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Preview of Some Approaches to Rendering Justice:
It can be useful to understand the following approaches.

  1. Resolving “Issues of Harm” (Between individuals or within a Defined Community)
    • Restorative Justice
  2. Resolving Disputes (between Parties)
    • Judicial Litigation
    • Alternative Dispute Resolution (ADR)
      • Mediation
      • Arbitration

1. Resolving “Issues of Harm” Within a Defined Community

  • Restorative Justice (RJ) An approach that focuses on repairing harm caused by crime or conflict.
    • History: When seeking alternatives to punishment, the prison system sought alternatives for prisoner rehabilitation. The result, Restorative Justice, has spread beyond the prison system and found favor within multiple community environments.
    • Application: Restorative Justice is commonly used to address harm within a community and prevent future offenses, such as in neighborhoods, schools, and correctional facilities.
    • Process and Product: A third-party facilitator coordinates a discussion between the party (or parties) who caused harm and the victims. The goal is to define the impact of the harm and determine how to repair the damage to prevent future harm.
    • Some “Pros and Cons” of Restorative Justice:
      • Pros
        • Victims have an opportunity to communicate with offenders
        • Increased prevention of repeat “crimes and infractions”
        • A high victim satisfaction rate (repair of relationships)
        • Cost-effective and swiftly conducted
      • Cons
        • Revisiting/recalling the incident may “traumatize” the victim
        • Potential lack of post-session accountability

2. Resolving Disputes Between Parties
A. Judicial Litigation: Using the litigation process, parties partition the judicial court for a decision to
resolve their dispute.

  • History: Though an integral part of the legal system for centuries, modern litigation practices emerged in the United States during the Industrial Revolution to resolve business and labor disputes.
  • Application: Commonly used when a “wronged” party seeks damages from another party (e.g., business, family law, landlord-tenant, property disputes, etc.)
  • Process and Product: After the party seeking justice files the necessary documents with the court, a fair and impartial Judge (and/or Jury of peers) renders a decision based on legal precedence and/or the evidence presented by the disputing parties.
  • Some “Pros and Cons” of Litigation
    • Pro Disputing parties can appeal the court’s decision.
    • Con Litigation can be expensive and encounter delays (i.e., attorney fees, court costs, court calendar backlogs, appeals process, etc.).

B. Alternative Dispute Resolution (ADR): Used for resolving disputes Outside the Court System

  1. Mediation
    • History: Although meditation is said to have originated in ancient Greece, its modern revival is often attributed to the United States Civil Rights Movement of the 1960s.
    • Application: Among the various forms of mediation used to resolve disputes outside of court (e.g., personal, marital, business, commercial, etc.) include:
      • Court Mandated: Courts frequently refer cases to mediation for a speedy and cost-efficient settlement.
      • Transformative: A mediator empowers disputing parties to resolve their conflict.
      • Facilitative (or Traditional): A professional mediator attempts to facilitate negotiations between the disputing parties.
    • Process and Product: An unbiased 3rd Party (Mediator) facilitates a process during which disputing parties (Disputants) voluntarily agree to meet to achieve a mutual agreement that resolves their dispute and, hopefully, restores their relationship.
      • A productive and positive resolution of the dispute is not guaranteed.
      • If parties fail to achieve a mutual agreement, their dispute can continue unresolved, or they can pursue an alternate process.
    • Some “Pros and Cons” of Mediation:
      • Pros
        • The approach can be cost-effective and swiftly conducted.
        • Relationships can be restored
      • Con
        • Participation is voluntary
        • There is no guarantee mediation parties will resolve their dispute
  2. Arbitration: Parties seek an Arbitrator’s Binding Decision
    • History: In the early 1600s, the Commonwealth of Massachusetts passed laws supporting arbitration to resolve disputes. The impact on business relationships during the Industrial Revolution led to the passage of the United States Arbitration Act of 1925, which made arbitrations legal and enforceable.
    • Application: Many contracts, such as business, commercial, labor, and securities contracts, include an arbitration clause to avoid litigation. This clause commits contracted parties to arbitration in case of a contract dispute.
    • Process and Product: Having agreed (in advance) to arbitration, disputing parties present their evidence and arguments to an impartial third party, known as an arbitrator. After carefully reviewing the evidence and arguments, the arbitrator makes a final, binding decision that cannot be appealed by either party."
    • Some “Pro’s and Con’s” of Arbitration:
      • Pros
        • Parties agree to arbitration in writing and, in advance
        • Cost-effective and swiftly conducted
    • Con
      • Awards are final, enforceable, and cannot be appealed.
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