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«Why Do People Settle? Julie Macfarlane* L'auteur tu-d p.ra - a c ptetrm t d:3 The author examines the assumptions and behaviour Ia p, of participants ...»

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Why Do People Settle?

Julie Macfarlane*

L'auteur tu-d p.ra - a c ptetrm t d:3

The author examines the assumptions and behaviour Ia p,

of participants in dispute settlement processes to develop a participants dans I procesuns d r&o!' dan dff&=ct

better understanding of why some disputes settle, and oth- pour comprendre Irs fateurs qui deret ia p abilll


ers do not. She argues that the disputants themselves and d'un rmlement hors cour. EIl sug -gr Lan jrt en fi-


how they make sense of their conflicts are the most signifi- tige et faon d onre conftdal,-req tI_'diln

- c leur cant variable in outcomes, rather than the rational, predic- sont impliqucs sont fr v-riab!an ayant I, p~u3 d'imr"t nxr tive model emphasized by most legal scholarship. Apply- la r&,,=tl contrairemn A cc q final. Iz wed&c ra- ing a social constructionist analysis to numerous examples tionnel a pridetion cdop p.r la nrori: dan cteurs dans of actual conflicts drawn from her practice as a mediator, le domnaira jutidique. En applequami un: anAlyaa &iconrra- the author proposes three critical factors in dispute settle- dion sociale Aplusiurs ras &i coaffirts Ve'll: a rncAxmrl ment individual disputant expectations (shaped by par- dam le cadre & sa pratiqua dind. ml itn, 'aut ur p4v sonal experience, knowledge, and the support or absence of facteurs crucicux dns I- rZlJcm=nt da coaflit:t Ian - trols a strong reference group); whether the conflict is under- tentes individeellas dan r-iics finflanz& Far l'Lxp.!iaric stood by the disputants as a principled struggle or more et Irs connaissances pmorsoflP et par I'qaTi ou l' -. nc pragmatically as a fight over resources; and how far the d'appui d'un groupe &ird&en solhj.4 IaccpulILarroa disputants feel that the process of dispute settlement treats du conflit (comm un luttepsncipc oJ,c'ura faica pu!

d& them fairly and with respect. She concludes that a deeper pragmaique. comm un diffend pont =r dan re.u

–  –  –

Introduction: The Phenomenon of Late Settlement Culture and Meaning Making in Conflict I.

I. The Role of Expectations Ill. What's at Stake: Values and Resources IV. The Need to Feel Fairly Treated V. Rational Risk Appraisal

–  –  –

Both the expression and the sentiment are familiar. The reality, as settlement statistics demonstrate, is that few of these clients actually get that day in court, although the repetition of this mantra may keep lawyer and client toying with this idea until the last possible moment. We know that most cases filed within civil justice systems in Canada and the United States will not come to trial! While the possibility of a judgemade solution continues throughout litigation, civil justice is more accurately described as a system for settling disputes than adjudicating them. Marc Galanter describes this system as "litigotiation": "the strategic pursuit of settlement through mobilising the court process"? Regardless of whether or not it is "better" to settle than to ask for adjudication by a third party, most cases will resolve themselves in this way."

As a consequence, a critical question for civil justice reform is the development of 'Cited as a reason not to settle by innumerable legal representatives, as well as by G.R. Williams, Legal Negotiation and Settlement (St. Paul, Mimn.: West Publishing, 1983). For a more thoughtful analysis of the meaning behind the sentiment, see S. Engle Merry & S.S. Silbey, "What Do Plaintiffs Want? Reexamining the Concept of Dispute" (1984) 9 Just. Sys. J. 151.

' An Ontario study by the author found that of a sample of 1,460 cases filed in the Ontario General Division between January 1991 and August 1995, 6.4 percent proceeded to trial. See J. Macfarlane, Court-Based Mediation in Civil Cases (Toronto: Queen's Printer, 1995) [hereinafter Mediation in Civil Cases]. Similar rates of settlement before trial have been found in American studies; eg. in 1991, just 4 percent of all cases filed in the U.S. Federal District Court were ended "at or during trial".

