81 at 423.

126. Fuller, “Mediation,” supra note 6 at 150-51.

127. Ibid at 159.

128. These ideas are echoed in the development of mediation models that emphasize the interactional dimension of mediation. See Bush, Robert A Baruch, “Staying in Orbit, or Breaking Free: The Relationship of Mediation to the Courts Over Four Decades” (2008) 84 NDL Rev 705 at 743-48, 756-62Google Scholar [Bush, “Orbit”] (reviewing four models of mediation that focus on parties’ interaction instead of settlement).

129. Fuller, Morality of Law, supra note 16 at 181.

130. See, e.g., ibid at 170-81 (relating legal morality to the issue of institutional design); Fuller, “Means and Ends,” supra note 75 at 66-72 (examining certain assumptions about the means-ends relationship in social architecture and their implications for institutional design); Fuller, “Architect,” supra note 76 (considering the role of the lawyer as designer of social institutions).

131. Implicit in Fuller’s ideas about institutional design is his belief about the progressive character of institution and society. He once wrote:

I find congenial many parts of the philosophy of Burke, which conceives society to be founded on institutions and conventions which are not wholly rational, and which conceives of progress as a gradual improvement of those institutions and conventions in the direction of greater rationality. This view emphasizes that our present state of society, however imperfect, represents an acquisition, an encroachment of reason on chaos.

Lon L Fuller, “Letter from Lon L Fuller to Thomas Reed Powell” in Winston, supra note 6 at 335-36. See also Fuller, “Anatomy,” supra note 16 at 71-82 (referring to a developmental account of the role of implicit law and made law in legal history). For a discussion that relates Fuller’s ideas of institutional design to a developmental conception of institution and society, see Karol Soltan, “A Social Science That Does Not Exist” in Witteveen & van der Burg, supra note 16 at 387.

132. Fuller, “Architect,” supra note 76 at 291.

133. See, e.g., Bingham, Lisa, “Designing Justice: Legal Institutions and Other Systems for Managing Conflict” (2008) 24 Ohio St J on Disp Resol 1 Google Scholar (“[l]awyering has changed. We no longer just advise and represent clients in courts and administrative agencies; we design justice…[t]he historical trend is toward a conscious and analytic, even a scientific approach to designing systems to manage conflict among citizens, stakeholders, interest groups, and public, private, and non-profit organizations,” at 1-2). For an overview of the field of dispute system design, see generally Ury, William L, Brett, Jeanne M & Goldberg, Stephen B, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (San Francisco: Jossey-Bass, 1988)Google Scholar; Costantino, Carthy A, “Second Generation Organizational Conflict Management Systems Design: A Practitioner’s Perspective on Emerging Issues” (2009) 14 Harv Negot L Rev 81 Google Scholar; Cohen, Amy J, “Dispute Systems Design, Neoliberalism, and the Problem of Scale” (2009) 14 Harv Negot L Rev 51 Google Scholar (a critical review of dispute system design, using the analytic device of scale to point to equality concerns); Menkel-Meadow, Carrie, “Are There Systemic Ethics Issues in Dispute System Design—And What We Should [Not] Do About It: Lessons from International and Domestic Fronts” (2009) 14 Harv Negot L Rev 195 Google Scholar.

134. Fuller, “Architect,” supra note 76 at 285.

135. Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 305.

136. Fuller, “Architect,” supra note 76 at 289-90. The making of a constitution is indeed an excellent example, demonstrating the interlocking nature of means and ends. While Fuller emphasized in this quote the creative spirit embodied by the making of the US Constitution, others have explored the procedural dimension of this creativity by looking at the impact different deliberative procedures have on a resulting constitution. See, e.g., Elster, Jon, “Strategic Uses of Argument” in Arrow, Kenneth J et al, eds, Barriers To Conflict Resolution (New York: WW Norton & Company, 1995) 236 Google Scholar (exploring the implications of public versus secret deliberative mechanisms used in the constitution making processes of France and America); Lansky, Dana, “Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the Constitution Convention of 1787” (2000) 5 Harv Negot L Rev 279 Google Scholar (analyzing the Constitutional Convention of 1787 through a modern-day multi-party negotiation framework).

