Zariski, Archie --- "Disputing Culture: Lawyers and ADR" [2000] MurdochUeJlLaw 23; (2000) 7(2) Murdoch University Electronic Journal of Law

Disputing Culture: Lawyers and ADR

Author:	Archie Zariski BA, LLB, LLM, Grad Dip Higher Ed Senior Lecturer in Law, School of Law, Murdoch University
Issue:	Volume 7, Number 2 (June 2000)

Contents:

• Introduction
• Law and culture
• Changing legal culture?
• Birth of a culture
• Conclusion
• Notes

Introduction

"... it is the mind-sets of lawyers and judges which are the greatest impediments to change aimed at increasing [the civil justice system's] fairness ..."[1]

"It is especially frustrating to face the protean allegations that an anti-social culture of mindless combativeness pervades practitioners' approach to litigation, and that this culture is the chief obstacle to the achievement of efficiency. The implication that such instincts (if they exist) can be re-engineered in some unexplained way is equally frustrating."[2]

1. Here are two contrasting views on an important question: Are lawyers' mindsets one of the "chief obstacles" to civil justice reform and the introduction of alternative dispute resolution processes (ADR)? To answer that question we must we pin down those mindsets and discover whether they are changing or not.

2. In this paper I attempt to identify the legal mindsets that may inhibit civil justice reform and to review and analyse the evidence for any change in them that may be occurring. I will use the concept of culture as a framework for analysis and will first explore the many uses to which this concept has been put, as applied to society generally and then law particularly. Then I will apply the concept to help analyse the available information on how lawyers think of themselves and their role in society and how common patterns of thinking may be changing.

3. Based upon my survey of lawyers in Western Australia[3] and similar findings of others around the world, I believe that there is change in lawyers' thinking about ADR. However, several questions remain. Numerous studies, including my own, show that most lawyers are favourably disposed towards alternative dispute resolution practices. Yet, other studies indicate that the majority of them do not voluntarily choose these alternatives when they are offered. Similarly, legal education now increasingly incorporates instruction in alternative processes such as mediation. Yet, studies show that such education does little to encourage students to use those processes when they become lawyers.

4. What then has changed and what has remained the same? In this paper I seek some answers to those questions. In doing so I will canvass studies of lawyers' values, attitudes, beliefs and practices which support the suggestion of a change in legal culture. In conclusion I will consider what such a change signifies for the future of the civil justice system.

   Law and culture

5. The concept of culture is ill defined and has been used in numerous disciplines to describe phenomena ranging in scale from international to familial. I will first briefly review some of these uses of the word then I will try to clarify what we might mean when using it in relation to legal actors, institutions and practices, distinguishing it from the term ideology.

6. As a concept culture has what can be described as a checkered history in modern thought. Co-opted by nationalism it has been wielded as a sword to combat difference and diversity. Transmogrified by Marxism into society's superstructure it became a mere placeholder for the utopia to come. In the former case it was misidentified with institutions and in the latter with ideology, thus being reified from one direction and dematerialized from the other. The anthropologist Clifford Geertz would have us recognise that culture has both material and immaterial elements - including both concrete practices of human action and the investments of meaning with which they are accompanied. I believe, along with Geertz, that the concept of culture remains redeemable for worthy use despite its unfortunate history.

7. The study of culture as applied to law must still take account of Weber who proposed a system of types with which to identify and classify legal regimes.[4] He drew attention to the special role of law based on elaborate judicial procedures in modern, tightly organised bureaucratic Western states compared with systems of justice in other times and places. Weber recognised the tensions inherent in modern Western procedural legalism and was uncertain what the future might hold for men and women in the "iron cage" of their rational law.

8. Other twentieth century scholars have directed their attention to variations within the modern Western legal tradition, studying civil law and common law regimes as exemplifying two vying legal cultures.[5] This discourse has largely proceeded on the abstract level of analysis of the conceptual systems adopted by these traditions; however, more recent comparativists have begun to look for significant differences in practices as well. It may be that the comparative approach remains somewhat influenced by the association of culture with nation, whether by accepting or rejecting it. Geertz suggests that we neither dismiss completely nor accept uncritically the role of state institutions in forming law as culture.

9. At the micro scale some have advocated the concept of a "local legal culture" which may be salient within a restricted area of a larger legal system. Such a concept has been used to explain patterns of difference in legal practice within common legal forms. The concept of culture in such settings has however been challenged as an explanatory mechanism. These researchers identify overlooked structural elements in local legal systems as the significant causal factor for local differences in legal practice.[6]

10. The concept of culture has been applied to legal practices spanning a wide range of activities. For some, the common law is essentially embodied in an "adversarial legal culture" that crosses national boundaries.[7] For others, recent decades have seen the birth of an "ADR culture" in the United States that has begun to flourish in many jurisdictions within and without that nation. Still others distinguish more specific instances of the turn to alternative dispute resolution processes by postulating the existence of "mediation and arbitration cultures" in distinct localities.[8]

11. What this brief review makes clear is that the concept of culture has been used in a variety of ways and settings by scholars interested in law. Many of these researchers have not explicitly stated their view of the meaning of the term or the source of its explanatory power. One consequence of this lack of articulation is that culture as a concept has become confounded with other related ones such as ideology, institutions and traditions.

