Latino-Anglo Bargaining
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Latino-Anglo Bargaining

Culture, Structure and Choice in Court Mediation

Christine Rack

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Latino-Anglo Bargaining

Culture, Structure and Choice in Court Mediation

Christine Rack

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About This Book

This book shows the mechanisms by which cultural differences reinforce structural privilegeand disadvantage in the informal process of mediated negotiation. Are all people equally likely to pursue their own material self-interest in the negotiation process used in small claims mediation? Did Latinos and Anglos bargain more generously with members of their own group? The central questions, derived from theories of ethnic and gender differences, concerned how, and to what degree; culture, structure, and individual choice operated to alter the goals, bargaining process and outcomes, expressed motivations and outcome evaluations for outsider groups. This book demonstrates how there are real cultural differences in the way that Latinos and Anglos pursue monetary justice that defy dominant assumptions that all culture groups are equally likely to maximize their own outcomes at the expense of others.

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Publisher
Routledge
Year
2006
ISBN
9781135485436
Chapter One
Small Claims Court & Mediation: Public Justice & Private Choices
SMALL CLAIMS COURTS
The first U.S. small claims courts, defined by relatively small amounts of money claimed and relaxation of the rules requiring legal representation, were established in Kansas in 1912 and Cleveland in 1913. The move toward informality, originally akin to what Weber described as Khadi justice (Rheinstein 1969), spread across the country. Small claims courts, like other legally informal institutions (Harrington 1982), were expected to supply a more substantive rationality to courts grown rigid, and to give small businesses and private citizens in civil disputes (i.e., non-criminal, monetarily defined conflicts) access to the power of the state.
The first attempts to assess whether this goal was actually accomplished did not begin until the 1950s. Then, as now, the evidence shows that the courts are more likely to be used by larger corporations against private, individual debtors in relatively inexpensive collection actions. The party filing the claim (the claimant) is more likely than the respondent to prevail (Yngvesson & Hennessey 1975).
Many of the cases filed in small claims court, like many criminal and civil cases of larger jurisdiction, are never formally adjudicated (Galanter 1983). The majority are routine collection actions that settle under threat of judgment, or remain unanswered and receive automatic “default” judgments that assume the non-answering respondent is fully liable. With the majority of cases out of the way, the cases that go to a formal court hearing more often reflect the party composition originally intended for small claims courts: private citizens with noncommercial disputes like car sales, loans, vandalism, auto accidents, consumers against small businesses, landlords and tenants filing against one another, and tradespeople filing for unpaid bills. In the Bernalillo County Metropolitan Court, less than one quarter of the cases formally adjudicated were composed of corporate creditors and individual debtors (i.e., collections), or involved lawyers for the claimant but not the respondent. It is important to remember, however, that these kinds of cases represent a sizeable majority of initial filings, and the majority of judgments awarded by the court (Vidmar 1984; Hermann et al 1992).
The cases that remain to be formally adjudicated in small claims courts, like the kinds of conflicts handled by other “specialized” courts created in the same era of reform (e.g., domestic relations, juvenile, and landlord-tenant courts), are notoriously complicated, often involve lower status issues and parties—even the lawyers using small claims courts are in the lowest ranks of their profession—and are rarely amenable to the kind of logic to which legal decision-makers aspire. They are more reflective of social problems than legal ones, and the informality of the courts is intended to provide a social rather than a legal cure (Harrington 1982; Yngvesson & Hennessey 1975).
COURT-ANNEXED MEDIATION
Mediation is a harmony- or conciliation-based process. It is one of several procedures that have entered the courts over the past twenty-five years described under the general category of Alternative Dispute Resolution (ADR). Court-annexed mediation is a more recent attempt to “de-calcify” (Merry 1987) the judicial system to increase flexibility and efficiency. The emphasis, especially in mediation, is the resolution of cases without reliance on the adversarial process. Goldberg, Sander and Rogers (1992) described mediation as the most “soft” of the ADR procedures. In contrast to arbitration that results in a third party decision, mediation is at least nominally a voluntary and consensual decision-making process because, like counselors, mediators have no overt decision-making power.
