RÉSUMÉ

Le but de cet article est de reconstruire la pyramide des conflits juridiques en Belgique. Les données de cette étude sont tirées d’une enquête réalisée à partir d’un échantillon représentatif de 506 familles.

L’article explore d’abord les aspect théoriques et conceptuels de la pyramide juridique. La pyramide a été ensuite reconstruite empiriquement.

Nous avons trouvé un pourcentage élevé de solutions informelles des conflits. Le nombre de familles qui se retirent dans la dernière phase, c’est-à-dire juste avant la démarche au tribunal, est également élevé.

SUMMARY

The aim of the article is to reconstruct the pyramid of legal disputes in Belgium. The data for the study are gathered by means of a representative sample of 506 households.

First, the article explores the theoretical and conceptual aspects of the dispute pyramid model. Then, the pyramid has been reconstructed empirically. We found a pyramid showing high percentages of informal dispute resolution an a high drop-out rate before the stage of the court filing.

1. Introduction

The last decades, and, looking further back, the past 150 years, Belgian civil courts have experienced a considerable increase of disputes to process.

Questions about this rise in caseload have been asked.

Is society becoming overly litigious ? Who are these people who seem to be so sensitive to small insults, and eager to convert them into expensive lawsuits ?

What is at stake ? Are there any patterns to be discovered in the dispute assessment and dispute handling ?

For several years, the Center for Sociology of Law of UFSIA has been studying civil litigation in Belgium  [1] .

There are considerable difficulties involved with the study of the « legal iceberg », or the pyramid  [2] , of the dispute handling process in Belgium.

The judicial statistics go short on both actuality and reliability, and the available data also vary in time, making longitudinal analysis problematic.

Another problem we faced in the study of dispute handling is the lack of data on the bottom of the pyramid, namely, on the amount and the kind of potential disputes.

Both the unreliability of the judicial statistics and the lack of data on the bottom of the pyramid forced us, up till recently, to focus our research on the dispute handling process in court, by means of the study of court files.

To be able to measure the litigiousness of the Belgian society, and in order to compare with other countries, we were in need of a good baseline of potential disagreements from which disputes rise.

In the past, we lacked a good measure of this baseline, since only administrative statistics and court files were available. The global criterium we had at our disposal was population size. Baselines that came closer to the reality of the disputes, such as traffic accidents for tort cases and marriage rates for divorces were used whenever possible  [3] .

Looking for more suitable baselines for the study of litigiousness, we were able to organise a survey by 506 households in Flanders in the fall of 1989.

The choice of the oral survey method gave us the possibility to measure baselines, as well as strategies of households in the dispute assessment and the dispute solution processes.

What we would like to present you today is the global construction of Galanter’s  [4] pyramid of civil disputes in Belgium, and a closer look at the first two layers of the pyramid, namely the baseline of experienced situations and the problem definition phase.

Since this is only a preliminary report of the study, we were not yet able to adress all the questions to be asked about the dispute handling process.

2. Some conceptual notes : the dispute pyramid model

Litigation can be analysed from two points of view : the demand side and the supply side of legal help.

We will focus here on the demand side of the litigation process, following the tradition set by Miller and Sarat, Felstiner, Abel and Sarat, Fitzgerald, Schuyt, Groenendijk and Sloot, Blankenburg, Verwoerd and Klijn  [5] .

For several years now, Galanter’s pyramid has been put forward as the model to analyse the careers of legal disputes at the demand side.

Galanter defines litigation as « the arrival at courts of disputes which arose at other locations in society »  [6] .

Suitable concepts to name every stage in the processes from the rising of a dispute to the filing of a claim have been formulated by Felstiner e. a.  [7] .

Though we were inspired by Galanter’s idea of a pyramid model and Felstiner’s concepts for the description of the layers of the pyramid, we think it is usefull to give a brief outline of the model as we use it here, since we made some adjustments that are not unimportant for the analysis.

