Are people getting to tell their stories in court?

Holla! I blog in peace.

 

It has been a busy year and I have taken a few days “off” at our family cottage in Salt Rock with my seven year old son, Luc-Michael, my niece, Gemma and my parents and one of my (four!!!!) brothers. We will be joined later this week by my husband, Mike and two of my brothers. My baby brother is currently living it up inNew York Cityfor the Christmas Holidays. Any single ladies under thirty follow him on twitter @seanost. Don’t tell him I gave you his handle! My beautiful twelve year old daughter Che’ is also in theUSAfor the holidays, with her father, my ex-husband. She is loving the snow.

 

Allow me to start off on an impressive note. I joined a swimming squad for the holidays to keep up my training, and because I am doing Open Water champs on Sunday. Oh yes, and because I am THAT committed….to chocolate. Boom!

 

Plans this morning to go and train and then go snorkelling were thwarted by a flooded pool and an angry sea post last night’s Frankenstorm. People still just don’t get that Gangnam Style is a giant raindance and that it should be stopped!

 

But I blog this morning over more serious issues, and I blog in peace. Peace in a storm is the beginning of victory, and peace accessed through courage disarms the enemy. So what is the enemy? My estimation is that the enemy is anything or anyone that perverts or thwarts access to justice.

 

Please hear me, this blog is not intended to stand as pseudo-academic research, neither does it necessarily mirror the stance we take in our Programs or what we teach our mediators. However it is a powerful platform for contemplation and for building on what we know and have learnt.

 

I should be relaxing and taking some down time, but before I do this, I need to get something off my chest. Something seriously significant!

 

We all know court is a contest, right? We know that the win is largely based on the genius (or lack thereof) of lawyers, right? This means that access to justice can be quite closely associated with levels of affordability.

 

However, it gets worse, disputants (the state, victims, offenders, plaintiff’s, defendant’s and so on) are being shut down. They are being silenced!

 

That’s crazy, Sheena, what do you mean?

 

I mean this, in court, testimony (yes, that’s people’s stories) is clinically filtered through artificial rules of admissibility. For example, just because something is hearsay does not mean it is inherently not true. Yes, it may be unreliable, but not necessarily inherently so. Yet judicial officers apply the rule of admissibility expansively and shut down evidence before it is even heard and it may be that other evidence may stack up in corroboration. It may also be that the evidence, although it may not necessarily true affected a party’s perception. Evidence is disallowed and blocked left right and centre and people are not authentically telling their stories. How can this possibly be the best platform for access to justice?

 

In contemplating this I researched the origin of rules of admissibility and my preliminary research seems to indicate that artificial inadmissibility rules or evidence were designed for systems presided over by juries-yes, lay people. A free system of evidence should apply to matters presided over by judicial officers schooled in the law. Yes, people should tell their stories as fully and as authentically as possible and the issue should be weight rather than admissibility. In other words the judge applies his or her mind to all the evidence as a whole and then makes an assessment on what does and does not stack up.

 

One of the corner stones of a fair trial is the right to be heard, to tell your story (your testimony)

 

This is a big fight, one I am prepared to take up. And I am doing just that. I will write about this more fully in the future.

 

In the meantime, it bolsters our view that mediation is a powerful platform and a more appropriate one for access to justice. This is where people get to tell their stories, this is where forgiveness, restoration, restitution and collaboration takes place. This is an access point to commence the process of stopping damaging cycles that simply spiral individuals downwards into a perpetual win-lose (which most often looks more like lose-lose) situation.

 

This insanity must stop! Help us take up the cause of Alternative Dispute Resolution. Together we can make justice look more how it should look.

 

To join one of our Programs, please ask for an information pack by sending an email to adr@mediatorsa.co.za. 2012 fees apply to 15 December.

 

To join our panel please email us on info@mediatorsa.co.za

 

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To engage with me please email sheena@mediatorsa.co.za or follow me on Twitter @sheena_ostjon.

 

I had an amazing meeting with the Minister of Traditional Affairs last week and we are set to make representations to the House of Traditional Leaders in Parliament. I honour and thank Chief Zibi of the Hlube tribe for assisting us in this.

 

We have for judges coming out fromTanzanianext week and we will be training them in Commercial Dispute Resolution and helping them to address challenges they are having in their country. We honour and thank Jemima Kariri of Jeyax for providing this platform.

 

My colleagues and I also have meetings with Ethiopian authorities next week and I am waiting for confirmation on a meeting with one of my personal heroes, George Bizos.

 

Enjoy your holiday if you are taking one. Savour the magic of this time. You will no doubt hear from me again before Christmas.

 

Until then, please know that nothing will deter us from contending for peace and access to justice for all. Victory is certain.

 

Later! Peace!

 

Regards

Sheena Jonker

sheena@mediatorsa.co.za

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