Arbitration, mediation and conciliation are ways of clearing the dockets, he said. But he said that lawyers and their clients, trained in the adversary system, were too combative and too concerned about winning rather than settling disputes.
We need to consider moving some cases from the adversary system, from the trial by battle in the courtroom, to administrative processes or to mediation, conciliation and especially arbitration.
Former U.S. Supreme Court Chief Justice Warren Burger
Introduction
Judges are in a unique position to be problem-solvers but most do not see their role that broadly. Many see a very narrow role of adjudicating according to their view of the laws and their life perceptions.
A pillar of a democratic society is the judiciary. The judiciary needs to be independent from the other governmental branches. The judiciary needs to be viewed as fair, reasonable, and equitable, treating all people as equals. Not only do they need to be perceived this way, they actually need to operate this way. If not, they begin to lose their legitimacy and people begin to wonder about obeisance.
For decades, the media has participated in deluding Americans. They have promoted, and Americans have believed, that once a person is appointed or elected to a judicial post, they rise above politics, making decisions exclusively according to the law.
Courts and Judges have also created another illusion that they are overcrowded, overworked and poorly paid but one wonders. Although SCOTUS is a unique court, it seems to be less efficient than ever. In the 1980’s, SCOTUS averaged hearing about 150 cases. Last year, 40 and this year, 2024, so far, 22. (BTW, their pay remains the same.)
Also, the time between oral arguments and the decision averaged 112 days quite different than the 1980’s which averaged 50 days.
Supreme Court of the United States (SCOTUS)
Today, SCOTUS is in crisis. Americans' approval rating of SCOTUS is at the lowest ever. Some bold actions need to be taken to increase their legitimacy.
This crisis has been created by the unethical conduct of the Justices and the shenanigans in their appointment. Former President Donald Trump appointed three justices during his one term. This has never happened before. In fact, during former President Jimmy Carter’s one term, he appointed none. During former President Barak Obama’s two terms, he appointed two.
How did this most odd situation happen? Most, would place the blame on the so-called Bully and Manipulator of the Senate, Mitch McConnell. He was Majority Senate Leader and controlled the approval process. He prevented Obama from filling a vacancy and sped up Trump’s appointment of the third Justice.
Most Americans do not know how to manage a bully whether this be in the schoolyard or in the U.S. Senate. Obama was baffled by Bully Mitch. Obama was delusional as he spent eight years thinking he could “negotiate” with Mitch. Mitch had been very clear from the beginning that he would do all he could to ensure Obama was a one-term president. No negotiation!
Mitch might think that he has won based on the three Trump appointments. This might be true in the short run, but false in the long term as folks are seeing now with the overturning of the precedent of Roe v. Wade.
What could Obama have done? Some say Obama should have nominated California Supreme Court Justice Janice Rogers Brown. This would have been the first nomination of a Black Female to SCOTUS. He could have personally walked her around all of the Senate offices and defied any Senator for not meeting with her. After this, if Mitch refused to schedule a vote, Obama could have sworn in Brown and walked her to the Supreme Court office. Obama could simply say that the Senate had refused to do their job of “advise and consent.”
Yes, this would have been bold, but one is dealing with a bully who only understands such bold moves.
What could bring balance and legitimacy to SCOTUS? Present US President Joe Biden and the US Senate could demand the resignation or retirement of both Justice Alito and Thomas for ethical reasons. Biden could then replace them and the court would be much more balanced. Who could stop this demand? Nobody. Would SCOTUS have to act? No.
Other improvement ideas include term limits, revised appointment process, and ethics instituted.
US Federal Judiciary
Federal judges are appointed for life. They are appointed by the political U.S. President and approved by the political U.S. Senate, so surely these are political appointments. Americans hope that the federal judges will set aside politics and rule according to the law. Some do; most don’t.
The “don’ts” usually occur in cases involving social or political issues such as Gay rights, Trans rights, abortion, book banning, gun issues, reproductive rights, etc. Legal scholars can predict with a 95% certainty which party appointed which federal judge according to their rulings.
Example: Republican, Trump-appointed Federal Judge Allen Winsor dismissed the Disney suit against the Florida Governor.
