Informal, Formal and 'Semi-Formal' Justice in the United States
Civil Procedure in Cross-Cultural Dialogue: Eurasia Context, Dmitry Malesin, ed., Statut Publishing House, Moscow, Russia, 2012
24 Pages Posted: 11 Nov 2012
Date Written: November 9, 2012
This chapter-report analyzes the current state of formal and informal procedure and processes in American law, prepared for the International Association of Procedural Law (meetings held in Moscow, September, 2012). This article reviews the basic values of procedural systems in both formal contexts (trials, courts and related institutions;, contrasts these to the different values expressed in more informal processes, like mediation and negotiation (e.g. more party-tailored solutions, more party participation) and then contrasts both of these to the now common “semi-formal” (allusions to dress etiquette rules) processes which hybridize (and then sometimes contaminate) these values and processes. While “process pluralism” is a value in itself, formality and informality of process actually operate in modern American legal systems on a continuum, not as bi-furcated systems and the hybridization of processes without clear demarcations (such as evaluative mediation within court-annexed mediation programs) can actually lead to greater ambiguity of procedural rules and fairness and lack of clarity about what “justice” means in different settings. Conflation of goals, means and methods of dispute resolution can sometimes lead to party confusion, lack of information, power imbalances and lack of review. The challenge is for different sets of procedural values to be clear and chosen, rather than involuntarily assigned. Different kinds of matters and parties may require different kinds of processes – one size does not fit all, but some values (transparency, flexibility and contingency of outcomes) are sometimes inconsistent with each other – not all procedural values can be achieved similarly in all processes and the question remains, how should one “dress” (etiquette rules) for what kind of process, depending on what both parties and the larger justice system require of dispute resolution. The article closes with some suggestions for both qualitative and quantitative assessment tools for analyzing what different procedural regimes can offer parties and systems in different settings.
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