The Mediation Alternative: Process Dangers for Women

This article argues that mandatory mediation provides neither a more just nor a more humane alternative to the adversarial system of adjudication of custody and, therefore, does not fulfill its promises. It looks at California’s mandatory mediation law, which requires that all custody and visitation disputes be mediated prior to being considered by the county Superior Court. While mediation is a place where emotions can be expressed, expressions of anger are often overtly discouraged, thereby silencing a woman who may have, for the first time in her life, found a voice for her anger. For a victim of physical abuse, the direct confrontation with her husband, with the safety of her children and herself at stake, would surely be psychologically traumatizing and might also put her in physical danger. The article then explains judicial violence and considers alternatives to mandatory mediation.

CommentsDimensions of Quality of Justice

In her 1991 article, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or “The Law of ADR,” Professor Carrie Menkel-Meadow identified the dynamics of change in the legal landscape as courts embraced dispute resolution. She asked if alternative dispute resolution (ADR) would transform the courts as they became sponsors of these programs, or if the adversarial system would co-opt dispute resolution innovations. Menkel-Meadow identified ways in which both institutions could alter the other, but her answer to this question centered on the deleterious effects of court institutionalization on dispute resolution. Just as important as her answer, however, is that she asked and explored the questions, identifying important tensions in the values underlying court adjudication and private settlement. Those tensions persist and continue to influence what has become today, in many ways, a single system combining litigation and dispute resolution....

1. The English Legal System

This chapter provides an introduction to the English Legal System. Specifically, it explains the meaning of the terms ‘English’, ‘legal’, and ‘system’. It first provides an overview of the constituent parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Wales, Scotland, and Northern Ireland. It describes the types of law that exist and attempts to define what law is. It then discusses the English legal system, which is based on common law and is an adversarial system.

Alternative Dispute Resolution (ADR) Hybrid in Cameroon as a Form of Legal Protection for Consumers of Defective Products

As part of the awareness creation exercise, this paper seeks to establish that consumers of defective products in Cameroon should be exposed to the various extra-judicial channels once they can be adopted by Government and through which the consumers can enforce their rights. This is known as Alternative Dispute Resolution (ADR). The acronym ADR is a group of flexible approaches which could be applied in resolving disputes related to defective products more quickly and at a lower cost than going through the tedious road of adversarial proceedings. ADR mechanisms generally are intended to mean alternatives to the traditional court process. Their adoption will involve the use of impartial interveners who are referred to as “third parties” or “neutrals”. On the whole, the choice of a consumer redress mechanism is a choice between judicial and non-judicial mechanisms. The paper argues that, considering the difficulties encountered by the consumer within the adversarial system, the non-judicial mechanisms are more impactful and satisfactory to consumers than the judicial. It is equally argued that the judicial mechanisms depict a certain level of risk taking, that is, the risk of winning or losing and hence going without a remedy. This risk factor is much lower in the non or extra – judicial system or mechanism which reveals that in appropriate circumstances, the producers using the good customer relation basis, are minded to compensate even where the consumer’s claim is baseless. In this wise, it is therefore necessary to encourage the utilization of the extra - judicial mechanisms in resolving consumer complaints. Expediency, speed and low cost no doubt support this call.

Perbandingan Pengaturan Mengenai Terorisme di Indonesia, Inggris dan Australia Terkait Dengan Due Process Of Law Bagi Pelaku

Tulisan ini membahas mengenai perbandingan hukum pidana dalam tindak pidana terorismedari sudut pandang due process of law bagi pelaku tindak pidana terorisme, terdapatperbedaan yang signifikan terutama terkait sistem adversarial yang dianut sistem peradilanpidana australia dan inggris dibandingkan dengan sistem peradilan pidana di Indonesiadimana perlindungan hak asasi pelaku lebih diperhatikan sehingga sistem peradilan pidana diAustralia dan Inggris lebih kondusif untuk menciptakan due process of law.These writings discuss about comparative criminal law in the criminal acts of terrorism fromthe standpoint of due process of law for criminal acts, perpetrators of terrorism, there aresignificant differences, particularly regarding the subscribed adversarial system of criminaljustice system compared to english australia and criminal justice system in Indonesia whereprotection of rights observed until the perpetrator more fundamental criminal justice systemin Australia and England are more conducive to creating due process of law.

