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Participation and Flexibility in Informal Processes: Cautions from the Divorce Context

Published online by Cambridge University Press:  01 July 2024

Howard S. Erlanger ,
Elizabeth Chambliss  and
Marygold S. Melli
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Abstract

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Based on open-ended interviews with the parties and lawyers in twenty-five informally settled divorce cases, this study finds that the informal process is often contentious, adversarial, and beyond the perceived control of one or both parties. Although settlement in some cases reflects flexibility, party participation, and true agreement, in most cases it reflects unequal financial resources, procedural support, or emotional stamina. Parties report settling issues such as child support according to nonlegal, situational factors—particularly their relative impatience to finalize the divorce—and mutual satisfaction with settlement terms is low. Our findings raise questions about the assumed value of informal settlement. However, we recognize that informal processing of divorce is structurally and institutionally inevitable (with or without evidence of its desirability), and we suggest that reform efforts must ultimately recognize both the inevitability and the limits of informal process.

Type
Research Article
Information
Law & Society Review , Volume 21 , Issue 4 , 1987 , pp. 585 - 604
Copyright
Copyright © 1987 The Law and Society Association.

Footnotes

The research reported here was funded in part by Grant No. SES-8024543 from the National Science Foundation, Howard S. Erlanger and Marygold S. Melli, Principal Investigators, and by the Summer Research Program of the University of Wisconsin Law School, Madison. The opinions expressed are those of the authors, not the sponsors. Of the many colleagues who offered helpful comments, we would especially like to thank Dirk Hartog, Robert Kidder, and Stewart Macaulay.

References

ABEL, Richard L. (1982) The Politics of Informal Justice. New York: Academic Press.Google Scholar
BLUMBERG, Abraham S. (1967) Criminal Justice. Chicago: Quadrangle Books.Google Scholar
BRUNK, Conrad G. (1979) “The Problem of Voluntariness and Coercion in the Negotiated Plea,” 13 Law & Society Review 550.Google Scholar
CASPER, Jonathan D. (1979) “Reformers v. Abolitionists: Some Notes for Further Research on Plea Bargaining,” 13 Law & Society Review 567.Google Scholar
CASPER, Jonathan D. (1972) American Criminal Justice: The Defendant's Perspective. Englewood Cliffs, N.J.: Prentice-Hall.Google Scholar
CASSETTY, Judith, ed. (1983) “Emerging Issues in Child-Support Policy and Practice,” in The Parental Child-Support Obligation. Lexington, Mass.: Lexington Books.Google Scholar
CHURCH, Thomas W. Jr. (1979) “In Defense of Bargain Justice,” 13 Law & Society Review 509.Google Scholar
FOLBERG, H. Jay (1984) “Divorce Mediation—The Emerging American Model,” in Eekelaar, and Katz, (eds.), The Resolution of Family Conflict. Toronto: Butterworth.Google Scholar
GARFINKEL, Irwin, BETSON, David, CORBETT, Thomas, and Sherwood K., ZINK (1983) “A Proposal for Comprehensive Reform of the Child-Support System in Wisconsin,” in Cassetty, 1983.Google Scholar
GRIFFITHS, John (1986) “What Do Dutch Lawyers Actually Do in Divorce Cases?” 20 Law & Society Review 135.Google Scholar
HEUMANN, Milton, and Colon, LOFTIN (1979) “Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute,” 13 Law & Society Review 393.Google Scholar
KIPNIS, Kenneth (1979) “Plea Bargaining: A Critic's Rejoinder,” 13 Law & Society Review 555.Google Scholar
LAZERSON, Mark (1982) “In the Halls of Justice, the Only Justice Is in the Halls,” in Abel, 1982.Google Scholar
MACAULAY, Stewart (1963) “Non-Contractual Relations in Business: A Preliminary Study,” 28 American Sociological Review 55.Google Scholar
MacDOUGALL, Donald J. (1984) “Negotiated Settlement of Family Disputes,” in Eekelaar, and Katz, (eds.), The Resolution of Family Conflict. Toronto: Butterworth.Google Scholar
McEWEN, C., and R., MAIMAN (1986) “The Relative Significance of Disputing Forum and Dispute Characteristics for Outcome and Compliance,” 20 Law & Society Review 439.Google Scholar
R., MAIMAN (1984) “Mediation in Small Claims Court: Achieving Compliance through Consent,” 18 Law & Society Review 11.Google Scholar
MELLI, Marygold; Howard S. ERLANGER; and Elizabeth, CHAMBLISS (1985) “The Process of Negotiation: An Exploratory Investigation in the Divorce Context,” Disputes Processing Research Program Working Papers 7:1, Institute for Legal Studies, University of Wisconsin, Madison.Google Scholar
MNOOKIN, Robert H. (1984) “Divorce Bargaining: The Limits on Private Ordering,” in Eekelaar, and Katz, (eds.), The Resolution of Family Conflict. Toronto: Butterworth.Google Scholar
MNOOKIN, Robert H., and Lewis, KORNHAUSER (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law Journal 950.Google Scholar
NEELY, Richard (1984) The Divorce Decision: The Legal and Human Consequences of Ending a Marriage. New York: McGraw-Hill.Google Scholar
NEELY, Richard (1983) Why Courts Don't Work. New York: McGraw-Hill.Google Scholar
ROSENTHAL, Douglas E. (1974) Lawyer and Client: Who's in Charge? New York: Russell Sage.Google Scholar
ROSS, Lawrence H. (1970) Settled out of Court. Chicago: Aldine Publishing Company.Google Scholar
SARAT, Austin, and William, FELSTINER (1986) “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Society Review 93.Google Scholar
VIDMAR, Neil (1987) “Assessing the Effects of Case Characteristics and Settlement Forum on Dispute Outcomes and Compliance,” 21 Law & Society Review 155.Google Scholar
VIDMAR, Neil (1984) “The Small Claims Court: A Reconceptualization of Disputes and an Empirical Investigation,” 18 Law & Society Review 515.Google Scholar
WEITZMAN, Lenore J. (1985) The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America. New York: Free Press.Google Scholar