law and dispute processing Flashcards
in what way can a dispute be settled ?
Using the legal system is one way to settle this disputes and many other problems that may occur in our society or those elsewhere.
Some problems are too trivial for an attempt at a legal solution to make sense
do societies have procedure to solve disputes? what do those procedures help with ?
Usually societies have regular procedures for handling disputes and these procedures help in maintaining social order just as law ideally helps in maintaining social order in modern Western societies.
what are the three stages of a dispute?
can these stages be interchangeable ?
1-disagreement about unfairness/unjust
The first stage involves a situation or a disagreement that one party regards as unjust or unfair. (the grievance stage)-
2-confrontation, by offending the other party by showing the feeling of unfairness
If the aggrieved party does nothing about it, or it will escalate if the aggrieved party chooses to confront the offending party by indicating “resentment or feeling of injustice”, the grievance has now entered the conflict stage.
3-resolution, if not resolved by themselves a third party get involved
If the two parties cannot resolve their conflict by themselves the disagreement then enters the dispute stage by becoming public with the involvement of one or more third parties.
–These stages are interchangeable such we can fire directly a lawsuit or the aggrieved party decides to give up…
Methods of Dispute Processing
1 lumping it
what are the factors that effected your decision? (3)
You simply ignore the matter; if it is a matter of one time you let it go and if it is matter of a continuing problem you decide to live with it.
Several factors affects your decisions:
A the problem is too small.
B the extent of power difference between the two disputants.
C differences in physical prowess.
Methods of Dispute Processing
2 avoidance
what are the factors that effected your decision? (3)
This is done by ending the relationship that produced the relationship or by physically removing yourself from the situation or location in which the problem is located.
Several factors affects your decisions:
A if the problem is too small you will not avoid it but simply lump it.
B if you need to preserve the relationship or the situation that your are in.
C avoidance is often not a practical option.
Methods of Dispute Processing
3 coercion
what are the factors that effected your decision? (2)
It involves the use of threats or pressure to compel a change in someone’s behavior or thinking, such the use of physical force.
Several factors affects your decisions:
A the seriousness of the grievance underlying the dispute.
B different personalities and different genetic and biological factors plays a role in the way you address the problems.
Methods of Dispute Processing
4 negotiation
what are the factors that effected your decision? (3)
It does not seek to force an outcome. It involves a discussion between the disputing parties. Parties try to persuade one another of their way of thinking about the grievance underlying the dispute.
Several factors affects your decisions:
A some circumstances land themselves more or less readily to negotiation.
B power differences between the disputants
C some people
Methods of Dispute Processing
5 mediation
what does it involve?
different strategies are followed in mediation : (3)
It is the first method to involve a third party. Both disputants must agree to mediation in advance and the mediator tries to help the disputants reach some resolution. usually through a compromise that both parties will regard as a win-win outcome. Parties are free to decline any solution or change in thinking a mediator would suggest. The mediator should win the respect of the parties and regarded as impartial. In this case the parties are incapable of solving their disputes alone without the help of a third party.
Different strategies are followed in mediation:
A to recognize the common interests and to deemphasize their competing interests.
B to come out with a possible solution that the parties did not previously considered.
C to promise to help the parties in the future or threaten to take the side of one of the disputants if the other does not agree to a resolution.
Methods of Dispute Processing
6 arbitration
it is similar to mediation in 2 way ?
it differs from mediation in 3 aspects?
6 arbitration
It is similar to mediation in two ways:
A it involves a third party.
B the arbitrator is expected to be impartial and also to consider all the facts and other circumstances of the dispute.
It differs from mediation in three respects:
1 an arbitrator devices his/her own resolution after considering the disputants’ claim.(mediation works with the disputants to come up with a solution).
2 the disputants agree before hand to abide by the decisions of the arbitrator. (mediation parties can refuse the decisions of the mediator).
3 the arbitrator’s decision is a win-loose decision(mediation is a win-win outcome).
The arbitrator decides that one party is right and the other is wrong.
Methods of Dispute Processing
7 adjudication
who is the third party?
is every dispute qualifies for adjudication?
3 requirement for adjudication:
down side of adjudication?
The third party is the judge. The judge has the “authority to intervene in a dispute whether or not the principals wish it”.
The third party (the judge) is expected to be impartial and imposes a win-loose outcome. The parties are not free to decline adjudication once the adjudicative process has begun. Not every dispute qualifies for adjudication and certain requirements must be satisfied for a case to be adjudicated.
These requirements are:
First the case can be heard if the court has jurisdiction over the case.
Second the case must involve an issue or matter that is justiciable.
Third the party must have a standing to do so. (have a right or an interest to do so)
Adjudication is costly, time consuming, and reach a decision about which of them is right.
Dispute Processing Decisions
Societal factors (4)
Societal factors
The nature of the social relationships in a society stresses the importance of its dispute processing preferences. The early societies know each other very well and therefore prefers reconciliation and compromises outcomes.
The direct contact and the knowing of the other person will promote compromise outcomes.
Large societies who do not know each other and don’t care if you maintain a relationship with the m or not therefore you care less for compromise and will go to settle your dispute in a win-loose outcomes.
It is not a rule that in close society people will always care for compromise or will they want to continue the relationship and vice versa. It is a case by case scenario.
Power and Inequality
can wealth have an effect?
Wealth and other resources such as the distribution of power in a society can make a significant difference in the outcomes of the dispute settlement.
Individuals and groups with such resources can use the court to the disadvantage of the people without wealth and power.
Sometime the law appears light in comparison to the power derived by the already powerful from routine actions of law. Adjudication less common in smaller societies because they have more evenly distribution of power.
Legal Culture
view on adjudication
Legal culture refers to a society’s general views about the law. A key perception is whether it is appropriate or even desirable to use adjudication. It may be considered to be wrong to use the adjudication for moral reasons or other reasons especially in traditional societies.
Individual Factors
-People inside a society differ in the methods they like or dislike because of their difference in ways that affect their willingness to use one method or another.
The Nature of the Dispute Power Differences in the Relationship Personality
Individual Factors
People inside a society differ in the methods they like or dislike because of their difference in ways that affect their willingness to use one method or another.
The Nature of the Dispute
People should answer the following question: do they want to continue the relation or they want to cause difficulties in future interactions?
Power Differences in the Relationship
The aggrieved party will fear that the other party will have in practice a favorite position.
In some instances some people are more likely than other people to take the initiative to go to court because they have higher levels of education, greater wealth, more self-confidence, and other resources.
Personality
Personality or temperament consisting of an individual’s cognitive and emotional traits. Some people tend to be meek and submissive, others tend to be rather assertive and even overbearing and many of us fall in between these two extremes.
Socio-demographic Factors ( race gender ethnicity etc…)
who are less likely to go to court in-order to solve their dispute ?
Socio-demographic Factors
Social class , race, and ethnicity are also possible factors that affect the willingness to litigate.
Poor people are less likely to use to courts.
Colored people are less likely to use the courts.
Traditional gender gap in litigation seems to have narrowed and even disappeared for many types of grievances.