Court-annexed mediation grew from instrumental, expressive, and bureaucratic rationales. It combines negotiation, essentially an instrumental process, with peace advocacy, essentially an expressive motivation, and personal interaction, a less alienating social process. These three elements of mediation are precisely those that are at issue in mediation analyses.
As negotiation, mediation developed from diplomacy and deterrence policies formed in response to the imperatives of nuclear warfare. International diplomacy is a game of strategy (Schelling 1963). In cold war strategy, the goal is to avoid any implementation of negative consequences for the simple reason that nuclear war has no winners. Strategies, organized by the paradigm of behavioral psychology, are thus instrumentally aimed at manipulating the “enemy” by controlling the enemy’s consequences (via threats/punishments and promises/rewards). Thus, the other party’s outcome alternatives are manipulated in order to control the adversary’s presumably rational choices. The strategy of implementing an escalating sequence of consequences, demonstrated perfectly by the preliminaries to the first Gulf War in 1991, is designed to show that the threats are credible and ideally inevitable consequences of the other party’s undesired behavior. An atmosphere of a chess game with varying amounts of psychological sophistication pervades theoretical writing on the topic. Strategic use of the relationship between choice and alternatives is a focus in game and exchange theory, and, notably, trial and business practices.
Peace advocacy is rooted in an expressive and moral motivation1. Conflict resolution in contemporary times is based on the same nuclear age logic, intertwined with justice concerns raised during the Vietnam War. Avoidance of all-out nuclear war is rational. That military personnel should not be asked to die without justification is a moral argument. Analogous issues are common in the history of small claims disputes. Debtors’ prison was eliminated because it was irrational (i.e., imprisoned debtors could not pay and actually cost more) but assessing blame and liability is an essentially moral act. Mediation combines rational bargaining with moral expression in the notion of “principled negotiation” popularized by Fisher & Ury (1981) as a strategy resulting in “win-win” or Pareto optimum agreements.
The growth of impersonal and relatively faceless bureaucratic social processes has been the target of wide public criticism over the past century. The more personal and narrative-tolerant mediation process is justified as an antidote to the chilling effect of modern social organization, specifically the cool rituals of Anglo jurisprudence (Resnick 1986). From international conflicts to zoning disputes to small claims cases, personal interaction and an opportunity to be heard (Lind, Tyler & Huo 1997) are the magic ingredient to successful peacemaking. Folger & Baruch Bush (1994; see also Putnam & Folger 1988), for example, place a primary focus on participant interaction by stressing verbal techniques of empowerment and recognition to achieve what they call “transformative mediation.” In addition to legal studies and social psychology, relevant literature on mediation as an interpersonal process is found in anthropology and communications.
Contemporary use of mediation as an alternative to formal litigation emerged in response to these larger trends. These three elements of mediation—instrumental, expressive and interpersonal—answered social frustrations by posing an alternative to lose-lose violence, a potential for moral negotiation, and a counterfoil to impersonal justice. Mediation is a negotiation process with strategy and assumptions of rational self interest at its analytic core, infused with a softness associated with popular justice (Merry 1992). Although mediation is an ancient practice of third party conciliation, its present expression, generically called “interest-based mediation,” is framed within the cultural language of modern capitalism.
Process in Mediation: Interest-based Negotiation
The most common model of mediation, and the one used at this research site, is patterned on principled negotiation, also known as interest-based mediation. In this language, dispute goals are reframed into economic language of interests, strategy is unstated, and conflict is muted, arguably silenced (Nader 1993) by the courtesies of negotiation dialogue. Avruch (1991) notes that interest-based mediation makes the assumption that interests are deeper than positions, a value judgment consistent with the amorality of western capitalism.
