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

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

Informal Alternatives Catch-all phrase which includes processes of mediation, arbitration, negotiation, fact- finding etc. 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 Aims to achieve mutually beneficial outcomes where both parties win, rather than the win/lose outcomes in courts-zero sum game Takes restorative rather than punitive approach to justice in courts

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

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

Issues and concerns 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 “lawyer- less” proceedings-who benefits and who suffers? Does mediation and other forms of ADR keep courts out of issues that they should be in? Mediation “individuates” disputes-what are the implications?