137. Fuller, Morality of Law, supra note 16 at 175-76.

138. Fuller, “Architect,” supra note 76 at 286.

139. Ibid.

140. Fuller, Morality of Law, supra note 16 at 166.

141. Fuller, “Mediation,” supra note 6 at 170.

142. Fuller, Morality of Law, supra note 16 at 177.

143. Fuller, Lon L, “American Legal Realism” (1934) 82 U Pa L Rev 429 at 460Google Scholar [Fuller, “Realism”].

144. Macdonald, “Legislation,” supra note 16 at 299.

145. Ibid at 299-300.

146. Macdonald further pointed out that the different processes of social ordering “have a different place in different societies depending on the relative priority of social goals and values.” Ibid at 296. This sensitivity to the plurality of human ambitions, values and capacities for agency embodies one of the central themes in discussions about the cultural dimension of conflict resolution. See generally LeBaron, Michelle, Bridging Cultural Conficts: A New Approach for a Changing World (San Francisco: Jossey-Bass, 2003)Google Scholar; Lederach, John Paul, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse: Syracuse University Press, 1995)Google Scholar; Kahane, David, “Dispute Resolution and the Politics of Cultural Generalization” (2003) 19 Negotiation J 5 CrossRefGoogle Scholar.

147. Fuller, “Adjudication,” supra note 8 at 133.

148. Macdonald, “Legislation,” supra note 16 at 300.

149. Felstiner, William LF, Abel, Richard L & Sarat, Austin, “Emergence and Transformation of Disputes: Naming, Blaming, Claiming…” (1980) 15 Law & Soc’y Rev 631 CrossRefGoogle Scholar.

150. Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 101.

151. See, e.g., Bernstein, Richard J, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (Philadelphia: University of Pennsylvania Press, 1983)Google Scholar (highlighting the role of interpretation in social sciences); Kuhn, Thomas S, The Structure of Scientific Revolutions, 2d ed (Chicago: University of Chicago Press, 1970)Google Scholar (explaining the historically contingent nature of scientific discovery).

152. See Teachout, “Soul,” supra note 3 at 1096-1100 (observing Fuller’s “openness to experience” and concern for “developing a jurisprudence responsive to a ‘complex and moving reality’”). Also illustrating this point is Fuller’s understanding of the changing quality of concept in his writings about legal realism. He suggested that concepts should be understood more as a dynamic “activity” rather than a static “thing.” He referred to this dynamic notion of concepts in explaining his disagreement with the realists’ skepticism toward rules, which are made up of concepts. As he explained, both the realists and the conceptualists, whose formalistic approach to law the realists rejected, had assumed a “hypostatization of the ‘concept’”—the conceptualists assumed that the implication of a concept is to be derived from its inner, unchanging core, and the realists denied concepts as having any basis in reality unless they can connote meanings that are finite and fixed. Rejecting both of these understandings, Fuller emphasized the developing character of concepts as they are derived through an evolving mental process that interacts with experience. See Fuller, “Realism,” supra note 143 at 443-47. This aspect of Fuller’s thinking, as Winston suggested, owes a great deal to the influence of pragmatism: see Winston, “Is/Ought,” supra note 33; Winston, “Ideal Element,” supra note 16.

153. Fuller, “Adjudication,” supra note 8 at 104-05.

154. Fuller, “Mediation,” supra note 6 at 171-72.

155. See Lon L Fuller, Philosophy for the Practicing Lawyer in Winston, supra note 6 at 306-09.

156. Fuller, “Mediation,” supra note 6 at 170.

157. Macdonald, “Legislation,” supra note 16 at 299, 310.

158. See, e.g., Menkel-Meadow, “Peace,” supra note 5 (regarding process pluralism as a core value that underlies the development of ADR); Bordone, Robert C, “Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes” (2005) 21 Ohio St J Disp Resol 1 at 5-8Google Scholar (linking the development of ADR with the emergence of process pluralism). See also Bush, “Jurisdictional,” supra note 11 at 924-29 (using the term “process pluralism” to describe the emergence of dispute resolution processes alternative to court).

159. Lande, supra note 4.

160. Ibid at 149-50.

161. For examples in support of ADR see Burger, Warren E, “Isn’t There a Better Way?” (1982) 68 ABA J 274 Google Scholar; Menkel-Meadow, “Whose Dispute,” supra note 62; Ury et al, supra note 133; Bush & Folger, supra note 62. Contra Fiss, Owen M, “Against Settlement” (1984) 93 Yale L J 1073 CrossRefGoogle Scholar; Delgado, Richard et al, “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution” (1985) Wis L Rev 1359 Google Scholar; Grillo, Trina, “The Mediation Alternative: Process Dangers for Women” (1991) 100 Yale L J 1545 CrossRefGoogle Scholar. For a more recent update of the debate about ADR, see Symposium, , “Against Settlement: Twenty-Five Years Later” (2009) 78 Fordham L Rev 1117 Google Scholar.

