An Analysis of Legal Realism’s Influence on Modern Dispute Resolution Practices

Abstract

Legal realism as a jurisprudence movement has substantially transformed the modern jurisprudence of dispute resolution by discrediting the formalistic foundations of law and advocating the practical and contextual solutions. This research explores the influence of legal realism on progress and application of ADR methods (negotiation, mediation and arbitration). Bypassing the rigidity of the traditional adjudication, legal realism has shifted towards interest-based negotiation as compared to the rights-based negotiation which is more cooperative and result-oriented. Realism has changed the mediator role as problem solving and empathetic as opposed to advocacy in an adversary process and systemic reforms that are increasingly promoting the use of mediation over formal litigation. Procedural flexibility in arbitration can consider legal requirements and fair considerations to balance. The study uses empirical research and comparative legal research and evaluates the success of the realist-inspired ADR practices that are quantifiable and their cross-cultural adaptability. Legal realism makes dispute resolution more efficient, fairer, and a more whole-person, multi-dimensional attitude to resolve conflicts. However, some challenges exist in regards to standardizing the practices in different jurisdictions with different traditions of law. Current study reiterates on the ever-present implications of legal realism on the modern day dispute resolution and highlight the aspects of potential future reforms.