The idea of principled negotiation is that when negotiators release “positions” and redirect their attention to their real “interests” in a dispute, they will be able to release competitive attachment to win-lose outcomes. Without emotional attachment to positions, negotiators will be able to perceive new exchange possibilities, thus “expanding the pie.” In this way, the negotiators will be able to find a mutually agreeable resolution within the expanded field of possible outcomes, or settlement points. In more recent formulations, this motivational higher ground is called “problem-solving” (Pruitt & Carnevale 1993) negotiation leading to integrative or optimum agreements.
The moral need answered by “principled negotiation” is not a moral outcome but a moral process focusing on interests, rather than winning or overcoming the other party. The model assumes a rational actor making self-interested choices among the possible alternatives. Fisher & Ury (1981) coined the acronym BATNA to refer to the need for the negotiators to keep their “Best Alternative To a Negotiated Agreement” firmly in mind so that they can negotiate without “giving in.” The assumed goal of principled negotiation is integrative solutions answering both parties’ interests. The alternatives to informal settlement are the defining limit of self-maximizing strategy. In court-annexed programs, the BATNA is usually the most likely court ruling.
Like choices, the interest-based process of mediation includes instrumental and expressive dimensions. Instrumentally, mediation includes rational elements of law (court alternatives, see McEwen 1991) and bargaining. Expressively, mediation is situated between justice and psychotherapy (Harrington & Merry 1988; Grillo 1991:1588–94). Mediators act as facilitators in verbal negotiations between people who are in conflict. Mediators are trained in (usually) forty hours to reframe positional arguments into statements of interests, to divert blame, accusations and defense (“recognition,” “venting,” and “restating”), and generally to encourage the parties to find a solution themselves (Garcia 1991; Olsen 1989). However, because mediators are not psychologists and their intervention is brief, the healing is mostly limited to relieving immediate distress. Because mediators are most often not legal professionals, and are often proscribed from giving legal opinions, they are limited to generalized statements about the risks of win-lose court rulings in which the disputants have no control over the outcome. In mediation, rules of evidence are usually ignored.
On the level of social organization, court-annexed and interest-based mediation is part of a larger trend to reduce the complex issues of justice to disagreements over interests that might be “resolved” in polite conversation. Nader (1991, 1993) is eloquent on the effects of “harmony ideology” in legal settings, but hers is not the only voice suggesting that justice may not be served by this reduction. Criticism stems from concerns for economic justice (e.g., Abel 1982; Kairys 1990 [1982]; Hofrichter 1982; Lazerson 1982), psychological justice (e.g., Grillo 1991; Bryan 1992), cultural justice (e.g., Delgado et al 1985; Avruch 1991) and basic effectiveness (e.g., Burton 1990; Scimecca 1991; Baruch-Bush & Folger 1994). The thrust of all these concerns is that justice can not and should not be reduced to a negotiation process. Implicitly or explicitly, the argument is that negotiated justice is unfair to nondominant parties.
THE BARGAINING PROCESS
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Figure 1.1 Positional Changes During Court and Mediation Processes
Figure 1.1 shows the negotiation process as bargaining positions reported by disputants in the MetroCourt data in a format that will be used in later chapters (Chapters Seven and Nine) for the bargaining analysis. Figure 1.1 graphically displays the differences between adjudicatory and mediated processes The y axis is the mean percentage of the original claim plotted at five points (positions) on the x axis for claimants and respondents: the initial claim and admitted liability (position 1), the reported amounts “really” owed (position 2), reported changes in position during intervention (position 3), and final adjustments (position 4). Note that the final outcomes taken from court rulings and mediated agreements (position 5), calculated as the mean percentage on the initial claim, are identical in the two fora. However, the outcomes for categorical groups, as will be discussed throughout this work, are statistically divergent, both from other groups in the same forum and from the same groups in adjudication. The thrust of this work is to clarify how the mediation environment, and the interest-based negotiation process, operated for ethnic, gender, class, and professional categories of claimants (upper lines) and respondents (lower lines). This clarification rests heavily on theory and research in negotiations, discussed below and again in Chapter Seven.
