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

by Tamara Relis

• ISBN13: 9780521280549
• ISBN10: 0521280540
• Edition: Reprint
• Format: Paperback
• Copyright: 2011-04-11
• Publisher: Cambridge University Press

Summary

Offering interdisciplinary insights from sociological, psychological and gender studies, this book addresses this 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 as well as the notion that disputants and their representatives broadly understand and want the same things during case processing. In juxtaposing actors' discourse on all sides of ongoing cases on issues such as expectations, needs, comprehensions of what plaintiffs seek from the legal system, objectives for resolving conflict at mediation, and perceptions of what occurs during attempts at case resolution, the findings reveal inherent problems with the core workings of the legal system.

Author Biography

Tamara Relis is an Assistant Professor of Law at Touro Law School where she teaches Criminal Law, Evidence, International Human Rights Law and Global Conflict Resolution. Previously Dr. Relis was a research Fellow at Columbia University Law School in New York and the Department of Law of the London School of Economics (LSE), where she has been a postdoctoral research Fellow since 2005. She holds a Ph.D. in law and an LL.M. degree with Honors Merit from the LSE (focusing on conflict resolution, procedural law, and human rights in the developing world). Dr. Relis also holds an LL.B. degree with honors from the University of London.

Table of Contents

List of tables	p. xiii
List of figures	p. xv
List of abbreviations	p. xvii
Acknowledgments	p. xix
Introduction	p. 1
Book structure	p. 5
Findings and recurrent themes	p. 8
Parallel worlds' theme findings	p. 9
Lawyers' reconceptualization theme findings	p. 17
Gender theme findings	p. 22
Methodology	p. 26
Great misconceptions or disparate perceptions of plaintiffs' litigation aims?	p. 33
Lawyers' comprehensions of plaintiffs' litigation aims - group differences	p. 36
Physician lawyers: It's only about money	p. 36
Hospital lawyers: It's mostly about money	p. 38
Plaintiff lawyers: It's mostly about money, but also other issues	p. 39
Plaintiffs: ôIt's not about the money! It's about principlesö	p. 42
Case studies: Parallel worlds of understanding the meaning of litigated cases	p. 46
System conditioning, dispute transformation, and principles intermeshed with money	p. 51
Gender differentiations	p. 58
Female lawyers' extralegal sensitivity	p. 58
Female plaintiffs' compensatory unease	p. 60
Chapter conclusion	p. 61
The voluntary versus mandatory mediation divide	p. 65
Lawyers' world - mandatory versus voluntary mediation divide	p. 68
Negative lawyer attitudes	p. 72
Underlying meaning of lawyers' mandatory - voluntary mediation preferences	p. 75
Parties' world - no mandatory versus voluntary divide	p. 77
Just a stage in the litigation process	p. 77
Same positive attitudes - same eagerness	p. 78
Same overall understandings, expectations, intentions, and needs	p. 79
Chapter conclusion	p. 82
Consequences of power: Legal actors versus disputants on defendants' attendance at mediation	p. 86
The attendance arbiters	p. 88
Lawyers' experiences with defendants at mediation	p. 89
Professionals' reasoning on defendants' attendance	p. 91
Physician lawyers	p. 94
Hospital lawyers	p. 96
Plaintiff lawyers	p. 97
Analysis of lawyers' views	p. 99
Mediators	p. 101
Facing opponents: Disputants ascribe common meaning to case resolution	p. 104
Defending doctors' views on attending mediation	p. 105
Plaintiffs on defendants' mediation attendance	p. 109
Gender disparities	p. 119
Professionals' gender disparities	p. 119
Parties' gender disparities	p. 120
Chapter conclusion	p. 125
Actors' mediation objectives: How lawyers versus parties plan to resolve their cases short of trial	p. 129
Legal actors' mediation objectives	p. 131
Physician lawyers	p. 132
Hospital lawyers	p. 134
Plaintiff lawyers	p. 135
Lawyers' gender divisions	p. 139
Disputants' mediation aims	p. 141
Plaintiffs' mediation aims	p. 142
Plaintiffs' gender differences	p. 145
Defendant physicians' mediation objectives	p. 149
The confidentiality premise	p. 150
Chapter conclusion	p. 153
Perceptions during mediations	p. 156
Mediation's contextual worlds: Confrontations and representations	p. 158
Legal actors' confrontations	p. 158
Conflicts between legal and lay actors	p. 159
Representations	p. 161
Surface findings	p. 163
Favored and disfavored mediation elements - legal actors	p. 165
Favored elements	p. 165
Objectionables	p. 171
Favored and disfavored mediation elements - disputants	p. 172
Favored elements	p. 173
Objectionables	p. 176
Gender disparities	p. 181
Legal actors	p. 181
Plaintiffs	p. 184
Chapter conclusion	p. 193
Parallel views on mediators and styles	p. 197
Contextual realities and surface findings	p. 199
The legal evaluative world on style	p. 204
The importance of background	p. 205
The significance of style	p. 207
The extralegal facilitative world on style	p. 212
Gendered mediator experiences	p. 217
Overpowered female facilitative mediators	p. 217
Mediators and female plaintiffs	p. 220
Chapter conclusion	p. 223
Conclusion: The parallel understandings and perceptions in case processing and mediation	p. 226
Parallel lay versus legal worlds of understanding and meaning in case processing and mediation	p. 228
Litigation aims and mediation objectives	p. 229
Mandatory versus voluntary mediations	p. 230
Defendants' attendance and the meaning of mediation	p. 231
Mediation perceptions and assessments	p. 231
Mediators and their styles	p. 232
The reconceptualization of legal actors	p. 234
The literature	p. 236
Parallel worlds' findings - macro-meanings	p. 238
The formal versus informal justice debates	p. 240
The role of the legal system	p. 241
The role of lawyers	p. 242
Gendered parallel worlds	p. 245
Extralegal sensitivity of female lawyers	p. 245
Disempowered female plaintiffs	p. 248
Practical application of the findings	p. 252
Recommendations for future research	p. 254
Bibliography	p. 257
Index	p. 281
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