“… settlement is … a function of the resources available to each party to finance the litigation …” p. 40
“The disparities in resources between the parties can influence the settlement in three ways. First, the poorer party may be less able to amass and analyze the information needed to predict the outcome of the litigation, and thus be disadvantaged in the bargaining process. Second, he may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment, even though he realizes he would get less now than he might if he awaited judgement. All plaintiffs want their damages immediately, but an indigent plaintiff may be exploited by a rich defendant because his need is so great that the defendant can force him to accept a sum that is less than the ordinary present value of the judgement. Third, the poorer party might be forced to settle because he does not have the resources to finance the litigation, to cover either his own projected expenses, such as his lawyer’s time, or the expenses his opponents can impose through the manipulation of procedural mechanisms such as discovery. It might seem that settlement benefits the plaintiff by allowing him to avoid the costs of litigation, but this is not so. The defendant can anticipate the plaintiff’s cost if the case were to be tried fully and decrease his offer by that amount. The indigent plaintiff is a victim of the costs of litigation even if he settles …” pp. 40-41
Governments, businesses, and large organizations have held a power advantage over individuals for many years. Whenever one of these entities experience a problem, negative externality, or an unintended consequence they have the ability to assign people, time, and resources to dealing with that issue. They also tend to have a better grasp of the range and scope of the issues than individuals or the community at large.
Individuals, in comparison, are forced to divide their attentions and time between the things that matter the most to them. Though they might have knowledge of or an interest in any particular issue, they can still lack the time, resources, or energy required to deal with those issues. Even when an individual has sufficient knowledge, interest, time, resources, and energy available to deal with an issue they can still fail to offer a viable challenge to a larger organization.
That is the definition of asymmetrical power relationships that I have had in the Digital Guerrilla Project glossary for the past few years. I recently changed it in deference to brevity and utility. Though Fiss concentrates on financial disparities, I believe that for my purposes this is tantamount to an information, or general power, asymmetry between parties. I believe this confirms that I am on the right track.