Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-23T16:36:30.315Z Has data issue: false hasContentIssue false

Mediation in Small Claims Court: Achieving Compliance Through Consent

Published online by Cambridge University Press:  01 July 2024

Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

In Maine defendants in small claims court are nearly twice as likely to comply fully with mediated outcomes as with judgments imposed by the court after adjudication. Some of the explanation can be attributed to specific features that are more common to mediated and negotiated settlements than to adjudicated outcomes. In addition, consensual processes lead to social psychological pressures for compliance that are not associated with authoritative judgments. Our findings point to the value of consent—the most central difference between mediation and adjudication—as an adjunct to command in promoting compliance with rules and orders.

Type
Research Article
Copyright
Copyright © 1984 by The Law and Society Association

Footnotes

*

Research for this article has been supported by a grant from the Law and Social Sciences Program of the National Science Foundation (SES-7908872). The authors wish to thank Richard Lempert, Colin Loftin, Walther Gottwald, Gary Marx, and Neil Vidmar for their helpful comments on earlier drafts of this paper.

References

References

ABEL, Richard L. (1982a) “The Contradictions of Informal Justice,” in Abel, R.L. (ed.), The Politics of Informal Justice, Vol. 1: The American Experience. New York: Academic Press.Google Scholar
Abel, R.L. (1982b) The Politics of Informal Justice, Vol. 1: The American Experience. New York: Academic Press.Google Scholar
AUERBACH, Jerold S. (1982) “Burger's Golden Calf,” 186 The New Republic 1 (March 3).Google Scholar
BREHM, Jack W. (1966) A Theory of Psychological Reactance. New York: Academic Press.Google Scholar
CAPPELLETTI, Mauro and Bryant, GARTH (eds.) (1978) Access to Justice: A World Survey, Vol. 1. Alpen aan den Rijn, Netherlands: Sijthoff and Noordhoff.Google Scholar
CHRISTIE, Nils (1977) “Conflicts as Property,” 17 British Journal of Criminology 1.Google Scholar
COOK, Roger F., ROEHL, Janice A. and David I., SHEPPARD (1980) Neighborhood Justice Centers Field Test: Final Evaluation Report. Washington, D.C.: Government Printing Office.Google Scholar
DANZIG, Richard and Michael J., LOWY (1975) “Everyday Disputes and Mediation in the United States: A Reply to Professor Felstiner,” 9 Law & Society Review 675.Google Scholar
DAVIS, Robert C, Martha, TICHANE and Deborah, GRAYSON (1980) Mediation and Arbitration as Alternatives to Prosecution in Felony Arrest Cases: An Evaluation of the Brooklyn Dispute Resolution Center (First Year). New York: Vera Institute of Justice.Google Scholar
EISENBERG, Melvin A. (1976) “Private Ordering Through Negotiation: Dispute Settlement and Rulemaking,” 89 Harvard Law Review 637.Google Scholar
FALKENSTEIN, Karen (1981) “Greasing the Wheels of Justice: An Analysis of the Use of Mediation Within Small Claims Courts.” Unpublished third year paper, Harvard Law School.Google Scholar
FELDMAN, Shel (ed.) (1966) Cognitive Consistency: Motivational Antecedents and Behavioral Consequents. New York: Academic Press.Google Scholar
FELSTINER, William L.F. (1974) “Influences of Social Organization on Dispute Processing,” 9 Law & Society Review 63.Google Scholar
FELSTINER, William L.F. and Lynne A., WILLIAMS (1980) Community Mediation in Dorchester, Massachusetts. Washington, D.C.: Government Printing Office.Google Scholar
