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Fussing about the Forum: Categories and Definitions as Stakes in a Professional Competition

Published online by Cambridge University Press:  27 December 2018

Yves Dezalay  and
Bryant Garth
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Abstract

This article seeks to show the way that professional competition, including academic competition, about the definitions and categories of dispute resolution transforms the field of business disputing. It draws on extensive interviews and focuses on two case studies. The first is “international commercial arbitration,” and the second is the ADR movement, especially “mediation,” in the United States. In each case, the article shows that there is competition about what can legitimately be termed arbitration or mediation; that there is competition more generally for the business of business disputing; that the competition is not played on a level playing field; that competitors compete in terms of the symbolic capital that they have to offer, which is changing over time and in relation to what others possess; and that the (always provisional) results are important for transforming the “rules of the game” for governing business transactions. The internal transformations in the field of business disputing also take place in close conjunction with transformations that can be seen as outside, above all, the international restructuring of business relations in the 1970s and 1980s.

Type
Articles
Information
Law & Social Inquiry , Volume 21 , Issue 2 , Spring 1996 , pp. 285 - 312
Copyright
Copyright © American Bar Foundation, 1996 

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References

1. Pierre Lalive, “Enforcing Awards,” in International Chamber of Commerce, Sixty Years of ICC Arbitration 318 (1984) (“ICC, Sixty Years“).Google Scholar

2. Quotations not otherwise identified refer to personal interviews by both the authors as part of a research project on the subject of international commercial arbitration and private justice. The results of the research are reported in Yves Dezalay & Bryant Garth, “Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes,” 29 Law & Soc'y Rev. 27 (1995); and Yves Dezalay & Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (forthcoming University of Chicago Press, 1996) (“Dezalay & Garth, Dealing in Virtue”).CrossRefGoogle Scholar

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12. While not concerned with business disputing, a recent article can illustrate this point. McEwen, Rogers, and Maiman, examining divorce mediation in Maine, conclude that despite some of the accepted notions of mediation as a process that should leave adversarial lawyers aside, lawyers can indeed be brought in: “Lawyers should discard traditional mediation, even if it seems more ‘real’ or satisfying to the mediator, if it fails to serve the families’ needs or ensure fairness.” Craig McEwen, Nancy Rogers, & Richard Maiman, “Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation,” 79 Minn. L. Rev. 1317 (1995). We do not question their conclusion, but it is important to note that they have taken a position in a contest about the role of law and lawyers in divorce mediation, and their position—now legitimated in dispute resolution theory—will in turn be used in those continuing battles.Google Scholar

13. This is not the same as the gap between theory and practice as typically presented in law and society scholarship. We have not studied practices in the sense of observing mediations or arbitrations. Our concern is with the construction and transformation of institutions and the rules of the game for operating those institutions. Rules may be disregarded, but they set the terms for the criticism and legitimation of those practices.Google Scholar

14. Of particular relevance is P. Milgrom, D. North, & B. Weingast, “The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges and the Champagne Fairs,” 2 Economics & Politics 1 (1990). The sociological literature, however, is closer to our approach in method since it relies less on economic theory and more on empirical research into the activities of individuals and groups to determine the development and place of institutions.Google Scholar

15. See, e.g., W. Powell & P. DiMaggio, eds., The New Institutionalism in Organizational Analysis (1991) (“Powell & DiMaggio, New Institutionalism”).Google Scholar

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18. Andrew Abbott, The System of Professions (1988).CrossRefGoogle Scholar

19. See also Ronen Shamir, Managing Legal Uncertainty: Elite Lawyers in the New Deal (1995).Google Scholar

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22. The terms “internal” and “external” are meant to suggest the importance of looking outside of the field of dispute resolution to developments in the economy (or in politics), but of course the developments in the economy are to some extent constituted by the development in the legal field.Google Scholar

23. In Bourdieu's words, “The first and most pressing scientific priority, in all such cases, would be to take as one's object the social work of construction of the pre-constructed object.” Emphasis in original. Bourdieu & Wacquant, Reflexive Sociology 229 (cited in note 11).Google Scholar

24. We use field in two senses. One is the popular notion of who the “players” are according to insiders and knowledgeable observers. The other is the analytical concept of “field” (id. at 104–14) as a means to study such questions as the role of law. For some research purposes, it is convenient to see arbitration or mediation as “mini-fields” characterized by their own rules of the game and players; but it is also important to see mediation and arbitration as part of a more general field of business disputing. The “field,” of course, is not a fixed thing, but rather is a tool to facilitate research in terms of structures and relationships.Google Scholar

