tag:blogger.com,1999:blog-5319616996642253456.post8184483785195580906..comments2011-03-02T07:10:56.447-05:00Comments on Mediation Stuff – John Lassey's ADR Web Log: Musings on Justice and TruthJohn Lasseyhttp://www.blogger.com/profile/15644190869922001847noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5319616996642253456.post-80002913241349373622010-01-22T06:50:14.733-05:002010-01-22T06:50:14.733-05:00I appreciate your comments, Joe, but I still think...I appreciate your comments, Joe, but I still think that the search for justice is not focused on results, but on the process. How can it be anything else? <br /><br />Most of your examples just point out the limitations of the justice system in arriving at the right --- as opposed to the just --- result from one side's viewpoint. But what is the alternative? Would justice be done if the judge ignores the Fifth Amendment and forces the defendant to tell the truth by incriminating him or herself? The bad guy might get put away, but I doubt that most of us would believe that due process was followed. How about if the judge tells the jury in a criminal case to do what they believe in their hearts is right, as opposed to determining if the prosecution has proved its case beyond a reasonable doubt? Do we seek justice by selectively writing the Fourth Amendment right against unreasonable search and seizure out of the Constitution?<br /><br />Of course the process is constantly evolving. Because of this, we are continually revising our definition of "justice." That too is part of the process. What may have been "justice" in medieval times would be regarded as barbarism today. Take, for example, the water test to determine whether the local oddball is or is not a witch. If she floats, the water has rejected her; therefore she is a witch. If she drowns, she is not a witch. <br /><br />I think we are both offering the same advice in different ways: "If you go to trial, you may not get what you want." We might get more settlements by warning litigants not to expect justice from a trial (as opposed to telling them that justice doesn't guarantee the result they want). I question, however, whether, in the end, that approach fosters a greater willingness to accept the settlement and move on.John Lasseyhttps://www.blogger.com/profile/15644190869922001847noreply@blogger.comtag:blogger.com,1999:blog-5319616996642253456.post-86485336027055650062010-01-21T13:44:00.722-05:002010-01-21T13:44:00.722-05:00I'm not sure I would define whatever happens w...I'm not sure I would define whatever happens when procedure is correctly followed as "justice." What about cases in which a critical witness is dead or outside the jurisdiction, or where some other evidence is unavailable? What about criminal cases where the prosecution cannot get a conviction because the defendant asserts his fifth amendment right not to testify, or has some evidence excluded because of an illegal search, or cannot meet its burden of proof beyond a reasonable doubt? What about cases where the jury is influenced by sympathy or prejudice? What about cases where witnesses lie or destroy evidence prior to trial, but we can't prove it? It seems to me that there are lots of times when all the rules are followed but we still get an unjust result. I prefer to tell participants in mediation not to expect justice if they take their case to trial. They might get justice, but then again, they might not.Anonymoushttps://www.blogger.com/profile/12552117060181130126noreply@blogger.com