Fairness and communication in small claims courts.

摘要

This dissertation is about the process of dispute resolution of small claims with a special focus on problems of communication and understanding, as these play a role in the assessment of the claims and have an impact on the respective outcome.;In this connection special attention is paid to the meaning of the claims themselves. This meaning, as I argue, cannot be properly understood without a concern with questions of fairness which are constitutive of "legal" claims wherever they take place. From that perspective, I draw on the works of Gluckman and Habermas to develop a definition of fairness as an aspect of legitimacy and submit that, in order to be apprehended, questions of fairness have to be approached from a participant's viewpoint. Then, I discuss the theoretical implications of this position through a critical review of the literature in "Legal Anthropology".;Finally, I apply these ideas to my study of small claims where I pursue a detailed analysis of contested cases. That is, the cases which develop into fullfledged court hearings and/or the ones whose litigants attempt resolution in the context of mediation sessions. Through an examination of court hearings in the light of my concerns with fairness and understanding, I argue that there are certain types of cases where the court decisions often sound inadequate because,--due to the constraints of the judicial mode of assessing liability--, they are a product of inappropriate interpretations of the respective disputes.;In the same vein, my discussion of mediation sessions suggests an important distinction between two types of mediated settlements: (1) equitable agreements, and (2) bargained compromises. While the first type of settlement reveals the satisfaction of the litigants' concerns with questions of fairness and a high degree of responsiveness to their demands towards issues of rightness, the bargained compromises are characterized by an emphasis on a more strategic orientation where the main concern of the parties is getting as much as possible under the circumstances, or the most reasonable settlement from that perspective.