Grievances, Claims, and Disputes: Assessing the Adversary Culture - Notes

Grievances, Claims, and Disputes: Assessing the Adversary Culture

Introduction

• The origin and development of disputes, and the rate at which problems become disputes, are rarely studied.
• The dispute processing perspective focuses on the link between law/legal institutions and dispute processing mechanisms but limits understanding of disputing as a social process.
• Grievance: An individual's belief that they (or a group) are entitled to a resource someone else may grant or deny.
• Responses to grievances vary:
  • Lumping it: Avoiding potential conflict.
  • Redefining the problem and redirecting blame.
  • Registering a claim to communicate their sense of entitlement.
• Claim: Communicating a sense of entitlement to the proximate source of redress.
• Grievance Stage (Pre-conflict): A circumstance or condition one perceives as unjust; may escalate into conflict or wane, depending on the offended party's actions.
• Consumers making claims: Asking retailers to repair or replace defective goods
• Claims can be rejected, accepted, or result in compromise.
• No Dispute: If a claim is fully accepted and the resource is delivered routinely.
• Dispute: If a claim is outright rejected.
• A compromise offer (partial rejection) initiates negotiation and constitutes a dispute.
• A delayed reaction to the claim, construed as resistance, equates to rejection and creates a dispute.
• A dispute exists when a claim based on a grievance is rejected in whole or in part.
• It becomes a civil legal dispute when it involves rights or resources which could be granted or denied by a court.

Disputing and the Adversary Society

• The rate at which disputes are generated is sometimes considered an indicator of societal "health."
• Historians after World War II presented American society as a stable balance between conflict and calm, where disputes were resolved within a consensus framework.
• Experience in recent decades has undermined this balance and its viability as a legitimizing belief system.
• Growing perception/fear of an "adversary society": Assertive, aggressive, rights-conscious people eager to challenge authority.
• Images of assertiveness pervade popular culture, from cartoons about children threatening to sue parents to palimony suits against celebrities.
• Another view: Americans are relatively uncontentious and passive.
• Reluctance to admit troubles and conditioned to accept circumstances that are far from ideal.
• Institutions respond slowly/inefficiently, so people learn not to complain or claim rights.
• Even when they do, appropriate institutions may not exist.
• As society becomes more complex, it's easier to avoid or ignore conflict by moving on.
• Those unable/unwilling to assert rights may be victimized by self-interested organizations seeking to perpetuate the status quo.
• Proponents of this view question the adequacy of existing political, social, and economic arrangements to achieve justice.
• It's both an empirical question and a matter of definition whether ours is a society of rights consciousness/conflict or acquiescence/equilibrium.
• Arguments about conflict levels are often rooted in comparative analyses or cyclical interpretations of history.
• Lempert suggests that particular types of conflict can be measured against a pre-established baseline, such as:
  • Number of transactions of a particular type.
  • Number of transactions resulting in injury.
  • Number of transactions resulting in grievances and claims.
• Example: Conflict about medical care quality measured by comparing:
  • Quantity of medical services (visits to doctors) vs. amount of conflict generated (medical malpractice suits).
  • Malpractice suits compared to measures of medical ineptitude (rates of unnecessary/unsuccessful surgery).
• The baseline approach seeks to identify the realization of a social condition (e.g., conflict) against its potential.
• This paper employs such an approach to describe/analyze dispute generation in American society.

Sample and Methodology

• Data from a telephone survey of households as part of the Civil Litigation Research Project.
• Designed to explore the contribution of courts to civil dispute processing and describe/explain patterns of investment in disputing/dispute processing.
• Administered in January 1980 to approximately 1,000 randomly selected households in each of five federal judicial districts: South Carolina, Eastern Pennsylvania, Eastern Wisconsin, New Mexico, and Central California.
• The survey sought to identify the occurrence of civil disputes of the type that might be brought to the courts or nonjudicial alternatives.
• Focus on three stages of the disputing process: grievances, claims, and disputes.
• Grievance Stage: An injurious experience is perceived as a problem, and some other party is blamed for it.
• Respondents were asked whether anyone in their household had experienced one or more of a long list of problems within the past three years and, if so, about how that problem was handled.
• The interviewer tried to establish whether a household was significantly at risk of a particular type of grievance.
• In addition, for most problems, they were asked whether that problem involved 1,000 or more. This threshold served as an operational definition of the kind of "middle-range" disputes which were the exclusive preoccupation of the Civil Litigation Research Project.
• About 40 percent of households sampled reported at least one grievance for which the time frame and amount at issue criteria were met
• Those who reported a grievance were asked whether they had sought redress from the allegedly offending party, indicating that the claims stage had been reached.
• Finally, we inquired about the result of that claim.
• A resolved claim or one resolved only after initial resistance was overcome was recorded as a dispute.
• Supplementary questions sought information about the timing, nature, and results of reported disputes.
• Respondents were also asked whether either side had used a lawyer or had sought assistance from some other third party.
• They were asked if they had any prior relationship with the opposing party and, if so, whether that relationship had been changed by the dispute.