Sistema Acusatório Princípio Processual Penal Implícito na Constituição

ResumoO artigo em questão propôs abordar sobre o sistema acusatório princípio processual penal implícito na Constituição Federal e a forma de ser interpretado na Constituição Federal de 1988 pelos doutrinadores. O sistema processual brasileiro apresenta como características seus traços inquisitórios, acusatórios e o misto. O inquisitivo é um sistema pelo qual as duas funções de acusação e julgamento se apresentam unidas em um único órgão ou em uma única pessoa, e o sistema acusatório, os papéis são reservados para pessoas ou órgãos distintos. No entanto, como observado na literatura, são apresentados conflitos na forma de interpretação dos sistemas. Muitos autores expressam suas posições, uns sustentam que o sistema adotado no Brasil é o inquisitório, outros apontam ser um sistema misto, mas outros afirmam ser o sistema acusatório. Infelizmente, o que se observa através das várias interpretações apresentadas sobre o sistema acusatório, é que este continua preso às amarras do inquisitorialismo. Nestes últimos anos, verifica-se que vêm sendo travadas lutas doutrinárias incessantes, pois se percebe a grande necessidade de transformações, que se tornam urgentes. Estas lutas têm propósitos importantes, objetivam a busca da afirmação de um direito processual penal que seja pautado pela conformidade constitucional. Palavras-chave: Constituição. Princípio Processual. Sistema Acusatório. AbstractThe article in question proposed to address the implicit principle in the Constitution adversarial system of criminal procedure and the way it is interpreted in the Federal Constitution of 1988 by the jurists. The Brazilian legal system has as its characteristics inquisitorial, accusatory and mixed traits. The questioning is a system by which the two functions of prosecution and trial are presented together in a single organ or a single person, and the adversarial system, the roles are reserved by different persons or bodies. But as noted in the literature, conflicts are presented in the form of interpretation systems. Many authors express their positions, some argue that the system adopted in Brazil is the inquisitorial one, others point to be a mixed system, but others claim to be the adversarial system. Unfortunately, what is observed through the various interpretations presented about the adversarial system, this is still tied to the shackles of inquisitorialism . In recent years, it seems that incessant doctrinal struggles have been waged, as it is possible to the great need of transformations that become urgent. These struggles have important purposes, aimed to search the assertion of criminal procedural law that is guided by constitutional compliance. Keywords: Constitution. Principle Procedure. Adversarial System.

The Contribution of the Prague Rules to Promoting Efficiency in International Arbitration

The Prague Rules are intended to provide efficiency and reduce costs in conducting arbitration proceedings. The Rules are based on the position that the practice and procedure of international arbitration is too heavily influenced by the adversarial system found in common law jurisdictions, and that the inquisitorial judicial practices of civil law jurisdictions are more conducive to a “streamlined procedure”. In this paper, the authors first consider whether this predicate is accurate and fair. Are adversarial practices the source of inefficiency in international arbitration, or can the reasons be found elsewhere? Next, they compare certain features of the Prague Rules to the IBA Rules on the Taking of Evidence, and examine how both sets of rules differ in substance. Moreover, they address the criticisms that the Prague Rules may pose yet another case of useless rule-making. In fact, the authors critically assess the consequences of an active role of arbitral tribunals in case management and the appropriateness of a controlled use of documentary production, witness evidence (particularly in oral testimony) and appointment of experts.

Judicial Legal Culture and Victim Procedural Status at the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia

This chapter examines the relationship between judicial legal culture and victim procedural practices at the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Starting with judicial composition, judges are categorized by their professional and educational backgrounds and legal cultures before assuming their STL/ECCC judicial positions: whether they originate from the common law/adversarial system, the civil law/inquisitorial system, or the ‘international’ system. The chapter then investigates connections between STL/ECCC practices concerning victim procedural status and the typical features of these legal cultures. Overall, it is argued that there is a direct relationship between the legal culture of judges and their judicial practices. The chapter explains how STL and ECCC judges have adapted several civil law/inquisitorial and common law/adversarial features to make victim procedural status fit the mandate and characteristics of the STL and ECCC, namely, the presence of sui generis international features.

Viewpoint: Thoughts on whole school inspection post-Covid

This article argues that the pause in whole school Ofsted inspections until the end of 2020, and possibly into 2021, offers the opportunity to re-examine the nature of school inspection as an appreciative process with inevitable limitations that Ofsted has so far failed to recognize. This raises the possibility of replacing the current adversarial system with a more consensual one grounded in basic principles similar to, but developed from, the process of school inspection pre-Ofsted by Her Majesty’s Inspectorate of Schools.

Artificial Intelligence in the Administration of Justice

Computer-operated systems are increasingly used for decision-making in public administration and private enterprise. Activities that were reserved to humans because they required decision-making in varied and unpredictable circumstances may now be performed by artificial intelligence (AI). Machine learning is developing at such a pace that it is conceivable that algorithm-operated systems may be able to provide litigation services and even adjudication. Supplanting lawyers and judges by AI would have serious implications beyond the loss of jobs. AI lawyers and AI judges would change the adversarial system beyond recognition by reducing adjudication into one machine operation, putting an end to the visibility of court process, and eliminating the physical presence of the court. Court legitimacy would be undermined because AI adjudication would not be able to reflect human psychology; emotions, aspirations, beliefs or moral sensibility.