Why do people settle?
| Author | Macfarlane, Julie |
The author examines the assumptions and behaviour of participants in dispute settlement processes to develop a better understanding of why some disputes settle, and others do not. She argues that the disputants themselves and how they make sense of their conflicts are the most significant variable in outcomes, rather than the rational, predictive model emphasized by most legal scholarship. Applying a social constructionist analysis to numerous examples of actual conflicts drawn from her practice as a mediator, the author proposes three critical factors in dispute settlement: individual disputant expectations (shaped by personal experience, knowledge, and the support or absence of a strong reference group); whether the conflict is understood by the disputants as a principled struggle or more pragmatically as a fight over resources; and how far the disputants feel that the process of dispute settlement treats them fairly and with respect. She concludes that a deeper understanding of the sources and patterns of individual disputing behaviour implies a limited potential for generic settlement-enhancing design principles. Nonetheless, some key issues can be identified, including the need for face-to-face discussions that include disputants themselves and attention to the conditions of "ripeness" for settlement and resolution. Most important, preparation for negotiation should go beyond the conventional development of a legal case to include consideration of the factors she describes and their influence on disputants' willingness to settle.
L'anteur etodie les presupposes et le comportement des participants dens le processus de resolution des differends pour comprendre les facteurs qui determinent la probabilite d'un reglement hors cour. Elle suggere que les parties en litige et leur facon de conceptualiser le conflit dans lequel elles sont impliquees sont les variables ayant le plus d'impact sur le resultat final, contrairement a ce que prevoit le module rationnel de prediction adopte par la majorite des auteurs dans le domaine juridique. En appliquant une analyse de construction sociale a plusieurs cas de conflits qu'elle a rencontres dans le cadre de sa pratique de mediatrice, l'auteur propose trois facteurs cruciaux dans le reglement de conflits : les attentes individuelles des parties (influencees par l'experience et les connaissances personnelles et par l'appui ou l'absence d'appui d'un groupe de reference solide), la conceptualisation du conflit (comme une lutte de principe ou, d'une facon plus pragmatique, comme un differend portant sur des ressources limitees) et la mesure dans laquelle les parties se sentent traitees avec equite et respect dans le cadre du processus de resolution. L'auteur en arrive a la conclusion qu'une comprehension approfondie des sources et des types de comportement individuel dans des situations conflictuelles ne presente qu'un potentiel limite pour le developpement de regles generales favorisant le reglement des differends. Certains elements cruciaux peuvent toutefois etre identifies, dont la necessite de discussions face-a-face impliquant les parties elles-memes et l'exigence de conditions de <
Introduction: The Phenomenon of Late Settlement I. Culture and Meaning Making in Conflict II. The Role of Expectations III. What's at Stake: Values and Resources IV. The Need to Feel Fairly Treated V. Rational Risk Appraisal Conclusion: Some Implications for Systems Design Introduction: The Phenomenon of Late Settlement
My client is not interested in settlement. She wants her day in court. (1)
Both the expression and the sentiment are familiar. The reality, as settlement statistics demonstrate, is that few of these clients actually get that day in court, although the repetition of this mantra may keep lawyer and client toying with this idea until the last possible moment. We know that most cases filed within civil justice systems in Canada and the United States will not come to trial. (2) While the possibility of a judge-made solution continues throughout litigation, civil justice is more accurately described as a system for settling disputes than adjudicating them. Marc Galanter describes this system as "litigotiation": "the strategic pursuit of settlement through mobilising the court process". (3) Regardless of whether or not it is "better" to settle than to ask for adjudication by a third party, most cases will resolve themselves in this way. (4) As a consequence, a critical question for civil justice reform is the development of dispute processes that maximize the opportunities for expeditious, equitable, and informed settlement. This question becomes all the more pressing because statistics also demonstrate consistently that settlement generally takes place some distance into the life of a lawsuit, often on the courtroom steps. (5) But do we understand enough about why people do--and do not--settle their disputes to enable us to design processes that expedite settlement?
Many civil jurisdictions in Canada and the United States--particularly those with a significant backlog of cases waiting to be heard--are experimenting with changes in pretrial procedure in the hope of increasing the rate of earlier settlement, for example, by encouraging negotiations leading to settlement before, rather than after, extensive discoveries or pretrial motions. (6) Debate over the design of experimental programs has generally focussed on structural issues, such as timing, format, voluntariness, representative roles, and so on. (7) This reflects an assumption that disputants can be encouraged to behave rationally in resolving their disputes expeditiously if the "right" process format can be identified. Answers to questions about the effectiveness of innovative settlement processes are usually sought in statistics on the frequency and timing of settlement (and there is now data available indicating that earlier and higher rates of settlement are being achieved in some of these programs). (8) However, these results tell policy-makers nothing about the impact that a particular settlement process (including how it is managed by the third party) might have on individual party attitudes towards settlement, or the relationship (if any) to outcomes in individual cases. (9) Quantitative studies are unable to take account of the many contextual factors that may critically affect the outcome in any one case. A few qualitative studies of particular settlement-process formats have probed somewhat more deeply into personal experiences, characteristically asking litigants about their satisfaction with both the process and the outcome, and thus providing some insight into the efficacy of these processes from the perspective of the disputants. (10) Whatever its methodological approach, however, program evaluation is primarily concerned with generating data on the overall impact of procedural experiments as a means of justifying (or not) further expenditures on these particular reforms. The evaluation of dispute resolution programs and any resulting recommendations to retain, modify, or eliminate the program under scrutiny must assume that disputing behaviour can be predicted if the "right" combination of structural elements is present--thereby either ignoring or conflating the complexity of individual decisions over settlement.
The more perplexing question that lies behind the evaluation of dispute resolution processes and systems is how we explain the phenomenon of settlement itself. What we have learned so far about effective systems that provide high-satisfaction outcomes provides us with a theoretical model for maximizing settlement, but tells us little about the broader and more impenetrable question of how, and why, individual litigants reach decisions on whether or not to settle. Why does settlement take place in some, even most, cases but not in others? How can we explain why disputants are sometimes able to reach agreements easily, even amicably, while others fight each other every step of the way? What factors predispose or persuade disputants to settle? Is there something observable and identifiable about cases that will settle before trial? From the perspective of the intervenor, this inquiry raises a host of further, highly practical questions. How can one foster the optimal conditions for an informed appraisal of settlement options? How can one anticipate or recognize a critical turning point in negotiation discussions that may mark the beginning of settlement? When is the right time for effective intervention? While the elements of settlement may apparently be present in a particular case (for example, an apparently reasonable offer on the table, superficially courteous relations between the parties, and worsening consequences of continuing the conflict), it may nonetheless fail to settle. Placing such a case in a system that offers early opportunities for resolution, and using a process highly rated by participants, may enhance its chances for settlement--but it still may not settle. In other words, the structural analysis, evaluation, and implementation of dispute resolution processes are necessary but incomplete steps in the effort to understand why some cases settle, while others do not. (11)
Research and scholarship that inform civil justice reform tend to focus on the adjudicative system itself (and its agents, members of the legal profession), rather than the people using the system as claimants and defendants. These scholars and the policy-makers they influence assume that litigants themselves take the advice of their professional representatives. That advice reflects a model of...
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