Describing the Structure of Conflict: Grieving, Claiming, and Disputing

Grieving

• Disputes emerge out of grievances, so we look first to the incidence of grievances to establish the baseline potential for disputes.
• Grievances are composed of concrete events/circumstances (relatively objective) and subjective perceptions/definitions/beliefs that an event/circumstance is unwarranted or inappropriate.
• Individuals may react differently to the same experience.
• Grievance rates reflect both the occurrence of certain events and a willingness by the participants to label those events in a particular way.
• Care must be taken to avoid confusion between the expressed rate of grievances among our survey respondents (as well as the claims and dispute rates which flow from it) and the degree of injury which they may be said to have suffered.
• The survey began by asking about the occurrence of 33 types of problems, which have been aggregated into nine general categories
• Slightly over 40 percent of the households in our sample had some middle-range grievance within the three-year period surveyed; approximately 20 percent reported two or more different grievances.
• Experiencing significant grievances is by no means a rare or unusual event.
  • Smaller grievances no doubt occur more often, larger ones less frequently.
• The incidence of middle-range grievances provides a substantial potential for conflict.
• The range of reported grievance experience varies considerably. On the low end, 6.7 percent of the households surveyed reported a grievance arising out of the payment or collection of debts, while 17.1 percent of the households which rented had experienced grievances in dealing with landlords.
• Grievances involving racial, sexual, age, or other discrimination in employment, education, or housing were reported by 14 percent of the households.
• It is likely that the level of discrimination grievances has risen in recent years as a result of increased public awareness and sensitivity to this type of problem, although we cannot confirm this with longitudinal data.
• At the same time, public attention to the problem of discrimination may have produced a decline in instances of discriminatory behavior.

Claiming

• Given the perception that some event or circumstance is unacceptable and remediable, we can ask how assertive those who experience grievances are in seeking a remedy.
• Possible responses range from avoidance (Felstiner, 1974) through repair without direct confrontation, registering a claim, to a demand for monetary compensation.
• Unless a claim is made, a dispute cannot occur.
• Claiming is a frequent response to middle-range grievances.
• Apart from discrimination problems, there is considerable uniformity in behavior across problem types.
• The range of claiming fluctuates between 79.9 percent (real property) and 94.6 percent (debts).
• This variation makes the uniformly high claiming rates all the more significant
• The one exception to this pattern is found among discrimination grievants, of whom only 29.4 percent made a claim.
• There are several explanations for this anomaly:
  • Remedies for discrimination may be less available and accessible than those for other types of problems.
  • Just because mechanisms exist does not mean that they are, in fact, attractive to, or usable by, people seeking redress. This seems especially true in the discrimination area where available mechanisms have been found to be inefficient and ineffective (Crowe, 1978).
  • Perhaps people do not make claims unless they feel confident that something can be done should the claim be accepted.
  • A lack of assertiveness has more to do with the substance of the problem itself
  • Securing a job or home is likely to be much more pressing and important than filing a claim for something which is made undesirable by the very act that generates the grievance.
  • The survey asked whether discrimination grievants who made no claim had nonetheless registered a complaint without asking for anything, and we found that an additional 26.6 percent had done so.
  • There may be some stigma attached to the grievance itself or to the act of assertion.
  • They may be uncertain about the fit between their own perceptions and definitions of grievances and those embodied in statutes or otherwise recognized in their community.

The Incidence of Disputes

• When a claim is made, the allegedly offending party may accept responsibility and accede to the demand for redress. If this happens, there is no dispute Claims are made and promptly satisfied.
• But responsibility may be denied.
• Resistance to accepting responsibility or providing redress establishes adversarial interests.
• Among the 1768 claims made by respondents experiencing grievances almost two-thirds (62.6 percent) were rejected or resisted and thus resulted in disputes.
• These disputed claims are almost equally divided between those which were completely rejected and produced no agreement42 percent of all claims (Table 1, Row 3a)
• Those in which initial resistance gave way to some agreement about responsibility and remedy-30.6 percent (Row 3b).
• While problem-specific variation is somewhat greater in disputing than in claiming, here again we are struck by the patterned uniformity among six of the eight problems.
• Putting aside torts and property matters, the incidence of disputing varied only from a low of 73 percent in discrimination claims to a high of 87 percent in those arising in response to postdivorce problems, with over 80 percent of claims to landlords, former spouses, debtors, creditors, or government agencies leading to disputes.
• Tort claims are least likely to be contested. This reflects a highly institutionalized and routinized system of remedies provided by insurance companies and the well-established customary and legal principles governing behavior in this area.