See M. Galanter & M. Cahill, "'Most Cases Settle': Judicial Promotion and Regulation of Settlements" (1994) 46 Stan. L. Rev. 1339 at 1340. The Civil Litigation Research Project conducted during the 1980s found that less than 8 percent of the sample of 1,649 cases went to trial. See D.M. Trublk et al, "The Costs of Ordinary Litigation" (1983) 31 U.C.L.A. L. Rev. 72 at 89. Note that in these and other studies, cases that "settle" include those cases in which there was no statement of defence filed, as well as cases that resolved following other forms ofjudicial ruling short of trial. There is some evidence that the relative number of trials to filings is decreasing. See eg. LU. Friedman & R. Percival, 'A Tale of Two Courts: Litigation in Alameda and San Benito Counties" (1976) 10 L & Soc.

Rev. 267.

' A combination of the words "negotiation" and "litigation", this expression,-as coined by first Marc Galanter to describe the style of negotiation that takes place within the context of ongoing litigation. See M Galanter, "Worlds of Deals: Using Legal Process to Teach Negotiation" (1984) 34 J.

Legal Educ. 268 at 268.

' This article will not consider the normative question of whether settlement is a "good thing", or somehow "better" than adjudication, either in individual cases or generally. Hovever, it seems that if we knew more about why some cases settle-and in particular the factors that affect the decision to settle-we might be better able to answer this question. On the normative issue, see O.M. F'lss, "Against Settlement' (1984) 93 Yale LJ.1073; more recently, D. Luban, "Settlements and the Erosion of the Public Realm" (1995) 83 Geo. LJ. 2619.

[Vol. 46


dispute processes that maximize the opportunities for expeditious, equitable, and informed settlement. This question becomes all the more pressing because statistics also demonstrate consistently that settlement generally takes place some distance into the life of a lawsuit, often on the courtroom steps.' But do we understand enough about why people do-and do not-settle their disputes to enable us to design processes that expedite settlement?

Many civil jurisdictions in Canada and the United States-particularly those with a significant backlog of cases waiting to be heard-are experimenting with changes in pretrial procedure in the hope of increasing the rate of earlier settlement, for example, by encouraging negotiations leading to settlement before, rather than after, extensive discoveries or pretrial motions.' Debate over the design of experimental programs has generally focussed on structural issues, such as timing, format, voluntariness, representative roles, and so on.' This reflects an assumption that disputants can be encouraged to behave rationally in resolving their disputes expeditiously if the "right" process format can be identified. Answers to questions about the effectiveness of innovative settlement processes are usually sought in statistics on the frequency and timing of settlement (and there is now data available indicating that earlier and higher rates of ' A recent study of twenty judicial districts in the United States found median time to disposition to be twelve months for cases in the control group (ten districts) and eleven months in the pilot group (ten districts) that had implemented procedural reforms under the provisions of the Civil Justice Reform Act 1990, Pub. L. No. 101-650, 104 Stat. 5089. See J.S. Kakalik et al., Just, Speedy and Inexpensive? (Santa Monica, Cal.: Rand, 1996). In the sample drawn for the 1995 Ontario study, median time to disposition in the Ontario General Division was 236 days for contract and tort cases, 466 days for wrongful dismissal cases, and 313 days for all other case types. See Mediation in Civil Cases,supra note 2 at 10.

6 See e.g. the recommendations of the Ontario Court of Justice in R.A. Blair & H. Cooper, Civil Justice Review: Supplemental and FinalReport (Toronto: Ontario Civil Justice Review, 1996), especially c. 5 (case management and alternative dispute resolution); Rules of Civil Procedure, R.R.O.

1990, Reg. 194, rr. 24.1, 77. Similarly, in both Alberta and Saskatchewan, mediation is mandatory shortly after the filing of the statement of defence, and therefore generally takes place before discovery commences. See The Mediation Rules of the Provincial Court, Civil Division of Alberta, Alta.

Reg. 271/97; The Queen'sBench (Mediation)AmendmentAct, S.S. 1994, c. 20.

Alfini, "Evaluative versus Facilitative Mediation: A Discussion" (1997) Among many see e.g. J.J.

