Dispute resolution

5 Dispute Resolution

Social life is replete with disagreements, grievances, troubles, problems and conflicts. Not all of these become defined as disputes and extremely few become defined as legal disputes. This chapter addresses the social practices involved in the emergence, identification and processing of disputes. Processes and associated social arrangements oriented to the settlement of disputes include adjudication, mediation, conciliation and negotiation. Dispute resolution arrangements vary in their level of formality and prevalence, and in terms of the kinds of disputes and disputants with which they deal. This chapter examines the concept of dispute, and then examines litigation and such alternative dispute-resolution measures as neighbourhood justice centres, family mediation services and administrative tribunals. The settling or management of particular disputes may also have wider ramifications for social change, for example litigation may establish important precedents or policy decisions that will affect future social practices. Recent reforms in dispute processing have been heralded as providing greater access to justice, an increased range of remedies for disputants and a significant shift away from the adversarial legal system.


Disputes


A dispute can be defined as a particular stage of a social relationship in which conflict between two parties (individuals or groups) is asserted before a third party, who may be a family member, neighbour, the police, a community organization, or an administrative tribunal or a court (Mather and Yngvesson, 1980: 776). Third parties will vary in their level of independence from the claims being asserted by either disputant, their role in the management of the dispute and the level of formality or public accountability that they provide. The third party will usually define the nature of the dispute and specify how it should be resolved or settled. While litigation is the ultimate and most visible form of dispute resolution in contemporary societies, it is not the most prevalent.


Most disputes are settled or managed without recourse to formal mechanisms like courts. For disputes to emerge and remedial action to be taken, an injury or harm must be perceived, identified and named. Secondly, a person must attribute the injury to the fault of another individual or entity; and thirdly, they must voice the grievance to the person or entity believed to be responsible and claim some remedy or resolution. A claim becomes a dispute when it is rejected and the complainant seeks a remedy outside the relationship. A dispute becomes a civil legal dispute when it entails rights, resources or remedies that could be granted or denied by a court (Felstiner et al., 1980–81: 633–6; Miller and Sarat, 1980–81: 327–9).


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.


Adjudication is a mode of dispute resolution often relied on where mediation fails or is inappropriate because of the lack of common ground among disputants. In adjudication, the third party – for example a court – has the authority to determine the outcome of the dispute. This determination is binding and typically the process is adversarial, where the adjudicator rules in favour of one of the disputants and orders the other to pay damages, provide restitution, undergo punishment or alter their behaviour. The third party evaluates the behaviour of disputants by referring to generalized rules of conduct, rather than to the socio-cultural context or the relations between the disputants (Felstiner, 1974: 69–74). Of the disputes reaching a court, a vast majority will be abandoned, withdrawn or settled without judicial adjudication (Galanter, 1983b: 26).1 The threat of initiating court action or the formal filing of a complaint may itself influence the resolution process. For some disputants litigation represents the first step in dealing with conflict; for some it is a continuation of that process; and for others it is the accumulation of it. Many law suits will be filed that the plaintiff will have no intention of pursuing or that will not be pursued because of the availability of alternative remedies or the lack of funds. Case attrition is more likely when the defendant has greater experience than the plaintiff in using the court and when only the former has legal representation (Sarat, 1976: 369–70). Indeed, judges may actively encourage resolution to occur outside the court by referring cases to mediation or to an arbiter. The elaborate formal procedures and the expense of legal counsel involved in the formal resolution of disputes also make settlement or alternative forms of resolution more time and cost efficient.


Given this pyramidal structure where unarticulated grievances are more frequent than disputes that in turn are less frequent than litigation, it is important to consider the processes whereby disputes are ignored, settled, resolved or transformed into new kinds of disputes. Third parties will often play a critical role in dispute transformation; they will be able to define the categories in which a particular dispute is framed, especially if they have more power or authority than the disputants (Sarat and Grossman, 1975: 1208–9; Yngvesson, 1984: 237). For example, a police officer may define or categorize a complaint as a personal, family or private matter, therefore deciding that it does not present any legal or public issue, or may view it as a breach of the criminal law warranting arrest and prosecution. Such decisions are based on a wide range of factors: the police officer’s experience of similar situations, assessments of the likelihood of successful prosecution, their perceptions of the blameworthiness of the victim, the relationship between the disputants, and the relative credibility and dangerousness of the apparent aggressor (Stalans and Finn, 1995: 302–12).


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).