The Role of Lawyers and Courts

• The language of rights and remedies is preeminently the language of law.
• One might logically ask where, in all of this, the Law and legal institutions play a role.
• There is relatively little empirical work on the role of lawyers and courts in disputing (see Curran. 1977; Mayhew and Reiss, 1969; Friedman and Percival, 1976; Sarat and Grossman, 1975; McIntosh, 1981).
• We agree with Lempert's (1978: 95) comments about the methodology needed for evaluating the dispute resolution role of courts and would extend his suggestion to the role of lawyers as well.
• Examine the rates at which lawyers and courts are used in relation to the number of reported disputes in our sample.
• Lawyers were used by less than one-fourth of those engaged in the disputes we studied.
• The role of lawyers is much more pronounced in post divorce and tort problems.
  • In the former, the involvement of lawyers is a function of the fact that many of these problems, e.g., adjustment in visitation arrangements or in alimony, require court action.
  • In the latter, the contingent fee system facilitates and encourages lawyer use.
• Few disputants (11.2 percent) report taking their dispute to court. Excluding postdivorce disputes, where court action is often required, that number is approximately 9 percent.
• Claims are made, avoided, or processed, at least in part, according to each party's understanding of its own legal position and that of its opponent.

The Success of Claims

• Overall 68 percent of those who made a claim eventually obtained part or all of what they originally sought. This is roughly comparable to the results of previous research.
• Those who claim may do so because they are confident their claims are justified.
• The modal pattern among middle-range grievances is for claims to be made, disputes to result, and agreements to be reached.
• Claimants who reached an agreement after some difficulty - EI so had disputes-were more successful than claimants reporting no difficulty reaching an agreement.
• Conflicts, disputes, and difficulties are often engendered by the desire for, and are necessary in order to obtain, complete satisfaction.
• Virtually no tort claimants (2.6 percent) were unable to reach an agreement, but of the t.n.3 percent of tort claimants recovering something, vay fuw, obtained all cf eir original claim.
• One might expect tort claims to be inflated for negotiating purposes, an expectation reinforced by the lo.v proportion reporting any difficulty reaching an agreement This pattern also suggests an acceptance by claimants of insurance companies' valuations of damage, perhaps reflecting a reluctance to dispute with such organizations.
• To some extent this reflects the nature of many problems. Dr example, property disputes involving permission to build are not amenable to compromise.
• Some opposing parties were unlikely to offer anything: more than half of all discrimination (58.0 percent) and tenant (55.0 percent) claimants failed to obtain any redress at alL
• Such claimants are apparently in a particularly weak bargaining position and also may lack effective recourse to any third-party remedy system.

Summary

• Generate disputes through the metaphor of a pyramid (see Figure lA). At the base are grievances, and the width of the pyramid shows the proportions that make the successive transitions to claims, disputes, lawyer use, and litigation.
• Most of those with grievances make claims (85.7 percent), and most claims are not formally resisted (76.5 percent, result in immediate agreement).
• As a result, disputes are relatively rare (23.5 percent of claims).
• Where they occur, however, lawyers are available, accessible, and are, in fact, often employed (81.9 percent).
• The same can be said for the employment of courts (at least in comparison with other problems).
• The pattern for discrimination grievances is quite different Seven of ten grievants make m claim for redress.
• Those who do are very likely to have their claim resisted, and most claimants receive nothing.
• Only a little more than one in ten disputants is aided by a lawyer, and only four in a hundred disputes lead to litigation.
• Postdivorce problems engender high rates of grievances, claims, and disputes, and are characterized by frequent use of lawyers and courts.
• Most cases the court's activity is more administrative than adjudicative, this is, at least formally, the most disputatious and litigious grievance type we have measured
• High rates of claims (80 to 95 percent of grievances), high rates of disputes (75 to 85 percent of claims), fairly low proportions using a lawyer (10 to 20 percent of disputants), and low litigation rates (3 to 5 percent of disputants).
• The most striking finding in these descriptive data is again the general uniformity of rates at each stage of the disputing process across very different types of middle-range grievances.