To Serve All People - Alternate Means

Alternate Means

The starting point of many studies of courts in the past several decades is that they lack the resources to deal adequately with all the cases confronting them.

This commission believes, instead, that there are too many cases.
We are not speaking only of the rise of apparently frivolous cases, although we find the anecdotes just as appalling as the general public does.
We mean instead a broader burden on the judicial system.
Today's judicial system is held accountable for every sort of social failure that passes through its halls. The fact is, though, that the system has little or no control over most of those problems.
This is not the proper forum for a debate on what is a cause and what is an effect. But even a short list of the social ills that lead cases into the court system reveals just how ill-equipped the system is.
Economic stress, educational shortcomings, bad parenting, sociopathic children, sex and violence in media, more divorce, less religion, weaker ethics, drugs, guns, gangs ? the courts are constantly expected to do something about these problems but cannot.
In the commercial world, the legal system is too often the first resort rather than the last. When disputes arise, the first call goes to an attorney; informal resolution by a third party is usually a fluke.
In addition, there are unrealistic expectations of what the judicial system can accomplish. Citizens bring complex problems, but hope for a simple edict. They carry unattainable demands for perfect justice and equity. They search for compensation for the unfairnesses of the world.
Those are overwhelming, sometimes intractable, problems. There are ways, however, for the judicial system of the future to address them.

Non-judicial forums

Much of the present courts' business should be moved out of the traditional courtroom.
Today's system deals with a multitude of cases that are not necessarily appropriate for the courtroom. Working from a win-lose model, courts find themselves ill-suited for social problems and mis-skilled for administrative ones.
At their heart, many cases involve issues of social or individual welfare, such as divorce, custody, health and elderly matters, including estates. They are often routine, one-sided or uncontested. At best, keeping them in the traditional court setting wastes the court's resources. More often, it may actually interfere with the smoothest resolution of the problems at hand.
Still other cases are matters of public health. They may show up as criminal behavior, but their root is in addictions. Some crack users might steal if they were cold sober, but many steal precisely because they are feeding their crack habit. While the state has an interest in preventing the behavior, little in the traditional legal system has much effect on the base problem.
There remains an important role for the adversarial, truth-seeking procedure. Some matters require it out of complexity or importance, and the body of law will not evolve without the progression of formally decided cases.
But defining that role merely emphasizes the need to move many issues out of the judicial setting.

Administrative forums

Many actions that are now judicial should be administrative instead.
On the criminal side, administrative forums should be used to dispose of cases involving traffic violations and other routine matters, essentially regulatory, that do not require judicial attention. That might include enforcement of money judgments, violation of fish-and-game-laws, truck-weight violations and motor-vehicle sticker violations.
It might also include any number of fields for which there are standard fines when the person cited does not wish to contest the charge, and it is easily conceivable that the number of those fields might grow. For instance, some of the matters now dealt with in courts devoted to environmental regulation might become as routine as traffic matters.
The right to judicial review can be maintained in these instances, but a judge's training and time are not necessary for the basic collection of fines.
Likewise, on the civil side uncontested actions such as name changes, adoptions, simple divorces and probate matters do not require the level of supervision that a trial judge brings to them.

Alternative resolution

Civil issues present the greatest opportunity for non-trial resolution. The judicial system should include a wide array of methods for alternative dispute resolution.
Elsewhere in this report, we have discussed some of the judicial systems' most commonly perceived failings: abuse of discovery, delay, excessive cost and a "win-at-all-costs" mentality among some litigants and some attorneys.
Alternative dispute resolution, invoked as early as possible in the process, can alleviate these problems.
In June 1994, the Supreme Court received the recommendations of its Commission on Alternative Dispute Resolution (ADR). We reaffirm much of the important work done by the ADR commission, and for the most part we incorporate it by reference here as part of our own conclusions. Substantive exceptions are noted.
Specifically, we recommend the use of arbitration, mediation, mini-trials, case evaluations, summary jury trials and settlement conferences. The goal is to go to peace before going to war.
In all domestic-relations disputes and all complex civil litigation, unless the court determines there are exceptional circumstances, mediation should be required before litigants can obtain a trial date. This recommendation extends the suggestions of the earlier ADR commission from the permissive to the mandatory.
Mediators may be attorneys and/or mental health professionals and/or members of other relevant disciplines.
The court may also appoint qualified third-party mediators such as clergy, professionals or others with special skills and abilities to serve as mediators in specific disputes.
If no agreement is reached during mediation, the mediators' fees should be assessed as part of the costs of the case. If the trial judge determines that any party has failed to mediate in good faith, the mediators' fees and fees for opposing counsel may be awarded. This also varies from the ADR Commission report.