12. For Clifford Geertz culture is a complex of signifying symbols that mediates meaning for the individual in a particular context.[9] It is a dynamic, relational concept that tries to do justice to the social-psychological nexus in which myriad influences shape how an individual makes sense of herself and her surroundings. Culture is what informs the answer to the question, "What is it to be me, here and now?" Since that "here" and "now" continually changes the answer also changes, reflecting change in personality or social circumstances or both. Thus, the culture an individual identifies in identifying himself is a dynamic selection of signifying elements most salient at the moment. It is also a contextual expression of meaningfulness tuned to the situation in which the individual finds herself.

13. Geertz cautions against a view of culture as a concrete system either congruent with social realities and thus "functional", or out of step and thus "dysfunctional" or in decline. Just as the human being is a congeries of strengths and weaknesses, potentials and susceptibilities, so shared complexes of symbolic meaning can exhibit discontinuities and disruptions, inconsistencies and incoherence without necessarily being "pathological". A vital culture thus exhibits the potential for, and actuality of, change. Culture, in Geertz's view is therefore a partially indeterminate but nevertheless useful concept framed by human practice and the meaning which individuals read into it and from it.

14. If Geertz's approach is adopted it becomes somewhat clearer how the concept can be used fruitfully in the study of legal systems and practices. To emphasise the role of culture as a mediating mechanism between the individual and her surroundings is to both broaden and make more specific the object of study. Culture in this sense is broad enough to encompass ideology, institutions, traditions, mores and much more but it is also specific in the sense that the focus is on the role of culture in establishing an individual's identity and self-conception in her social environment. So it is unwise to assume that culture is expressed only in material conditions and influences or only in ideal patterns of thought and behaviour. Both interact to shape the experience of meaningfulness experienced by individuals as parts of a larger whole. Following this approach we might say that the concept of culture entails the subjective impression that ones true nature and worth, ones proper place in the world, are intertwined with ones culture. If that level of salience of engagement is not reached then we may say that questions of culture do not arise (but psychological questions may). Similarly, if we speak of trends or activities which do not appear to cause any concern in individuals for the effect on their roles or place in society then again we should probably not speak of culture (but sociologists and economists may nevertheless be interested in these matters).

15. If we adopt Geertz's approach to culture when studying legal actors and practices we must then begin with the question whether the phenomenon in which we are interested calls into play subjects' conceptions of themselves as part of a larger social framework. The scope of legal culture will thus be potentially variable depending on subjects' appreciation of the breadth and depth of their relations to others implicated in the object of study. A legal culture might thus be wider in scope than the bounds of the formal legal profession for some purposes and narrower than the immediate territorial legal jurisdiction for others. Similarly, culture should be distinguished from ideology that plays only a contributing role in forming conceptions of self in society. I will take it that ideology refers to explicit descriptions and analyses of the workings of society and of the individual's place within it - that is as the product of specific ontological and epistemological concerns. This will mark ideology off as an essentially descriptive system and distinguish it from normative elements embodied in mores, traditions and express law that also contribute to culture.

16. With this view of culture in mind the relation of culture to professions may be more easily seen. If the institutions, ideology and practices of a profession attain the level of salience for its members that individuals' self-conceptions or identities are intertwined with them we may then speak of a professional culture. One test is to ask the question, "How do you characterise yourself?" If the answer is, "As a professional - as a lawyer" then a professional culture is evident. Perhaps it is one of the defining features of a profession that it has the impact of a culture on its members.

17. We are now ready to assess the evidence for the existence of a mindset amongst lawyers - a legal culture, and its relation to the norms, ideas and practices of alternative dispute resolution. Others have taken up the question of ideologies of alternative dispute resolution but few have approached it from the perspective of culture.

    Changing legal culture?

18. What counts as evidence of a legal culture and of cultural change? If we follow Geertz we must look beyond practices and institutions, mere behaviour, and inquire into the subjective perspective of lawyers. It is not mere participation in the affairs of working life that counts but the meaning an individual gives to and receives through those commitments and connections. That meaning can be expressed in many ways - through adherence to an ideology and through beliefs, attitudes and values that help lawyers identify themselves as professionals with a special role in society.

19. Subjectivity can be explored in a variety of ways including ethnographical participant-observation, the study of biography and autobiography, engaging in participatory action research and by phenomenography. More prosaic survey research is also productive if questions are formulated carefully after scouting the terrain of possible meaning and with proper attention to recognised confounding effects. In depth interviews provide opportunities for close examination of individuals' meaningful relationships to supplement broader inquiries of large numbers of subjects.

