Download 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