NCJ Number
98557
Date Published
1984
Length
10 pages
Annotation
The implications of how a dispute is defined for the disputants and by whom (third-party judge versus third-party mediator) are discussed with reference to criminal and civil cases.
Abstract
The greatest difference between a judge and a mediator is evident in the area of controlling the definition of a dispute. The judge can simply define the dispute as he/she sees it; whereas the mediator allows for greater participation by the disputants in the process of definition. An examination of criminal cases indicates that most are resolved through negotiation in lawyers' offices or judges' chambers, where issues of defining a case are resolved. In civil cases, such as consumer complaints and divorce, definition of the dispute may provide advantage to one or the other party. Another important issue in how cases are defined revolves around social norms and values implicit in the definition. For example, calling an incident a 'family fight' would divert it from the legal system, while categorizing it as 'domestic violence' implies that the case is not just a private family matter. When a case is given access to the legal system, it creates new legal norms that incorporates social values involved in individual disputes. In so doing, the political system is reinforced. Alternative processes, by privatizing disputes, may not publically address the political issues involved. The virtue of the court system is its public nature and its ability to address the social implications of a case. An appended discussion focuses on the lawyers' role in divorce case dispute definition.