In our pyramid model, we distinguish three big levels, each constituted of one or more layers :

1. The baseline (1 layer)
2. The dispute assessment process (4 layers)
3. The dispute handling process (4 layers)

Figure 1 : the three levels of the dispute pyramid

Figure 2 : the layers of the dispute pyramid

2.1. The first level of the pyramid : the baseline

With the baseline of the pyramid we mean to find a concept indicating « that what is to be measured against »  [8] when comparing litigation patterns in different countries.

The researchers of the Civil Litigation Research Project  [9] have argued that the use of disputes as a baseline for the analysis of dispute handling is not valid.

Using the dispute as a baseline would mean working with a baseline that is probably influenced by some (possibly a lot) of the variables that influence the succeeding decision steps taken by the parties in a conflict to come to some kind of solution. This would make the analysis problematic.

Our solution to the problem of the baseline has two aspects. First, we will take the amount of experienced situations (in report to a list of situations we named to the respondents) as the standard of measurement where the amount of disputes is to be measured against.

With this solution, we come close to Griffith’s suggestion to take the amount of relationships where one is involved in as a baseline for the analysis  [10] .

The choice of relationships or experienced situations as a baseline for the potential disputes is also usefull in order to avoid the image of disputes as a deviant, special kind of social action. It makes possible to consider disputes as just one kind of relation, next to other social relations.

Secondly, when studying the dispute assessment and the dispute handling processes, we will relate every layer of the pyramid to its predecessor, considering every step in the process independently from the other steps, thus avoiding the problems involved with relating all levels of the pyramid to the amount of relations experienced  [11] .

2.2. The second level of the pyramid : the dispute assessment process

With dispute assessment we mean all the steps involving the definition of an experience or relationship as problematic, and the transformation of this subjective idea into a dispute, the situation where parties take polarised positions.

Before we can speak of a problem, it has to exist. Felstiner e.a. speak of unperceived injurious experiences  [12] . The authors have mentioned themselves the main problem of this concept : it can only be measured by means of direct observation, which was impossible in our study.

This makes that the first layer of the dispute assessment level of our pyramid is formed by the perceived injurious experience, which, from now on, we will call « problem ».

The transformation of the unperceived problems into perceived problems, which means that people become able to talk (report) about them, is called the naming process.

Once a social actor has recognised a problem, the choice is made if he/she is going to do something about it. We call this third layer of the pyramid the action initiation stage.

To arrive at this layer, a problem has to be considered as solvable by the actor(s). This will probably vary according to the kind of problems and the skillfulness of the actor(s) to see the possibilities for action.

Whenever the actor considers any action unnecessary, and/or not worth the effort (considering the outcome that he/she can foresee), the actor will « lump it » thus ending the problem’s career at the second layer of the pyramid.

The next step, from a sociologists’ point of view  [13] , is the communication of a claim to the party considered as the responsible for the problem (the claiming stage).

To reach this layer, first, another party must be assignable, and, secondly, the claiming has to be considered by the claimant as possibly leading to the solution of the problem.

The final step in the dispute assessment is the polarisation. Whenever the other party refuses to meet the wishes of the claimant, be it in whole or in part, the dispute assessment process is completed, resulting in a social relation where two parties stand in a polarised position in relation to the way they look at the problem and/or the way it should be solved.

2.3. The third level : the dispute handling processes

Once the problem is transformed into a dispute, the question can be asked what the actors will do with it.

The first possibility is lumping it, resulting in a drop-out at the first layer of the dispute handling process.

The most plausible alternative is calling for help from third parties.

We will make a distinction between three kinds of third parties, according to the closeness of the relation with the actor.

The first category of third parties is formed by members of peer groups, such as family, friends, and neighbours.

The second category of third parties includes members of groups with some familiarity, though less familiarity than a peer group, and members of groups with whom the actor has a slightly more formal relation like social officials/representatives, or familiar members of socio-cultural organisations.

The third category is formed by legal scholars (mainly lawyers, judges and process-servers).

At this stage of the data analysis, we didn’t yet make the distinction between the three categories of third parties in the tables yet. Hence, we will treat the whole group of third parties together now.

