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Spring 1986 · Vol. 15 No. 1 · pp. 15–21 

Understanding the Adversary System: Available Alternatives for Dispute Resolution

Joby Dupuis

Conflicts in our society seem never ending. They also are inevitable, even for those not born to cantankerous or antisocial tendencies. Merely living together in society brings conflict, from the neighbor’s Doberman destroying, with one bite, your son’s favorite and rather expensive soccer ball to a 90 year old gentleman backing into your vintage 1974 Toyota Corona. All of us have experienced conflict in varying degrees of severity and all of us struggle with how conflict should be addressed.

. . . it is not an attorney’s responsibility to seek truth, justice or reconciliation. The goal is to win . . .

As Christians, the teachings of Christ greatly influence how we respond to conflict. Christ’s ministry on earth was one of reconciliation. Yet, while most of us accept the instructions found in the Gospels concerning our personal lifestyles, few of us recognize the radical approach to conflict to which we are called. And even fewer of us address the issues raised by a Christian’s use of the adversary system found in the courts of modern American society.

Christ’s greatest gift to humankind was the sacrifice of his life, bringing to us a gift of love and forgiveness. Yet a condition subsequent to Christ’s promise that we shall have eternal life through His death {16} and resurrection is that we also forgive and love others—not only when it is easy and flows naturally from the nature of the relationship involved—but also when it is not easy and requires a significant forfeiture of money, time or pain (Matt. 18:21-35; Luke 7:42-43; John 13:34).

As an attorney, I consistently question how forgiveness and love are addressed by our legal system in the United States. (Not being admitted to the Canadian Bar, I do not presume to speak with authority on the Canadian legal system though my suspicion is that the problems are the same). Forgiveness and love are commandments for those calling on the name of Jesus Christ as Savior and Lord. Therefore, we must address the issues as they are raised.

This is not to say that law, either statutory or court created, is without value. Society is structured so that individuals function in an ordered environment and we, as participants in the larger group, must know what to expect and to what norms our conduct must conform. Without law, our lives would be chaos. Christ was not an advocate of anarchy. The difficulty arises, however, when rules are broken and relationships are destroyed. How do we as Christians respond to the negligent destruction of our personal property? Do we hold others accountable for their actions, or do we ignore flagrant breaches of contract, landlord oppression, or defectively made products?

The answers to these questions are admittedly difficult and may lie in the degree of wrong and the facts of each circumstance. I personally have been involved in cases where grave injustice had occurred and relief could only be obtained through the Court. However, far too many court cases involving Christians are in the legal system because individual rights have coated the lawsuit in righteous indignation and vindication is sought without regard to forgiveness or love. This is not to say that carte-blanc relinquishment of personal freedom and individual liberty will always further the goals of the Kingdom or reflect the true teaching of Jesus Christ. No one, in my opinion, better defined the call for universal personal liberty than did our Lord. However, the means chosen to attain conflict resolution must lead to the goal set by biblical mandate—a restoration of the broken relationship through love and forgiveness. In any case, the wise discernment of whether or not legal action is advisable depends on an understanding of the system itself. {17}

THE ADVERSARIAL SYSTEM

The American Bar Association’s Ethical Canon regulating attorney responsibilities provides that each member of our society is entitled to seek any lawful objective through legal means, to have his or her conduct regulated and judged according to law, and to present for adjudication any lawful claim, issue or defense (ABA Code of Professional Responsibilities, EC 7-1). It is the job of an attorney to help individuals secure these rights. Thus, the basic premise of the legal system is that of personal rights, not a facilitation of societal relationships, peace within the community, or even justice. The hope is, of course, that through the adversary system, truth and justice are obtained, but those working in the system know that this is not always the case.

It is significant that the initiation of any civil lawsuit begins with the violation of an individual’s right, either personal or property. Indeed, the legal concept of “standing” requires that an individual must claim a personal involvement in the injury or damage to which a remedy is sought through litigation. It is not possible to bring a lawsuit challenging the oppressive renting practices of urban slum landlords if you live in a purchased home in the suburbs. The reasoning behind the rule is that the issues will be better clarified and more fervently pursued by the individual who is actually hurt by the actions challenged. The system wisely recognizes our egotistical natures.

