Transcript Law and Dispute Resolution

SOCI3085
Lecture #2 (Winter)
1. Course Administration
essays?
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2. Law and Dispute Resolution
• terminology: conflict resolution,
conflict management, conflict regulation,
dispute processing, dispute resolution, disputing,
ADR (alternative dispute resolution)…..etc.
• but: disputes are human, social, interactive
entities - the legal system addresses only the
legal aspects - so disputes are “authoritatively
settled ” rather than resolved - resolution is
a different matter, requires ameliorating
underlying causes (e.g. divorce; dom. assault)2
• Nader and Todd (1978): stages in the dispute
process:
1. the grievance or pre-conflict stage
- ‘brewing’ grievance, perception of
injustice, real or imaginary
- group or individual
2. the conflict stage
- aggrieved party confronts offending party
- dyadic, interactive
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3. the dispute stage
- conflict is made public
- involvement of third parties
- informal or formal resolution mechanisms
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3. Methods of Dispute Resolution
• two main forms of legal means of dispute
settlement - negotiation or adjudication
• non-legal dispute resolution:
- interpersonal violence
- dueling
- feuding
- rituals
- shaming
- shunning or ostracism
- banishment
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- appeals to the supernatural (trial by ordeal)
- ‘lumping it’
- avoidance
- ignoring it
• Primary dispute resolution processes
1. Negotiation
- without help of third parties
- motivation a key factor
- willingness to compromise
- minimal disruption of ‘normative’ order
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2. Mediation
- use of neutral, non-coercive third party
- mediator is not a decision-making role,
rather a ‘facilitation’ role
- nonadversarial - parties mutually agree
on the mediator, mediation process, and
ultimately, the outcome
- increasing use of professional mediators,
paralegals, etc.
- also: ombudsman process
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3. Arbitration
- usually of a mandatory, binding form
- disputants agree beforehand on the
arbitrator, the decision-making power of the
arbitrator
- can remain largely a private process
4. Adjudication
- public, formal method of dispute resolution
- zero-sum decisions/finality
- disputants give up control to the legal
system
- expensive
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4. Civil Litigation and Dispute Resolution
• the U.S. is the ‘capital’ of tort litigation - with
annual cost estimated between $280 - $300
billion annually
• why?
- Alexis de Tocqueville, Democracy in
America, and the proliferation of lawyers
- distrust of official, institutional dispute
resolution mechanisms
- contingency billing, lack of penalties to
litigants (note the ‘English rule’
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in Canada)
• note also, increase in number of ‘repeat players’
and the increasing use of ‘tactical lawsuits’
designed to encumber competitors, or as a means
of threatening, encouraging out of court settlements
• finally, the relationship between the proliferation
of all forms of insurance, and litigation
• frivolous lawsuits as a ‘nuisance’ - e.g. plastic
versus wooden chairs; the use of step-ladders;
prisoner lawsuits; product liability lawsuits
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• Goldman and Sarat (1989) - generic factors
promoting the proliferation of lawsuits:
1. social development
2. subjective cost/benefit calculation
3. growth of legal rights, responsibilities
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5. A Typology of Litigants
D
One Shotter
One Shotter
divorce
Repeat Player
injury victim v. insurance co.
student v. university
commitments
P
homeowner liability
landlord-tenant
Repeat Player
management v. union
banks versus debtors
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• disputes between individuals
- e.g. wills, trusts, civil commitments, personal/
homeowner liability, by-law infractions/damage,
breach of contract, slander and libel, custody
cases, malpractice, etc.
- again: adjudication is a ‘zero-sum’ game, and
adversarial process where one party wins, the
other loses
- where there is bound to be an ongoing
relationship, considerable pressure to seek
ADR means
- the issue of $$$ settlements in the adjudication
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process
• disputes between individuals and organizations
1. over property and money (e.g. appropriation
of land)
2. damages and restitution (e.g. the gas
company digging up your driveway)
3. civil rights (e.g. a ‘female unfriendly’
workplace)
4. organizational actions, procedures, policies
(e.g. the plan to collect urine samples from
welfare recipients)
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• law as a method of dispute resolution in academe
- the faculty - administration relationship
- student - faculty relationships (e.g. the issue
of academic malpractice, and the concept of
respondeat superior)
- student - administration relationships
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6. Courts as Collection Agencies
• garnishment
• liens
• forced sale
• ‘dunning’ to encourage payment
• imprisonment
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7. Disputes between Organizations
- both inter-organizational and intra-organizational
disputes
1. social policy disputes (e.g. the Indian Act)
2. regulatory disputes (e.g. the regulation of
private health care)
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Schneiderman - Just Say No to the War on Drugs
• the Reagan administration, and Nancy Reagan’s
‘just say no to drugs’ campaign, and the
subsequent spawning of Wisotsky calls the
‘web of Black Market Pathologies’
• recent estimates that 1/32 Americans are
currently serving a sentence of incarceration,
probation or parole for a criminal conviction an estimated 60% of these are for drug or
drug-related offences; in some large American
cities, 1/4 Black males are currently serving
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a criminal sentence
• estimated that between 25% and 50% of all
homicides, robberies and b&e are drug
related
• corruption of government officials; undermining
of the independence of foreign governments;
individual, social, health, economic costs
• the need for more and more money $$$, more
and more enforcement to fight the war on drugs,
but estimated seizures less than 10%
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• civil control and forfeiture - proceeds of crime,
proposed provisions for seizure prior to
conviction for crime; zero-tolerance policies,
drug testing in the workplace, schools - what
price civil rights?