162. See, e.g., Riskin, Leonard L, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harv Negot L Rev 7 Google Scholar (outlining different mediator styles and roles); Menkel-Meadow, Carrie, “When Dispute Resolution Begets Disputes of its Own: Conficts Among Dispute Professionals” (1997) 44 UCLA L Rev 1871 Google Scholar (referring to debates regarding mediation styles outlined in Riskin’s grid); Stempel, Jeffrey W, “The Inevitability of the Eclectic: Liberating ADR from Ideology” (2000) J Disp Resol 247 Google Scholar (advocating a pluralist or fexible understanding of mediation); Bush, “Orbit,” supra note 128 (referring to competing visions of the relationship of mediation to the courts).

163. E.g., Condlin, Robert J, “‘Every Day and in Every Way We Are All Becoming Meta and Meta:’ or How Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)” (2008) 23 Ohio St J Disp Resol 231 Google Scholar (referring to ADR critiques of adversarial bargaining as “combative, exclusivist, and manipulative, both in tone and content,” and that “they exploit ignorance and insecurity as often as they identify and correct analytical error,” and they “look like self-interested strategies for competing successfully for academic stature and influence,” at 234). See also Hensler, Deborah R, “ADR Research at the Crossroads” (2000) J Disp Resol 71 Google Scholar (noting hostility and backlash against an empirical research that found no evidence of statistically significant differences in time or cost saving between cases referred to court ADR and those proceeded without ADR, as well as “a growing tendency to exclude scholars with divergent perspectives from scholarly conferences and other academic interchanges,” at 74-76).

164. E.g., Picard, Cheryl A, “Exploring an Integrative Framework for Understanding Mediation” (2004) 21 Conflict Resol Q 295 CrossRefGoogle Scholar (suggesting that “the mediation community can no longer continue along the road of binary thinking. Instead, it is challenged to find a more integral, more holistic and more inclusive view of its work” at 309); Bush, “Jurisdictional,” supra note 11 at 926 (pointing out that “process pluralism” does not translate into pluralism in terms of social goals, which cannot be realized without a more integrative framework).

165. Bush, “Orbit,” supra note 128 at 706.

166. See discussion supra Part IV.B.

167. See supra note 15 and accompanying text.

168. Fuller, “Means and Ends,” supra note 75 at 69.

169. Mnookin, Robert H & Kornhauser, Lewis, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale L J 950 CrossRefGoogle Scholar. See also Madoff, Ray D, “Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution” (2002) 76 S Cal L Rev 161 Google Scholar (building on Mnookin and Kornhauser’s thesis and suggesting that substantive legal doctrines play an important role in influencing parties’ decision to use an ADR process). But see Condlin, Robert J, “Bargaining without Law” (2011-2012) 56 NYL Sch L Rev 281 Google Scholar (observing an increasing erosion of substantive legal argument in dispute bargaining practices).

170. See, e.g., MacFarlane, Julie, The New Lawyer: How Settlement Is Transforming the Practice of Law (Vancouver: UBC Press, 2008)Google Scholar; Galanter, Marc, “A World Without Trials?” (2006) J Disp Resol 7 Google Scholar (showing a pattern of decline in trials in recent decades); Otis, Louise & Reiter, Eric H, “Mediation by Judges: A New Phenomenon in the Transformation of Justice” (2006) 6 Pepperdine Dispute Resolution L J 351 Google Scholar; Scott, Joanne & Sturm, Susan, “Courts as Catalysts: Re-thinking the Judicial Role in New Governance” (2007) 13 Colum J Eur L 565 Google Scholar; Lande, John, “How Will Lawyering and Mediation Practices Transform Each Other?” (1997) 24 Fla St UL Rev 839 Google Scholar; Bush, Robert A Baruch, “Alternative Futures: Imagining How ADR May Affect the Court System in Coming Decades” (1996) 15 Rev Litig 455 Google Scholar [Bush, “Alternative”]; Resnik, Judith, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication” (1995) 10 Ohio St J Disp Resol 211 Google Scholar.

