This Article suggests a narrow agenda for empirical research as well as a broad one. Starting with the narrower agenda, in Part II of this Article, I identified some distinctions that practitioners and analysts have used to differentiate mediators. Are these distinctions, or perhaps other “native concepts,” actually used in the mediation market? In Part III, I outlined a set of behavioral factors describing the quality of consent in mediation. Are these (or other factors) valid indicators? How can these factors be measured concretely? In Part IV, I hypothesized about possible changes that might occur in law- yering and mediation practices as part of the development of liti-
281. See Galanter, supra note 30, at 103.
282. See McEwen et al., supra note 23, at 1330-49. I share McEwen et al.’s skepticism about the efficacy of legal regulation to protect principals in mediation and safeguard larger social values of disputing. See Lande, supra note 74, at 44; Lande, supra note 268, at 28-30.
283. See McEwen et al., supra note 23, at 1335 (“[T]he primary virtue of legislating such mediator duties is to instill optimism in the rule-maker or legislator.”); cf. Susan S. Silbey, Mediation Mythology, 9 NEGOTIATION J. 349, 350 (1993) (suggesting that guide-
lines for selecting mediators perpetuate myth of informal, innovative, neutral, and nonau- thoritative process and create “false expectations [that] disappoint users and practitioners of mediation alike”).
284. For example, while I endorse the notion that “[n]egotiations in family mediation are primarily conducted by the parties,” FLA. STAT. § 44.1011(2)(d) (Supp. 1996), and I
even think that it is useful to include this statement in statutory language, we should not expect that this alone will make it so.
mediation culture. Which, if any, of these changes are actually occur- ring and why?
More broadly, the contemporary co-evolution of lawyering and mediation practices provides a wonderful opportunity to study the development of professional cultures and markets.286 We are now in a period when definitions of legitimate practice are coalescing, albeit in varying configurations in different local areas. It would be fasci- nating to analyze the forces leading to the development of particular local disputing cultures. One possibility is that general indigenous norms (i.e., norms not specifically relating to dispute resolution pro- cedures) affect the evolution of norms about dispute resolution. If so, the development of mediation practice (or the predominance of a par- ticular style of mediation) in a community may be a function of more general attitudes about human relationships in that community. Thus, we might hypothesize that liti-mediation culture may be more likely to be adopted in communities where residents have more coop- erative relationships than communities with more adversarial rela- tionships. Similarly, liti-mediation culture may be more likely to grow in more interconnected communities. Alternatively, there may be an inverse relationship such that mediation may especially take hold in those communities where indigenous social connections are especially frayed or lacking.
Is the development of a local disputing culture a function of the availability and perceived quality of indigenous alternatives for handling disputes? For example, is the growth of formal mediation a result of dissatisfaction with existing informal dispute processes? Or problems with the local courts? Or reactions to initial experiments with mediation?
Are there particular types of individuals and institutions that play key roles in the evolution of local disputing cultures? The obvious sus- pects include lawyers, judges, mediators, public officials, and other professionals and community leaders. Perhaps less obvious may be the activity of intellectual and organizational entrepreneurs who provide the conceptual and material structures needed to sustain a culture.
To what extent is the development of local disputing culture a re- sult of historical coincidence of several (or certain) of these factors at the same time or the fact that significant events have (or have not) previously occurred?
The better we can answer these questions, the better we will be able to anticipate and shape the future of mediation. If the spread of
286. Andrew Abbott argues that the jurisdictional boundaries limiting the professional activities of particular professions often shift over time in relation to the activities of “neighboring” professions. See ANDREW ABBOTT, THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE DIVISION OF EXPERT LABOR 33-113 (1988).
liti-mediation cultures continues, we can expect that both lawyering and mediation practices will be profoundly affected. Although some of the changes would presumably be beyond our control, this Article suggests ways that various actors can help define and improve the range of disputing practices in their local communities.287
287. The ideas regarding the broader research agenda grew, in part, from my disserta- tion research. I am grateful to my committee, especially the chair, Mark Suchman, for nourishing these ideas. I also want to thank the participants at a faculty seminar of the Program on Negotiation at Harvard Law School in May 1995, who contributed some of these ideas.