Yet another parallel between state and non-state dispute resolution involves international disputes between states (as opposed to disputes between fellow citizens within the same state). While some international disputes are now settled by the International Court of Justice by agreement of the governments involved, others are dealt with by essentially the traditional approach operating on a large scale: direct negotiations or mediated negotiations between the parties, aware that failure of the negotiations may trigger the flip-side mechanism of war. Prime examples are the 1938 dispute between Hitler’s Germany and Czechoslovakia over the Czech border region of Sudetenland with an ethnic German majority, resolved by mediation by Britain and France (which pressured their Czech ally to settle); and the series of European crises in the years before World War I, each temporarily settled by negotiation until the 1914 crisis provoked by the assassination of Archduke Franz Ferdinand did end in war.
Those are some of the parallels between non-state dispute resolution and state civil justice. As for the differences, the most basic is that, if a civil case does pass from the negotiating stage to trial, then the state’s concern at the trial is not primarily with emotional clearance, restoring good relations, or promoting a mutual understanding of feelings between the disputing parties—even when the parties are siblings, estranged spouses, parents and children, or neighbors who share a huge emotional investment in each other and may have to deal with each other for the rest of their lives. Of course, in many or most cases in populous state societies, consisting of millions of citizens who are strangers to each other, the people involved had no prior relationship, don’t anticipate any future relationship, and were brought together just on a one-shot basis by the event underlying the case: a customer and a merchant, two drivers involved in a traffic accident, a criminal and a victim, and so on. Yet the underlying event and the subsequent judicial proceedings still create a legacy of feelings in both of those strangers, and the state does little or nothing to assuage the feelings.
Instead, at a trial the state is first concerned with determining right or wrong (Plate 16). If the case involves a contract, did or did not the defendant breach the contract? If the case involves a tort, was or was not the defendant negligent, or did the defendant at least cause the injury? Note the contrast between that first question asked by the state and the case of Malo and Billy. Billy’s relatives agreed that Malo had not been negligent, but they still requested compensation, and Malo’s employer immediately agreed to pay compensation—because the goal of both parties was to reestablish a previous relationship (in this case, a previous non-relationship) rather than to debate right or wrong. That feature of New Guinea peace-making applies to many other traditional societies as well. For example, in the words of Chief Justice Robert Yazzie of the Navajo Nation, one of the two most populous Native American communities of North America, “Western adjudication is a search for what happened and who did it; Navajo peace-making is about the effect of what happened. Who got hurt? What do they feel about it? What can be done to repair the harm?”
Once the state has resolved that first step of determining whether the defendant is legally liable in a civil dispute, the state then proceeds to the second step of calculating the damages owed by the defendant if the defendant is found to have breached the contract or been negligent or liable. The purpose of the calculation is described as “making the plaintiff whole”—i.e., insofar as is possible, to restore the plaintiff to the condition that she would have been in if there had been no breach or negligence. For instance, suppose that the seller signed a contract to sell to the buyer 100 chickens at $7 per chicken, that the seller then breached the contract by failing to deliver the chickens, and that the buyer as a result had to buy 100 chickens at the higher price of $10 per chicken on the open market, thereby forcing the buyer to spend an extra $300 above the contractual amount. In a court case the seller would be ordered to pay to the buyer those damages of $300, plus costs incurred in securing the new contract, plus perhaps interest for the lost use of that $300, thereby restoring the buyer (at least nominally) to the position in which he would have been if the seller had not breached the contract. Similarly, in the case of a tort, the court will attempt to calculate the damages, although that is more difficult to calculate for physical or emotional injury to a person than for damage to property. (I recall a lawyer friend of mine who was defending a motorboat-owner whose motorboat propeller had severed the leg of an elderly swimmer, and who argued to the jury that the value of the severed leg was modest because of the victim’s advanced age and short expected remaining lifespan even before the accident.)
Superficially, the state’s calculation of damages seems similar to compensation negotiated in New Guinea or among the Nuer. But that is not necessarily true. Whereas the standardized compensation for some New Guinea and Nuer offenses (e.g., 40 to 50 Nuer cows for taking a person’s life) could be construed as damages, in other cases non-state compensation is calculated as whatever amount the disputing parties agree on as the basis for putting behind them their injured feelings and resuming their relationship: e.g., the pigs and other goods that my Goti Village friends agreed to pay to the clans that had killed the father of my Goti friend Pius.
