Saturday, May 01, 2010

Magistrate Court Mediation

For the last sixteen months or so, I have been acting as a mediator twice a month in local West Virginia magistrate-court “small-claims” cases, which the magistrates schedule for mediation in the hope the parties will settle and the cases will not have to be heard in court. These are the kind of disputes that, many years ago, would have been settled in local neighborhood or church or family or clan forums, where the disputants are not primarily focused on the enforcement of legal rights, but are seeking a genuine resolution of a dispute that is creating disharmony in the private sphere.

The fragmentation of families, social mobility, and the loss of idiosyncratic cultural forms, especially in the United States, have meant a loss of traditional dispute-resolution forums. People often are not able to turn, as many could years ago, to an extended family or clan, to the church, to their ward leader, to the cop on the beat, or to their neighborhood leaders to resolve disputes.

Added to the loss of these forums is the criminalization of some traditional “dispute resolution” methods. “Fighting it out” physically is considered to be against the law, even where honor and self-respect and wrongs done to innocent family members or friends traditionally called for it, and even when all parties involved agree to it.

So the courts have become the place to go to resolve disputes. (As The Peoples’ Court used to say, “Don’t take the law into your own hands. You take ’em to court!”). But the courts have become overloaded, not only by this assumption of dispute resolution responsibilities, but also by the government’s assumption over the last hundred years of the role of protector in areas where government never entered before. From Social Security to spanking your kids, the government has enacted laws that enter deeply into areas that formerly were considered to be the private business of individuals and families and small companies and other private institutions. All those laws have to be enforced, and they have to be enforced under much more stringent constitutional protections afforded to defendants than those in force a hundred years ago. This takes resources, and the money is not being appropriated to enable the courts to handle the load.

So the understaffed courts are desperately seeking to unload some of their case load, and one of the obvious kinds of cases to try to unload is the kind of case that would have been formerly settled in local neighborhood or church or family or clan forums before they ever got to the court system (and ideally before people even started fighting over them).

In these disputes the disputants are often not seeking enforcement of legal rights at all. Judges are driven crazy by people coming into court seemingly just to be able to tell their long complicated stories about how they were wronged (or even about how someone else was wronged), citing traditional notions of right and wrong which are often not enforceable by contemporary law. The complainants often want something it is not in the judge’s power to give in our contemporary courts, though in ancient times (still preserved in disputants’ minds through the Bible and other sources) a judge’s role might have been to do precisely what they expect of him now: that is, to discern the moral right and wrong in both the pleader’s and the other’s actions or in their attitudes, to order the parties to do penance and thereby heal the psychological rift between them, and, often, to give them what they didn’t even know they wanted.

This (perhaps unconscious) expectation of disputing parties that a judge (as in mythic ancient times) will help them unravel what the problem is, to help them understand what they actually need, is perhaps most maddening to a contemporary judge, who may be forbidden to give relief that is not specifically asked for, or to give relief to a third party when it is asked for by someone else. And disputants who bring those disputes to court are themselves extremely unsatisfied with the courts’ high costs, bewildering arcane rituals, incomprehensible language, disregard for their value as human beings, and blindness to their true interests.

There are other types of cases being handled by alternatives to adjudication. Disputes between unions and management have long been handled through arbitration, disputes between merchants have been arbitrated by mercantile courts since before the United States was formed, and many other kinds of dispute-resolution alternatives exist. But these disputes that would have been formerly settled in local neighborhood or church or family or clan forums, where the disputants are not primarily focused on the enforcement of legal rights, but are seeking a genuine resolution of a dispute that is creating disharmony in the private sphere, are good candidates for mediation of the sort I have been doing.

As a mediator I am often able to help parties resolve their disputes, or at least understand each other better and treat each other with more respect as they move towards resolution. Often these are neighbors or family members in disputes with each other, or other parties in continuing relationships with each other, so that respect is important in itself. And usually the parties feel a mutual obligation to help heal the rift (even the plaintiffs often feel this obligation), but have not known how to go about it, and I can sometimes help them work out a way to do that.

Very often the agreement comes about through symbolic acts rather than through significant monetary relief. There can be a pastoral dimension to mediating as well as a hammering-out of legal monetary obligations.

Of course many cases don’t settle. More would settle if I had more skill.

And the power imbalances between parties can sometimes have even more unfair consequences in mediation than those same power imbalances would in court, where the magistrate has more control over the process and perhaps more knowledge of how to structure an enforceable agreement. So it’s not always a better alternative. But I’m glad the forum is there for the good it does.

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