20. There is now a sizeable number of recent surveys of lawyers in which to look for possible evidence of a culture in the process of change. This research, conducted within the past decade, has largely focussed on evaluation of new programs for resolving disputes. Data accumulated from these sources includes rates and modes of participation in alternative processes, and measures of levels of satisfaction with them. There has not been much attention paid to investigating lawyers' views about how those ADR activities do or do not play a role in shaping how they think of themselves as legal professionals. My survey of Western Australian lawyers was directed more explicitly to that question. Studies conducted without a specific cultural focus can however, I believe, nevertheless yield some insights into the possibility of an emerging new disputing culture.

21. In seeking evidence of culture we are looking for complexes of meaning which operate beyond the internal, psychological level. Culture is by our definition not personal but interpersonal and is not bounded by material conditions such as age, location, or education although it may take account of and help to give meaning to such contingencies. Because it appeals to our sense of self in society on many levels and in a range of contexts culture can be shared by individuals despite their undeniable personal uniqueness. One strong clue to the existence of an identifiable culture may therefore be shared conceptions, attitudes and beliefs amongst people otherwise differentiated in their personal circumstances. Thus, if it is observed that both criminal and business lawyers, sole practitioners and large firm partners and urban and rural lawyers have the same attitudes, beliefs or values in relation to their work we may speak of a professional legal culture.

22. A decade of survey research into alternative dispute resolution consistently demonstrates favourable opinions toward alternative processes amongst lawyers in English-speaking countries. The response of Western Australian lawyers to my question, "Should any disputes go through dispute resolution processes which do not involve a judge's binding decision?" echoes these results. The vast majority (98%) of legal practitioners who responded to my survey said "Yes". Other studies that have yielded similar results include the following:
    • In 1993 researchers studying an American out of court mediation program for libel actions concluded:

      A majority of both plaintiff and defense attorneys interviewed thought the program would provide a hearing that would be as fair or fairer than a trial, would save their clients time and money, and would produce an outcome favorable to their client.[10]

    • A 1993 survey of 246 in house legal counsel for large Unites States corporations and the outside lawyers they dealt with found that 83% of the former group and 75% of the latter planned to increase their use of ADR in the future.[11]

    • Eighty percent of over 1000 California lawyers who participated in a study of the future of the legal profession agreed with the prediction

      Parties and lawyers will rely increasingly on alternatives to litigation to resolve their disputes.[12]

    • Researchers in the American State of Indiana who studied the attitudes of lawyers toward mediation concluded in 1994 that "civil mediation has become an accepted part of the legal landscape" in that jurisdiction.[13]

    • An evaluation of court-connected mediation in the Canadian Province of Ontario found in 1995 that "very high numbers of lawyers indicated that they considered ADR to be 'a good way to handle a significant number of cases'".[14]

    • The RAND study of experiments in alternative dispute resolution processes in American federal courts reported in 1996 that

      Participants in these ADR programs are generally supportive of them. Most of the lawyers felt that the programs are worthwhile in general as well as beneficial for their individual cases.[15]

    • A study of lawyers involved in mediation during Settlement Weeks in the Australian State of New South Wales found that "generally lawyers were impressed with the mediation process and acknowledged that there were financial and non-financial benefits associated with the process".[16]

    • Research into attitudes of lawyers towards ADR in the American State of Ohio found that a majority of survey respondents favored mediation in a range of types of civil cases.[17]

    • Researchers studying a mediation program in medical malpractice cases in the American State of North Carolina concluded that "the results indicate that attorneys are generally optimistic about the program and supportive of routine referral [to the program]."[18]

    • Lande's research into the attitudes and beliefs of American corporate counsel and their outside counterparts in the legal profession led him to state that "there now exists a wide base of favorable opinion about mediation by business lawyers and executives".[19]

    • Research into knowledge of mediation, and attitudes towards it held by lawyers in the Australian State of Queensland resulted in the conclusion that "respondents have a positive attitude toward mediation with the majority indicating that they generally discussed mediation with their clients, at least to some extent".[20]

23. This is an impressive array of research supporting the suggestion that a major change in legal practice in favour of ADR is taking place. But such data do not necessarily establish that the change is cultural in nature. These studies do not expressly inquire into lawyers' beliefs about what it means to be a lawyer and how that self-perception is related to conceptions, values and practices associated with dispute resolution. However, some of these findings, and my own study of Western Australian lawyers, do at least indirectly yield some evidence for the existence and impact of a disputing culture. By disputing culture I mean a complex of practices, together with shared ideology, beliefs, values and attitudes that help lawyers identify themselves as professionals concerned with resolving conflict in society.

