Consequences of Power

This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is and how they wish to resolve their cases there short of trial. Yet disputants\u27 views are diametrically opposed to those of legal actors, often including their own lawyers. This is seen to be seriously problematic though one manifestation of these differences: the issue of defendant attendance at mediation. Due to disparities in knowledge, power and interests as between litigants and attorneys, I show that plaintiffs and defendants are regularly not afforded communication opportunities to address issues of prime importance to them during the process. Thus, by examining the process from a unique angle - that of juxtaposing actors\u27 discourse on all sides of the same cases - the Article reveals inherent problems with the core workings of the legal system. This is something that current debates on formal and informal processing of litigated disputes have failed to capture. Consequently, the Article offers a new theory that argues for the reinvention of identities of attorneys and clients in the context of litigation and mediation. This would necessitate revising conceptions about formal and informal case processing. Reflecting each actor group\u27s disparate understandings and needs is an unlikely conceptual alignment between plaintiffs and defendants, distancing them from legal actors (including their own representatives). Lawyers are also notionally aligned, regardless of which side they are on. Each new conceptual group, i.e. (1) attorneys on all sides, and (2) disputing plaintiffs and defendants, ascribe similar meanings to these disputes and their resolution, want similar things and want communication. However, these new groups do not want the same things nor do they speak the same language in describing these cases and their resolution. Thus, actors involved in dispute resolution create competing meanings. The Article further argues that increasing attention to litigants\u27 extra-legal needs during litigation-linked mediation processes is necessary. In an attempt to remedy the specific problem of defendants\u27 absences from litigation-track mediations, three suggestions are put forward: (1) opt out clauses within court rules or statutes on mandatory mediation that effectively allow defendants\u27 absences by agreement of the parties should be changed; (2) lawyers, at a minimum, should attempt to bring at least a proportion of their defendant clients to these mediations in order to realistically assess what effects this has on their cases; (3) further emphasis on litigants\u27 extra-legal realities and needs during case processing is necessary in law schools as well as in continuing legal education for attorneys. In examining a range of possible objections to these proposals, the Article concludes that they do not provide a sound basis to oppose increased focus upon litigants\u27 extra-legal realities and needs within litigation-linked processes

It\u27s Not About the Money! : A Theory on Misconceptions of Plaintiffs\u27 Litigation Aims

This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs\u27 aims been examined from the perspectives of defense lawyers. These are significant gaps in the knowledge, as plaintiffs\u27 objectives directly impact upon their experiences in litigation and litigation-linked processes such as mediation. Likewise, attorneys\u27 approaches and conduct throughout litigation and mediation processes are premised upon their basic understandings of what those who commenced these suits want. In providing new empirical research, I offer disconcerting evidence of the surprising degree to which disparate perceptions of claimants\u27 litigation aims exist as between plaintiffs and attorneys - at times even between lawyers and their own clients. As such, this Article presents a picture of discontinuity where there appears to be little understanding of plaintiffs\u27 motivations amongst the lawyers involved in their cases. Employing a novel angle of juxtaposing all sides\u27 views within the same or similar medical malpractice cases, I show that regardless of allegiances the bulk of attorneys understand that plaintiffs sue solely or predominantly for money. Even many plaintiff lawyers, who are more aware of their clients\u27 extra-legal aspirations, swiftly translate these objectives into finance alone, as that is all the legal system can provide. Yet simultaneously, virtually all plaintiffs vehemently insist, it is not about the money! with only a minority saying financial compensation was even a secondary aim. Instead, plaintiffs\u27 articulations of why they sued and what they sought from the legal system - regardless of whether their cases had been litigating for months or years - were thickly composed of extra-legal aims of principle. Yet plaintiffs\u27 objectives of obtaining admissions of fault, prevention of recurrences, retribution for defendant conduct, answers, apologies and acknowledgments of harm remained invisible to virtually all lawyers throughout the duration of their cases\u27 processing. To explain this phenomenon, I present a theory that argues that these parallel worlds of understanding occur largely due to the institutional framework of the civil justice system coupled with the practical and economic realities of legal practice that result in dispute transformation. In offering two proposals to increase attorneys\u27 understanding of plaintiffs\u27 extra-legal agendas and needs within litigation processes, this Article implicitly argues that the operating economic premises of the civil justice system require urgent and serious re-evaluation