Thus, the center of every lawsuit must be the self. Yet, Paul tells us in Philippians that we are not to look out merely for our own interests but for the interests of others, regarding each other person as more important than ourself (Phil. 2:3-4). The legal system presumes that you have an interest which you wish to protect and presumes that someone else, not you, will be looking after the interests of the other party.

In the processing of a lawsuit, it is the attorney’s responsibility to use every legitimate effort to win on behalf of the client. Anything less is said to betray both the client and the legal system. Indeed, as legal counsel, the attorney must resolve all doubts about both fact and law in the client’s favor and must present the case in the light most favorable to the client. Note that it is not an attorney’s responsibility to seek truth, justice, or reconciliation. The goal is to win, and the entire premise upon which the adversary system rests is that if the attorney represents the client in this manner the trier of fact will find the truth. Whether or not this indeed occurs is debatable and has been {18} debated for centuries without resolution. It is important to recognize the premise upon which the system operates so that we can all understand that the adversarial court system and reconciliation are contradictory. In fact the two forces move in opposite directions. The attorney’s duty of zealous representation emphasizes the self and increases the chances that others will be harmed or forced to sacrifice self, especially in order to preserve our relationships with others. In light of this understanding, we must ask whether we are seeking to advance our own interests or the interests of the Kingdom.

Jesus also had some strong words of direction for conflict resolution between Christians and about the use of the established legal system for such disputes. The scriptures tell us that we dare not sue one another and that our initial question before filing any action must be “why not rather be defrauded?” (1 Cor. 6:1-7). Matthew 18:15-20 sets forth a three step process by which reconciliation is to be sought among Christian brothers (and sisters). Not one step involves taking the adversarial role described above and mandated by the modern judicial system.

A second characteristic of modern law practice, which again illustrates the clear distinction between the principles operating in biblical justice and those in modern justice seeking, restricts the considerations which may be included in the final decision of litigation, be it that of jury or judge. Every lawsuit involves a jury or a judge who acts as the ultimate finder of fact. Although the jury or judge is allowed to draw on personal experience in reaching a conclusion, that experience may only be used to determine what conclusion logically flows from the facts presented. The evidence, the facts, and the inference which can be drawn from those facts is not defined by the judge, or by society at large, but by the parties themselves. Remember that the parties, through their respective counsel, are located as far from each other as possible.

There are three basic methods of dispute resolution. More accurately, the majority of the alternatives discussed below are methods for facilitating peacemaking and may not, in a particular instance, resolve dispute, because reconciliation comes from within and not from without.

ALTERNATIVES TO THE ADVERSARY SYSTEM

Mediation

The first and most informal method utilized in non-litigious {19} dispute resolution is mediation. Meditation is regularly used in domestic disputes and in labor-negotiation is often made mandatory by an applicable statute and many other areas of the law. The role of mediator is that of facilitator. The mediator helps the parties break beyond their own self-interests, listens with open mind to each side’s position, and says with clarity what is needed or desired in order to resolve the conflict at hand. This is an important function, for in most conflict situations the messages sent are not what were intended, are not received as sent, and do not accurately describe the resolution desired. It is my experience that individuals frequently will be uncertain of what is wanted or needed to obtain a sense of peace, and sometimes a potential plaintiff will want nothing more than to get “even,” although the individual may honestly be unaware that he or she seeks such a self serving goal.

The mediator makes no findings, no decisions, draws no conclusions, and has no legal authority which can be wielded. Yet the guiding influence of a good mediator can be a valuable tool for finding the right solution to a difficult emotion-packed problem, thereby allowing the continuation of the relationship placed in jeopardy by the conflict. Professional mediators are used in labor relations during the collective bargaining process. Federal labor legislation recognized the ongoing nature of the relationship between management and labor and saw the need to keep the relationship as healthy as possible. Mediation allows parties to address narrow conflicting issues, deal with soaring emotions and personal interests, and reach resolution. When resolution is reached and hurts have been addressed, forgiveness, healing and growth can occur. The key to successful mediation is to accept the principle that relationships must be continued and to commit oneself to that process. Without the commitment, mediation fails. While the necessary commitment may be optional for society, since mediators can not legally bind, it is mandatory for those following the cross.