24 Fla. St. U.L. Rev. 919; B.C. Bartel, "Med-Arb as a Distinct Method of Dispute Resolution: History, Analysis, and Potential" (1991) 27 Willamette LJ.661; Galanter & Cahill, supra note 2; S.R.

Gross & IKD. Syverud, "Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial" (1991) 90 Mich. L. Rev. 319; K.L. Shuart, S. Smith & M.D. Planet, "Settling Cases in Detroit: An Examination of Wayne County's 'Mediation' Program" (1983) 8 Just. Sys. J. 307; C.A.

McEwen & R.J. Maiman, "Small Claims Mediation in Maine: An Empirical Assessment" (1981) 33 Me. L. Rev. 237 [hereinafter "Small Claims Mediation"]; J. Pearson, "An Evaluation of Alternatives to Court Adjudication" (1982) 7 Just. Sys. J. 420.


settlement are being achieved in some of these programs),' However, these results tell policy-makers nothing about the impact that a particular settlement process (including how it is managed by the third party) might have on individual party attitudes towards settlement, or the relationship (if any) to outcomes in individual cases? Quantitative studies are unable to take account of the many contextual factors that may critically affect the outcome in any one case. A few qualitative studies of particular settlementprocess formats have probed somewhat more deeply into personal experiences, characteristically askcing litigants about their satisfaction with both the process and the outcome, and thus providing some insight into the efficacy of these processes from the perspective of the disputants." Whatever its methodological approach, however, program evaluation is primarily concerned with generating data on the overall impact of procedural experiments as a means of justifying (or not) further expenditures on these particular reforms. The evaluation of dispute resolution programs and any resulting recommendations to retain, modify, or eliminate the program under scrutiny must assume that disputing behaviour can be predicted if the "right" combination of structural elements is present-thereby either ignoring or conflating the complexity of individual decisions over settlement.

The more perplexing question that lies behind the evaluation of dispute resolution processes and systems is how we explain the phenomenon of settlement itself. What we have learned so far about effective systems that provide high-satisfaction outcomes provides us with a theoretical model for maximizing settlement, but tells us little about the broader and more impenetrable question of how, and why, individual litigants reach decisions on whether or not to settle. Why does settlement take place in some, even most, cases but not in others? How can we explain why disputants are sometimes able to reach agreements easily, even amicably, while others fight each other every step of the way? What factors predispose or persuade disputants to settle?

Is there something observable and identifiable about cases that will settle before trial?

From the perspective of the intervenor, this inquiry raises a host of further, highly practical questions. How can one foster the optimal conditions for an informed appraisal of settlement options? How can one anticipate or recognize a critical turning point in negotiation discussions that may mark the beginning of settlement? When is See eg. the evaluation of the Saskatchewan Mandatory Mediation Orientation Pilot and the =luation of the Ontario Pilot Mandatory Mediation Program in Mediationin Civil Cases,supra note 2.

9Moreover, there is an obvious concern that a focus on settlement rates as a primary indicator of program success promotes a highly instrumental approach to settlement, and may even encourage the conditions for coercion, in which the third party puts pressure on the parties to settle. See e.g. F Sander, "The Obsession with Settlement Rates" (1995) 11 Neg. J. 329; JJ.Alfini, "Trashing, Bashing &Hashing It Out IsThis the End of 'Good Mediation'?" (1991) 19 Fla. St. UL. Rev. 47.

' See eg. "Small Claims Mediation", supranote 7; CA. MeEwen & RJ. Maiman, "Mediation in Small Claims Court Achieving Compliance through Consent" (1984) 18 L & Soc. Rev 11 [hereinafter "Compliance through Consent"].


668 [Vol. 46 the right time for effective intervention? While the elements of settlement may apparently be present in a particular case (for example, an apparently reasonable offer on the table, superficially courteous relations between the parties, and worsening consequences of continuing the conflict), it may nonetheless fail to settle. Placing such a case in a system that offers early opportunities for resolution, and using a process highly rated by participants, may enhance its chances for settlement-but it still may not settle. In other words, the structural analysis, evaluation, and implementation of dispute resolution processes are necessary but incomplete steps in the effort to understand why some cases settle, while others do not."

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