(dissenting).
I must dissent. At a time when the judicial system is being exhorted to provide simpler forms of dispute resolution, it seems most inappropriate to exalt form over substance as the majority has done by applying the doctrine of merger to conciliation court judgments. The failure of the majority opinion to meaningfully distinguish between the concepts included in the doctrine of res judicata can only lessen public confidence in Minnesota’s conciliation court system.
The terms, “res judicata,” “collateral es-toppel,” “merger,” and “bar” are frequently confused. As Professor Martin explains:
Sometimes the entire question is labeled the problem of res judicata, but usually that term is reserved to describing the effect of a judgment itself on a subsequent case raising the same cause of action, while collateral estoppel refers to the effects of findings of fact actually contested in one lawsuit upon a subsequent piece of litigation which may involve a different cause of action but some of the same facts. * * *
Res judicata, as narrowly defined, may further be broken down into two categories: bar, and merger. “Bar” refers to the effect of the original judgment in preventing relitigation of the cause of action that was actually litigated. “Merger,” on the other hand, refers to the effect of the original judgment in preventing litigation of matters that are considered so closely related to what was *52actually litigated that they should have been litigated all at once. The entire dispute, in other words, is said to have merged in the original judgment whether or not all parts of the dispute were actually litigated. To the extent that it is justified, bar is based on the idea that there is usually no good reason to litigate a matter twice, and that the chance that a second piece of litigation is likely to produce a better result is outweighed by the costs of relitigation. Merger, on the other hand, cannot be justified by a desire to avoid relitigation of matters, since it deals with matters that should have been but weré not litigated originally. Instead it finds its justification in the concept of waiver and in a desire to protect the courts and the parties from needless fractionalization of disputes— from having to become involved in two lawsuits where one would do.
J. Martin, Conflicts of Law Cases and Materials 609 (1978).
In applying the doctrine of merger to conciliation court judgments, the majority inadequately considers the informality of those proceedings. While the conciliation court system is designed to permit the public to resolve small claim disputes without legal advice,' today’s decision creates a trap for the unwary.
Mattsen argues that he did not know about the technical rules of merger and reasonably believed that damage to his automobile was distinct from a personal injury claim. He thought the conciliation court system offered him a means for resolving his property damage claim promptly and inexpensively. At no point did the conciliation court clerk or judge advise him to seek professional counsel. Mattsen argues that, given the expressed purposes of the conciliation court system, it would be unfair to tell him now that he really did need an attorney all along. I agree.
The majority suggests that the record in the present case does not present a compelling reason to forsake the existing doctrine of res judicata. Apparently they believe that Mattsen may have understood the consequences of bringing his action in conciliation court. This decision, however, affects all conciliation court plaintiffs, and few of them can be expected to understand the doctrine of merger and its preclusionary effect.
This decision also presents those who have suffered minor property damage in a car accident with a difficult choice. Should they, like Mattsen, sue in conciliation court to recover their property damage? Or, must they forego the remedy which our Legislature sought to provide in order to see whether they have suffered personal injuries which, like Mattsen’s, were not immediately apparent? The choice is difficult because many individuals do not have the financial ability to absorb even small property losses.
The majority suggests that those who are disadvantaged by its decision can seek to have their conciliation court judgments vacated. This relief is inadequate for two reasons. First, vacating court orders burdens the individual with an additional expense. Secondly, while I would hope such vacations will be liberally granted, we have no assurance that they will be. The majority’s decision ignores these consequences and sacrifices the informality of the conciliation court system upon the altar of res judicata.
Since the conciliation court system is designed to permit resolution of small claims without legal advice, I believe that while a conciliation court judgment may act as a bar to further litigation of matters disposed of by the judgment, there is no sound reason that the doctrine of merger should apply. The informality and lack of legal counsel in themselves are sufficient reasons to refuse to apply the merger portion of the doctrine of res judicata.1
*53Unlike the majority, I believe we should encourage the informality of conciliation court proceedings and not burden that court with rules and traditions which are applicable to courts more formally convened. The requirements of the majority opinion place form over substance. I would reverse the trial court’s decision.
. The doctrine of collateral estoppel should not be applied to conciliation court matters for two reasons. First, parties to a conciliation court proceeding, because of its informality, do not have a full and fair opportunity to litigate a matter. It would be unfair to later bind a litigant to factfinding made in a cursory fashion in conciliation court. Second, no record is *53made of the proceedings. Thus, there is no reliable way of determining what evidence was actually submitted to the judge for consideration.