Disputes can be narrowed, where third parties use established categories to organize the events and issues in dispute. This entails determining the real issues in dispute or identifying the legal issues. Lawyers play an important part in the transformation of disputes. It is often claimed that they amplify disputes perhaps to satisfy their own rather than their clients’ interests or because they treat disputes through the adversarial forms prescribed by the formal legal order (Miller and Sarat, 1980–81: 526). However, lawyers can often diffuse disputes and direct them away from litigation (see Chapter 4). Macaulay shows that even though lawyers were unfamiliar with recent consumer protection legislation that created individual rights, most had nonadversarial techniques for dealing with clients who were dissatisfied with the quality of products or services that they had purchased. Some avoided clients with consumer protection claims altogether, or sought to persuade them that they could not afford to pursue the matter; others acted as their therapist or knowledgeable friend, leading the client to redefine the situation so that she or he could accept it (Macaulay, 1979: 152–66). A dispute can also be expanded beyond the two protagonists to reflect wider social problems and then becomes linked centrally with the prospect of social change (Mather and Yngvesson, 1980–81: 797, 817; see also discussion below).


Courts and dispute processing


One arena where disputes are heard by a third party is the court. In theory each party to the dispute argues their case and an impartial, neutral judge adjudicates. This judge’s decision is binding on all parties to the dispute, but the extent to which it resolves the underlying dispute is an empirical question. Much empirical research examines the process of judging across the range of judges’ everyday work, regardless of the substantive legal issue or particular outcome (see for example Cowan et al., 2006). This includes analysis of the way judges understand or approach their role, the kinds of factors they take into account when decision making, their orientation towards participants and perhaps their overall philosophy or consciousness of the purpose of the courts in dispute resolution and justice.


Drawing on Becker’s (1978) elaboration of craftwork, Kritzer (2007) proposes the notion of judgecraft to analyse judging from the point of view of the judges making decisions, managing the cases, and interacting with diverse audiences, in criminal or noncriminal law contexts. Elements of craftwork as applied to judging are: consistency (treating like cases alike, especially when sentencing, is a mantra), utility (the important legal and social role of courts), a clientele (litigants, the legal profession, and the public, including the media), skills and techniques (such as legal reasoning, judgement), problem solving (can emerge when routine, ordinary proceedings are disrupted, for example by litigants in person [Moorhead, 2007]), as well as an aesthetic (creativity and effective communication) (Kritzer, 2007).


How judges perform their work and communicate with participants is important for legitimacy, not only in terms of the immediate decision/outcome, but also in terms of the legitimacy of the justice/legal system (Moorhead et al., 2008). Tyler (1990) and his associates have shown that people are more likely to accept an adverse decision (from their point of view) if they feel that the authority (whether the judge or another decision maker) has taken the time to listen to their arguments and has treated them in a fair manner. The decision to comply with rules and regulations or an acceptance of the outcome of legal proceedings can derive more from the parties’ experience of the process and procedures followed by the decision maker than the actual result or determination. Procedural justice is evident in both civil and criminal law settings. A study of tax evasion showed that tax payers who had been punished by the Australian Tax Office (ATO) were more likely to make negative judgements about the ATO’s legitimacy when they felt it had treated them in a procedurally unfair way. The measures of neutrality used included assessments of the ATO’s honesty, impartiality, and the use of fact and not personal opinion in decision making. The most disgruntled taxpayers were engaging in tax evasion behaviour to neutralize the effects of their tax debts (Murphy, 2005: 584–5). Tax payers’ perceptions of their treatment by the ATO appeared to be more important in explaining their views about the ATO’s legitimacy than their judgements about their own financial gain or loss. Such judgements of legitimacy can go on to influence views about compliance, i.e. the degree of resistance towards paying tax and the ATO. The policy implication is that applying excessive financial penalties for tax avoidance may not act as a specific deterrent in the long run.


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).


Nevertheless, individuals may threaten to or actually use courts as part of an arsenal for managing disputes, without necessarily expecting that the courts will be the forum for settling the dispute. Merry finds that for many of the economically marginal, poorly educated residents of a multiethnic neighbourhood in a US city, the court serves as a way of harassing an opponent, often as an alternative to violence, rather than constituting a direct mechanism for dispute resolution (Merry, 1979: 892). Appealing to the court occurs mainly where the disputants’ interpersonal relationship has a limited future, even if it is of long duration. Ultimately, however, the resolution of these disputes occurs primarily through avoidance when one or more of the protagonists moves away from the neighbourhood. She observes that:


 


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.