Plea bargaining

Alternative dispute resolution is a term used on civil matters. In fact, it applies to criminal plea bargaining as well.
Plea bargaining involves the settlement of a case before trial. Both sides accept something less than the maximum possible outcome for the sake of avoiding the rigor and uncertainty of a full trial. By those standards, plea bargaining is alternative dispute resolution.
By some estimates, more than 90 percent of criminal cases are settled by plea bargaining. Clearly, the judicial system would collapse if even a third of those cases went to trial.
The term plea bargaining has come to be a public epithet, shorthand for much that is wrong with the judicial system. In fact, there would be far more wrong if plea bargaining did not play the role it does today.
From the perspective of the defendant, the prospects of less expense, less emotional drain, and more certain outcome seem to outweigh the often distant chance of acquittal.
That gives some leverage to defendants, but not much. The real power in such cases rests in the office of the prosecutor. The prosecutor's primary constraint at this time is jail and prison capacity, which forces a rationing of incarceration, even for those who choose the trial route.
All this dismays the public. Its sense of justice ? in this case, justice defined as retribution ? is offended by settling for less than the maximum. The worse the crime, the greater the dismay.

Honest dealings

There are ways to mitigate the dismay.
First, public outrage is fueled by outrage among victims. The more that the court system can bring victims into the negotiating process, the more the outrage will be doused.
We do not promote victims as parties of full standing in these deliberations. The case is between the defendant and the state, and three-way negotiations are too uncertain. But the practice should be closer to that model than to the exclusion of the victim.
When a victim learns of a plea bargain by reading the newspaper, the judicial system has lost a predisposed supporter. When victims are fully informed of details and reasoning behind a plea bargain, they can often lead public understanding.
Second, a more honest approach in sentencing would remove some of the gamesmanship and some of the public distaste. Courts often do this at the lowest level of traffic tickets now: $10 if you pay the fine, $30 if found guilty in court. In essence, this would create two sentencing grids rather than one. The clear proportion and the clear choice would make the plea-bargaining procedure more understandable and more acceptable.

Narrow ADR

The judicial system should encourage alternative dispute resolution both inside its own system and in other settings.
Alternative dispute resolution is not an entirely new idea. In 1682, for instance, the colonial Quaker William Penn proposed the appointment of three "peacemakers" in each precinct; their "arbitrations" were to be as "valid as the judgments of the Courts of Justice." Some histories of American law even refer to the "persistent dream" of doing without lawyers altogether.
Today, ADR has both narrow and broad senses.
The efforts we propose to move more cases out of the courtroom and into mediation, arbitration and the like would go some distance in improving matters for both the parties in a dispute and the judicial system.
Once a case has become a case, however, a substantial amount of legal formality is necessarily attached to it. Requirements of due process bring some. Traditions and public expectations of the judicial system bring more.
Court-supervised mediation, for instance, logically implies that the courts will at least certify the procedural rules and ethical limits and will provide some review of competence.
Even within the legal system, it's worth emphasizing, redirecting cases away from the courtroom would be a substantial change, and we don't underestimate the innate resistance.

Broad ADR

The broader notion of ADR means solving problems before they become legal cases.
It is fine, for instance, to require court-supervised mediation in divorce cases. But the judicial system also has an interest in encouraging counseling before a marital problem becomes a legal action.
The issue is a broad, cultural one; complex commerce and anonymous urban life make mutual accommodation more difficult than it once may have been. A declining sense of community and authority is well beyond the scope of this commission. Still, litigation merely reflects other shortcomings in our institutions, the same way war is the failure of diplomacy.
We cannot review here all the ways in which civil and personal diplomacy might be improved. Some, such as the model programs teaching ways to negotiate and compromise disputes now being used in some public schools, are of direct interest to the legal system, and judicial leaders might play important roles in their support.
Whenever possible, the judicial system should encourage or actively assist efforts that resolve problems before they become litigation, or even before they are taken to lawyers for assistance. That notion is a far broader one than redirecting cases within the judicial system itself.
Courts should be a last resort, and those who sit in the courts should say so, clearly and often. Judicial leadership that champions non-legal solutions to problems is a vision just as important to the common good as any movement within the judicial system itself.

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