Highways and Byways of Legal Resolution

• NCJ Number: 77272
• Author(s): L H Cooke
• Date Published: 1981
• Length: 17 pages
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: Address given at the New York County Lawyers' Association, New York, New York, March 19, 1981 (Charles Evans Hughes Memorial Lecture)

Annotation

This address, prepared by New York's Chief Judge, explores alternatives to the courts and to conventional adjudicative methods.

Abstract

Alternatives to the courts and to conventional adjudicative methods must be selected and developed if the structure of justice based on a court foundation is to survive. Courts alone CANNOT continue to respond to the demands placed on them. Turning first to the civil areas of dispute, three distinct subcategories for alternative treatment may be identified. These subcategories include different modes of recovery established by legislative action for certain types of injury or damages, measures operating within the traditional court outline designed to eliminate or reduce court time, and measures taken prior to RESORTING to the courts and operating outside of them. Legislators can enact changes in substantive law so as to reduce court system pressures by either removing some disputes from the courts or by simplifying court processing (e.g., no fault divorce statutes). Other methods have been introduced in some jurisdictions. For example, in Michigan a special procedure combines mediation with economic inducement for tort cases where liability is not at issue, commencing when a panel of three receives documentary evidence and recommends a settlement. With respect to civil disputes generally, complex issues must be eliminated from the litigation scheme, legal rights must be simplified, and more diversion of disputes from the court system must occur. In the criminal field, rising crime rates and overcrowded detention facilities necessitate the implementation of alternatives to formal criminal justice processing and conventional forms of punishment. The incorporation of a mediation or arbitration model into the criminal justice system instead of the adjudicative model has been suggested. This approach offers greater flexibility in factfinding and discipline imposition, informality, humaneness, speed, and economy. For offenders diverted out of the criminal justice system (when an alternative to arrest is chosen), community courts and mediation forums offer another avenue for dispute resolution. Finally, decriminalization of certain conduct and reclassification of some crimes to lesser offenses could also be considered. No references are cited.