Informalism vs Formalism in Civil Justice | Study Guides, Projects, Research Law

INFORMALISM V FORMALISM

Reconceptualization of civil justice

Information – private systems, informality, very few/no rules, consensual, full party control.

Formalism – state providing a process through which institutions are responsible for laws and rules.

The process is public and accountable to society.

Roberts & Palmer – there’s movement away from traditional litigation towards informal processes.

State encourages informal processes and as a result, informal system supporters are pitted against

informalists.

Debate between the two concepts grew out of a need to improve access to justice for those who

couldn’t use the court system to vindicate their rights.

The role of the state in dispute is in its public sphere while other forms of dispute resolution belong

within the private sphere.

Critiques of formalism

Abel – emergence of annexed ADR represents an expansion of state power from the public into the

private sphere. Through this sponsorship, the state shows its domination. It’s a movement to supress

conflict, it’s not promoted as a way to ensure societal values are protected and enforced.

By promoting informalism, states are making litigants vulnerable as there are no procedural

safeguards.

Fiss – movement towards informalism impacts society and the marginalised. Informal justice assumes

everyone is equal which is not the case so settlement is not as a result of real bargaining. The less

powerful feel the need to compromise because they have no other choice. Informalism undermines the

evolution/development of societal values so norms will stop developing.

Moffit – same critical issues of access, power imbalances and costs apply to private justice as well.

There’s blurring of lines between settlement and adjudication.

Concept of justice

Lord Woolf – settlement is justice

Roberts – is justice what is done to you or what can do for yourself?

Genn – concept of justice and adjudication is different. Adjudication is not about substantive justice,

mediation is only about settlement and not justice.

Sen – is justice punitive, restorative, popular or procedural?

Roberts – movement away from court. CPR equates settlement to justice.

Quotes

Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Dispute

Resolution (2005)

Ideals of informal justice: non-bureaucratic, relies on local languages, outside scope of law,

vague procedure, intent on promoting harmony. Formal justice: bureaucratic, professionals

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INFORMALISM V FORMALISM

Reconceptualization of civil justice Information – private systems, informality, very few/no rules, consensual, full party control. Formalism – state providing a process through which institutions are responsible for laws and rules. The process is public and accountable to society. Roberts & Palmer – there’s movement away from traditional litigation towards informal processes. State encourages informal processes and as a result, informal system supporters are pitted against informalists. Debate between the two concepts grew out of a need to improve access to justice for those who couldn’t use the court system to vindicate their rights. The role of the state in dispute is in its public sphere while other forms of dispute resolution belong within the private sphere. Critiques of formalism Abel – emergence of annexed ADR represents an expansion of state power from the public into the private sphere. Through this sponsorship, the state shows its domination. It’s a movement to supress conflict, it’s not promoted as a way to ensure societal values are protected and enforced. By promoting informalism, states are making litigants vulnerable as there are no procedural safeguards. Fiss – movement towards informalism impacts society and the marginalised. Informal justice assumes everyone is equal which is not the case so settlement is not as a result of real bargaining. The less powerful feel the need to compromise because they have no other choice. Informalism undermines the evolution/development of societal values so norms will stop developing. Moffit – same critical issues of access, power imbalances and costs apply to private justice as well. There’s blurring of lines between settlement and adjudication. Concept of justice Lord Woolf – settlement is justice Roberts – is justice what is done to you or what can do for yourself? Genn – concept of justice and adjudication is different. Adjudication is not about substantive justice, mediation is only about settlement and not justice. Sen – is justice punitive, restorative, popular or procedural? Roberts – movement away from court. CPR equates settlement to justice. Quotes Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Dispute Resolution (2005)  Ideals of informal justice: non-bureaucratic, relies on local languages, outside scope of law, vague procedure, intent on promoting harmony. Formal justice: bureaucratic, professionals

with expert knowledge, impartial + publicly available, clear + fair procedures, coercive authority of state.  State was provider of justice in order to control people e.g. Imperial China + legalists wanted strong state, comprehensive rules with courts to enforce them.  Sarkin – traditional Gacaca courts in Rwanda used to ease burden on courts + apply justice. Community based dispute resolution, healing, cheap and accessible.  Merry & Milner – emergence of SFCB was an example of community mediation. Problems of interest/right are transformed into issues of feelings + relationships.  Auerbach – neighbourhood justice centres were sponsored by DoJ, referrals came from judges. Relations with court officials determined identity of claimants + nature of disputes. Evidence emerged that these centres were just lesser courts. Referrals deprived centres of independence e.g. Dorchester Baltimore – racial tensions.  Bok – law schools train students more for conflict than for the gentler arts of reconciliation + accommodation.  McThenia & Shaffer – ADR is not an avoidance of conflict or a truce. It’s a process of reconciliation where anger of broken relationships is confronted.  Lord Woolf – power of courts has fallen behind aggressive tactics of some litigators. Settlement is for the benefit of the court and the parties. Owen Fiss “Against Settlement” (1984)  Settlement is a truce, less costly and has consent of parties but shouldn’t be institutionalised. Highly problematic + deprives parties of justice.  Settlement is wrong because: o Imbalance of power: it assumes all parties are equal. But difference in resources affects (a) information gathering ability, (b) forces poor party to settle because the poorer party needs money immediately instead of waiting for long trial, (c) forces poorer party to settle because they have no funding to finance litigation. It also influences the quality of representation. o Absence of authoritative consent: lawyers representing clients can act in own best interest and not in the interest of clients. For big organisations, we don’t know who has the power to speak for them. The CEO may want to settle to avoid embarrassment because of management practices, but this info may be important for shareholders. o No continuing judicial involvement: court may not have the power to intervene after settlement or there’s no appeal mechanism for parties once settlement is complete.  Adjudication is good because it helps give force to values in authoritative texts e.g. the constitution.  Settlement deprives court of opportunity to exercise duty of interpretation, this means no justice for parties because of no interpretation.  Two-track strategy – even though cases are being settled, court is still being overwhelmed  Proponents for + against ADR have a difference in understanding the purpose of civil law suit and its place in society. Owen M Fiss – ‘The History of an Idea’ (2009)  Purpose of adjudication is justice and the judicial process helps achieve this purpose.  Settlement produces a fragile and temporary peace. Even though peace is a pre-condition of justice, it’s not justice itself.  Did Clerkship under Thurgood Marshall and worked on Brown v Board of Education which desegregated schools in America. Probably why he’s against settlement. Kenneth R Feinberg – ‘Re-examining the Argument in Owen M. Fiss, against Settlement’ (2009)  Biggest challenge of Against Settlement is inefficiency of civil justice system: vanishing trial, consumers don’t like high costs, uncertainties and delays.

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INFORMALISM V FORMALISM