24. We can infer the existence of a unique legal disputing culture from data that indicate pro ADR sentiment is not restricted to certain segments of the legal profession. It might be suggested that ADR is a passing fad, a "movement" associated only with certain sectors of the legal community, or a trendy academic ideal. If it were merely something of this nature we would, I suggest, expect to see significantly different reactions to ADR amongst lawyers related to their personal characteristics. Divergent reactions could be expected to come from demographically distinct sections of the profession, for instance those who have received ADR training and those who haven't, those who have participated in alternative processes and those who have abstained. My own research, and several studies in other jurisdictions negate such a picture. Rather, they appear to show that positive attitudes and beliefs toward ADR transcend obvious personal differences. In my view, this constitutes some evidence of an emerging new legal disputing culture that crosses jurisdictional boundaries throughout the English-speaking legal world. Pro ADR sentiment is becoming part of professional legal culture - a shared value or attitude that helps to define what it means to be a lawyer.

25. I asked Western Australian lawyers whether they agreed with the statement,

    "If I participated more often in non-judicial dispute resolution processes (besides negotiation) my standing amongst my colleagues might suffer".

    Over 70% of 413 respondents either disagreed or strongly disagreed with this suggestion. I also collected data on a number of demographic variables including year of admission to the bar, size of law office, and formal training in ADR before or after admission. Statistical analysis shows that none of these demographic factors appears to be correlated with respondents' beliefs about the acceptability within the legal profession of engaging in ADR.[21]

26. Two other statements yielded similar results:

    "Dispute resolution processes which don't involve a judge's binding decision are detrimental to the development of the law." (63% disagreed or strongly disagreed)

    "There is too much emphasis on compromise and settlement in non-judicial dispute resolution processes at the expense of the application of the law." (59% disagreed or strongly disagreed)

27. The responses to these items do not correlate with differences in the personal characteristics of the lawyers I surveyed. However, analysis reveals that the factor of year of admission to the bar does appear to be weakly correlated with some beliefs or attitudes towards ADR held by Western Australian lawyers. For instance, recently admitted lawyers appear to be somewhat more strongly represented in the 63% of respondents who disagreed that

    "Litigation is generally well adapted to the needs and practices of the business community."

28. One item in my questionnaire did reveal the influence of the length of practice experience on respondents' answers. That statement was:

    "Legal practitioners make the best neutrals to conduct non-judicial dispute resolution processes."

    As shown in Table 1, responses to this assertion were distributed widely, with over 43% agreeing or strongly agreeing, 35% undecided and the balance in disagreement. But note the proportions of experienced and novice practitioners in the various categories. Those more recently admitted were less inclined to agree that lawyers make the best ADR neutrals and more inclined to be undecided about this suggestion.