• on the other hand; alcohol and tobacco are legal;
yet alcohol is perhaps the most destructive
recreational drug of all - 50% of homicides &
traffic fatalities; billions $$$ in health costs, both
short-term and long-term; and then, there is
smoking
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• Berger and Luckmann; the social construction
of reality, moral entrepreneurship, and the
‘war on drugs’ - is this the only way to define
the problem, and to enact measures to deal with
it? (or should be, as Daryl Gates proposed,
execute casual users? Nancy Reagan - ‘if you are
a casual drug user, you are an accomplice to
murder’)
• surveillance schemes - turning in your family,
neighbors
• the case of the Netherlands
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Barsh & Marlor - Law as Power, Law as Process
• an evaluation and critique of the alternative
dispute resolution (ADR) approach, including
the peacemaking paradigm - do these approaches
work any better than the adversarial approach?
• law as power - coming out of the concept of
positive law : “law is a body of legislated rules
applied by coercive authority”
- undesirable activity is prohibited
- human behaviour as a whole is predictable
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- the ‘power paradigm’
• versus tribal law or the ‘process paradigm’
where conflicts are resolved not through a power
struggle, but rather through cooperation,
compromise, and ‘give and take’, using a
flexible sets of procedures, with few ‘rules’
• we know that many of the aspects of the power
paradigm are not effective; punishment does
not increase compliance, even certainty and
celerity may not be effective in reducing
crime, especially repeat offending
• so: consider the alternative? ADR approaches 24
• ADR or the ‘negotiated justice’ approach
• ranging on a continuum from cooperation to
competition, incorporating a variety of
along the continuum (negotiation, mediation,
arbitration…..)
• difficulty though in classifying and comprehending
the nature and dynamics of conflict - especially
where the ongoing conflict may actually
benefit some of the parties - to resolve conflicts
in the ADR manner, both parties must be honest
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and motivated
• the problem, frequently experienced, that
negotiated justice systems are too often
co-opted under the umbrella of state authority they are not independent systems
• increasing the power of professionals, and the
whole concept of ‘net widening’ - note here:
is Native justice really Native justice, or
conventional justice in disguise?
• ‘peacemaking’ - this approach is fundamentally
opposed to social control - emphasis on
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redistribution, equality of power
• that wrongdoers can be rehabilitated effectively
and inexpensively without cruelty or
punishment, and that the community can be
restored, conflict resolved
• but what does the research say?
- difficult to measure outcomes, either
quantitatively or qualitatively with any
reliability/validity
- social divisions within Native communities
make it almost impossible to assess
contemporary effectiveness
- no evidence that it works better, or even as27well
• Hudson & Galloway: An Introduction to Restorative
Justice
• three fundamental elements:
1. crime as a ‘social’ conflict between
offenders, victims and community
2. aim of justice system to create,
promote peace through reparation and
reconciliation
3. active participation by victims,
offenders, communities
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• note that a restorative justice system would
require the decentralization, deprofessionalization
of the justice system - and a commitment of time
and resources from the community
• emphasis on ‘community responsibility’, and a
broader view of the problem - a ‘peacemaking
perspective’
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• Restorative Justice process:
1. Pre-mediation phase
(the role of the mediator; intake and eligibility;
preparation; voluntary nature; safety; direct
contact/not)
2. Mediation phase
(importance of ground rules; symbolic
reparation: shame and forgiveness; providing
a means for the offenders to return from shame)
3. Follow-up phase and outcomes
(material, psychological and social aspects for
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all parties)
• the future of restorative justice?
- what does the theory of the development of
law say?
- incorporation into ‘state operated’ justice
system
- ‘net widening’
- the issue of fairness and justice: are
restorative justice programs fair to the
victim, the offender, the community - are
these partners really equal in the process?
- public support/tolerance for the process
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