Marty Nemko holds a PhD specializing in the evaluation of innovation from the University of California at Berkeley and subsequently taught in its graduate school. This is the fifth in a series on thinking outside of the box when it comes to the nation’s leading challenges.
Our justice system is adversarial, based on the belief that the clash of ideas helps the important points emerge. But the adversarial system is also expensive, time-consuming and subject to ethical excesses by lawyers who are rewarded not for furthering justice but for winning. Often, attorney game-playing and court system backups can mean years-long disputes.
The process’s variable length makes the cost hard to predict and subsequently makes it difficult to decide whether a case is worth litigating. Perhaps worst of all, litigation’s outcome too often depends on whether you hired a better attorney than your opponent did, which, on average, hurts middle- and low-income people.
The status quo is always difficult to change, however, especially when it is as long-standing and foundational as our adversary-based legal system is. But is it not time to at least pilot-test a new path to justice?
Dispute Resolution Centers would be one-stop shops at which plaintiffs and defendants could choose the most cost-effective legal pathway: counseling, mediation, arbitration, traditional adversarial trial, or non-adversarial trial. There would be a revenue-neutral, per-hour fee, with a sliding scale for modest- to low-income people, with the subsidy, as in the current system, paid by the taxpayer. Disputants could, on the Web, rate Dispute Resolution Centers and their individual practitioners.
A pilot study to evaluate these centers versus the traditional system might confine them only to civil matters or allow them to consider both civil and criminal ones. Also, a study might compare public versus private versions of Dispute Resolution Centers. In that, disputants would be allowed to choose public or private dispute resolution services, just as we allow people to choose public or private schools and public or private hospitals.
In the U.S., non-adversarial trials are not new. They are used in arbitration, traffic violations, administrative law cases, and small claims courts. They are used more broadly in other countries, notably France, Russia, China, and the Ukraine.
This new form of non-adversarial trials could work as follows: Depending on how much the parties want to spend, a non-adversarial trial would, at minimum, use a judge who would also serve as an investigator. The judge would then be charged with unearthing the facts and with rendering a judgment.
If disputants wanted to spend more, there would be multiple investigators — lawyers with supplemental training as investigators — each charged not with advocating for one side, but with unearthing the relevant facts and law. A jury would then be called on to reach a verdict, and a presiding judge would ask questions and instruct the jury. In felony cases, a jury would be required.
In many situations, justice would more likely be served in a non-adversarial trial because, instead of two lawyers being paid based on whether they win, their pay would be based on how well and cost-effectively they were able to identify the facts and law of the case.
Because a number of dispute resolution options would be available in Dispute Resolution Centers, the parties could more easily find the right approach, and if the disputants couldn’t agree on one, an administrative law judge would decide.
A final benefit: The centers’ encouraging non-trial options would help reduce the backlog of trial cases. Timely justice might become less of a non-sequitur.
So, do you think Dispute Resolution Centers would be an improvement? Do you have a better idea?