What are we missing when we think about case processing in litigation and mediation?

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3 Responses

  1. A.J. Sutter says:

    Your question that begins, “How do professional, lay and gendered actors …,” certainly was puzzling to this reader: it sounds as if you regard these categories as either triply conjoint or else mutually distinct. (The title of your book slightly less so, since some plaintiffs and defendants aren’t individuals — though lawyers are, at least corporeally if not intellectually.)

    Are there any individual actors who aren’t gendered? Why should it be any surprise that gender affects the way conflict and resolution are perceived and experienced?

    You also don’t specify to what legal systems your conclusions apply. Are the problems the same in litigation in civil law systems such as France or Japan? or are they limited to Anglo-Saxon-derived legal systems?

    Do you control for the variable of fee structures in your analysis of how the workings of the law benefit professionals? Does your analysis apply equally to situations in which parties will have an ongoing relationship after the legal intervention, such as family law disputes or issues between vendors and customers, and those in which they probably will not, such as many types of product liability or personal injury litigation?

    BTW in my experience in transactional practice, many of the insights you mention don’t require the teaching of more theory in law school. More focus on transactions at the expense of litigation would be a good enough start. Though no doubt the theory is way more attractive to today’s professoriate.

  2. Names are a social construct which i deny says:

    I would like talk today about epistemological differences between blogs and academic journals on epistemology. A blog reader experiences this post as inappropriately situated, and might well characterize it as jargon-laden and over-wrought.

    Not me, I thought it was fascinating. But jargon-laden where common words would well have sufficed.

  3. Tamara Relis says:

    Thank you for both comments. The book is based on my PhD research and dissertation. But, I will write more plainly in future posts.

    A.J. Sutter – By ‘professional actors’, I mean lawyers, judges and mediators. In terms of ‘lay parties’ the book focuses on individual, non-corporate plaintiffs and defendants. However hospitals as institutional defendants are involved in some of the cases, and I examine some of their representatives’ understandings and views. There is also a small amount of input from institutional actors like insurers who are involved in the cases. That being said, as I note in the post, throughout each chapter (as well as in the two law review articles deriving from the book) I refer to similar findings in other studies that involve a wide array of case-types and parties. I also examine males’ and females’ case understandings and case resolution aims in each of the main groups—hence CUP, the publisher, suggested the term ‘Gendered Parties’ in the title. This is of interest as there is little empirical data on how the different sexes actually understand cases and behave during legal case processing.

    In terms of legal systems, as noted, this particular study was conducted in North America in a common law jurisdiction. At the end of the book, under ‘Recommendations for Future Research’ I note that, “It would be particularly valuable if similar research would be done in other jurisdictions and other cultures to test whether they too suffer from similar problems relating to the use of legal representatives in formal courts and informal justice processes or whether the present findings are solely or predominantly a product of western, adversarial legal systems and legal education.” That being said, interestingly, immediately after my first conference presentation on these findings at the American Law and Society Annual Meeting (much before the writing of the book), I was invited by a Japanese scholar in the audience (through a Japanese government grant) to speak at Kyoto University Law School (Law and Politics Symposium: The Participation of Non-legal Professionals and Citizens in Judiciary)—as he and his colleagues felt that what I found in Toronto was directly relevant to the situation in Japan. My paper there was subsequently published in Japan in both English and Japanese (Lawyers and Clients: Disparate Conceptions of Dispute Resolution in Litigation-Linked Mediation, in SOCIOLOGY OF LAW, JAPAN ASSOCIATION OF THE SOCIOLOGY OF LAW (JASL) UNIVERSITY OF TOKYO 24-41, October (2004); AND Disparate Lay and Legal Actor Perceptions of the Meaning and Function of Mediation (translated to Japanese), KYOTO UNIVERSITY LAW SCHOOL PUBLICATION, March (2004). Clearly though, as I note at the end of the book, more such research needs to be done in different jurisdictions.

    Fee structures were not a direct focus of this research. However, as noted in the book “contingency fee arrangements between plaintiffs’ lawyers and their clients existed de facto for almost all of the cases studied. Contingency fee lawyers only accept cases if they see the opportunity for an economic return: if the cases look like sound investments. As such, regardless of clients’ motives, contingency fee systems drive lawyers to evaluate their cases initially as investments and to constantly re-evaluate them in the same way. Moreover, as with defense counsel, plaintiffs’ lawyers, other than sole practitioners, are also judged by their peers and superiors based on fiscal considerations such as how much money they bring into the firm in legal fees and the amounts of settlements they are able to achieve. Judgments based on these considerations have a significant impact on lawyers’ own career trajectories, including election to partnership within their firms. Thus, economic realities of legal practice may have played a role in how the various legal actors in the study talked about plaintiffs’ motivations and litigation aims.” I will provide examples of things people said in my next post.

    The plaintiffs and defendants in the book did not have ongoing relationships. The cases were generally very serious and involved death of a parent or child, loss of sight, loss of limb, etc. However, other research I discuss throughout the chapters include similar findings in cases where parties did have ongoing relationships, such as family law and consumer cases.