LST Lecture Notes 4/14/10
Mediation and Conflict Resolution


What does the law mean?
- Looked at US court systems approach/common law
- The system as an institution that individuals operate in such as judges. Lawyers are officers of the court. Jury arbitrate facts, their importance has declined.
Is there a right to a jury?
- Always in criminal cases, most parties waive jury rights
- Anything over $20 in civil cases

Adversarial system – courts function as competition. One view of the fact is right, another is wrong. Decided by jury

Other methods than the adversarial system. Focus on plea bargains and domestic violence/family law

Alternative dispute system – only in civil system, could it be used in the criminal system?

Adversarial system is not always best, not always needed to find truth

Technocracy – rule by experts, though expertise, rule as a skill. May privilege professional class.
- Efficient application of the machine of government
- On the rise ever since the progressive era
- Governance is a technique and can be done well or poorly
Perhaps laws are more precise and sophisticated that they can be better decided by experts rather than peers (jury).

Mediation Process:
The plantiff tells a “sad story” (grievance), lawyers examine the legal issues and build case. Lawyers narrow the dispute, hostility is eliminated. Lawyers may rephrase the dispute. Both lawyers try to negotiate within set up parameters. They dispute which laws are actually applicable to the case. There is a “point system” to see which side is ahead and what their odds of winning is. There are different strategies. Is this the best way to solve conflict? How do we achieve truth and justice?

Justice – restoring what was there before , compensation for loss, pain or suffering, acknowledge one party is right vs wrong.

Some lawyers only negotiate and never actually go to court.

Administrative Procedures/Rules/Regulations
- Set up to resolve conflicts to avoid court.
- If such procedures weren’t set up the court system would be bogged down.
- Admin boards apply laws in mechanical way, differently than courts. We accept that this method works. Example: talking to customer service for cell phone company
- Alternative procedures make machinery of justice more smooth
- You may challenge these admin boards and go to court
Contracts set up rules for a dispute although no one read the fine print.
Family Court
- Not set up like a trial
- Mandatory mediation
- Negociate a solution where both needs are met
- Mediator makes recommendation to judge
- May avoid formal conflict while still serving justice.

Mediation method is not always good for abusive relationships. Women often do not stand up for themselves and accept male superiority. Mediation method does not give them advocate. Adversarial process might be better to fight for the case of the woman.

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