Dispute resolution

Most grievances never become disputes, and most disputes are never litigated, but are managed or processed by ignoring the problem, successfully negotiating directly with the protagonist or withdrawing from or limiting the dispute-producing relationship. Alternatively, disputes may be mediated informally, whereby a third party facilitates an agreement or compromise between the disputants. Mediation depends on some shared cultural values, common experiences and a sense of collectivity or community among the participants in a dispute, including the mediator, who may bring to the processing of disputes an intimate and detailed knowledge of the perspectives of the disputants and the context in which the dispute emerged. Ideally, the mediator negotiates an outcome in light of the social and cultural context of the dispute.

Similarly, lawyers will evaluate a client’s dispute in terms of whether it raises legal issues or violates legal rules and will advise seeking a compromise or initiating litigation on that basis. Defence lawyers will assess a criminal case in terms of the quality of the evidence and whether they think the prosecution can prove its case beyond a reasonable doubt, before they advise their client to plead guilty or suggest entering into negotiations with the prosecution in the hope of having the charges reduced. Such assessments may be unrelated to the client’s own view of the matter or preferred course of action.

Three important variables shape the transformation of disputes: language – how a relationship or dispute is phrased has significant implications for the power of competing individuals or factions with vested interests; participants – their relative power to shape the dispute and influence its outcome; and the audience – who will usually determine the outcome of the dispute (Mather and Yngvesson, 1980: 780–2). Merry (1990: 14) identifies the ways in which mediators and court officials transform interpersonal disputes into nonlegal problems. While a plaintiff may initially frame the issue as one of legal rights and entitlements, legal officials may eventually reframe the dispute as one of how people relate to each other and as inappropriate for legal consideration or remedy. She examines the ways in which the process of naming in mediation sessions and in the lower courts exerts a form of cultural domination over the people who bring to these fora their interpersonal problems with neighbours, spouses, partners and children. Individuals present images of themselves and events in ways designed to justify and convince. The mediation sessions become a contest over interpretations of ambiguous events, with most of the arguments being about their meaning and interpretation. In the mediation of disputes three distinct discourses are identifiable: morality – where there is a focus on relationships and obligations to family and neighbourhood; legality – which emphasizes a language of rights and property and truth; and therapy – actions are explained in terms of environmental factors or illness rather than as a result of rational planning or malice. While most complainants will initially frame their grievances as questions of property or legal rights and entitlements, mediators and court officials will tend to reframe them as moral issues, a question of how people relate to each other, thereby encouraging them to view their problems as not raising legal issues and therefore as unworthy of court attention (Merry, 1990: 2–9, 14).

Litigation and dispute resolution

A central question underpinning the discussion of disputing is why some social actors use the courts more frequently than others to settle disputes. Cross-culturally the question becomes: why are some societies more litigious than others? Research seeks to specify the conditions under which some members or segments of a society turn to the courts to resolve their disputes or, alternatively, use other strategies to manage conflict and disagreement. It identifies the ways in which the institutionalization of negotiation, mediation or adjudication is linked with other aspects of social organization (Felstiner, 1974: 76–85).

Put simply, it appears that disputants initiate court (or other formal) proceedings when informal mechanisms are either unavailable, have been exhausted, or will jeopardize the continuation of a valued relationship. Despite carefully planned contracts, disputes among business people are usually settled without reference to the contract or potential legal sanctions (Macaulay, 1963: 61–5). Business people hesitate to speak of legal rights and obligations and are often reticent to threaten to sue when confronting disagreements. Even where contracts are detailed, law suits for breach of contract appear to be rare, reflecting a preference for finding other solutions. Business people often deem contract and contract law as unnecessary for dispute resolution because of the salience of nonlegal norms, especially the expectation that commitments are to be honoured in almost all situations, and the importance of maintaining exchange relationships that litigation would jeopardize. The threat of using legal sanctions to settle disputes occurs when other strategies fail and when the business considers that the gains will outweigh the long-term costs. The absence of sizeable numbers of legal actions in which individuals or firms of substantial financial means appear on both sides of law suits stems from their capacity to use legal expertise to structure their affairs so as to prevent trouble. They pursue nonlitigious avenues for dispute resolution but, more importantly, their own interests are enmeshed in continuing relations with potential opponents (Hurst, 1980: 422).

the heterogeneity and complexity of the city undermine informal social sanctions and allow disputants to jettison hostile or disapproving relationships if necessary. Thus, the costs of using formal mechanisms for resolving disputes are less than in isolated, small-scale societies where one must continue to confront the consequences of disruptive actions long into the future. (Merry, 1979: 908)

Inequalities affect citizens’ inclination and capacity to access the law to resolve disputes. People of higher socio-economic status are more likely to take some action in response to problems and to take action involving the law than are poorer or other lower status people (Genn et al., 1999; Sandefur, 2008: 346). Class differences in how people respond to problems are important not only because they reveal class inequality, but also because they may reproduce it. Three main kinds of mechanisms emerge through civil justice experiences that may reflect or affect inequality (Sandefur, 2008: 352):

1. balance of resources – finances, information, social connections and social capital affect individuals’ capacities to initiate legal action that they can afford in order to protect stakes of value to them;
   
2. subjective orientations – beliefs about law’s legitimacy, efficacy, fairness and so on; and
   
3. differential institutionalization – some kinds of problems have been institutionalized and are more amenable to legal solutions.