Negotiation Assumptions
On the day-to-day level of practice, small claims mediation is a form of facilitated negotiation that assumes all parties are equal to the bargaining task, that the mediators themselves have no investments and do not influence outcomes, and that finding a negotiated solution to the conflict at hand (problem solving) is preferable to placing decision-making power in the hands of a judge, who, in turn, is theoretically ruling in the light of evidence, law and precedent. Negotiation, in turn, assumes self-interested negotiators are making rational choices.
Narrowly-defined rational choice assumptions are “productive assumptions” (Schelling 1963), especially in mathematical modeling of decision-making, because they assume quantifiable goals (“utilities”) and an instrumental rationality that makes the design of laboratory tests more convincing. An example of this is the way that experimental subjects are manipulated into instrumental motivation by cash rewards for “winning.” Citing the common financial plight of students to affirm that self-maximizing motivation was likely, careful exchange researchers like Molm (1991) specify the amounts of money that student-subjects can win from their negotiation performance. However, this narrow theoretical frame clearly misses important individual and group-level differences in goals, strategies, and identities. More broadly-defined rational choice theory assumes that non-material, expressive goals and psychological outcomes are pursued (weighed, compared and strategized) in the same instrumental fashion. For example, in a strategy not unlike Durkheim’s Homo duplex, theorists posit that expressive (Collins 1981; Etzioni 1988), equity (Blalock & Wilken 1979), or group (Margolis 1982) interests are simply additional utilities, and use these concepts to account for measurable divergences from individually self-maximizing social behavior.
Exchange theorist Freidman (1987) pointed out that this theoretical practice is ultimately tautological, that is, the achieved outcome explains any bargaining behavior because the negotiator is presumed to have been seeking it. The MetroCourt data allows us to examine the relationship of stated goals to bargaining behavior to assess how closely the self-maximizing model approximated the empirical reality.
Dual Concern Model
As researchers in the mediation process, and in explicit recognition of the limitations in the rigid rational choice model, Pruitt & Carnevale (1993) proposed a “dual concern model” of negotiations. The dual concern model generates a matrix for understanding individual conflict styles: Low concern for one’s own and other’s outcomes leads to avoiding; high self-concern with low other-concern results in competition/contending; low self-concern with high other-concern leads to conceding/obliging; moderate concern for self and other leads to compromise; and high self-concern with high other-concern, according to this research, leads to the ideal problem-solving style able to create integrative, win-win outcomes.
Within the dominant, self-interested negotiation paradigm, Pruitt & Carnevale describe how negotiators operate between two poles: on the one hand, a negotiator seeks to maximize outcomes in light of alternatives to get the “best” outcome, and on the other, a negotiator specifically does not want to have been a “sucker.” Between these limits (the best and the exploited), negotiating behavior is conceptualized on a continuum of soft to firm depending on the negotiators’ willingness to concede during negotiations.
FIRM AND SOFT BARGAINING
Firm negotiators, also called “tough” bargainers, are likely to make large initial demands and resist reciprocal concession making. Logically and empirically, if agreement is reached at all, firmer negotiators achieve better outcomes. As a strategy, bargaining resistance risks lack of agreement but can also cause a negotiator eager for resolution to overmatch slight or no concessions. Positional commitment, a specific strategy in tough bargaining, is theoretically described by Schelling (1963): negotiators are paradoxically strengthened if they can claim a lack of agency because if they are bound to specific positions and consequences, they gain credibility and their “final position” carries more weight.
Since bargaining resistance is a successful self-maximizing strategy, it is associated with higher self-concern and implied instrumental motivation. However, positional commitment and rigidity are also likely for negotiators with positive alternatives and therefore willing to end negotiations without an agreement, and for those unwilling to compromise strong beliefs and justice pri...

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