Let's assume for a moment that I really do have the answers to creating a Model Legal System. How did I come by that wisdom? I came by that wisdom by physically working in every geographical subdivision of the United States and by being responsible for complex litigation in every state of the Union for fourteen (14) years including a five year stint in New York City and New Jersey. Further wisdom came from twenty years in the private practice of law, serving the Bar as a Board of Governor and President of the local County Bar.
ALTERNATE DISPUTE RESOLUTION -- Assume you have a simple dispute with an acquaintance over something silly, but it escalates, such that one party takes the other to small claims court. The small claims system in most counties will then divert the dispute to a mediator. If the matter can't be settled, then it goes before Judge Judy. Medium size civil disputes have a similar court-diverted arbitration system. What if you have a dispute with your landlord over late payment fees and the landlord threatens eviction? The landlord must file an "FED" eviction in court, then the matter is diverted to mediation and if the matter cannot be settled, the judge will decide. Even a divorce must be filed first before custody and property division mediation occurs.
It is clear what should take place. Each citizen dispute should have a system of dispute resolution (often called 'alternate dispute resolution' which means mediation or arbitration) BEFORE court action is necessary. Most corporations have figured this out years ago for themselves. For example, you never see State Farm suing Allstate in court. The reason you don't is because they figured out a half century ago that if the State Farm claim adjuster thinks the Allstate insured was at fault, and the Allstate adjuster feels the State Farm insured was at fault, they submit the matter to arbitration (with claim adjusters from different companies serving as the arbitrators in this private system) before court action. Thousands of inter-insurance company disputes are resolved this way each year without court proceedings. Imagine the Stepford Homeowners Association having trained (nonlawyer) mediators available for resolving neighborhood disputes for neighbors in Cranford across town?
Banks and financial institutions also made a radical change of their
dispute resolution systems forty (40) years ago when it comes to
foreclosure. Trust deeds are the banks way of kicking owners off their
own property outside of court systems; if the owner can't pay the
mortgage, for example. It is called 'non-judicial foreclosure' and
saves thousands of dollars of legal fees for banks and financial
institutions when they must resort to the recovery of ownership of
property in foreclosure. Why has your lawyer-legislator not
created a system of non-judicial resolution of simple citizen disputes
for you then? The answer is self-interest and greed.
Contractors also addressed this problem years ago, but even this system is messed up. If a citizen has a routine dispute with a home repair contractor, for example, there is a dispute resolution system available through the Construction Contractors Board before either party has to resort to court action. The problem is that many parties and judges do not know this dispute resolution system exists. Where it is messed up is that either party may resort to the court anyway even though the dispute should be resolved without court action. This is yet another legal arena where our legal system allows disputes to be handled backwards. It is the tip of the iceberg. There are many, many dispute resolution systems that nobody uses because lawyers and judges are comfortable with their own theater of operation and ignore the best way to resolve disputes. They do not care. They are comfortable taking up citizen's money with business as usual, even at the highest level.
In most legal publications you will see advertisements from the shiny faces of self-styled mediators who invite you to resolve disputes through mediation or arbitration. There are two problems. There is no system of qualification to determine if any of these (usually burned-out lawyers or judge 'wannabees') mediators are any good at what they do. Second, there is no system that requires mediation before litigation. Thus, their siren call is just so much blowing in the wind.
EVEN THE 'ANCIENTS' KNEW THAT LEGAL MATTERS SHOULD HAVE DISPUTE RESOLUTION WITHOUT LAWYERS. Eight hundred years ago, Norman Civil Courts required that parties plead their own cases without substitutes. A century later the Norman court system required proxies to appear for the parties. The headaches started immediately. All citizens have a right to a system of dispute resolution without courts and without lawyers for virtually all matters that confront them in every day life. These systems exist in some small corners of our life, but lawyers, judges and our legal leaders do little to facilitate dispute resolution without their active participation.