Japanese legal consciousness is often portrayed as nonlitigious due to cultural norms and values (Miyazawa, 1987: 220). Kawashima explains the relative lack of litigation in Japan as deriving from a traditional preference for extra-judicial, informal means of settling a controversy, in particular reconcilement and conciliation. He suggests that the relatively small number of lawyers and lack of litigation in Japan relative to its population and level of industrialization confirm that there is less demand for legal services, as people do not go to court as frequently as in western nations (Kawashima, 1963: 42–3). The hierarchical nature of Japanese society and the cultural emphasis on harmony result in ‘a strong expectation that a dispute should not and will not arise; even when one does occur, it is to be solved by mutual understanding’ (Kawashima, 1963: 44). Apology forms an essential aspect in the resolution of any conflict, thereby reflecting and reinforcing the cultural emphasis on social harmony and interdependence. Japanese courts may require disputants to participate in conciliation and compromise where the offer of an apology is a crucial step. In contrast, the values of autonomy, independence and individual rights in the USA mean that a person convicted of wrongdoing ‘is likely to consider that paying the damages or accepting punishment ends further responsibility and that there is no need for personal contrition to the injured individual’ (Wagatsuma and Rosett, 1986: 462).

Even where Japanese plaintiffs do initiate litigation, it appears that their orientation towards and expectation of the process are distinctive. An analysis of four large pollution cases in the 1970s demonstrates that the most striking characteristic is the communal and anti-individualistic attitudes of the participants; respect for the community – rather than assertion of individual rights and responsibility – was at the heart of most of the decisions. The victims, poor people from fishing and farming communities whose health and economic livelihood had been damaged by the pollution, utilized the legal system to satisfy demands for moral vindication and community accountability. Initially, many were reticent to litigate because of economic insecurity, a desire to reduce any disruption, a wish to avoid singling themselves out from their peer group as well as a deep-seated fatalism and willingness to endure hardship (Upham, 1976: 589–91, 616–18). Moreover, differences existed between the plaintiffs in the different cases, suggesting regional variations in the likelihood of resorting to litigation. In one case, litigation was not initiated until some years after the discovery of the harm resulting from the activities of a large chemical company, whereas in another town, victims filed suit much earlier. In the first case, victims and their communities depended on the chemical company for employment and the social services it provided; in the other region, the victims lived further downstream and there were no substantial ties between the community and the factory (Kidder, 1983: 46, 50–1, 77).

In the debate about the extent to which differences in disputing stem from cultural variations, there is an assumption that the identification of institutional or structural factors per se replaces cultural explanations. However, it is difficult to explain the emphasis on mediation and the importance of apology and confession without referring to the attitudinal and cultural differences that affect legal consciousness. Hamilton and Sanders seek to recombine structural and cultural factors in their comparison of justice in the USA and Japan, and argue that ‘the concept of the responsible actor is a bridge between general cultural values (such as view of the self) and specific attitudes towards litigation’ (1992: 195). They conceptualize responsibility as a relationship between people, not as an abstract ideal or psychological attribute. Their analysis rejects cultural-determinism and links actors’ perceptions of wrongdoers as responsible with structural and cultural differences, finding that:

In the United States a person tends to be perceived by self and others as an individual actor whose identity and sense of self stand apart from the community, while in Japan a person is perceived by self and others as a contextual actor whose identity is, in substantial part, defined by social relationships. … [T]he response to responsibility – the possible punishment – that is consistent with a contextual view is to restore the role relations. The response to responsibility that is consistent with the individualistic view is to isolate the perpetrator. (Hamilton and Sanders, 1992: 19; emphases in original)

Comparing national litigation rates to determine litigiousness is fraught with difficulty, stemming from differences in legal systems and court organization, differences in legal rules and entitlements and different recording practices. Litigation rates are not good indicators of the amount of disputing that occurs in a society or of the preferred mode of dispute settlement. Nevertheless, examining litigation rates is preferable to commonsense or stereotypical conclusions about legal consciousness and can also reveal other important differences in disputing practices. Comparing the rate of per capita use of regular civil courts reveals that the USA falls in the same range as England, Canada, Australia, Denmark and New Zealand, but is higher than Germany, Sweden, Japan, Spain or Italy (Galanter, 1983b: 51–5). More importantly, the nature of litigation has changed; it has become more complex and refined, but most cases are settled via bargaining, negotiation or mediation. The cases that do end in a court judgement have become bigger and more visible. Rather than an overall expansion of litigation, the fourfold increase in the number of civil filings in the US federal district courts between 1960 and 1986 resulted from increases in court action in six types of cases (in descending order): civil rights, social security, recovery of government overpayments and loans, prisoner petitions, other contract cases and tort cases (Galanter, 1988: 92–8). Even though federal court filings have risen dramatically, the percentage of cases reaching trial declined, suggesting a reduced reliance on litigation that may reflect courts’ increasing role in encouraging alternative dispute resolution (Galanter, 1983b: 43; 1988: 951).