The layers related to the consultation of third parties (excluding judges for a moment) are :

1. consultation of (a) third party(s) ending with the solution of the problem ;
2. consultation of (a) third party(s) without solution.

After consultation of (non-judge) third parties without a solution of the problem as a result, there is a final choice to be made : ending the dispute (lumping it) or bringing the dispute in court.

In no way, the filing in court is to be considered as some special process being totally different from the other ways to find a solution for a problem.

The only difference in it is the appeal to some formal rules and procedures, where other ways seem to be (but are not always) more informal.

This doesn’t change the nature of the thing though, the formal proceedings are to be considered as one way to find a solution of disputes, among other (less formal) ways.

Thereby, there are analogies to be found between informal and formal dispute handling.

Sometimes informal processes anticipate on possible formal solutions, in the way that the formal dispute handling has a background-function for the informal process, which can still be started if the informal process fails to bring a solution  [14] .

On the other side, widespread existing informal dispute handling processes are due to get, after some time, their reflection in the legal system.

This is why the informality of the out of court handling of disputes is not necessary very different from court handling of disputes.

3. The data

The data analysed in this article come from a household dispute survey conducted in Flanders in the fall of 1989.

It was set up to lead to comparable data as the research by Miller and Sarat  [15] in the United States and Fitzgerald  [16] in Australia.

Both studies, as ours, focus on middle range civil problems of households, thus excluding all commercial and criminal problems from the survey.

The respondents were asked to limit their report about problems to the last three years.

The main difference with the two studies mentionned above is that our data were gathered by means of face-to-face interviews, whereas the U.S. and Australia data were gathered by telephone interviewing.

The telephone interview technique is not yet fully accepted in Belgium. We expected therefore that there could be a low response, and/or unreliable results when using telephone interviews.

A sample of 540 household was set out. 506 househols participated, giving us as response rate of 94%.

The sample points (communities, in total 45) were distributed among the provinces (district) according to global urbanisation figures, resulting in a sample matching urbanisation rates in Flanders.

For each sample point, a starting adress was selected by means of random numbers and the telephone book. The next households (up till 12 for each sample point) were selected by means of a random walk procedure, being every fifth house, starting from the first selected adress.

When refusal occured, the same procedure was repeated.

We made tests of representativity of the sample on following variables :

• gender (of respondents and partners if present)
• age (id.)
• educational level (id.)
• profession (id.)
• household structure
• place of residence of the household

Although the sample can be considered as of good quality, permitting generalisations to Flanders as a whole, some small irregularities were noted :

• There is a slight over-representation of women-respondents in the sample, but at the same time also an overrepresentation of men in the sample as a whole (respondents and partners taken together) caused by the presence of a vast amount of single men in the respondent group.
• We also found a slight underrepresentation of single persons/parents in the sample.
• The sample contains relatively more households with children than the population, caused by an overrepresentation of households with two children.
• There is an underrepresentation of aged people, together with an overrepresentation of young, active households.
• People with high educational levels (and hence also people in white collar professions, especially high ranking functions) are overrepresented in the sample.

The over-and underrepresentation of certain categories never takes such proportions as to make us worry about the validity of our data.

The questionnaire was divided in three parts.

In the first part, we gathered information on the household structure.

Next, a list of situations was presented and respondents were asked to report :

1. if any person of the household has experienced the situation in the last three years,
   and
2. if there had been any problem.

If problems were reported, a special questionnaire was to be filled out, reconstructing the dispute assessing and dispute handling processes.

A third past of the questionnaire included questions concerning the opinions of the respondents about legal scholars and courts.

4. The reconstruction of the global pyramid

As this moment, we can only give you the global view of the dispute pyramid without making distinctions between different kinds of disputes.

4.1. The baseline : the amount of relations/situations experienced

The survey we work with is not selected on the occurrence of problems. This has the big advantage that we can assess the baseline of disputes/problems, since we can compare households reporting problems with those reporting no problems, according to the amount of situations they experienced.