171. See, e.g., Crespo, Mariana Hernández, “A Systemic Perspective of ADR in Latin America: Enhancing the Shadow of the Law Through Citizen Participation” (2008) 10 Cardozo J Con Resol 91 Google Scholar (arguing for strengthening the rule of law in order for ADR to function as a true alternative in the Latin American context; also suggesting that private participatory consensus-building processes may help to transform social norms and strengthen the foundation for the rule of law); Alkon, Cynthia, “Lost in Translation: Can Exporting ADR Harm Rule of Law Development?” (2011) J Disp Resol 165 Google Scholar (arguing for “better analysis of when and where to support ADR programs as part of the rule of law development assistance” in countries “with endemic corruption that is struggling to keep, or maintain, a moderately functional legal system,” at 166-67).

172. See, e.g., Deason, Ellen E, “Procedural Rules for Complementary Systems of Litigation and Mediation-Worldwide” (2005) 80 Notre Dame L Rev 553 Google Scholar (exploring legal rules and procedures in a civil litigation setting in order to support mediation); Welsh, supra note 62 at 78-92 (outlining a number of legal options that aim at protecting parties’ self-determination in mediation).

173. See, e.g., Reuben, Richard C, “Process Purity and Innovation: A Response to Professors Stempel, Cole, and Drahozal” (2007) 8 Nevada LJ 271 Google Scholar (arguing that “the displacement of finality with substantive judicial review… will greatly undermine the arbitration process, its attractiveness as an alternative to public adjudication or negotiated settlement, and its utility as an aid to the judiciary as a forum for the expeditious resolution of disputes,” at 272).

174. See discussion in supra Part IV.C.

175. See Hensler, supra note 163 (“[i]f ADR is to attain maturity and flourish, we all need to ask ourselves how we can learn more about it, and put that knowledge to work in ADR policy-making. We need to test our assumptions about what ADR is, and about what it can do, about whom it benefits, about its public and private costs, and about its contributions to the fair resolution of civil disputes,” at 78).

176. See Reuben, supra note 173 at 271 (noting that “the modern dispute resolution movement has been characterized by a spirit of innovation,”).

177. Sturm, Susan & Gadlin, Howard, “Conflict Resolution and Systemic Change” (2007) J Disp Resol 1 Google Scholar.

178. See, e.g., Fiss, supra note 161 at 1085-86; Luban, David, “Settlements and the Erosion of the Public Realm” (1995) 83 Geo LJ 2619 Google Scholar.

179. See, e.g., Grillo, supra note 161; Delgado et al, supra note 161; Abel, Richard L, “The Contradictions of Informal Justice” in Abel, Richard L, ed, The Politics of Informal Justice Vol.1: The American Experience (New York: Academic Press, 1982) 267 Google Scholar; Menkel-Meadow, Carrie, “Do the ‘Haves’ Come Out Ahead in Alternative Judicial Systems? Repeat Plays in ADR” (1999) 15 Ohio St J Disp Resol 19 Google Scholar.

180. See, e.g., Aron, Melvin “Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking“ (1976) 89 Harv L Rev 637 Google Scholar (recognizing the role of norms in private negotiation); Galanter, supra note 64 at 17 (“Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions,”); Galanter, Marc & Lande, John, “Private Courts and Public Authority” (1992) 12 Studies in Law, Politics, and Society 393 Google Scholar (“[i]nstitutions that are private in significant ways may embody and implement widely shared public values,” at 412); Bush, “Alternative,” supra note 170 at 469-74 (suggesting that reasons and principles operate in ADR processes and enable them to be norm generating); Sturm & Gadlin, supra note 177 at 52-58.

181. Sturm & Gadlin, supra note 177 at 4.

182. Ibid.

183. Ibid.

184. See, e.g., Oberman, Susan, “Style vs. Model: Why Quibble?” (2008) 9 Pepperdine Dispute Resolution LJ 1 Google Scholar; Della Noce, Dorothy J et al, “Clarifying the Theoretical Underpinnings of Mediation: Implications for Practice and Policy” (2002) 3 Pepperdine Dispute Resolution LJ 39 Google Scholar; Danesh & Danesh, supra note 106; Scimecca, Joseph A, “Theory and Alternative Dispute Resolution: A Contradiction in Terms?“ in Sandole, Dennis JD & Merwe, Hugo van der, eds, Conflict Resolution Theory and Practice: Integration and Application (New York: Manchester University Press, 1993) 211.Google Scholar