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Law Notes - June 2001
by John Duffy
When you
go to court you are trying to resolve a dispute. That dispute is either
criminal e.g., DWI, Vandalism, Assault, Alcohol Possession by a Minor, or civil
e.g., small claims, contract, probate, or landlord-tenant disputes.
Essentially, a criminal matter is a dispute between you and the community
(represented by the prosecutor) and a civil matter is a dispute between two
citizens. Whatever the dispute and whoever it’s between, the courthouse is a
place to sort it out.
The
courthouse is usually, however, a forum of last resort. That statement might be
surprising but, for the most part, citizens resolve disputes every day before
“the law” is ever involved. People apologize, send letters, ask for managers,
and resolve problems without anyone knowing a dispute existed. We have all done
it and it is an empowering experience. That empowerment is one benefit of
Alternative Dispute Resolution (ADR). ADR combines some of the formality and
safeguards of a judicial procedure with the experience of settling your own
dispute. In sparsely populated environments with sometimes scant government
services, a system of ADR is a logical approach to issues of rural justice.
ADR comes
in many shades and stripes. The most common, mediation and arbitration, are
familiar to most people even if the terms are not. Mediation is simply a coming
together of two parties to work out a solution. Arbitration is the same except
an arbiter will decide a solution if the parties cannot. In fact, there is
nothing “alternative” about many of the “new” forms of dispute resolution;
approaches are very often rooted in Native American social and spiritual
thought.
So why
not just abandon courthouses, lawyers, and judges and switch completely to a
system of ADR? We could but the result would be too informal and thus
dangerous. There is a reason countries worldwide marvel at the U.S. system of
dispute resolution. The American judicial model has required procedures that
protect individuals and groups from notorious abusers (like the government).
While sometimes consuming and tedious (not to mention expensive), this “red
tape” exists to ensure rights are protected and not violated.
What is
needed is balance. In a predominantly rural state like South Dakota, a system
of ADR might provide a quicker and cheaper resolution of pedestrian disputes.
Serious disputes requiring the skills of attorneys, judges, and experts would
still be heard in tribal, state, and federal courthouses but “run-of-the-mill”
spats might best be resolved in a process that empowers citizens and encourages
them to resolve disputes in constructive and positive ways.
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