There were many interesting points of discussion on today’s
film, The Story of Qui Ju; some that
we did get to talk about (but could certainly spend more time on, like the
issue of morality in disputes and what role that should or should not play in
the resolution process?), and others that seem fascinating that I might not
touch upon here (like the clashing of two people with an apparent focus on
“winning” as their conflict styles in this context) but that would welcome in
the comments section. In this post I want to focus on the idea of voice and
participation in the process, and what that looked like for Qui Ju, Wang, and
even the metaphorically and perhaps literally castrated Qinglai.
At the end of class, Professor Reynolds pointed out that the
dispute resolution process became increasingly formal, as it moved from
negotiation (the one failed attempt wherein Wang helpfully offered to have
Qinglai kick him in the groin) to mediation and arbitration and finally
litigation. I felt the movie also showed how all parties seemed to lose more
and more of their voice as the process became more removed from them, moving
from the village to the city and to committees that would make decisions upon
review, without the parties even present in some cases. The original intent of
the suit may have gotten lost, through assumptions that the fact finders were
making, or because Qui Ju had not been able to express herself as she got
increasingly out of her element. This is neatly paralleled in the narrative of
the film with Qui Ju’s own personal negotiations become more timid as the story
moved further away from her comfort zone (thanks, Abbie, for that helpful
observation).
It did seem as though some of the officials were really
trying to listen to her story, and seemed genuine in their efforts to help.
However, when it came time for their decisions, again it was clear that her
needs for justice, whatever that entailed, were not met. So can we say that
they were really giving her a voice? Would Qui Ju say that she had been heard?
I don’t think that she would, and in giving parties voice and allowing them to
participate in the process, perception is 100% of reality. The tragedy of the
film is that she lost control of the situation in the litigation process, and
did not have as much of a say in the outcome, which resulted in an outcome that
was very far from her original intent, and much worse than what she had hoped
would happen for Wang (though we can talk about that assumption: is going to
jail worse than losing face in this culture? Qui Ju seemed to think so, but
maybe Wang feels differently.).
That loss of control over the outcome is also apparent to me
in the case of poor Billy Budd, and that seems to cement the idea that
litigation is a process in which a voice can more easily be lost (of course, a
special circumstance in Budd’s case; see Prof. Reynolds’ post). Does that suit
all cases? I want to explore the idea that some types of disputes, particularly
those that are morally/value-based at heart (such as Qui Ju’s), might be better
suited to mediation or negotiation than litigation. How do we begin to identify
the types of issues that we are dealing with, and then how might we use that
information to decide which DR option is best? Where is the line drawn on when
we should and should not invoke some moral standards, rather than (or in
addition to) adhere to the rule of law? I would be interested to know the
class’s thoughts on that debate, as we only briefly touched on some of the
issues of morality today.
So what should our take-home lesson be on this issue? I
think that it is the thing that many of us were saying that frustrated us about
the movie: communication is key, and in this case, there seemed to be a mismatch
of desires and outcomes. Whether it is a party involved, a mediator, or a
lawyer representing a client, understanding the real values and motives is of
utmost importance to all involved if the settlement is going to satisfy anyone.
So to us newbies in the field, I suggest that we ask questions, dig deep, and
try to never let the look of someone who has not been understood linger on the
faces of our clients. I still feel as though the whole thing could have been
worked out with Li had Qui Ju been able to express her displeasure with Wang’s
insistence that she bow down to him to pick up the money- so perhaps more creative
problem-solving or fact-finding on the part of the mediator could have paved
the way for a solution that would allow both to get what they needed. As Glinda
says in the end of the Wizard of Oz- just click your heels and go home; you’ve
had the power this whole time.
*I said I would get to the men involved, and I did not.
There really is only one point: they didn’t really have a voice, as it was Qui
Ju that drove the whole process. How would it have been different if Wang had
participated more fully in the mediation process? What about poor Qinglai- he
would have stopped the whole thing much earlier if he actually had any say!
Hi Devin, I like the point you made about her needs for justice not being met. I blame that on a lack of communication. Qui Ju assumed that others would understand her idea of justice, but they did not. Li seemed to get the message that she wanted an apology, which was seen in the scene where he tells Chief to just apologize. Chief says he will cough up the money, but will never apologize. Though Li seemed to understand, none of the other authorities seemed to understand that what she was calling what was "right" was an apology. Though the authorities were really nice to her, there wasn't much effort put out to find out what she was seeking.
ReplyDeleteI really liked your post. You brought up quite a few good points about the movie. Hopefully you didn't take my comment earlier about it being long as a bad thing. 'Twas a good post.
Two quick things: one, the loss of control in litigation is characteristic of litigation, as a dispute resolution process. As Seul says, if you have an uncooperative party the only way you can force him into dispute resolution is to sue him. So you turn over your control to the state and then the state decides, with some (perhaps limited) input from you. Whether Qiu Ju realized this (i.e., that she was trading any control she might have over the outcome for the coercive power of the state) is another question.
ReplyDeleteTwo: moral/value-based disputes, like the one we will work on Tuesday, are hard to match to a dispute resolution process. One must consider not just voice issues (better in mediation than in litigation) but also social values, such as articulating a principle (better in litigation than in mediation). Think of school segregation -- that was considered a moral/value-based dispute, and perhaps it was better to have that dispute resolved in the public forum (here, litigation).
Seul does have another interesting article in which he considers whether such morally significant cases (like the integration case mentioned above, Brown v. Board of Education) could have been successfully mediated, given the need for creating/reinforcing public norms around integration. Let me know if you'd like to have a copy. It's interesting to consider how we could tailor a process outside of the court system that would lead to widespread social change in short order.
In this story, Qui Ju seemed to be driven by her morality and what she deemed to be justice. Today's exercise, just like Professor Reynolds predicted here, really drove home the point that social values are not easy to work past when two parties aren't able to listen to each other due to their own values. I agree that there are some issues that have to be worked out in litigation because the parties just won't agree with one another.
ReplyDeleteLike a lot of people said, it didn't seem like she understood what moving to the more formal litigation would mean. She thought her voice was being heard and she was acting in good faith that what she wanted was understood. Like Chazya pointed out, she kept saying all she wanted was an apology and it seemed like everyone had different ideas of what exactly an apology was.
I like Seul's point that if the other party refuses to engage in the dispute with you and cooperate, you have no choice but to turn it over to a higher authority if you want some kind of resolution. From my experience, when they end up in court they think that they know everything about justice, which is based on their own expectations of right and wrong. In the small claims meditations that I participated in, the parties almost never understood that once they went to court they would lose all control over the outcome and it would probably not be ruled in their favor.
As I read this, I couldn't help but think about what we've been reading about in "Social Conflict." A lot of the times the conflict becomes about winning or 'out-doing the other.' In Qing Ju's case, I think she was right in wanting to prove a point. She wanted to be respected and deserved an appropriate apology, but the case seemed to obsess over this fact and the issue of actually solving the conflict disappeared. It seemed like she would only accept what she wanted and was unwilling to accept any of the compromises she was offered. However, I feel bad for her because her voice was not heard throughout the conflict. Yes she wanted an apology, but if she would have just been given the opportunity to talk with Wang one on one, I feel like they could have better communicated how they felt. Maybe an understanding would have been reached and Qing Ju would have been more willing to accept the previous compromising offers, solving the issue earlier.
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