Kate Curnow recommends a number of items for the ADR Reading List today relating to the issue of bargaining in the shadow of the law.
Bargaining in the shadow of law theory and research into why the ‘haves’ come out ahead have been key to shaping my DR research because of what they show about the role and nature of ‘law’ in dispute resolution.
In terms of bargaining in the shadow of law, obviously the classic original piece by Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950 is a must read.
Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Themis Press, 2011) contains a great analysis of subsequent development of Mnookin and Kornhauser’s original theory by other authors and further refinement of the theory itself through empirical research.
On the why the ‘haves’ come out ahead, a great starting point is Marc Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95.