Formal Justice
Download
Report
Transcript Formal Justice
Formal Justice
Legal system is primary forum for
resolution of conflict and settlement of
disputes
Judges are final arbiters of social conflict
What kinds of problems does this raise?
Limits of Formal Law
Gridlock-too many disputes clogging courts
While outcomes are achieved, parties are
polarized at end of case and conflict is
exacerbated
Relationships permanently impaired
Community cohesiveness is eroded
Reconciliation is impossible
Informal Alternatives
Catch-all phrase which includes processes
of mediation, arbitration, negotiation, factfinding etc.
These processes rely on the assistance of
“neutral” third parties who facilitate
agreement (in mediation) or make a
decision (in arbitration) in less formal
settings than judges
Mediation
Structured process that makes possible the telling
of stories-unlike courts where stories cannot be
told
Aims to achieve mutually beneficial outcomes
where both parties win, rather than the win/lose
outcomes in courts-zero sum game
Takes restorative rather than punitive approach to
justice in courts
Mediation in Context
Historically, immigrant groups have relied
on their own, indigenous conflict resolution
systems
In the last 20 years, alternative dispute
resolution movement has flourished which
diverts cases out of courts.
Current move is to professional mediation
practice
Issues and concerns
Does mediation trade
justice for harmony
What about “rights?” Due
Process?
Can informal process
redress gross power
differences as effectively
as formal law?
Implications of mandatory
mediation
Implications of “lawyerless” proceedings-who
benefits and who suffers?
Does mediation and
other forms of ADR
keep courts out of
issues that they should
be in?
Mediation
“individuates”
disputes-what are the
implications?
Examples
Decide what process is most appropriate.
Juries and Civil Disobedience
• Civil disobedience-acts of conscience which lead to
breaking the law to uphold ethical or moral
principles
• How do jurors evaluate these acts
• Jury nullification is an option where civil
disobedience is on trial
• Juries will ignore the law if find invalid/immoral
Jury Nullification
• Jurors have an inherent right to to set aside
instructions of the judge to reach a verdict
based on their own consciences and the
defendant has the right to have the jury so
instructed
Our Faltering Jury
• Jury system assures community participation
in law
• Vehicle for participation in democratic
society
• Jury verdicts have led to social unrest