    Table 1

    [22] reported in their survey of Ohio lawyers on possible connections between demographic variables and attitudes towards mediation. They concluded that: What appears most important about these findings is that so few of the relationships between legal practice and attitudes toward mediation were statistically significant. The only factor with a strong relationship was years of practice, and this can mainly be explained in terms of age (with age the most potent background or practice variable for predicting mediation attitudes). Wissler's[23] study of Ohio attorneys found some significant correlations between background experience variables and specific ADR practices engaged in by respondents to her survey. However, her analysis revealed few significant links between personal characteristics and attitudes towards mediation and other alternative processes. None of the following factors had a significant impact on whether lawyers favoured mediation in civil cases: practicing in a locale with many ADR programs having taken a law school course in dispute resolution having served as a mediator One factor that was observed to be a predictor of attitudes towards mediation was number of years in practice.[24] Lande examined the impact of demographic, organisational and professional variables on respondents' support for mediation as part of a study of lawyers employed by large American companies and outside attorneys who serve such companies.[25] He found factors such as age, urban location, political leaning and law firm size had no significant influence on attitudes to ADR.[26] The research mentioned above looked into lawyers' attitudes towards ADR - their beliefs about the value and appropriateness of alternative processes for resolving disputes.[27] Such attitudes can be considered the norms of a legal disputing culture, and positive attitudes towards ADR are gradually being formalised as law in the process of institutionalisation of alternative processes.[28] But there is more to culture than norms. Since a culture engages the individual in all her personal aspects it must also be expressed in concepts, ideas and organised practices. If it were not embodied concretely in that way the observed behaviour towards ADR would remain merely personal predilection. The studies cited above reveal that norms favouring ADR have surfaced in jurisdictions throughout the common law legal world (although I have discovered no similar research findings in the United Kingdom). However, in the realms of epistemology, ontology, and praxis the evidence for a changing legal disputing culture is less consistent and more ambiguous. In order to show that a cultural phenomenon is being observed we should also find distinctive concepts and ideas about the nature and function of ADR and the practical application of those explanations and understandings. A new disputing culture entails elements of new ideology and new common patterns of behaviour. The available survey results appear to show that American lawyers participate more in alternative dispute resolution processes than Australian barristers and solicitors. The Indiana survey mentioned earlier found that over 50% of respondents had acted as legal counsel for a party in mediation within the last year.[29] In Ohio, over two thirds of the attorneys surveyed reported experience with at least one ADR procedure.[30] By comparison, only 42% of Western Australian lawyers in my survey reported experience with mediation in the preceding year and the figures for conciliation and arbitration were 25% and 16% respectively. Spegel has reported that only 11% of civil litigators in the Australian State of Queensland who responded to her survey said that mediation occurred to a great or very great extent in the prior twelve months.[31] In the United Kingdom a study of a mediation scheme found that most solicitors who participated had no prior experience of the process.[32] Although the questions in these surveys were not the same the findings seem to indicate a wide variation in the degree of involvement in alternative processes amongst practitioners in different jurisdictions. Survey results concerning use of ADR clauses in contracts provide indications of other contrasts in practice. In Ohio, over 75% of the lawyers responding to Wissler's survey advised their clients to include an arbitration clause in contracts and 46% recommended mediation clauses. A study of American corporate and outside counsel found that over 70% of those who used ADR extensively plan to include provisions encouraging or requiring the use of ADR in future contracts.[33] By comparison, only 31% of Western Australian lawyers in my survey reported that their office had a policy or practice to include provision for alternative dispute resolution processes when drafting contracts. This evidence appears to show that practices involving ADR are not yet so common amongst lawyers that they can be said to be typical. Put another way, using alternative processes is not yet a pattern of behaviour that characterises the exemplary legal professional. Therefore, as concerns praxis a new disputing culture cannot be clearly discerned. There is also inconsistent evidence for a new disputing culture as regards accepted explanations of alternative processes and the reasons for their perceived effectiveness. This is a gap in ideology, another of the constituent elements of a culture. One ADR proponent notes that there appears to be uncritical acceptance amongst most Australian lawyers of the virtues of the adversarial system.[34] We must look for indications that such an adversarial ideology is being supplanted by a new one holding ADR to be equally, if not more, efficient, effective and just for understandable reasons. ADR's proclaimed virtues must be backed up by plausible explanations of why it works. Lande's study reported on the reasons business lawyers gave for using mediation. He concluded that: The respondents' support for mediation is strongly related to their beliefs about whether mediation helps preserve relationships and whether mediators and arbitrators are sensitive to the needs of the business community.[35] However, another survey of American business lawyers concluded that perceived savings in time and cost were most important to users of ADR. These researchers reported that "Satisfaction with the ability of ADR to preserve an ongoing business relationship between parties received a comparatively low score."