Author's Preface

This project began with two related questions. The first question was one I posed to myself. I asked, "What material would I need and want to teach law students and lawyers how to become peacemakers?" The second question was posed to me by a number of lawyers and judges attending my mediation training courses: "What do you recommend for further reading on all of this?"

The answers to these questions could not be found in the existing literature. From my perspective, the literature was fragmented between practice and theory. The law literature focused on process, but not on technique and underlying human conflict. The negotiation and social psychology literature developed some theoretical perspectives, but did not attend to practice or process. The conflict resolution literature was either theoretical, but not practical, or practical, but not theoretical. In short, no single, integrated source of information was available for teaching principles of peacemaking to law students and lawyers. Thus, I developed the idea of an integrated textbook on peacemaking.

I take some pains to distinguish peacemaking from mediation because I believe that the reconciliation of relationships implicit in peacemaking is a higher value than the settlement of disputes. Many mediators probably should be called peacemakers, while many others should not. Peacemakers should have the knowledge, skill, and experience to reconcile relationships and settle disputes. Mediators generally have the more limited skill of settling disputes.

My view of the future of the legal profession is from the perspective of a twenty-three-year trial court veteran who has won and lost large cases before judges, juries, arbitrators, and administrative law tribunals. I believe lawyers must learn to be peacemakers. I do not advocate abandonment of the judicial system. I do urge abandonment of the adversary ideology, an ideology not grounded in legal ethics, common sense, or fairness. In my view, litigation should be the resolution model of last resort. Lawsuits should be filed only after all other means of resolution have been exhausted.

Unfortunately, legal education perpetuates the myth that litigation is the only true, legitimate model of dispute resolution. This project is my attempt to nudge legal education off that traditional course. This is not a book about alternative dispute resolution, a term I dislike, but about primary dispute resolution or PDR. This book is designed to educate students about human conflict in a multidisciplinary approach. It then takes on conflict analysis to demonstrate that human conflict follows predictable patterns and lends itself to the same analysis as legal problems. Finally, the book considers some of the theoretical and practical issues of peacemaking.

Pedagogically, this book may be used as a principal text in a two- or three-unit law school, graduate psychology, and graduate level or upper division undergraduate conflict resolution course. In some ways it is introductory, but in others it is quite advanced.

I also wish to note the dilemma inherent in a multidisciplinary approach such as this. On the one hand, I have aimed to weave together strands of intellectual, scientific, and academic thought from a vast range of disciplines. On the other hand, I have explicitly generalized in ways with which experts in any given field might take issue. My purpose is not to explain nuances and details of each academic discipline but to provide more of a gestalt about human conflict, its relationship to law and legal disputing, and my view of the knowledge necessary to engage in peacemaking. I would lose an academic debate on fine points and distinctions in any of the disciplines I borrow from (except perhaps my own field of law). I therefore do not pretend this book is the final word in any of the disciplines I have brought together. At best, it is a summary and overview of human conflict from the perspective of a lawyer and law professor interpreting the academic disciplines that have considered it.

I have also attempted to make the text of interest and useful for the general reader curious about peacemaking. I hope that this book begins a trend toward peacemaking by providing a foundation for law students, lawyers, and all other conflict resolution professionals to understand, analyze, and transform human conflict rather than merely to settle disputes.

—Douglas Noll
Fresno, California

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