Fact-finding

Fact-finding is a process by which a neutral person is called in to resolve disputes as to facts, not to determine the ultimate conclusion or resolution. Often we can agree with one another about the right conclusion to be drawn if we can first agree on the facts needed to reach that conclusion. For example, we may all agree that if I am obligated to pay you a given sum, and I fail {20} to do so, you are entitled to collect that amount of money. The question, however, is whether I am so obligated. A fact-finder will listen to the evidence presented and determine whether or not I paid you the entire amount due previously, whether or not your performance was adequate thereby giving rise to my obligation to pay, whether or not you agreed to give me a discount, whether I agreed to pay shipping charges, and so on. The “facts” may not be clear because we are looking at them only from our vantage point or because we are not listening carefully to what the other is saying. Once the facts have been established, the conclusion follows and reconciliation begins. Fact-finding can thus facilitate reconciliation where the parties are having difficulty understanding what happened and not in determining what is a just resolution. Reconciliation must still come from the individual’s heart, attitudes, and commitment.

Arbitration

Arbitration is the process with which I am most familiar because, as a labor attorney, a great many of the clients I represent have contractually agreed to submit conflicts to final and binding arbitration. The arbitration process is informal yet legally binding on the parties who have submitted the conflict to the arbitrator. The neutral arbitrator is one selected, or agreed to, by the parties to the conflict. The arbitrator listens to the story as presented by both sides, determines the facts, draws a conclusion, and structures a remedy intended to resolve the dispute and reconcile the parties. The arbitrator’s decision is in most cases enforceable by the courts. Although the arbitrator cannot award forgiveness and reconciliation, the process is far less damaging to the troubled relationship than is litigation. Unlike litigation, arbitration is more expeditious and thus does not feed the fires of indignation and pain.

The arbitration process requires that each side present its story once, make its arguments, and then let the arbitrator reflect on the evidence presented and the parties’ relationship, and determine the best remedy for the situation. There is no continuous exchange of “best shots” and argument as in the lengthy law and motion pretrial process. Arbitrators also have a much broader collection of remedies to the conflict. If an established remedy is not suitable for the situation, the arbitrator is free to fashion a unique remedy especially suited to the parties. In addition, an arbitrator may apportion fault, finding both parties {21} responsible for the conflict at hand.

Judicial arbitration, being distinct from contractual arbitration, is available to civil litigants in some jurisdictions and in some circumstances. The similarities between the two vary, as do the differences. The availability of judicial arbitration is worth pursuing in all cases and local legal counsel should be consulted.

THE KEY IS COMMITMENT

As in all of these alternative methods of dispute resolution, arbitration will result in reconciliation and renewed relationships only if the parties involved are committed to that end. Forgive-ness and love are conditions of the heart and cannot be legally or legislatively mandated. The examples discussed above are attempts by a complex and over-burdened legal system to address problems once dealt with in a purely adversarial way. Christians continue to use these methods and others to bring peace and reconciliation to a society torn with conflict. Victim-offender ministries, community forums and neighborhood discussion groups, Christian conciliation services, and urban ministries all offer opportunities to seek peace through biblical methods. Many can join in the effort, becoming peacemakers through volunteer involvement.

The key to dispute resolution, whatever the method, is commitment—commitment to the relationship, to the person with whom conflict exists, and to the teachings and life of Jesus Christ. Understanding the true nature of the existing American legal system and the alternatives available can help in fulfilling that commitment. “Blessed are the peacemakers, for they shall be called the sons of God.”

Joby Dupuis is an attorney in Labor Law practice and an active member of the Butler Avenue Mennonite Brethren Church.

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