[36] My own research tends to support Lande's findings - 79% of Western Australian lawyers responding to my survey rated an established business relationship between the parties as an important indicator of the appropriateness of ADR. It should be noted, however, that an even higher proportion of respondents (over 80%) considered that a "small dollar value in question" was a good reason to prefer alternative dispute resolution processes. This evidence seems to indicate that professional norms favouring ADR are not yet backed up by consistent explanations of why, when and where it should be used. The ontological and epistemological dimensions of a new legal disputing culture appear weak. Other researchers have identified additional explanations of the virtues of ADR given by significant numbers of lawyers. Medley and Schellenberg's[37] study in Ohio found the two most important positive features of mediation for their respondents were that Mediation helps attorneys and the parties better understand the strengths and weaknesses of their cases. (over 68% of respondents agreed), and Mediation provides an opportunity for a fuller expression of clients' concerns than would occur with ordinary litigation. (over 65% of respondents agreed) The picture that emerges from this research taken together is widespread concurrence amongst common law lawyers that ADR is of value and ought to be pursued but notable divergence in the reasons given for those beliefs. The level of engagement in the practice of ADR also appears to vary significantly between jurisdictions. A praxis and ideology of ADR are only in gestation it seems. Birth of a culture How does a new culture form? Can we say that even if a new legal disputing culture has not yet fully emerged it will probably survive and thrive in the near future? I will now try to answer these questions. First, let us consider how a culture takes shape. In order to attain the level of a cultural influence on behaviour, symbol complexes must be both pervasive amongst a group and persuasive for most individuals within it. The persuasiveness of a worldview that provides an orientation to ones' place in society surely depends on the number and variety of human faculties to which it appeals. Thus, a representation of professional identity that resonates in the individual on emotional as well as cognitive (normative, epistemological and ontological) levels has more chance of becoming a part of professional culture. Let us apply these principles to assessing the possibility that a new view is emerging of what it means to be a lawyer in relation to the work of resolving disputes. A professional culture should generate feelings of self worth amongst those who identify with and through it. Can it be said that ADR has an appeal for lawyers in the affective domain as well as the cognitive? There is little evidence of the emotional appeal of alternative dispute resolution processes. However, there are reports of the stress and disillusionment felt by lawyers engaged in extreme adversarial relations with their fellow practitioners and it is reasonable to suppose that the more cooperative nature of ADR might be attractive to many for its calming quality. This possibility is worth investigation. We have more evidence of the impact of ADR on lawyers' cognitive processes. The studies examined above appear to indicate that an ethic of the value and desirability of alternative processes has become diffused over diverse jurisdictions and is felt by legal practitioners who vary widely in their personal and professional backgrounds. In the normative dimension therefore I suggest that a cultural influence is apparent. The belief is becoming widely accepted that a lawyer who deals with disputes should be favourably disposed towards ADR. However, belief in ADR is not always matched by agreement amongst lawyers as to why ADR is valuable or what it can achieve. The normative element of a new disputing culture is not yet accompanied by pervasive ideas and explanations justifying it on the grounds of justice, fairness, efficiency or other important criteria. What appears to be lacking yet is a consistent, comprehensive, widely accepted ideology of ADR to back up the strong and growing faith in its potential. An ideology appeals to the epistemological and ontological concerns of individuals to make sense of their surroundings and their place in the world. It is a rational construct that complements and supports emotional adjustment and normative imperatives. A pervasive ADR ideology would provide an answer to the lawyer's question, "I sincerely believe that ADR is good for me and my clients - now tell me exactly why and how?"[38] The concept of an ADR ideology has been used by Lande and other researchers to help describe their findings. Lande for instance speaks of a "legal techno-pluralist ideology" that includes: acknowledgement of diverse norms of decision making other than, or in addition, to legal rules; consideration of innovative remedies and outcomes; recognition of facilitative activities which complement or replace decision making roles for lawyers; acceptance of more cooperative techniques in resolving disputes[39] He concludes that such an ideology associated with ADR is indeed diffusing through the legal profession - at least amongst lawyers who work in and for large American corporations. Harrington and Merry have also adopted the concept of ideology to describe some of the competing influences on another facet of the ADR "movement" - the field of community mediation. They identify three "ideological projects" offering alternative visions of the practice of ADR at a community level: service delivery, social transformation and personal growth.[40] The ideology formulated by Lande and those described by Harrington and Merry are not the same, although there appear to be some points of contact. I am drawn to the conclusion that a pervasive and comprehensive rationalisation of the arguments for ADR and the precise functions of alternative dispute resolution processes is not yet present in the legal community. The final element of a new disputing culture for which we have some evidence is actual ADR practice and the organisations and institutions that accompany it. Here we must recognise the strong influence of economics, reflected in conflict over the creation of a unique dispute resolution or conflict resolution "profession" and competition for the material rewards to be reaped from ADR service provision. Menkel-Meadow, for instance, draws attention to the "turf battles" now being fought by accountants, psychotherapists, economists, labor relations advocates, social workers, lawyers and others in what she considers to be a phase of "early professionalization" of the ADR area.