*Miguel Waltoo and Konstantinos Stergiou
What is justice?
Procedural justice entails that the judicial procedure is carried out properly. However when you consider that theoretical justice involves fairness, how is it fair that in a dispute, only one party, if any, will gain all of the benefits, while the other party must pay for the winning party’s benefits.[1] Is it fair to consider that in the majority of the cases, one party is 100% righteous and the other 100% at fault?
Plato, in his first book, “Republic”, describes his view of justice. Summarizing his point about justice:[2]
- Justice binds a community together and protects it from civil strife. Even a gang of thieves must have some measure of justice if it is stable and not riven with dissension.
- Justice gives to individuals and to groups what is due to them.
- Justice as a virtue of individuals is fed by, and also nourishes justice in the community.
- Justice entails freedom; justice is not maintained by physical or psychological force but rather by the attractive power of justice itself.
Having said that, justice in a community should be shared, not enforced. This is exactly what is happening with the current legislation. Justice is served by securing the freedom of people to make a free choice and seek Justice in a community that shares the same measures of justice as them and thus keeps the balance between the two sides. ADR gives the choice to pursue justice under the perception of the individual whilst allowing him to pursue justice as perceived by the community if the former fails.
Equality before the law is an international human right; is litigation a satisfactory way of securing that?
In our opinion that is not the case. Litigation should be considered as the last resort in a wide range of cases. An average person in their pursuit of justice is most likely to consider a variety of factors which are going to determine whether they are going to pursue justice for his case or not. They will try to balance the reward (sense of justice and remedies) with the costs and the risks. Is going to court in theory as easy as going in real life? It is our view that the stress of going to court, the legal fees, the uncertainty of the outcome, the time-consuming process, the potential break between the two opposing sides deter many people from pursuing a remedy for the injustice they felt. As not many people have been in a courtroom in their lives, it is only logical to feel anxious about entering one. However, in ADR this factor is almost eliminated as a private session in a room with a few people is much more similar with other experiences they might have had in their life (professional meetings, etc). In terms of the cost, ADR is incomparably more affordable compared to a trial and the outcome, particularly in mediation, is much more equitable. Additionally, in ADR, the two parties do not simply exchange blows, but instead participate in a mutual procedure, cooperating in finding a resolution to the case. A standard trial could last for weeks, months, or even years in contrast with ADR.
Is achieving justice simply a pros and cons list? Is ADR just better only on instances where going to trial just seems too risky or too stressful? Is it about how more affordable ADR is compared to going to trial?
Our answer is an emphatic no. ADR, and especially mediation, allows the two sides to participate in the resolution of the case, meaning that the parties would achieve an outcome not based on what the law says but based on their own personal view of what would be a fair result. It offers the feeling of personal justice. It gives a feeling of control over the situation, a level of control that allows the two sides to make choices and feel responsible for the outcome. ADR is not just a legal procedure but a path of civilised dispute resolution. A path of understanding the opposing side which is essential because we humans are complex beings with equally complex problems that cannot be boiled down to one side being awarded and the other side being not.
How does ADR solve these issues?
ADR provides a platform for all parties to set out their issues in a controlled environment, that facilitates the process and ensures that an optimal agreement is reached, which can not only resolve whatever issue is taking place, but also carries the possibility of mending relationships, preventing further grievances and issues. This is because of its ability to de-escalate the issues at hand, by taking a flexible approach to dispute resolution than would be afforded to the parties involved in typical litigation procedures in which there is either one winner, or no winners due in part to the fee shifting provisions.[3] According to Givins (2019), the fee shifting provisions make it so that the party who does not win, must pay all of the legal fees of the party that does win.[4] Givins (2019) argues that this serves as a deterrent to frivolous claims.[5]
However, what about in situations where both parties are right? The litigation process aims to award the party that is ‘most right’. This paints a simplistic picture of a much more complex system, which encourages future issues between the parties through the resentment that might ensue, ultimately escalating the problem on a personal level. This is one of the arguments of Givins (2019) in favour of mediation being the preferred process in resolving disputes involving special education.[6]
Where else can ADR be used?
As argued by Givins (2019), the litigation process does not foster good relationships between the parties involved and maintains an adversarial atmosphere during and after the litigation period has ended.[7] This is one reason why mediation serves as a much better means of resolving disputes than litigation for situations in which the parties involved will continue to work with or live amongst each other after the process has ended. This is highlighted by Holmes (2019), who explains that in mediation, the primary goal of the mediator “is to listen to both sides and help the parties reach an agreement that is to the parties’ mutual satisfaction”.[8] This is in contrast to the role of a judge, who awards whichever side is most correct in law, which causes anxiety towards the ‘winner takes it all approach’ of the litigation process, which as mentioned, can cause later problems. As argued by Holmes (2019), the mediation process requires that the parties ‘realistically evaluate their positions’ in order to reach an agreement, because of this, the parties involved will be able to see what is possible, and what is not, and are encouraged to take steps to solve their problems.[9] The litigation process, in contrast, seeks to pass a coercive judgement, which the parties involved are to act in accordance with, regardless of whether or not they agree with it. This is why Holmes (2019) argues throughout her paper that mediation is the best means by which to resolve issues in family law.[10]
In what other avenues can ADR be used?
ADR is not limited to dealing with legal disputes and conflicts, but also to personal disputes as well. Rouméas (2020) provides an example of one such application, which is resolving disputes regarding religious diversity in the workplace.[11] Going back to a point made earlier, ADR serves as a platform that allows for all parties involved to get a deeper understanding of the problems at hand including what caused them and what can be done about them. Grievances and intra-workplace disputes can be dealt with in a more democratic and interpersonal manner that arguably does not have as much of an external political base. Rouméas (2020) explains that ADR is best for dealing with issues regarding the implementation of religious accommodations in the workplace as the need arises, but it does not do as well when it comes to conflicts involving the violation of rights.[12] This is because the goal of mediation is not to replace the court system but to supplement it through the provision of alternative routes to conflict resolution, which results in more cases being resolved providing easier access to a fair result, and preventing courts from overflowing with cases.
Conclusion
We are not of the opinion that litigation is disadvantageous across the board, in fact, in situations where there will not be any love lost, meaning that people are not interested in preserving the interpersonal relationships, litigation might be more appealing. This paper argues that ADR methods such as mediation, are more humanistic and therefore are far better at dealing with more personal issues with those with fractured relationships. However, it is important to note that not all issues of family law, such as those involving domestic abuse, should use the meditation approach.
*Miguel Waltoo and Konstantinos Stergiou are law students at University of York, LLB, United Kingdom.
[1]Lydia N. Givins, Special Education: Why Mediation Should Be the Preferred Process in Resolving a Special Education Dispute, 7 Resolved: J. Alternative Disp. Resol. 23 (2018-2019) p.39
[2] Sayers, Sean. Plato\’s Republic: An Introduction. Edinburgh: Edinburgh UP, 1999. Web.
[3]Lydia N. Givins, Special Education: Why Mediation Should Be the Preferred Process in Resolving a Special Education Dispute, 7 Resolved: J. Alternative Disp. Resol. 23 (2018-2019) p.39
[4]ibid. p.38
[5]ibid. p.39
[6]ibid.
[7]ibid. p.37
[8]Kayla O. Holmes, Transforming Family Law Through the Use of Mandated Mediation, 7 Resolved: J. Alternative Disp. Resol. 29 (2018-2019) p.30
[9]ibid.
[10]ibid.
[11]Élise Rouméas, Religious Diversity in the Workplace: The Case for Alternative Dispute Resolution, 68 Poli. Studies 207 (2020)
[12]ibid. p.208