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November 15th - law notes.docx

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LAWS 1000
Steve Tasson

th November 15 /2012 – Law Week 10 Focus for today… •What are the strengths and weaknesses of ADR model of dispute resolution •Shifting “styles” of dispute resolution •The basic spectrum of ADR •Formalism vs. In formalism (Process vs. Outcome) •How we think about “Justice” (McThenia) •Are some disputes ignored or „veiled‟ through ADR? ***Movement in Canada and US for number of decades -Formalism and in formalism (court structure and rules of evidence being the same for everyone – formalism)  need to move into informal types of disputes such as mediation, negotiation and arbitration. THE RISE OF „ADR‟ BARGAINING IN THE LAW AND ITS „SHADOW‟? Week 10 ADR & “Restorative Justice” -Some people do not use it as much anymore -They are both the same process in a way; ADR talk about it in the context of civil disputes such as people, marriage, custody disputes, civil disputes (between individuals) and restorative justice is with the justice system; the link that draws them together, is that the function of the court is to end cases then rather to solve them; but just because you end a dispute in court does not mean it is solved between the offender and victim. Restorative models try to get resolution from individuals (tension between formal and informal) ... less about treating them the same, but more about treating them differently. -Philosophical move – long term planning, follow the system, trying to prevent harms in the future, about getting participation from the parties, incorporate victims and offenders and try to get to the root of the problem. The more practical side, is that for the last several decades the court systems are increasingly under a burden with the justice system •What is the difference? •The language of ADR is usually applied to civil disputes (tort, divorce, custody)  shoots cases out of court systems and puts it into side systems (in formal)  the idea of diversion. •The language of Restorative Justice is usually seen in Crim. Law •What is the link? •Focus is „problem- (“harm reduction”) •From “ending” “solving” disputes •Participation of all parties (incl. victim, offender, state, experts) •Diversion of cases from formal justice system (efficiency!!!) •PRACTICAL REASONS not PHILOSOPHICAL (Fiss‟s argument) Everybody wins? • Trubek: “No one really believes in law anymore” (pg. 410)  no one really believes in the justice system as accomplishing as what it says it can. We need to recognize the problems, because of its basic structure; you either win or lose. (court system is costly and takes a long time, unequal access and if you do not have a quick resolution neither side is happy). Justice delayed is justice denied. • Recognition of the weaknesses of a “zero-sum” model of dispute resolution (adjudication last week) • Cost & Time – “unequal access”/“justice delayed is justice denied” • Low party satisfaction (victims & offenders) • Transformation of traditional approach (breakdown of “party-autonomy” in adversarial model (Brooks last wk)) • “adjudication” to “therapeutic” role of the Courts (Moore- next wk)  start to see courts taking on a different role, and take the individuals before them and look at them differently; in criminal law, there is a basic shift form thinking about punishment to thinking about something else (maybe be more interested in something else). • Black‟s “s • In criminal law focus is shifted from punishment and basic treatment (rehabilitation) to “restorative justice” – goes beyond “correction” What is “Restorative Justice”? ***State is always involved (state versus the offender more or less) -A lot of the attention is on the offender and getting them to recognize what they have done and to apologize. (The apology sometimes just falls flat, as it sometimes a forced apology). -Not about punishing offenders, but about a broad goal with heeling and community involvement -Do this by a variety of processes that try to accomplish this such as sentencing circles, victim offender mediation (they have to sit down together), family conferencing (talk to one another before dissolving the marriage). -The approach is founding philosophy between ADR and Restorative Justice •Focus on wrong done to person & community (diff. State) •Goal is to (in/voluntarily?): 1. “Restore” the relationship between victim, offender, & the community 2. Prevent future crime from occurring 3. Give victim(s) a chance to express feelings about the harm and how they think it might be avoided in the future (victims rights mvmt) and community •Seeks: “healing, forgiveness and active community involvement” •e.g. sentencing circles, victim-offender mediation, family conf. •Much more NEXT week! What is ADR? ***Because it moves out of the justice system is much cheaper than the court model not only for the party but for the justice system as well. (in a way everyone wins). -Much more accessible then the court system because it is less formal and is much quicker than the court system and is much for efficient can get the resolution within a day, but in a civil case not necessarily. ALL because we do not have the formal rules with evidence, who can speak when and so forth. -The court is highly ritualized, you have certain people in different positions (two sides of the room and judge in the middle) and is about a fight back and forth  procedure of the court room is that it promotes a kind of adversarial attitude (takes away unnecessary confrontation). -Party autonomy – not the same interest as the other party ; with ADR parties may have a relationship that is on going after the trial; can come to a resolution that will benefit both people; can have a win-win scenario (May not get what you want, but will get a little bit of what you want and vice versa). -It is state supported so do not necessarily have to pay for the process itself •Alternative Dispute Resolution •Cost (parties & justice system), Accessibility, Speed, Efficiency (CASE) •“reduce unnecessary confrontation”-de-dramatize (V&N) •Opposite of “ritualized combat of the Court” (Brooks‟- cathartic) •Resolve- “makes sense for all involved” (“win-win”) •State-sponsored (partially funded) •**The ADR Spectrum** (see chart in V&N!)  page 206 •Range of processes (alongside traditional approaches) •Negotiation, Mediation, Arbitration, Adjudication (litigation) -Negotiation (informal and party control): the parties are highly in control between you and the other person; we see as we go through the other kinds of dispute resolutions, you get less and less control; state is involved; can be completely private Mediation: Parties usually chose the mediator; if you have a dispute with someone want to go to a mediation you pick who the mediator is (both of you pick) the actual process is very much left to the parties; the mediator is to guide the discussion but are very much detached from getting involved (not much rules or restrictions); there is a third party but does not impose a decision; Just there to get you talking and come to a resolution. State does not have to be involved Arbitration: Still usually get to pick the arbitrator but by the time you get to court, you do not get to pick your judge, the judge will be the judge; much more formal; things you can and cannot talk about; can be both bind
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