The main disadvantage is the small amount of households we have in the survey reporting problems, being only a fraction of the total sample.

The households in the survey were asked to point out on a list of 24 situations those situations they had experienced lately.

The list consisted of situations that can be grouped into the following categories :

• consumer situations : buying of goods
• consumer situations : services
• consumer situations : repairs
• debts
• tenant/landlord relations
• neighbour relations
• work (mainly payment)
• relations with government (taxes)
• tort (traffic accidents)

Four situations were assumed to be present for all households, namely the social security membership, insurances, taxes and neighbours  [17] .

In total, 4428 experienced situations were reported by the 506 households.

There is a variation in the occurrence of situations, from rarely experienced situations, such as the buying of land or a house (1% and 3%) and divorce (3%) to frequently occurring situations such as one or both partners having an employment (70%), the using of loundry services (58%), and the buying of clothes (58%).

When looking closer as the amount of situations experienced, we get the following picture.

All households experience in average 9 situations. There is no big difference between single persons (with or without children) who experience in average 8 situations and couples (with or whithout children), who follow the sample mean.

4.2. The second level : the dispute assessment process

Problems or grievances

In the survey, respondents were asked to report about their problems in three ways. A first question provides us with a spontaneous report. 72 out 506 households answered « yes » when asked if they had experienced any legal problems lately.

As we will point out below, this number is clearly an underestimation. It shows us that people, when asked to report about legal problems (or problems with legal aspects) don’t even think they are supposed to mention, for instance, that certain problem with the neigbours, or a discussion with the landlord, or even their complaining in a shop where a coffee-maker was bought. It is only when asked specifically about these kinds of situations, that a more complete report is given by the respondents  [18] .

A better view of the conflict potential was reached by means of a list of situations where trouble could occur. We already showed the list above.

For each situation experienced, the respondents were asked to report if there had been any problem.

The more general term « problem » was easier to respond to : up to 42% of the households reported to have lived one or more problems in the situations listed.

Most households (55%), if they report any problem at all, only report one problem. 29% of the households reports two.

Households reporting three or more problems are a minority (together 16%).

The maximum amount of problems reported with the list was six.

The third estimate of the problem volume was produced by means of a special questionnaire, to be filled out for every problem that was mentioned during the course of the interview.

The amount of « special » completed questionnaires we obtained is 174, which gives us a global problem risk of 34%  [19] .

In the special questionnaires, 72% of the households having experienced a problem only reported one problem, another 18% reported two. Only 10% of the households reported more than two problems.

Because we only have data to reconstruct the pyramid on those problems reported by means of the third measurement, this measure will be used in the pyramid.

When we count all problems together, we arrive at 246 problems.

The action initiation phase

Once a problem is recognised as such by the actor, we can look if there is some action taken to seek a remedy.

In 203 cases action was taken. This means that 17% of the problems were left as such, without any attempt to do something.

The other 83% of the problems was at least looked at by the household, and an attempt was made to do something about it.

Unless the household does something to find a solution for the problem, a dispute cannot occur.

Claiming

When we look at was households do, the most occurring action to be taken is the communication of the problem (and thus the communication of a claim) to the one held responsible for the problem.

In 188 cases the action taken was claiming. This means that in only 7% of the cases where an action was taken there was no contact with the other party.

Once a claim made, the other party can react by a) total satisfaction of the claim, b) partial satisfaction of the claim, or c) refusal.

Polarisation : dispute rising

If the offending party grants the claim, there is no dispute. If the claim is rejected in part or in whole, a dispute occurs.

The dispute rate of cases in our data is 64%. This means that, once a contact is made, 36% of the problems come to a solution.

Thus, there is a big fall-out on the level of the informal agreement between the parties.

This constatation is important for the situation of Belgium in the range of legal cultures between the edges of extremely adversary and extremely litigation avoiding.

The data made clear that informal contact with the other party turns out to be, first, the most occurring action, and, second, the most successfull one to take in order to come to a solution of the problem.

