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Studies on Dispute Settlement Processes

Studies on Dispute Settlement Processes . Legal Anthropology Class- Faculty of law UI (LIN & SI). A. Introduction. Legal pluralism is embedded in dispute settlement processes (c/o: Mtengeti-Migiro,1993; Holleman, 1946).

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Studies on Dispute Settlement Processes

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  1. Studies on Dispute Settlement Processes link Legal Anthropology Class- Faculty of law UI (LIN & SI)

  2. A. Introduction • Legal pluralism is embedded in dispute settlement processes (c/o: Mtengeti-Migiro,1993; Holleman, 1946). • Legal Anthropology has ever been known as Anthropology of dispute settlement (Benda-Beckmann,dalam Ihromi 1989:5). • Countless studies on dispute settlement process in AOL ‘s literature (in rural_ and urban/industrial society) link

  3. B. Trobule-case Method (1) • The most favourable method to find the “real law/living law” is dispute settlement  Law is examined/tested in dispute case • A. Hoebel: three main methods to find the law • Ideological approach • Descriptive approach • Trouble case approach • What is the weakness and the strength of each approach ? link

  4. C. Escalation of dispute (1) Escalation: (Nader dan Todd in Ihromi, 1989) • pre-conflict (monadyc) • conflict (dyadic) • dispute (tryadic) link

  5. C. escalation… (2) Felstiner, Abel, dan Sarat (1981) • Naming one party perceive unjust but there is not complaint yet (monadyc) • Blaming the respective party deliver a complaint to the other party whom violates his/her rights (dyadic) • Claiming  the respective party files complaint to the third party to settle the complaint (tryadic) link

  6. D. The parties in dispute (1) Some possibilities: • Individual vs individual from the same group (inter group) or from different group • Group vs group --intra group ( Kriekhoff, in Ihromi, 1989: 225). link

  7. D. The parties…(2) Marc Galanter (Why the Haves…1981) • Repeat player vs repeat player • One shooter vs repeat player • One shooter vs one shooter • Repet player: party with power and resources to win the case • One shooter: party with less or lack of power & resources link

  8. E. Dispute in 10 societies(Nader dan Todd, 1978) 1 Monadyc: • Lumping it • Avoidance: Minimize the relationship or exit (Galanter) • Coercion self-help/ self-redress (Galanter) link

  9. E. Dispt settl in…Nader & Todd dyadic • Negotiation: solved between two parties. Triadic: settled with the third party • Mediation • Arbitration • Adjudication: file suit to the court link

  10. Reasons to (or not) disputing the case • Maintaining relations among parties • The disputed resources (material) • Immaterial reason: position, pride • Dispute resolutions in the US industrial companies (Macaulay), Japan, Korea • How about Indonesia ? (Nancy Tanner) link

  11. F. Adjudication  MARC GALANTER (1981)1 • Justice in many rooms (Galanter, 1981): a place for negotiation • The filing case:  settled, recalled, negotiated outside the court. • Court room: bargaining endowment (MnookindanKornhauser); link

  12. F. ADJUDIKASI  MARC GALANTER (1981)3 Limitation of court institution: • Court sometimes failed to promote social interest in certain case (Noonan, 1976)  legal formal/procedural justice vs substantive justice • Lack of resource persons • Lack of well managed data and administration • corruption link

  13. F. Shopping forum & forum shopping (K Benda-Beckmann, 1986) • Shopping forum: there are forums to “shop” for the parties • Forum shopping: there are forums to shop for the functionaries/authorities/court to settle dispute or NOT link

  14. Goals: • Ending • Decision • Status quo • Having your day • Publicity • Shaming • Harming the opponent • Harmony link

  15. Goals • Justice • Expectations where interests are best served • Constellation of parties – social proximity or distance link

  16. Interests • Position and roles • Relationships – social proximity and distance • Resources, capabilities, and power • Motivations and goals link

  17. Thank you link

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