Example: Trump-appointed Judge Stephanie Gallagher ruled that the Fair Labor Standards Act does not cover prison laborers even working off site. Prison called it rehabilitation and the judge bought it.
Example: Bush-appointed Judge Robert E. Payne struck down the Virginia age-related gun restriction law.
Example: Trump-appointed Judge Stephen McGlynn ruled vs assault rifle ban in Illinois.
Example: Appointed by George W. Bush, U.S. District Judge Reed O’Connor in Fort Worth agreed with a group of Christian conservatives that Affordable Care Act requirements to cover HIV prevention drugs violate their religious freedom.
Example: Trump-appointed District Federal Court Judge Aileen Cannon seems to be doing all she can to assist Trump in delaying the so-called “documents case.” She was already overruled once by the Court of Appeals.
Local Judges Show Their Prejudices
During the middle 1970s, Franklin County Municipal Court in Ohio conducted a pre-trial release experiment initially funded by the U.S. Department of Justice LEAA (Law Enforcement Assistance Administration). This pre-trial release experiment focused on releasing folks who have been charged with a felony if they are not of harm to themselves or other. Releasing on their own recognizance was one option. Another option was releasing them on the conditions such as keeping their jobs, maintaining their home address, and reporting regularly to the Pre-Trial Release Program. Judges are the decision-makers.
About 41 states elect judges in one way or the other. Ohio does elect the municipal judges. They are elected in partisan primaries and nonpartisan general elections. (Most people believe the “nonpartisan” category is amusing after they have run partisan in the primary.) Candidates must be qualified electors, reside in the municipality, practiced law for at least 6 years and licensed to practice law at the time of their election or the beginning of their term. There does exist an age limit of 70.
During the pre-trial experiment, there were 13 municipal judges: 12, from the prosecutorial persuasion and one, defendant persuasion; one, female and 12, male; all, of an older variety.
One would think that if these 13 were following the law, results would be similar. Not so much. Their biases clearly were on display.
Before the pre-trial experiment, when the accused came before the judge for bond, the judge would depend on the prosecutor and the public defender (or defense attorneys). Despite the facts of the situation, each would argue the extremes ranging from Release on Recognizance (ROR) to $50,000 bond.
Under this program, the bond investigators worked and reported for the judges. Before the arraignment, the bond investigators would examine work history, home history, and crime records-only for convictions. Some Judges depended on these neutral, factual reports; others paid a bit of attention; and others, ignored these reports. These differing approaches led to very different results-regrettably and unfairly.
LEAA Experimental Criminal Mediation Program
LEAA during this same time period gave the seed money for the first criminal mediation program in the nation. Columbus, Ohio City Attorney’s Office dubbed this "The Night Prosecutor’s Mediation Program." All of the mediators were law students. Judges could directly refer cases to mediation. Progressive judges did so and like the above, unprogressive judges did not.
Judges as mediators
Beginning in about 1980, mediation has become a component of the legal system, including the courts. Of course, mediation has a long, deep, rich history in community problem solving throughout the world. Columbus, Ohio may have sponsored the first criminal mediation program. As interest in legal mediation grew, many judges realized that they could retire and yet still work as private mediators.
On the surface, this sounds great, but there are two caveats:
The cost of private mediators; and
Are these judges really mediating?
Usually the cost of this private mediation is quite high. It is not part of the court budget. It is estimated at $400 per hour. The average mediation might last for three hours.
Judges are accustomed to judging including issuing decisions and giving direction. Most of these private judges take some form of mediation training, but does it take? When one observes private judicial mediation, it looks very similar to private judging. It is noteworthy that many of the legal advocates prefer this type of judicial mediation, which basically tells their clients how much to pay or accept in a case.
One could justifiably conclude that private judges mediation is more about a revenue stream than problem-solving.
Conclusion
Judges are in the ideal position to be problem solvers, but seemingly most do not take advantages of problem solving opportunities. Many Judges seem stuck in the traditional adversarial legal system.
Resources
See Recommended Books under “Blogs” drop down menu.
Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
5 Languages of Appreciation in the Workplace.
Getting Your Way Every Day.
Conflict Management and School Peer Mediation Manual, Prudence Bowman Kestner and Larry Ray.