ALTERNATIVES IN DISPUTE PROCESSING - LITIGATION IN A SMALL CLAIMS COURT

• NCJ Number: 45980
• Journal: Law and Society Review Volume: 10 Issue: 3 Dated: (SPRING 1976) Pages: 339-375
• Author(s): A SARAT
• Date Published: 1976
• Length: 37 pages
• Sponsoring Agency: Amherst College
• Corporate Author: Law and Society Assoc
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: AN EARLIER VERSION OF THIS PAPER WAS PRESENTED AT THE 1975 ANNUAL MEETING OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION

Annotation

IN ORDER TO EXAMINE DISPUTE PROCESSING AND A NUMBER OF VARIABLES AFFECTING PROCESSING DECISIONS AND OUTCOMES, RANDOM SAMPLES OF CASES WERE DRAWN FROM THE 1974 RECORDS OF THE NEW YORK CITY (MANHATTAN) SMALL CLAIMS COURT.

Abstract

APPROXIMATELY ONE-THIRD OF ALL SMALL CLAIMS FILINGS RESULT IN NO-APPEARANCE LITIGATION. MAJOR REASONS GIVEN BY PLAINTIFFS FOR NONAPPEARANCE ARE: FILING FACILITATED CONTINUING SETTLEMENT ACTIVITIES (36 PERCENT); IT PROMOTED NEW SETTLEMENT ACTIVITY (18 PERCENT); OR LITIGATION WAS UNDERTAKEN TO LET OFF STEAM (17 PERCENT). LESS-EXPERIENCED PLAINTIFFS FAIL TO APPEAR MORE FREQUENTLY EVEN WHEN NO SETTLEMENT IS REACHED, WHILE MORE EXPERIENCED LITIGANTS ARE MORE EFFECTIVE IN USING LITIGATION TO FACILITATE SETTLEMENTS. THE PRESENCE/ABSENCE OF AN ATTORNEY FOR ONE OR BOTH PARTIES ALSO AFFECTS THE PATTERNS OF APPEARANCE AND THE OUTCOME OF LITIGATION. IN THE NEW YORK CITY COURT, DISPUTANTS MAY CHOOSE ADJUDICATION BY A JUDGE OR ARBITRATION/MEDIATION BY COURT-APPOINTED ATTORNEYS. ADJUDICATION TENDS TO BE FORMALIZED AND JUDGMENTAL AND IS HELD IN PUBLIC, WHILE ARBITRATION TENDS TO BE INFORMAL AND THERAPEUTIC AND IS HELD IN PRIVATE. DISPUTANTS ARE GIVEN A CHOICE OF THE METHOD OF DISPUTE SETTLEMENT. WHILE VIRTUALLY ALL TYPES OF CASES MAY BE ARBITRATED (65 PERCENT OF THE TOTAL CASES WERE SETTLED IN THIS MANNER), ARBITRATION TENDS TO BE CHOSEN MORE FREQUENTLY IN CASES WHERE THERE IS A SOCIAL RELATIONSHIP INVOLVED, PARTICULARLY A CONTINUING ONE. THE MAJORITY OF PLAINTIFFS (80 PERCENT OF THE SAMPLE) HAS PURSUED SUCH ALTERNATIVE REMEDIES BEFORE ENGAGING IN LITIGATION AS: (1) DIRECTLY INFORMING THE OTHER PARTY OF THE PROBLEM; (2) SEEKING TO ENLIST ALLIES TO CONVINCE THE OPPONENT OF THE SERIOUSNESS OF THE PROBLEM IN ORDER TO PRESSURE SETTLEMENT; (3) PROPOSING MEDIATION BY A NEUTRAL THIRD PARTY; OR (4) COMPLAINING TO A PUBLIC OR PRIVATE AGENCY. ARBITRATION WAS GENERALLY THE PREFERRED PROCEDURE IN THOSE CASES WHERE PRELITIGATION SETTLEMENT ACTIVITY HAD BEEN HIGH, AND IN CASES WHERE BOTH OR NEITHER OPPONENTS HAD LEGAL REPRESENTATION. ATTITUDES HELD BY THE PARTIES TOWARD THE TWO PROCEDURES WERE ALSO CRITICAL IN THE DETERMINATION OF SETTLEMENT STRATEGY. PARTIES WITH PRIOR EXPERIENCE IN LITIGATION AND WHO WERE REPRESENTED BY LAWYERS FARE BETTER IN TERMS OF OUTCOME IN BOTH ADJUDICATED AND ARBITRATED CASES. THE SETTLEMENT METHOD CHOSEN HAS SIGNIFICANT IMPACT ON THE SUBSEQUENT RELATIONSHIP OF THE DISPUTANTS; ARBITRATION DOES LESS DAMAGE TO THE RELATIONSHIP THAN DOES ADJUDICATION. INCLUDED ARE NUMEROUS REFERENCES.