Multilevel Access to Justice in a World of Vanishing Trials a Conflict Resolution Perspective
35 Pages Posted: 22 Oct 2019
Date Written: October 11, 2019
English Abstract: This paper proposes a novel approach to access to justice by introducing a complex multilevel model that addresses the stages of conflicts in an age of vanishing trials. It provides a nuanced understanding of various modes of access to justice that correspond with different needs of disempowered populations before they enter the legal system and as they make their long journey within it. Parties trying to resolve their disputes through the civil justice system end up nowadays drifting through an incoherent, inconsistent and opaque process generally resulting in some form of reluctant compromise. ADR processes such as mediation do not necessarily help in providing a genuine alternative throughout the legal process, in which reliable data regarding expected case disposition and outcome (on the basis of similar cases) are not made available to the parties. No systematic screening mechanism directs parties to holistic conflict resolution alternatives. The involvement of judges in promoting consensual disposition of legal cases is rare and limited in scope. Accordingly, many people who initiate lawsuits as default find themselves within an adversarial and incoherent negotiation process in the shadow of the courts. This problem is particularly true for unrepresented litigants, a growing population that seeks access to justice in contemporary court systems. It is also true for conflicts that never reach the court or any legal processing due to the barriers of cost and legal information. To address the question of access to justice in an age of vanishing trials, in light of the failure of ADR to become the prevailing paradigm for resolving conflicts and the decline of litigation, this paper develops an interdisciplinary multilevel model that draws on legal theory together with methodology from law and society scholarship. This model addresses ways for improving access to justice during each stage of the civil conflict, focusing specifically on the stage of pretrial hearings, as it is currently the main public sphere in which parties seek justice. Our findings regarding the role of judges in pretrials, based on court observations and interviews, suggest that that judges develop their own methods and perspectives to promote access to justice in an age of vanishing trials and in this paper we outline some of them. We propose to expand the horizons of access to justice by adopting our modular multilevel model embedded within a coherent Dispute System Design approach and inspired by public health perspectives on law.
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