Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.
The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.
Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).