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, plaintiffs, defendants 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 rules 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 bolsters our view that ADR methods like mediation can be 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.
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