4.3. The dispute handling level

Lumping

Once a claim is rejected, the offended party comes again before the choice between lumping it, meaning dropping the case without undertaking any more actions, and making another effort.

In 20% of the cases where the assumed offender doesn’t grant the claim, the case is dropped.

This high fall-out points again at the importance that is attached to the contact with the other party.

Third parties

The most occurring action (if any is taken) is the call on third parties.

In 79% of the cases where no solution was reached after the direct contact with the other party, the respondents called on third parties for help. This lead in 76% of the cases to a solution of the problem.

Court filing

If the help from third parties doesn’t lead to a solution, the final choice for the respondents goes between dropping the case and filing a claim in court.

In 49% of the cases having found no solution after consultation of third parties, a claim is made. This means that 51% of the households give up, even after having gone through as much trouble as looking for contact, and looking for help from third parties. At the moment of the survey 65% of the cases in court are finished by means of a sentence. In a few cases the parties have reached – even in this final stage – an informal agreement. The other cases are still handled by court.

Figures 3 to 5 show the pictural reflection of the pyramid.

Figure 3 :
the global pyramid of legal disputes
in relation to the total amount of problems reported (%)

Figure 4 :
Amount of cases in each layer related to the previous one

Figure 5 :
the global view of the drop-out before each layer
in relation to the previous layer (%)

4.4. Some considerations on the drop-out

Looking at the drop-out in each stage of the pyramid, some points can be marked.

1. First, 17% of the households didn’t undertake a single action to do something about the problem.

2. Secondly, only 7% of the households undertaking actions didn’t get into contact with the other party.

This makes clear that, in no way, we can speak of a tendency to file a case in court from the moment a problem occurs. The first step is nearly always one of informal negociation of the parties.

3. Third, this negociation ends, in a vast amount of cases (36%), with the granting of the claim by the assumed offender.

The fall-out of 20% before the next layer shows us that the contact with the other party is considered as important : one out of five cases where there is no solution found in the dialogue with the other party is lumped.

4. Third parties were consulted in 79% of the cases where bilateral negociations didn’t bring any solution, resulting in a solution of the problems in one case out of four.

5. Nearly no households drop the case immediately after the consultation of a third party (5%), but this doesn’t necessary result in a court filing : only 49% of the cases having made a career through all the layers of the pyramid but one don’t make it to the top.

This last constatation is important, showing us the existence of a high barrier to the use of the court’s services.

5. Conclusions

In this article, an attempt was made to reconstruct the pyramid of legal disputes in Belgium. We found a pyramid showing high percentages of informal dispute solution, and a high drop-out rate before the stage of the court filing.

These constatations point at a tendency to litigation-avoidance, at least as a general trait. This does not mean that we expect to find the same patterns when specifying for different kinds of conflicts, which will be looked at in further analysis.

Les auteurs

Francis VAN LOON

Professeur ordinaire à la Faculté des Sciences Politiques et Sociales à l’Université d’Anvers (UFSIA) et Directeur du Centre de Sociologie Juridique.

Yolande WOUTERS

Assistante à la Faculté des Sciences Politiques et Sociales à l’Université d’Anvers (UFSIA).

Pour en savoir plus...

— Van Loon F., Langerwerf F., « Länderbericht über Grundzüge nationaler Rechtsmittelsysteme : Landesbericht Belgien », in P. Gilles, K. Rohl, P. Schuster, D. Strempel, Rechtsmittel in Zivilprozess, Köln, Bundesanzeiger, 1985, pp. 135-140.

— Van Loon F., Langerwerf E., « Prozesshäufifheit und Prozessmuster in Belgien », in Blankenburg E. (red.), Prozessfluss ? Indikatorenvergleich von Rechtskulturen auf dem europäischen Kontinent, Bonn, Bundesanzeiger, 1989, pp. 231-255.

— Van Loon F., Langerwerf E., « Socio-economic development and the evolution of litigation rates of civil courts in Belgium (1835-1980) », Law and Society Review, 1990, 242, pp. 283-298.

