On Naming, Blaming and Claiming

I have been thinking about the importance of understanding complaint histories and in relation to this have just been re-reading this much-cited classic paper 'The emergence and transformation of disputes: Naming, blaming, claiming...' by William L.F. Felstiner, Richard L. Abel, and Austin Sarat which was published in 1980. Though now over 40 years old, my view is that this paper still contains much to commend and is highly relevant. And so, in the hope that it may be of interest to others, I am sharing the notes I made for myself, expanded to include some of my own thoughts and comments.

On re-reading I have been struck by the perceptiveness of the first paragraph in the Introduction which includes: "Institutions reify cases by reducing them to records; they embody disputes in a concrete form that can be studied retrospectively by attending to the words used by lay persons and officials and by examining the economic and legal context in which cases occur (Danzig, 1975). But disputes are not things: they are social constructs. Their shapes reflect whatever definition the observer gives to the concept. Moreover, a significant proportion of any dispute exists only in the minds of the disputants."

This paper is about the emergence and transformation of disputes - the way in which experiences become grievances, grievances become disputes, and disputes take various shapes. I find this approach and the accompanying definitions to be helpful, in particular the view that "In order for disputes to emerge and remedial action to be taken, an unperceived injurious experience (unPIE for short) must be transformed into a perceived injurious experience (PIE)." An injurious experience is defined as "any experience that is disvalued by the person to whom it occurs."

The authors call the first transformation - that of saying to oneself that a particular experience has been injurious - 'naming'. The second step - the transformation of this event into a grievance (where the injured person feels wronged and believes that something might be done in response to the injury) - is 'blaming'. And the third transformation occurs when someone with a grievance voices it to the person or entity believed to be responsible and asks for some remedy - this communication they call 'claiming'. The claim is transformed into a dispute when it is rejected in whole or in part - and I recognise the authors observation that "Delay that the claimant construes as resistance is just as much a rejection as is a compromise offer (partial rejection) or an outright refusal."

The authors observe that only a small fraction of injurious experiences ever mature into disputes (they may not be perceived as injurious, do not ripen into grievances or are not voiced to the person deemed responsible) and say that more attention needs to be paid to the early stages of disputes and the factors that determine whether naming, blaming and claiming will occur. In relation to this they make particular reference to the implications for access to justice. My thoughts here relate to the importance of having trusted relationships and that a grievance is more likely to be voiced at an earlier stage if the claimant has confidence that their experience will be heard and believed.

The paper then goes on to consider the characteristics of transformation - observing that PIEs, grievances and disputes are subjective, unstable, reactive, complicated and incomplete. And I recognised their observation that disputes are never fully relegated to the past and that their residue can colour later conflict, with the authors saying that "The end of one dispute may create a new grievance, as surely as a decision labels one party a loser or a liar. Even where such labelling is avoided, it is rare that any process explores and resolves all aspects of disputant grievances, and new claims may emerge from the recesses of untouched dissatisfactions."

There then follows deliberation about what is being transformed (the subjects) and what does the transforming (the agents) - and these considerations are set out under a number of headings:

Parties The parties to a conflict are central agents as well as objects in the transformation process. It is observed that neither the identity or the number of parties is fixed - parties can be dropped as well as added and a grievance that was originally experienced collectively may be individualised in the process of becoming a dispute. The behaviour of the parties is a function of personality (such as risk preference, contentiousness and rule-mindedness) as this interacts with prior conflict experiences and current pressures. The relationship between the parties also has significance - such as their relative status and history of prior conflict.

Attributions Reference here is made to attribution theory which asserts that the causes a person assigns for an injurious experience will be important determinants of the action taken in response to it. Grievances are more likely to be voiced if blame can be placed on another. But attributions are not fixed and alter with new information, insight and experience. The nature of the response by an adversary may be an important factor in this transformation as may the nature of the dispute process. The authors observe that the degree and quality of blame, which is an important subject of transformations, also produces further transformations.

Scope This is "the extent of relevant discourse about grievances and claims" and is affected by both the objectives and behaviour of disputants and by the processual characteristics of dispute institutions. The authors observe that some processes seek to narrow disputes to make them more manageable while others encourage a full rendering of events and explore wherever they lead.