25. Again, a term from Bourdieu (id. at 119), which for present purposes refers to the value that comes from the recognition given to degrees, technical skills, particular kinds of authorities, and the like.Google Scholar

26. Moreover, since we are concerned with the construction and transformation of institutions, it would be misleading to take one or another institution or definition as given and make it the object of our observations. Similarly, even if we were to take as our topic “business disputing,” and then try to learn the changing practices, we would still have the problem of predefining business and dispute, both of which also change over time.Google Scholar

27. As our approach suggests, we doubt that numbers can be found to document this success definitively, largely because the label is unclear and there is a competition to appear successful by inflating the number of “international” matters. Still the growth of the caseload of the International Chamber of Commerce from a handful of cases in the 1950s to around 350 in 1993 attests to the growth. See “ICC Court Reports Increase in Filings: More Diversity among Parties,” 5 World Arb. & Mediation Rep. 216 (1994).Google Scholar

28. Again, numbers are a problem, but there are some indications in the reports cited in note 10 above.Google Scholar

29. This section draws on the article and book cited in note 2. Of course, the change is not complete, and arbitration is not precisely like U.S. litigation, but it is now a forum where U.S. litigation can use its full range of techniques.Google Scholar

30. See, e.g., W. L. Craig, J. Paulsson, & W. Park, International Chamber of Commerce Arbitration (1990).Google Scholar

31. See generally T. Carbonneau, ed., Lex Mercatoria and Arbitration (1990) (“Carbonneau, Lex Mercatoria“). The lex mercatoria is sometimes called “new” to distinguish it from the law merchant of the medieval period. The most famous academic proponent of the lex mercatoria was a French law professor, Berthold Goldman, who also was a leading arbitrator.Google Scholar

32. An individual who served as “secretary”—a kind of law clerk—to one of the great arbitrators, Pierre Lalive, thus noted: “He … hardly ever decided a case. They would all be settled at some point. And that takes a lot of skill … from the chairman.”Google Scholar

33. According to Pieter Sanders, one of the leading arbitrators dating back to at least the 1960s, the secrecy and informality of arbitration combine to give “a better chance that parties will remain on speaking terms and will continue doing business with each other.” Pieter Sanders, “Trends in the Field of International Commercial Arbitration,” Recueil des Cours 1975-II, at 205, 215–16 (1976).Google Scholar

34. A case study exemplifying this type of dispute is provided in Dezalay & Garth, Dealing in Virtue ch. 5 (cited in note 2).Google Scholar

35. See, e.g., Lalive, “Enforcing Awards,” in ICC, Sixty Years 317 (cited in note 1). The arbitrator “will no doubt be anxious to make sure … that ‘the award is enforceable at law,’ but he will be preoccupied much more with obtaining a conciliation, or an award acceptable to both parties and which does not jeopardize the resumption of their business relations” (id. at 349). And to become an arbitrator, “a great amount of time is necessary to acquire the experience and know-how apt to create this confidence which is the key toward voluntary enforcement of arbitral awards” (id. at 352). Lalive is recognized as one of the leading arbitrators and scholars of the senior generation.Google Scholar

36. See, e.g., J. Paulsson, “La Lex Mercatoria dans l’Arbitrage CEE,” 1990 Revue de l’Arb. 55. “The power to apply the lex mercatoria can be a recipe for amateurism and arbitrariness. Nothing is easier than to proclaim common principles on the basis of a limited and superficial personal acquaintance”; id. at 68 (authors’ translation). Paulsson is perhaps the leading arbitrator of the younger generation.Google Scholar

37. See, e.g., the criticisms in Carbonneau, Lex Mercatoria (cited in note 31).Google Scholar

38. See, e.g., M. Mustill, “The New Lex Mercatoria: The First Twenty-Five Years,” in M. Bos & I. Brownlie, eds., Liber Americorum for the Rt. Hon. Lord Wilberforce 149 (1987) (Arbitration is no longer simply the “pacific settlement of disputes” (id. at 181). It requires sounder “foundations,” especially in case law (id. at 182)); M. Kerr, “Commercial Dispute Resolution: The Changing Scene,” in id. at 111; “the world is losing sight of the real purpose of commercial arbitration… . its outcome should be rationally predictable, according to legal principles” (id. at 130).Google Scholar

