Dispute Resolution Operates in the Shadows of the Law
The phrase "Dispute Resolution operates within the shadows of the Law" is a paraphrased adaptation of the concept introduced by legal scholars Robert H. Mnookin and Lewis Kornhauser in their seminal 1979 article, "Bargaining in the Shadow of the Law: The Case of Divorce" . While the exact wording isn't a direct quote from their work, it effectively captures the essence of their argument.
Mnookin and Kornhauser's article was groundbreaking in its exploration of how legal frameworks influence negotiation and dispute resolution processes. They argued that even when parties engage in private negotiations, the potential outcomes of formal legal proceedings—such as trials and motions—cast a "shadow" over these discussions, affecting the strategies and expectations of the parties involved.
This concept has since become a foundational idea in the field of dispute resolution, highlighting the interplay between formal legal structures and informal negotiation processes. It's widely cited in legal literature and has influenced both academic research and practical approaches to conflict resolution.
Implications in Mediation | Arbitration:
The idea that “dispute resolution operates in the shadow of the law”, as first articulated by Mnookin and Kornhauser in 1979, remains deeply relevant to modern mediation-arbitration practice. In med-arb, parties begin with a collaborative, interest-based approach but do so with the understanding that, if resolution is not reached, the neutral will transition into an adjudicative role—rendering a binding decision.
This structure inherently reflects the “shadow” of the law:
Even in the mediation phase, parties are mindful of potential legal outcomes, precedent, and the arbitrator’s likely evaluative lens if the process proceeds to arbitration.
The law informs leverage in negotiations, anchors expectations, and creates a framework within which parties assess risk and explore settlement.
Yet med-arb also transcends that shadow. The flexibility and creativity of mediation allow parties to reach solutions that a court or formal arbitration might never impose. Still, the ever-present possibility of a binding arbitral award serves as both a motivator for resolution and a boundary for unreasonable positioning.
In this way, med-arb practitioners work at the intersection of law and autonomy and agency—balancing legal rights with relational realities, and facilitating agreements shaped by the shadow, but not trapped within it.