Choice of Mechanisms Included here is that the choice of an audience to whom to voice a complaint and the disputant's choice of an institution to which to take a controversy are primarily functions of the person's objectives - and these will change as objectives change. Also that once a mechanism is set in motion it determines the rules of relevance, cast of actors, costs, delays, norms and remedies.

Objectives Sought The objectives of a party may change in two ways: what is being sought or what will be conceded and by how much - stakes can go up or down as new information becomes available, needs change, rules are adjusted and costs are incurred. Delay, frustration and despair may produce a change in objectives. It is noted that objectives influence the choice of mechanisms and that the mechanisms chosen may alter objectives.

Ideology The prevailing ideology relates to an individual's sense of entitlement to enjoy certain experiences and be free from others. It is noted that ideology and the law can also instil a sense of disentitlement.

Reference Groups Reflection here is how disputes may be transformed through interaction with audiences or sponsors - such as social networks, associations and unions - and relates to whether support is provided. Transformation here could widen an individual dispute into a collective one.

Representatives and Officials These are agents (such as lawyers, social workers and government functionaries) who help people understand their grievances and what they can do about them. And in rendering this service the authors observe that this almost always produces a transformation as the essence of a professionals job is to define the needs of the consumer of professional services. These agents may have a gatekeeper role and critics of professionals argue that they 'create' at least some of the needs they satisfy and can shape disputes to fit their own interests. They can also advise on choices, test realities and provide emotional and social support. Other transformations include disputes being advanced, selectively encouraged or discouraged - depending on the needs of the organisation.

Dispute Institutions These institutions - such as courts - can transform the content of disputes because the substantive norms they apply differ from rules of custom or ordinary morality, and their unique procedural norms may narrow issues and circumscribe evidence. For example, courts may transform disputes by individualising remedies - such as the award of money damages where a victim is looking for a change in a defective product, so transforming the outcome from a collective good into individual enrichment. Other institutions - such as those providing psychotherapy - also individualise conflicts and remedies, but can have a process objective of increasing the disputant's understanding of the motives, feelings and behaviour of others (as well as their own). The discussion here is around institutional processes always effecting a transformation.

The authors say that "By directing attention to dispute antecedents, the study of transformations should illuminate both the ways in which differential experience and access to resources affect the number and kinds of problems that mature into disputes and the consequences for individuals and social when responses to injurious experiences are arrested at an early stage." Tellingly they observe that a central tenet of transformation theory is that the disputant may no longer view the original problem as important and that a transformed dispute can actually become the dispute. This has certainly been my own experience when working with conflict and complaint.

I also appreciate the clear articulation in this paper that disputing involves the creation and revision of perceptions and attitudes about oneself, one's opponent, agent, dispute content, dispute process and dispute institutions and personnel. The authors do not minimise the challenges around studying transformations - advocating the approach of conducting longitudinal research with a high level of rapport between researcher and informant - and say that the transformation perspective suggests that there may be too little conflict in society, with Americans (in this study) being slow to perceive injury, reluctant to make claims and fearful of disputing - especially of litigating.

The authors conclude by saying that: "Ultimately what we are concerned with is the capacity of people to respond to trouble, problems and justice. We believe that the study of dispute processing has been too removed from the actual difficulties and choices that accompany the recognition that one's life is troubled and that relief from trouble is uncertain, contingent, and costly. Recognition and action may not be appropriate or desirable in every instance. We do believe, however, that a healthy social order is one that minimizes barriers inhibiting the emergence of grievances and disputes and preventing their translation into claims for redress."

I can only agree with this conclusion. And say that I find the concept of unPIEs and PIEs so useful, as well as this paper also providing a three stage framework for studying the emergence and transformation of disputes. My experience has been that a problem is often (re)named, (re)blamed, and (re)claimed. And I am keen to learn and understand more about the 'pre-dispute' phase in relation to complaints.

Reference

Felstiner, W.L., Abel, R.L. and Sarat, A., 1980. The emergence and transformation of disputes: Naming, blaming, claiming... Law and society review, pp.631-654.