Defects in state civil justice
The defects in our state system of civil justice are widely discussed by lawyers, judges, plaintiffs, and defendants alike. The defects of the American system are variously more or less severe in other state societies. One problem is that court resolution of civil disputes tends to take a long time, often up to five years, because criminal cases take precedence over civil cases, and judges may get re-assigned from civil court to criminal court in order to try criminal cases. For instance, at the time that I drafted this paragraph, no civil cases were being tried in Riverside County just east of my home city of Los Angeles because of a backlog of criminal cases. That means five years of irresolution, living in limbo, and emotional torment, compared to the five days that it took to settle the case of Malo’s accidental killing of Billy. (However, the clan warfare that might have resulted if Malo’s and Billy’s case hadn’t been resolved by negotiation could have lasted much longer than five years.)
A second claimed defect of state civil justice in the U.S. is that, in most cases, it fails to require the losing party to pay the lawyers’ fees of the successful party, unless that had been specified at the outset in the contract under dispute. That failure, it is often argued, creates an asymmetry favoring the wealthier party (whether that is the plaintiff or the defendant), and placing pressure on a less wealthy plaintiff to settle for less than the actual loss, and on a less wealthy defendant to settle by paying a frivolous claim. That’s because wealthy parties threaten expensive litigation, adopt delaying tactics, and file endless discovery motions in order to wear down the other party financially. It is illogical that the goal of civil justice should be to make the aggrieved party whole, but that the loser should not be required to pay the winner’s attorney fees in the U.S. In contrast, legal systems in Britain and some other countries require the loser to pay at least some of the winner’s fees and costs.
The remaining defect of state civil justice is the most fundamental one: that it is concerned with damages, and that emotional closure and reconciliation are secondary or irrelevant. For civil disputes pitting against each other strangers who will never encounter each other again (e.g., two people whose cars collide), in some cases something could be done to promote emotional closure and avoid a life-long legacy of non-resolution, even if it merely involved offering both parties the opportunity (if they consent) to air their feelings to each other, and to perceive each other as humans with their own motives and sufferings. That can be possible even under such extreme circumstances as when one of the parties has killed a close relative of the other party. Better than no emotional exchange at all was the exchange that did take place between Gideon and Billy’s father—or the exchange between Senator Edward Kennedy and Mary Jo Kopechne’s parents, w
hen Kennedy on his own private initiative courageously visited and looked into the faces of the parents whose daughter’s death he had caused through his own gross negligence.
Worst of all are the innumerable civil cases in which the parties in a dispute do potentially have the prospect of an on-going relationship: notably, divorcing couples with children, siblings in inheritance disputes, business partners, and neighbors. Far from helping to resolve feelings, court proceedings often make feelings worse than they were before. All of us know disputants whose relationship became poisoned for the rest of their lives by their court experience. In merely the latest in a long list of such stories among my own acquaintances, one close friend of mine and her sister were subpoenaed in an inheritance court case between her brother and her father, who were suing each other. The bitterness left by those judicial proceedings was such that my friend and her sister are now being sued by their own stepmother, and that both my friend and her sister expect never again to speak to their brother as long as they live.
One suggestion often made about how to mitigate this fundamental defect of our civil justice is to make increased use of mediation programs. They do exist, and they are often helpful. But we don’t have enough mediators and family-law judges, our mediators are undertrained, and our family courts are understaffed and underfunded. As a result, divorcing couples often end up talking to each other only through their lawyers. Anyone who has repeatedly visited family-law courts knows that the scene there can be horrible. Opposite parties in a divorce case, their lawyers, and their children may have to wait in the same waiting room with each other, and with disputants in inheritance cases. To mediate effectively, one must make the parties feel comfortable first: that’s impossible if they have been glaring at each other for hours in the same waiting room. Children get caught in the middle of arguments between divorcing parents.
A judge can and often does require parties to participate in an attempted settlement conference before letting the case proceed to trial. But it takes time and skill for a mediator to make a mediation or settlement conference work. Mediation commonly requires much more time than is allowed for a mandatory settlement conference. Even if the parties in the dispute are not going to have any future relationship, successful mediation would decrease future burdens on the court system: burdens arising from the parties going to the expense of a trial, or else being dissatisfied with the decision and coming back to court with future complaints, or settling only after a long expensive fight.
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 School: “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 ju
stice 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.)