Mid Sweden University

Conflicts are ubiquitous in social life. Their resolution is important for individual wellbeing and societal welfare. Law provides an array of remedies for how to solve many of these conflicts. Nonetheless, legal remedies are not always relied upon but, rather, the stakeholders turn to other dispute resolution mechanisms, such as negotiation and settlement. In the field of personal insolvency, for example, debt relief provides a way for the debtor to achieve a coherent and conclusive resolution with all creditors simultaneously. Still, many overindebted individuals do not apply for debt relief. How can we as legal scholars study this and other similar dilemmas?

We need a socio-legal methodology that guides our understanding of why, when, and how law and other conflict resolution mechanisms are activated, and how they interact. This maybe achieved by relying on American sociologist Donald Black’s theory of the behavior of law. According to this theory, how conflicts are solved vary in form (which mechanism is used?) and style (what is its logic?) depending on the social alignment of the stakeholders in terms of, e.g., uneven distribution of monetary resources or knowledge. These variations should be studied as quantities; there may be more or less law in a specific case and it may be more or less repressive. Empirically, any type of data may be used.

As an example from my own research, this methodology was deployed in an interview study with Swedish bankers specializing in debt collection of defaulted mortgage credits. The results indicate that greater organizational capacity (through, e.g., specialization), and the presence of other strategies and goals than profit maximization matter for the prevalence of negotiation and settlement to avoid legal foreclosure, but also that the initiation of legal proceedings may trigger negotiations regarding other possibilities to solve the conflict between the creditor and debtor. These results point at the need for more knowledge about the complex relationship between different forms of dispute resolution.

From a methodological standpoint, it is noteworthy that Donald Black diminishes the significance of the application and interpretation of legal rules–central to traditional legal dogmatics–while emphasizing the crucial role of social context in the resolution of conflicts. For legal scholars, this should stimulate discussions regarding the implications of methodological intersections for our research and collaborative endeavors.