Comparisons of litigation frequencies point to the importance of national dispute-processing structures, the size and organization of legal professions and the politico-economic environment to explain differences. For example, despite similar legal systems, (the former) West Germany and the Netherlands had vastly different litigation frequencies. This pattern did not stem from differences in legal consciousness, but in the Netherlands various institutional developments created an infrastructure for avoiding litigation. Lawyers did not monopolize the provision of legal advice or representation in lower courts. Access to wider sources of legal advice diffuses a resort to the courts, as nonlawyers are more likely to advise against litigation, especially as there were more alternatives to courts and more pre-court conflict-resolution institutions in the Netherlands as compared with the former West Germany. In contrast, Germany tended to draw conflicts into the courts by discouraging alternative legal services, and the court system was very efficient and inexpensive (Blankenburg, 1994: 790, 805–6).

National styles of administrative regulation also affect litigation rates. The USA resorts to detailed rules, deterrence-oriented enforcement patterns, intensely adversarial procedures and frequent judicial review and reversal of administrative policies (Kagan, 1988: 726). Research on environmental policy indicates that British regulation is based on an ethic of cooperation between business and government officials, in part because of the relatively high status of the civil service, which is linked closely with the class structure. In the USA the pursuit of wealth through economic gain characterized the upper classes and the civil service was never viewed as superior to business elites, thus fostering an increasingly adversarial and legalistic regulatory system (Vogel, 1986: 242–5). Striking features of the American tort system include the heavy deterrence-oriented sanctions reflected in the enormous sums awarded in some jury verdicts and settlements; the contentiousness and costliness of the adversarial process where lawyers may receive more than plaintiffs; and the amount of political controversy that the system engenders, with a plurality of interests attempting to change liability rules (Kagan, 1988: 727). This approach has its origins in the political environment, particularly the advent in the late 1960s of well-funded, highly visible environmental and consumer-advocacy groups, and their success in making strongly worded federal laws and judicial rulings enforceable through public-interest litigation, a principal goal of political action. Media-oriented entrepreneurial politics became more important as political party control of legislative agendas declined, and public advocacy of the rights of consumers, minorities, the poor and the natural environment became important routes to political success (Kagan, 1988: 735).

A litigation crisis?

Often claims of a litigation crisis are not well grounded empirically (Roach Anleu and Prest, 2004). An examination of publicly available data on litigation rates measured by annual filings (cases commenced) provided by New South Wales courts of civil (excluding family) law concludes that ‘the belief that litigation is increasing cannot be sustained, and in fact the very opposite may be true’ (Wright and Melville, 2004: 97). The study finds ‘no evidence of a general litigation explosion. Further, filing rates in the various courts demonstrate significant fluctuations over comparatively short periods of time’ (Wright and Melville, 2004: 109). A range of micro processes affect court filings including jurisdictional changes and other factors affecting choice of court, changes creating, abolishing or affecting legal rights, and litigant behaviour, as well as the way court administrators collect data and decide what to include. Similarly, an examination of the Australian federal civil justice system found no crisis in litigation rates (Weisbrot and Davis, 2004: 125).

One highly significant qualitative difference between litigation crises in contemporary compared with medieval societies is the existence today of a ‘juridico-entertainment complex’ (Haltom and McCann, 2004: 28). Aside from the question of whether there is a litigation explosion, the idea of a litigation crisis has significant cultural dimensions. Consideration of the ‘litigation crisis’ also entails looking at the ways in which legal knowledge and the law itself are constructed, and how legal narratives develop and become accepted as descriptions of reality in the context of modern mass-mediated culture (Haltom and McCann, 2004: ix). ‘How did it come about that prominent elites – politicians, media pundits, news reporters, celebrities, comedians, cartoonists, film makers, novelists, and other producers of mass culture – routinely blame a myriad of social ills on an epidemic of litigiousness among American citizens and their lawyers?’ (Haltom and McCann, 2004: ix–x).

Stories of proliferating litigation often assume a hegemonic status projecting a recurring image of greedy, rights-obsessed plaintiffs and lawyers extorting innocent business corporations and undermining communal norms of civility. The most famous story has become emblematic of crisis claims, namely the 79 year old woman who sued McDonalds in 1994 for burns caused by spilled hot coffee. The media, almost single-handedly ‘made this story into a mass cultural symbol of the lawsuit crisis’ (Haltom and McCann, 2004: 184).

The prevailing news coverage, popular narratives, and policy debates provide a highly inadequate knowledge base for understanding tort law institutional arrangements and practices but academic studies on litigation are: ‘by standards of ordinary discourse, unfamiliar and difficult, and, by standards of opinion leaders, esoteric and tedious. Such sophisticated forms of knowledge simply do not translate into modern mass communication’ (Haltom and McCann, 2004: 109).