39. See, e.g., B. Goldman, “The Complementary Roles of Judges and Arbitrators in Ensuring that International Commercial Arbitration is Effective,” in ICC, Sixty Years 255 (cited in note 1). “One might even be permitted to think that it is that view of the ‘detachment’ from national laws, which appear to them [business persons] insufficiently adapted to the specific needs of international trade, which encourages these international traders to entrust the settlement of their cases to arbitrators rather than to national jurisdictions.” Id. at 265.Google Scholar

40. See, e.g., Lillich & Brower, International Arbitration in the 21st Century: Towards ‘Judicialization’ and Uniformity? (cited in note 3) (the full title tells the story).Google Scholar

41. And while somewhat less successfully, arbitrators from Third World settings argued that what was essential to the legitimacy of arbitration in Third World settings was more participation by arbitrators from outside of Europe and North America. See, e.g., S. Asante, “The Perspective of African Countries on International Commercial Arbitration,” 6 Leiden J. Int'l L. 331 (1993). “Effective internationalization, that is the conversion of an essentially Western system to a truly cosmopolitan or international system is necessary to inspire the confidence of African states.” Id. at 348.CrossRefGoogle Scholar

42. It is important to see that the particular strategies adopted to promote one group or another were adopted only in relation to the positions that were already taken in the game.Google Scholar

43. E.g., Lillich & Brower, International Arbitration (cited in note 3).Google Scholar

44. For example, arbitration of securities claims has become more “courtlike,” according to the director of arbitration for the National Association of Securities Dealers (NASD): “The influx of attorneys has brought legal language and court procedures into the process… . There's more scrutiny of arbitrators. It's much more contentious than it used to be 10 years ago.” Suzy Hagstrom, “Investors put Stock in Arbitration,” Orlando (Fla.) Sentinel, 28 Feb. 1994, p. 14, quoting NASD arbitration director Deborah Masucci. See also S. Chartrand, “N.A.S.D. Experiencing Delays in Arbitration,” N.Y. Times, 13 Aug. 1994, sec. 1, p. 36 (“The process of securities arbitration has become increasingly complex in recent years, with more and more cases handled by lawyers instead of the investors themselves”). Mediation is now being used in some securities claims, and the NASD recently initiated a mediation program. Antilla, N.Y. Times (cited in note 10).Google Scholar

45. See Craig McEwen, Lynn Mather, & Richard Maiman, “Lawyers, Mediation, and the Management of Divorce Practice,” 28 Law & Soc'y Rev. 149, 176–81 (1994). “Rather than placing decisionmaking exclusively in the hands of parties, mediation permits, even strengthens, the ability of lawyers to influence decisions.” Id. at 183.Google Scholar

46. The range of products with the same “name” serves a further function. It allows a stratified market to pretend to offer the same service universally, while in practice offering very different services to different clients with different amounts of resources and stakes in an outcome. There may be almost nothing in common between high stakes mediation and small claims mediation other than that the same general term is used on the basis of an assumption that mediation means the same thing in all cases. As noted before, our own study is only of medium and large stakes business disputing.Google Scholar

47. Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ‘The Law of ADR,’ ” 19 Fla. St. L. Rev. 1, 2 (1991).Google Scholar

48. A Center for Public Resources video released in 1994 in high-stakes mediation, using Northwestern Law School professor Steve Goldberg as the mediator, emphasizes the way that he provides an “expert legal opinion” as part of the mediation process.Google Scholar

49. See, e.g., M. Galanter & T. Palay, Tournament of Lawyers (1991); W. Nelson, “Contract Litigation and the Elite Bar of New York City, 1960–1980,” 39 Emory L.J. 413 (1990).Google Scholar

50. See Center for Public Resources, Corporate Dispute Management (1982).Google Scholar

51. The importance of links to the past and the legitimacy of history to innovation in legal practice is evident in the story of arbitration as well, and even in the reinvention of the term taken from the Middle Ages, the lex mercatoria. Google Scholar

52. The early success of mediation came especially in the area of family and divorce matters, which further promoted academic writing about the virtues and character of mediation. CPR began its own ADR with the minitrial, but it was drawn into mediation for business by its sponsors.Google Scholar

53. The early editions of the casebooks and nutshell in note 6 exemplify these early efforts.Google Scholar

54. Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth, 473 U.S. 614 (1985). See Dezalay & Garth, Dealing in Virtue ch. 8 (cited in note 2).Google Scholar