[41] Dezalay and Garth have described the provision of mediation services in the United States as a field of professional competition.[42] They point out the value of "symbolic capital" to participants in this competition that consists in part of definitions and analyses of ADR generated by academics and researchers. That brings us back to the role of ideology in supporting both practice and beliefs. (This paper itself may become valued as "symbolic capital" in the marketplace of useful analyses and explanations of the new disputing culture.) Dezalay and Garth have thus identified the source of one type of contribution to the formation of an ADR culture through ideology - concepts and ideas sprung from academic research and theorizing. If an ADR ideology is born in that way, what are the origins of the norms favouring ADR that seem to have come first? Some evidence exists that pro ADR norms have percolated down from organisational and professional superiors to lower levels and then have spread amongst lawyers generally. Lande found that respondent lawyers who believed their professional and organisational "superiors" favoured ADR were themselves more likely to accept mediation as a worthwhile process. For instance, business lawyers who perceived that results obtained in mediation satisfied corporate executives were more inclined as well to welcome mediation.[43] Lande concludes that "The survey respondents are sensitive to opinions of key players in their professional lives, and the respondents' own opinions are related to their perceptions of key players' beliefs."[44] Lande has also documented the increasing frequency of references to ADR in professional journals in the United States over the period 1982-1994. A look at the professional publication of the Law Society of Western Australia, the magazine "Brief", seems to echo this trend. Articles with titles such as "Mediation - A Success Story"[45] and "Why Arbitrate or Mediate?"[46] have appeared in the last few years. Indeed, my survey of Western Australian lawyers was distributed with an issue of this publication featuring the cover story "Meeting the Challenge - Mediation and the Legal Profession"[47] To say that business and professional leaders and proselytizers are the source of beliefs that ADR should be pursued is to beg the question of where they get their motivation. If Dezalay and Garth are right the original impetus comes from the academy. The studies examined above seem to indicate that norms based on academic groundbreaking diffuse first. Positive attitudes towards ADR are followed by the spread of increased knowledge gained from continuing extensive research. New theories and insights may then contribute to the formation of a prevailing ADR ideology. Once norms, ideology and affective rewards coalesce we may see the birth of a new disputing culture amongst lawyers. Conclusion A cultural analysis of ADR and lawyers can yield clues to the direction and strength of changes in the legal profession related to disputing practices. If ADR is integrated in legal thinking and practice at the cultural level then we can foresee that it will remain a powerful influence on lawyers for some time. The evidence that there may be a different outlook towards ADR amongst the older generation of lawyers may confirm that a significant culture change is taking place. In other than revolutionary times it is reasonable to suppose that culture changes through attrition of those who hold disappearing beliefs and follow declining practices. A cultural perspective also encourages us to take into account the range of factors that influence culture change as it relates to ADR. It may not be sufficient just to demonstrate success in the application of alternative processes, or to exhort lawyers to become problem solvers rather than combatants, or to police the boundaries of the legal professional turf. If a deep rooted and long lasting cultural change amongst lawyers is to occur all of these elements must act complementarily to bring it about. Normative beliefs, emotional impulses and rational explanations all must be engaged in a process of cultural change.[48] In conclusion let us return to the element of individual subjectivity in culture. Although it may not be statistically significant I will end by highlighting the views of someone at the top of the Australian legal profession. A jurist who once faulted ADR for promoting a "legal sub-culture - at odds with existing legal principle"[49] later became Chief Justice of Australia and was quoted as saying: ... mediation and arbitration will continue to be familiar and prominent features of the system of dispute resolution in the future. There is no reason why, in the vast majority of cases, mediation should not be compulsory in the sense of being a condition of the right of any party to have the dispute brought on for trial. But let it be court-attached mediation.[50] This personal vignette captures nicely the prospect of a change in legal culture towards ADR and away from litigation. Such change, if it happens, will likely be based on exhortation and rationalisation with a bit of "turf protection" thrown in too. Notes [1] G L Davies, "Fairness in a Predominantly Adversarial System", Ch 7 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 102. [2] Bret Walker, "Judicial Time Limits and the Adversarial System", Ch 6 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 88. [3] For the questionnaire and analysis of responses see Archie Zariski, "Lawyers and Dispute Resolution: What Do They Think And Know (And Think They Know)? - Finding Out Through Survey Research", available at: http://www.murdoch.edu.au/elaw/issues/v4n2/zaris422.html. [4] See Edward Shils and Max Rheinstein, eds, Max Weber on Law in Economy and Society, 2nd Ed, Cambridge, Mass: Harvard University Press, 1954. [5] See David Nelken, ed, Comparing Legal Cultures, Aldershot: Dartmouth, 1997. See also Gunter Bierbrauer, "Toward an Understanding of Legal Culture: Variations in Individualism and Collectivism Between Kurds, Lebanese and Germans", Law & Society Review, Vol 28, No 2, 243. [6] Herbert M Kritzer and Frances Kahn Zemans, "Local Legal Culture and the Control of Litigation", Law & Soc Review, Vol 27, No 3 (1993), 535. [7] See Australian Law Reform Commission, Discussion Paper 62: Review of the Federal Civil Justice System, available at: http://www.austlii.edu.au/au/other/alrc/publications/dp/62/ and Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System Final Report, available at: http://www.wa.gov.au/lrc/finalreport/freportindex.htm. [8] See