 


There has been considerable interest in the question of why some societies seem more litigious than others and cultural differences are often invoked as explanations. Commonsense views and media reports based on high-profile legal cases or on information about large court-ordered damages payments in some tort cases conclude that the USA is a highly litigious society. Explanations focus on the salience of rights consciousness and an overly individualistic orientation, which translates into a proclivity to sue in order to remedy individual disputes and social problems. Evidence of the so-called litigation explosion or hyperlexis – too much law, too many lawyers, overburdened courts and citizens’ alacrity to utilize the legal system for all kinds of disputes and harms – consists of the growth in filings in federal courts; the expansion in the size of the legal profession; reports on huge, time-consuming and resource-intensive cases; atrocity stories about cases that seem trivial and ridiculous; and accounts of how litigation impairs business efficiency, absorbs public and private resources and is generally dysfunctional (Burger, 1982: 274–6; Galanter, 1983a: 6–11; McHugh, 1995: 42–5). Other societies with lower litigation rates, in particular Japan, are depicted as based on a greater sense of collectivity, community, consensus and harmony, and therefore as less reliant on the courts to manage disputes.


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).


Others do not agree that lower litigation rates in Japan stem from cultural differences or that relative use of the courts is a valid indicator of legal consciousness. They identify institutional barriers that restrict access to the courts, thus making litigation unattractive or impossible and impeding the development of a more individualistic consciousness of rights. Haley suggests that the passage of numerous laws establishing formal conciliation proceedings between the first and second world wars was not a response to popular demand for alternatives to litigation, but instead reflected a conservative response to an increase in law suits and judicial activism from about 1905 to the mid-1930s and the view of the governing elite (not the population in general) that litigation destroys the hierarchical social structure based on personal relationships (Haley, 1978: 373–5). Insufficient judges, resulting in acute time delays in the court processing of cases, further restrict a resort to litigation. Control of the supply of lawyers and judges is a direct outcome of governmental policy rather than of the absence of citizen demand. Moreover, the absence of effective formal legal sanctions or remedies for violations of legal norms, especially as court orders are rarely reinforced by contempt powers, tends to buttress community cohesion and encourages the use of private mediators in dispute settlement (Haley, 1978: 381–5; 1982: 273–8). Other barriers to litigation in the regulatory area include the wide discretion allowed to administrative organizations in their enabling legislation, thus rendering many decisions unchallengeable; onerous standing requirements restricting the kinds of people who can bring complaints; few opportunities for class action suits; and difficulties for plaintiffs in acquiring the relevant documents and information on which to build their case (Hamilton and Sanders, 1992: 36).


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)


 


Treating people as connected rather than as separate, and with the emphasis on minimizing conflict, suggest that Japanese people are less likely to use law to settle disputes than their US counterparts. Importantly, observed differences stem from structural factors rather than cultural values or personal preferences; citizens in strong networks will be likely to perceive resolving disputes through adjudication as potentially destroying those valued networks.


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).


Comparatively less frequent litigation in Australia does not seem to be due to greater harmony or fewer disputes. Australian lawyers have practices less oriented to litigation than do their US counterparts and there are fewer lawyers per capita (FitzGerald, 1983: 30, 42). The USA has many more lawyers than any other country – more than twice as many per capita as its closest rival – and lawyers play a central role in the transformation of disputes (Galanter, 1983b: 55). Since the late 1970s, the dramatic changes in the size and organization of the legal profession and styles of lawyering have revealed the tendency of the US legal system to combine an entrepreneurial responsiveness to changing business and social conditions with massively unequal access to legal representation.


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).


Longitudinal historical analyses of litigation in England from the thirteenth century onwards shows that the use of litigation to resolve disputes is not an exclusively contemporary phenomenon (Brooks, 2004). The civil law and the courts were not the sole domain of the aristocracy and other elites, as all kinds of English people from across the occupational and class strata used legal instruments, including marriage contracts, property deeds, trusts, agreements and orders. ‘The use of courts of all kinds as a means of collecting debts, settling disputes between landlords and tenants, defending reputations through actions of slander, or indeed challenging the authority of local officials, took place on an astonishingly large scale’ (Brooks, 2004: 28). Round about the turn of the sixteenth into the seventeenth century, court usage per 100 000 of population was the outstanding high-water mark of litigation, higher than it ever had been before or has been since in England (also see Churches, 2004). Since the twelfth century, five phases of increased civil litigation have been identified, four of which have been followed by no less significant decreases. The pattern seems to be one of periodic fluctuation rather than simple linear escalation, with key variables such as costs playing an important role in the nature of the experience of litigation. The legal historian Christopher Brooks concludes, perhaps counter-intuitively that ‘medieval and early-modern communities were as often litigious as they were harmonious’ (2004: 41).


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).


Litigation and social change