55. The market strength of former judges in high-stakes business mediation and arbitration is supported by a recent National Law Journal article, which states that “ex-judges … are still the most popular choice, largely because clients want an approximation of what they get in court” (Donovan, Nat'l L.J. (cited in note 4)), and by James Henry of CPR, who stated that judges are still “the preferred resource for neutral roles in ADR” (N. Varchaver, “Dispute Resolution,” Am. Lawyer, April 1992, p. 63). Of course, this can change and may even already have changed if mediation is defined more as a process and set of institutions than in relation to the particular individuals who serve as notable mediators.Google Scholar

56. As one dispute resolution expert observed, “there are some mediators whose primary stock in trade is to give the parties a preview of the likely outcome if they litigate the matter.” From the perspective of a retired judge, this is an advantage: “as a mediator I very often evaluate a party's legal position. They say this is our position, and I say it will never fly. You'll never convince a judge of that. Non-lawyers can't do that. And of course even lawyers aren't taken seriously when they do that. But when a former judge says it, they listen a little more intently.” Others, as noted before, criticize the practice and suggest that judges are “often ill-suited” to the “friendly persuasion that is the key to arbitration,” Donovan, Nat'l L.J.Google Scholar

57. A proponent of this more pure—and closer to business—mediation noted that when judges mediate, they act upon the principle that “the judge knows more than anyone else.” A good mediator, in contrast, acts on the assumption that the “parties know more about the case than anyone else.” The mediator must “find out what each party will do, then get them to move.” Mediation is about “the art of the possible.”Google Scholar

58. A growing number of litigation lawyers have thus found ways to turn ADR into an opportunity to create and market another profitable expertise. S. Dick, “CPR Survey: Law Firm ADR,” 13 Alternatives 57 (1995) (“One of the key findings of the survey, which looked at 124 leading law firms, was that the firms have integrated ADR into a broader spectrum of practices than many people suspected”). William K. Slate II, “Arbitration Comes of Age,” Am. Lawyer (Supp.), May 1995, p. 10 (listing 42 law firms with “ADR Practice Groups”). A prominent litigator thus stated, “one day you will get to the table anyway.” Clients “want to know when they should fight and they want to know when they should not fight.” His point was that expertise in “the nuances of ADR” could be used to get the matter settled: “[E]ach dispute has a level of options,” including mini-trials, mediation, or a variety of other approaches, and the litigator expert in ADR can help the client select from the options. People will come to a law firm when they have a problem. They need to understand what their options are. And each dispute has a different level of options… . [T]here are some things you cannot use ADR for… . The tougher the person with the tougher position frankly is not going to go to an arbitration company or ADR company. He wants to know what all his options are. So he goes to a lawyer.”Google Scholar

59. E.g., E. Pollock, “Arbitrator Finds Role Dwindling as Rivals Grow,” Wall St. J., 28 April 1993, p. B1.Google Scholar

60. There is also competition for the most eminent mediators, who generally can build links with all the major institutions and therefore diversify their own portfolios.Google Scholar

61. This relationship is discussed in J. Resnik, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication,” 10 Ohio St. J. Disp. Resol. 211 (1995). Our approach contrasts with that of Judith Resnik by emphasizing the relationship of the arguments for and against various alternatives to the strategic positions of the proponents and critics.Google Scholar

62. See, e.g., S. Dick, “Special Courts Now Handle Business Cases,” 12 Alternatives 97 (1994); M. Geyelin, “Delaware Plans Streamlined Court for Business Disputes,” Wall St. J., 10 Dec. 1993, p. B3. One innovation made public judges eligible for private dispute resolution. K. Johnson, “Public Judges as Private Contractors: A Legal Frontier,” N.Y. Times, 10 Dec. 1993, p. D20.Google Scholar

63. See, e.g., A. Rovine, “ ‘Fast Track’ Arbitration: A Step away from Judicialization of International Arbitration,” in Lillich & Brower, International Arbitration 45 (cited in note 3).Google Scholar

64. It is revealing, in addition, that the two presidents named recently to the AAA have come first from an in-house counsel and then from court administration, responding in the latter case to the many court-controlled ADR programs.Google Scholar

65. “And the Europeans feel that, beyond the catchy acronym, there is really no new substance but merely a slick repackaging of conciliation and mediation methods—which they have been practicing all along in appropriate cases.” J. Werner, “ADR: Will European Brains Be Set on Fire?” 10 J. Int'l Arb. 45 (1993).Google Scholar

66. See J. Auerbach, Justice without Law (1983).Google Scholar

67. As happened in Europe under the legal gerontocracy only recently disrupted by internationalization.Google Scholar

68. It should be clear that while we have used the general terms business, law, and state, some groups have more power to shape what is “meant” by each of these categories.Google Scholar