This is the second article on "Theories For Legal Improvement -- and for Revolution." The first article explained why citizens do not need living trusts nor probate, both of which are gravy trains for lawyers. This second article discusses why our legal system has it exactly backwards when it comes to settling disputes. Our legal system often forces citizens to enter the legal system first before being able to have a mediated resolution of the dispute. That is exactly backwards. Every dispute should have a system of resolution available for use BEFORE entering the legal system.
2. 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.
Note -- This is article #2 in a series called "Theories for Legal Improvement -- and Revolution." The premise of both articles is to point out that in probate and simple dispute resolution there needs to be a revolution to enable citizens to handle their everyday affairs without lawyers, courts and judges. Watch for the next article on other subjects. Methods on how to commence a revolution on these issues will follow. One person can facilitate change.
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