If our state societies would pay for more mediation and more family-law judges, perhaps many divorce and inheritance cases could be resolved more cheaply and with fewer hurt feelings and more quickly, because the extra money and emotional energy and time required for mediation are likely to be less than the extra money and energy and time required for bitter court proceedings in the absence of mediation. Divorcing couples who agree to it and can afford it are able to obtain those advantages by opting out of the family-law court system, through hiring retired judges to settle their dispute. The retired judge conducts a pseudo-trial and commands a high hourly fee, but that fee would otherwise be dwarfed by weeks of lawyers’ fees. The judge is there to hammer out a deal for everyone and isn’t rushed as are our judges in family courts. The hearing is predictably timed: the parties know that it will take place at a certain hour, and they don’t have to appear several hours ahead merely because they can’t predict whether the judge will be running late on previous cases on the docket, as commonly happens in divorce courts.
I don’t want to overstate the value of mediation, or to imply that it is a panacea. Mediation presents many problems of its own. Its outcome can be kept secret and so may not establish a judicial precedent or serve a broader educational purpose. Litigating parties who accept mediation know that, if mediation fails, the case will be litigated according to the usual criteria of legal right, wrong, guilt, and responsibility, so mediators do not feel entirely free to adopt different criteria. Many disputing parties want to be heard in court, do not want mediation, and resent being pressured or forced to mediate.
For example, in a famous case based on an incident in New York City on December 22, 1984, a man named Bernhard Goetz was approached by four young men whom he took to be muggers. He pulled out a gun, shot all four of them in claimed self-defense, and was subsequently indicted by a grand jury for attempted murder. His case provoked vigorous and divergent public discussion, some people praising him for having the courage to fight back, others condemning him for over-reaction and vigilantism. Only later did the background become known: Goetz had actually been mugged four years earlier by three young men who chased him and beat him severely. When one of those assailants was caught, the wily assailant filed a complaint claiming that he had instead been attacked by Goetz. Hence the court invited Goetz to a mediation hearing with his mugger. Goetz declined the invitation and was never told that the mugger was eventually jailed after committing another mugging. Goetz decided to buy a gun, having lost faith in a legal system that appeared to offer only mediation between muggers and their victims. While Goetz’s case is unusual, it remains sadly true that our courts are so overburdened that they not infrequently do propose or mandate mediation for parties who are adamantly opposed to their case being mediated. But these facts should not blind us to the potential value of mediation in many cases, and to our underinvestment in this pathway.
I’ll conclude this discussion of mediation and emotional closure by quoting comments on pros and cons by a lawyer colleague of mine, Professor Mark Grady of UCLA Law Schooclass="underline" “Many people object that the state has no business concerning itself with damaged personal relationships and feelings. They argue that only a ‘nanny state’ would take on that task, and that for a state even to try to repair personal relationships and damaged feelings is a threat to liberty. They also argue that it is an infringement of people’s liberty to be forced to settle their differences with wrongdoers. Instead, victims should have the right to seek the state’s judgment against their adversaries and, having received that judgment, simply to walk away from those who have wronged them.
“A response is that states maintain costly systems of justice that serve highly evolved and distinctive purposes in mass, non-face-to-face societies. Nevertheless, we can learn something valuable from New Guineans without compromising the distinctive purposes of our justice systems. Once the state takes jurisdiction over a dispute, it has incurred a cost to settle that dispute. Why not at least give the parties the option to settle the dispute on a personal level as well as on a legal level? No one should require disputing parties to avail themselves of mediation systems that the state might offer them, and the systems would not necessarily replace the usual formal systems of adjudication unless the parties agreed that they should do so. Instead, mediation systems would be an adjunct and possible substitute for a more formal legal system, which would still remain available. There would be no harm in offering people this opportunity, and a lot of good could come from it. The danger, which is well illustrated by the New Guinea system, is that people could be coerced into mediation under circumstances that compromise their dignity and liberty, and that might even extend the injustice of the original wrong. The reformed system would have to safeguard against these abuses, but the possibility of these abuses is no reason wholly to neglect the possibility that human wrongs can be resolved on the human level.”
State criminal justice
Having thus compared state and non-state dispute resolution systems with respect to civil justice, let’s now turn to criminal justice. Here we immediately encounter two basic differences between state and non-state systems. First, state criminal justice is concerned with punishing crimes against the state’s laws. The purpose of state-administered punishment is to foster obedience to the state’s laws and to maintain peace within the state. A prison sentence imposed upon the criminal by the state doesn’t, and isn’t intended to, compensate the victim for his injuries. Second, as a result, state civil justice and criminal justice are separate systems, whereas those systems are not distinct in non-state societies, which are generally concerned with compensating individuals or groups for injuries—regardless of whether the injury would in a state society be considered a crime, a tort, or a breach of contract.
Just as is true of a state civil case, a state criminal case proceeds in two stages. In the first stage the court assesses whether the accused criminal is or is not guilty of one or more of the charges. That sounds black and white and seems to call for a yes-or-no answer. In practice, the decision is not so absolute, because there can be alternative charges differing in severity: a killer may be judged guilty of premeditated murder, killing of a police officer in the course of duty, killing in the course of an attempted kidnapping, killing as a spontaneous act of passion, killing in the sincere but unreasonable belief that the victim was threatening imminent and grave bodily injury, or killing as an act of temporary insanity or under conditions of diminished responsibility—with differing punishments according to the charge. In reality, many criminal cases are settled by plea-bargaining before coming to trial. But, if the case does come to trial, the charge still requires a verdict of guilty or not guilty: Ellie Nesler was found guilty of killing Daniel Driver, even though her motive of avenging the abuse of her son won her the sympathy of much of the public. In contrast, in non-state societies an injury inflicted is routinely viewed as something gray: yes, I did kill him but—I was justified, because he practiced sorcery on my child, or his cross-cousin killed my paternal uncle, or his pig damaged my garden and he refused to pay for the damages, so I owe his relatives no compensation or else lower compensation. (But similar mitigating circumstances do play a wide role at the sentencing stage of a Western criminal trial.)
If the accused is found guilty of a crime, the state then proceeds to the second stage of imposing a punishment, such as a prison sentence. The punishment’s aims include serving three purposes, on which the relative emphasis differs between different national systems of justice: deterrence, retribution, and rehabilitation. These three purposes differ from the main purpose of non-state dispute resolution, namely, to compensate the victim. Even if Daniel Driver had been sentenced to prison, that wouldn’t have compensated Ellie Nesler and her son for the trauma of the son’s sexual abuse.