FULLER, Lon L. (1978) “The Forms and Limits of Adjudication,” 92 Harvard Law Review 353.Google Scholar
GOFFMAN, Erving (1967) Interaction Ritual: Essays in Face-to-Face Behavior. Garden City, NY: Doubleday & Co.Google Scholar
GOULDNER, Alvin W. (1960) “The Norm of Reciprocity: A Preliminary Statement,” 25 American Sociological Review 161.Google Scholar
GULLIVER, P.H. (1979) Disputes and Negotiations: A Cross-Cultural Perspective. New York: Academic Press.Google Scholar
HARRINGTON, Christine B. (1980) “Voluntariness, Consent, and Coercion in Adjudicating Minor Disputes: The Neighborhood Justice Center,” in Brown, D. and Brigham, J. (eds.), Policy Implementation: Penalties or Incentives? Beverly Hills, CA: Sage.Google Scholar
JUDGE, George G., GRIFFITHS, William E., HTLL, R. Carter and Tsoung-Chao, LEE (1980) The Theory and Practice of Econometrics. New York: Wiley.Google Scholar
LEMPERT, Richard O. (1972) “Norm-Making in Social Exchange: A Contract Law Model,” 7 Law & Society Review 1.Google Scholar
MACAULAY, Stewart (1963) “Non-contractual Relations in Business: A Preliminary Study,” 28 American Sociological Review 55.Google Scholar
MATHER, Lynn and Barbara, YNGVESSON (1980-81) “Language, Audience, and the Transformation of Disputes,” 15 Law & Society Review 775.Google Scholar
McEWEN, Craig A. and Richard J., MAIMAN (1981) “Small Claims Mediation in Maine: An Empirical Assessment,” 33 Maine Law Review 237.Google Scholar
McGILLIS, Daniel and Joan, MULLEN (1977) Neighborhood Justice Centers: An Analysis of Potential Models. Washington, D.C.: Government Printing Office.Google Scholar
MERRY, Sally E. (1982) “The Social Organization of Mediation in Non-Industrial Societies: Implications for Informal Community Justice in America,” in Abel, R.L. (ed.), The Politics of Informal Justice, Vol. 2: Comparative Studies. New York: Academic Press.Google Scholar
NADER, Laura (1969) “Styles of Court Procedure: To Make the Balance,” in Nader, L. (ed.), Law in Culture and Society. Chicago: Aldine.Google Scholar
PEARSON, Jessica (1981) “Child Custody: Why Not Let the Parents Decide?” 20 The Judges Journal 4.Google Scholar
PEARSON, Jessica and Nancy, THOENNES (1982) “Custody Mediation in Denver Short and Longer Term Effects.” Unpublished paper, Center for Policy Research, Denver, Colorado.Google Scholar
PINDYCK, Robert S. and Daniel L., RUBINFELD (1981) Econometric Models and Economic Forecasts, 2nd Ed. New York: McGraw-Hill.Google Scholar
ROSS, H. Laurence (1970) Settled Out of Court: The Social Process of Insurance Claims Adjustments. Chicago: Aldine Publishing Co.Google Scholar
SILBEY, Susan S. and Sally E., MERRY (1983) “The Problems Shape the Process: Managing Disputes in Mediation and Court.” Unpublished paper, Wellesley College, Wellesley, MA.Google Scholar
SWARTZ, Marc J. (1966) “Bases for Political Compliance in Bena Villages,” in M.J. Swartz, V.W. Turner and A. Tuden, Political Anthropology. Chicago: Aldine Publishing Co.Google Scholar
VIDMAR, Neil (1983) “Consumers Avoid It; Defendants Lose—and Other Myths about the Small Claims Court.” Paper delivered at the Law and Society Association meeting, Denver, Colorado.Google Scholar
WAHRHAFTIG, Paul (1982) “An Overview of Community-Oriented Citizen Dispute Resolution Programs in the United States,” in Abel, R.L. (ed.), The Politics of Informal Justice, Vol. 1: The American Experience. New York: Academic Press.Google Scholar
WITTY, Cathie J. (1980) Mediation and Society: Conflict Management in Lebanon. New York: Academic Press.Google Scholar

Statutes Cited

MAINE REVISED STATUTES ANNOTATED. Lit 14 § 7461 (Supplement 1980).Google Scholar