*  Paper presented at the Oñati conference of the Research Committee for Sociology of Law, July 1990.

**  Center for Sociology of Law, UFSIA, University of Antwerp.

[1] . A report on 150 years of civil litigation in Belgium is published: F. Van Loon, E. Langerwerf, « Socio-economic development and the evolution of litigation rates of civil courts in Belgium (1835-1984) », in  Law and Society Review, 23, 1990, 2, pp. 283-298.

[2] . M. Galanter, « Litigation in America », in  UCLA Law Review, 31, 1983/1.

[3] . An international report on studies in the Netherlands, West-Germany, France, and Belgium is already published:
E. Blankenburg, (red.),  Prozessfluss? Indicatoren von Rechtskulturen auf dem Europäischen Kontinent, Bundesanzeiger, 1989.

[4] . M. Galanter,  ibid.

[5] . R. E. Miller, A. Sarat, « Grievances, claims and disputes: Assessing the adversary culture », in  Law and Society Review, 15, 1980-81, pp. 525-565. W. F. Felstiner, R. L. Abel and A. Sarat, « The emergence and transformation of disputes: Naming, Blaming, Claiming », in  Law and Society Review, 15, 1980-81, pp. 631-654.
J. Fitzgerald,  A comparative empirical study of potential disputes in Australia and the United States, Dispute Processing Program Working Papers Series, University of Wisconsin, Madison, 1982, 4.
C. J. M. Schuyt, C. A. Groenendijk and B. Sloot,  De weg naar het recht, Kluwer, Deventer, 1976.
E. R. Blankenburg, « Mobilisierung von Recht », in  Zeitschrift für Rechtssoziologie, 1980, 1, pp. 33-64; E. R. Blankenburg and U. Reifner,  Rechtsberatung, Luchterhand Verlag, 1982.
J. R. A. Verwoerd,  Beroep op de rechter als laatste remedie? Gouda Quint bv., Arnhem, 1988.
A. Klijn and F. W. M. Huls, « De vraag naar rechtshulp 1979-1982 », in  Maandstatistiek CBS, politie, justitie en brandweer, 1984, 5, pp. 8-23.

[6] . M. Galanter,  ibid., pp. 11-12.

[7] . W. L. F. Felstiner, e. a.,  ibid.

[8] . J. Griffiths, « The general theory of litigation, a first step », in  Zeitschrift für Rechtssoziologie, 5, 1983, 2, p. 163.

[9] . W. L. F. Felstiner, e. a.,  ibid.; R. E. Miller and A. Sarat,  ibid.

[10] . J. Griffiths,  ibid.

[11] . In later analysis, we will try to get an over-all view of the whole process of dispute assessment and dispute handling. At this moment of the analysis, we comply to rather simple middle-range hypothesis, even when these look ideal-typical, since we believe the results can give us clues to adress a more complex analysis later.

[12] . W. L. F. Felsiner,  ibid., p. 633.

[13] . We skip one step mentioned by Felstiner e.a., being the attribution of the cause of the problem to another social actor by the respondent (the  blaming, having a grief as result), since we consider this step as a purely psychological one. Moreover, there are a lot of problems involved with the measurement of this attribution process.

[14] . This occurs often in disputes where the outcome of a filing in court is predictable, and the actors have the knowledge to realise this, as is the case in a vast amount of tort cases, namely the traffic accidents, where insurances have developped informal ways of dispute handling, avoiding the costly court filings, but with the certainly that, when no agreement is reached, the case can still be brought in court.

[15] . R. E. Miller and A. Sarat,  ibid.

[16] . J. Fitzgerald,  ibid.

[17] . The occurrence of two situations was not measured, thus bringing the maximum amount of situations that could be reported at 22.

[18] . This constatation is very important for the study of the pyramid of legal disputes, since the definition of a problem as a legal problem is the condition  sine qua non for the possible construction of court cases.

[19] . The difference of 8% with table 3 is caused by the fall-out of cases due to bad filling-out of the special questionnaires.