Our Faltering Jury Jury system assures community participation

Our Faltering Jury • Jury system assures community participation in law • Vehicle for participation in democratic society • Jury verdicts have led to social unrest

Recommendations for Changing Jury System • Eliminate peremptory challenges • Eliminate or restrict “voir dire” • Allow note-taking during trial • Allow for non-unanimous verdicts • Allow jurors to ask questions • Eliminate all professional exemptions • Enforce jury summonses • Do not sequester or request change of venue simply because of publicity

Jury Reforms (cont. ) • Reduce influence of professional jury consultants-gives lawyers unfair partisan advantage • Make jury instructions more comprehensible and give jurors copy in deliberation room • Juries, as members of the community, as peers, are essential to temper exercise of potentially abusive power

Formal Justice l Legal system is primary forum for resolution of conflict and settlement of disputes l Judges are final arbiters of social conflict l What kinds of problems does this raise?

Limits of Formal Law l Gridlock-too many disputes clogging courts l While outcomes are achieved, parties are polarized at end of case and conflict is exacerbated l Relationships permanently impaired l Community cohesiveness is eroded l Reconciliation is impossible

Informal Alternatives l Catch-all phrase which includes processes of mediation, arbitration, negotiation, factfinding etc. l These processes rely on the assistance of “neutral” third parties who facilitate agreement (in mediation) or make a decision (in arbitration) in less formal settings than judges

Mediation Structured process that makes possible the telling of stories-unlike courts where stories cannot be told l Aims to achieve mutually beneficial outcomes where both parties win, rather than the win/lose outcomes in courts-zero sum game l Takes restorative rather than punitive approach to justice in courts l

Types of Mediation l Interpersonall Court-related-minor civil and criminal l Public Policy-environmental, governmental l Victim-Offender l School l Workplace

Mediation in Context l Historically, immigrant groups have relied on their own, indigenous conflict resolution systems l In the last 20 years, alternative dispute resolution movement has flourished which diverts cases out of courts. l Current move is to professional mediation practice

Issues and concerns l l l Does mediation trade justice for harmony What about “rights? ” Due Process? Can informal process redress gross power differences as effectively as formal law? Implications of mandatory mediation Implications of “lawyerless” proceedings-who benefits and who suffers? Does mediation and other forms of ADR keep courts out of issues that they should be in? l Mediation “individuates” disputes -what are the implications? l