John Lande, "Failing Faith in Litigation? A Survey of Business Lawyers' and Executives' Opinions", Harvard Negotiation Law Review, Vol 3 (Spring 1998), 1, 8. [9] See Clifford Geertz, The Interpretation of Cultures, New York: Basic Books, 1973. [10] Roselle L Wissler, et al, "Resolving Libel Disputes out of Court: The Libel Dispute Resolution Program", ch 7 in John Soloski and Randall P Bezanson, ed, Reforming Libel Law, New York: Guilford, 1992. [11] Deloitte & Touche, Deloitte & Touche Litigation Services 1993 Survey of General and Outside Counsels: Alternative Dispute Resolution (ADR), Chicago: Deloitte & Touche, 1993 at 16. [12] Deborah Hensler and Marisa E Reddy, California Lawyers View the Future: A Report to the Commission on the Future of the Legal Profession and the State Bar, Santa Monica, CA: RAND, 1994 at 8. [13] Morris L Medley and James A Schellenberg, "Attitudes of Attorneys Toward Mediation", Mediation Quarterly, vol 12, no 2, Winter 1994, 185 at 196. [14] Julie MacFarlane, Court-Based Mediation Of Civil Cases: An Evaluation Of The Ontario Court (General Division) ADR Centre, Toronto: Queen's Printer for Ontario, 1995 (available at http://129.128.19.162/docs/minagont.html) [15] James, S Kakalik, et al, An Evaluation Of Mediation And Early Neutral Evaluation Under The Civil Justice Reform Act, Santa Monica, CA : RAND, 1996 at 51. (summary available at: http://www.rand.org/publications/MR/MR800/800sec5.html#alternative) [16] Bridget Sordo, "The Lawyer's Role in Mediation", Australian Dispute Resolution Journal, February 1996 20 at 29. [17] Roselle L Wissler, Ohio Attorneys' Experience With and Views of Alternative Dispute Resolution Procedures, Supreme Court of Ohio Committee on Dispute Resolution, 1996 at 9.(on file with the author) [18] Thomas B Metzloff, Ralph A Peeples and Catherine T Harris, "Empirical Perspectives on Mediation and Malpractice", Law & Contemporary Problems, vol 60, no 1, 107 at 141. [19] John Lande, "Relationships Are Keys To Support for Mediation", 15 Alternatives to the High Costs of Litigation 95 (July/August 1997); see also John Lande, The Diffusion of a Process Pluralist Ideology of Disputing: Factors Affecting Opinions of Business Lawyers and Executives, unpublished doctoral dissertation on file with the author. [20] Nadja M Spegel, "Queensland Lawyer Attitudes Towards Mediation - Implications for Training and Education", National Law Review, vol 1, 1998 at http://web.nlr.com.au/nlr/HTML/archive/mediate/mediatesum.htm [21] An anonymous reviewer has suggested a desirable follow-up question by asking whether the response would be the same if the respondent initiated ADR rather than merely participated in it. If my survey is replicated this could be included. [22] Supra note 13. [23] Supra note 17. [24] Ibid, Table 6. [25] Supra note 19, The Diffusion of a Process Pluralist Ideology. [26] Ibid, Tables E.1 and E.2. [27] An anonymous reviewer has pointed out that positive attitudes towards ADR may also reflect disillusionment and frustration with current litigation processes as well as appreciation of the alternatives. [28] For a review of the institutionalisation process, see Sharon Press, Institutionalization: Savior Or Saboteur Of Mediation?, Florida State University Law Review, Volume 24, No. 4 (Summer 1997), (http://www.law.fsu.edu/journals/lawreview/frames/244/presfram.html). For an example in Australia see the Family Law legislation which provides a comprehensive framework for "primary dispute resolution" (http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s14.html). [29] Supra note 13 at 189. [30] Supra note 17 at 7. [31] Supra note 20. [32] Marie Davies, Gwynn Davis and Julian Webb, Promoting Mediation: Report of a Study of Bristol Law Society's Mediation Scheme in its Preliminary Phase, Research Study No 21, London: Law Society, 1996. [33] Deloitte & Touche, Deloitte & Touche Litigation Services 1993 Survey of General and Outside Counsels: Alternative Dispute Resolution (ADR), Chicago: Deloitte & Touche, 1993, 16. [34] "Perhaps the most pervasive and strongest mind-set is a belief that, whatever its faults, the Australian civil justice system delivers near-perfect justice or at least as near to perfect as human endeavours can devise." G L Davies, "Fairness in a Predominantly Adversarial System", Ch 7 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 106. [35] Supra note 19, "Relationships are Keys". [36] Supra note 33 at 12. [37] Supra note 13 at 190. [38] Geertz puts it this way: "To formulate an ideological doctrine is to make (or try to make - there are more failures than successes) what was a generalized mood into a practical force." Clifford Geertz, "After the Revolution: The Fate of Nationalism in the New States", Ch 9 in The Interpretation of Cultures, supra note 2 at 252. [39] Supra note 19, The Diffusion of a Process Pluralist Ideology, at 9-10. [40] Christine B Harrington and Sally Engle Merry, "Ideological Production: The Making of Community Mediation", Law & Society Review, Vol 22, No 4 (1988), 709 at 710. [41] Carrie Menkel-Meadow, "When Dispute Resolution Begets Disputes of Its Own: Conflicts Among Dispute Professionals", UCLA Law Review, Vol 44, 1871 (August 1997) at 1880. [42] Yves Dezalay and Bryant Garth, "Fussing about the Forum: Categories and Definitions as Stakes in a Professional Competition", Law & Social Inquiry, Vol 21, No 2, Spring 1996, 285. [43] Supra note 19, The Diffusion of a Process Pluralist Ideology, at 188-189. [44] Supra note 19, "Relationships are Keys". [45] Greg Steinepreis, "Mediation - A Success Story", Brief, October 1993, 29. [46] David Forrester and Richard Reynolds, "Why Arbitrate or Mediate?", Brief, November 1994, 18. [47] Laurie E James, "Meeting the Challenge - Mediation and the Legal Profession", Brief, July 1996, 6. [48] A cultural approach to changing lawyers' and others' behaviour may assist those seeking to promote ADR. For examples of practical applications of the principles of culture change in relation to ADR see Christine Cervenak, David Fairman and Elizabeth McClintock, "Leaping the Bar: Overcoming Legal Opposition to ADR in the Developing World", Dispute Resolution Magazine, Spring 1998 (http://www.abanet.org/dispute/magazine/spr98cervenik.html). [49] Sir Gerard Brennan, "Professional Orientation: Business or Law?", Australian Law News, July, 1990. [50] Sir Gerard Brennan, CJ, addressing the conference of the Australasian Institute for Judicial Administration, Wellington, New Zealand, September 20-22, 1996 as reported in Justice P W Young, "Current Issues", Australian Law Journal, Vol 70, November 1996, 870-871.