Civil Litigation from Litigants\u27 Perspectives: What We Know and What We Don\u27t Know About the Litigation Experience of Individual Litigants

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average \u27nonrepeat player\u27

Civil Litigation from Litigants\u27 Perspectives: What We Know and What We Don\u27t Know About the Litigation Experience of Individual Litigants

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average \u27nonrepeat player\u27

It\u27s Not About the Money! : A Theory on Misconceptions of Plaintiffs\u27 Litigation Aims

This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs\u27 aims been examined from the perspectives of defense lawyers. These are significant gaps in the knowledge, as plaintiffs\u27 objectives directly impact upon their experiences in litigation and litigation-linked processes such as mediation. Likewise, attorneys\u27 approaches and conduct throughout litigation and mediation processes are premised upon their basic understandings of what those who commenced these suits want. In providing new empirical research, I offer disconcerting evidence of the surprising degree to which disparate perceptions of claimants\u27 litigation aims exist as between plaintiffs and attorneys - at times even between lawyers and their own clients. As such, this Article presents a picture of discontinuity where there appears to be little understanding of plaintiffs\u27 motivations amongst the lawyers involved in their cases. Employing a novel angle of juxtaposing all sides\u27 views within the same or similar medical malpractice cases, I show that regardless of allegiances the bulk of attorneys understand that plaintiffs sue solely or predominantly for money. Even many plaintiff lawyers, who are more aware of their clients\u27 extra-legal aspirations, swiftly translate these objectives into finance alone, as that is all the legal system can provide. Yet simultaneously, virtually all plaintiffs vehemently insist, it is not about the money! with only a minority saying financial compensation was even a secondary aim. Instead, plaintiffs\u27 articulations of why they sued and what they sought from the legal system - regardless of whether their cases had been litigating for months or years - were thickly composed of extra-legal aims of principle. Yet plaintiffs\u27 objectives of obtaining admissions of fault, prevention of recurrences, retribution for defendant conduct, answers, apologies and acknowledgments of harm remained invisible to virtually all lawyers throughout the duration of their cases\u27 processing. To explain this phenomenon, I present a theory that argues that these parallel worlds of understanding occur largely due to the institutional framework of the civil justice system coupled with the practical and economic realities of legal practice that result in dispute transformation. In offering two proposals to increase attorneys\u27 understanding of plaintiffs\u27 extra-legal agendas and needs within litigation processes, this Article implicitly argues that the operating economic premises of the civil justice system require urgent and serious re-evaluation

Parallel worlds of disputes and mediation

EThOS - Electronic Theses Online ServiceGBUnited Kingdo

Human rights and southern realities

The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time international human rights ideas and principles continue to have difficulty in manifesting their relevance in the daily lives of those who are geographically and culturally distant from international institutions Two new books - William Twining’s Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai, Upendra Baxi, and Helen Stacy’s Human Rights for the 21st Century - address aspects of this paradox and lay the foundations for exciting changes in the international human rights regime to facilitate greater human rights permeation and legitimacy for actors globally in the 21st century. In this Essay, I provide a critical account of some important remaining gaps in the literature on international human rights theory and practice. I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the movement and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of the subjects of international human rights law and particularly those actually involved in human rights violations cases in the global South. What are victims’ and legal actors’ conceptions and expectations of human rights and their agendas and experiences in processing their cases? What factors affect their attitudes and behavior in this context? Such knowledge is critical in order to obtain a comprehensive picture of the workings of human rights on the ground. It is also key to enable greater comprehension of local, Southern actors’ needs, epistemologies and micro-realities. As such, bottom-up perspectives from local actors must inform macro-level scholarly conversations on human rights as well as policies aimed at improving respect for human rights at grassroots levels. I provide some such data from a forthcoming book, grounded in interpretive theory and based on the perspectives of legal and lay actors involved in the processing of human rights violation cases of violence against women in India. Actors’ discourses contextualize some of the issues set out in both volumes. The Essay further links actors’ understandings and objectives to norm diffusion theory in the international relations literature and to vernacularization theory in the law and anthropology literature, which like both reviewed books engage the issue of the permeation of human rights standards to grassroots levels. The Essay additionally argues that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework. This framework must be grounded not only in the perspectives of Southern actors, but must simultaneously imbed their epistemologies within the realities of human rights case processing in the legally pluralistic global South. This involves not only formal courts but also informal justice or quasi-legal non-State justice systems processing human rights cases. Drawing on insights from both books, I conclude with a call for more research into Southern actors’ human rights perspectives, including interpretive accounts of their contextual realities. Such knowledge is critical in order to innovatively engage the controversies in international human rights theory and practice and to assist human rights organizations and advocates to become more relevant to the poor and the oppressed. As such, they will be better able to effect realizable change for the subjects of human rights in the global South

Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties

Grounded in interpretive theory and offering interdisciplinary insights from sociological, psychological, and gender studies, this book addresses the question - How do professional, lay, and gendered actors understand and experience case processing in litigation and mediation? Drawing on data from 131 interviews, questionnaires, and observations of plaintiffs, defendants, lawyers, and mediators involved in 64 fatality and medical injury cases, the book challenges dominant understandings of how formal legal processes and dispute resolution work in practice. It additionally challenges the notion that disputants and their representatives broadly understand and want the same things during case processing. In fact, the chapter\u27s findings indicate repeatedly that notwithstanding legal benefits, utilizing attorneys to assist disputants in resolving disputes is laden with difficulties, as epistemologically each actor group essentially occupies different, though parallel, worlds. In juxtaposing actors\u27 discourse on all sides of ongoing cases on issues such as expectations, needs, comprehensions of what plaintiffs seek from the legal system, objectives for mediation, and perceptions of what occurs during attempts at case resolution, the findings reveal inherent problems with the core workings of the legal system. By providing in-depth views on the micro-elements of case processing, the book uncovers important issues about formal and informal justice, the inextricability of disputants\u27 legal and extra-legal needs, and current paradigms relating to professional, lay, and gendered identities. This book is unique in examining and understanding the workings of the legal system through juxtaposing lawyers\u27, plaintiffs\u27, defendants\u27 and mediators\u27 perceptions of litigation and mediation in ongoing litigated cases. This has not been done before, as access difficulties are immeasurable * The book adds to the paucity of in-depth empirical data from plaintiffs and defendants themselves on their motivations, perceptions and extra-legal agendas during litigation and mediation

Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties

Grounded in interpretive theory and offering interdisciplinary insights from sociological, psychological, and gender studies, this book addresses the question - How do professional, lay, and gendered actors understand and experience case processing in litigation and mediation? Drawing on data from 131 interviews, questionnaires, and observations of plaintiffs, defendants, lawyers, and mediators involved in 64 fatality and medical injury cases, the book challenges dominant understandings of how formal legal processes and dispute resolution work in practice. It additionally challenges the notion that disputants and their representatives broadly understand and want the same things during case processing. In fact, the chapter\u27s findings indicate repeatedly that notwithstanding legal benefits, utilizing attorneys to assist disputants in resolving disputes is laden with difficulties, as epistemologically each actor group essentially occupies different, though parallel, worlds. In juxtaposing actors\u27 discourse on all sides of ongoing cases on issues such as expectations, needs, comprehensions of what plaintiffs seek from the legal system, objectives for mediation, and perceptions of what occurs during attempts at case resolution, the findings reveal inherent problems with the core workings of the legal system. By providing in-depth views on the micro-elements of case processing, the book uncovers important issues about formal and informal justice, the inextricability of disputants\u27 legal and extra-legal needs, and current paradigms relating to professional, lay, and gendered identities. This book is unique in examining and understanding the workings of the legal system through juxtaposing lawyers\u27, plaintiffs\u27, defendants\u27 and mediators\u27 perceptions of litigation and mediation in ongoing litigated cases. This has not been done before, as access difficulties are immeasurable * The book adds to the paucity of in-depth empirical data from plaintiffs and defendants themselves on their motivations, perceptions and extra-legal agendas during litigation and mediation

Perceptions in Litigation and Mediation : Lawyers, Defendants, Plaintiffs, and Gendered Parties /

Title from publisher's bibliographic system (viewed on 25 Nov 2014)