Civil Justice System Research Articles

Alternative dispute resolution methods in turkish law and Mediation

One of the priority directions of legal reform at the present stage of development is the improvement of the system of application of alternative means of dispute resolution, designed to effectively and promptly ensure the resolution of disputes arising in civil law and related spheres of society in the process of building a democratic rule of law. To resolve the issues of the dispute, the subjects, the participants must come to a compromise in order to satisfy the requirements for each other. This issue is relevant for all countries of the world, which, to a greater or lesser extent, carry out transformations of civil justice systems for various periods of time. In this regard, it is obvious that today, both in developed and developing countries, significant experience has been formed and accumulated in reforming this area, which can form the basis of similar transformations in Turkey and significantly contribute to facilitating ongoing reforms by avoiding other people's mistakes and using mechanisms to obtain positive results. Keywords: reform, disputes, civil law, subject, mediation.

Public Participation in Environmental Protection: Citizen Law Suits in the Indonesian Civil Justice System

This article discusses public participation in the Indonesian civil justice system which aims to protect the interests of the environment. Citizen Law Suit (CLS) as the right to a good and healthy environment as a constitutional right guaranteed by the state. As a right of lawsuit, CLS is filed in a civil court which has the principle of legitimacy standi in yudisio (everyone can be a legitimate party in the trial), as long as they have sufficient legal interest (point d’interet, point d’action (have sufficient legal interest) to file a claim) by proving the argument or posita with evidence. This is different from CLS which does not base its claim on personal interests, but based on interests as citizens who have the right to a good and healthy environment with the claim in the petition that is improvement of government performance on a good and healthy environment The approach method used is a conceptual approach, departing from the idea that social ecological justice (eco-social) is inherent as the right to a good and healthy environment is a citizen’s human right. In the results and discussion shows that a civil justice system that does not recognize al CLS, starting to accept CLS based on the judge’s legal discovery (rechtsvinding) and overriding the point d’interet, point d’action principle.

Jury Strikes Back

Ontario’s civil jury system has been the topic of many discussions about reform. However, none of these explorations contemplated the drastic effects of ever-evolving public health emergency. The COVID-19 pandemic has heightened Ontario’s access to civil justice crisis through extensive pandemic delays, while simultaneously challenging the role of civil jury in administering justice. Ontario consequently provides a ripe case study to explore how the pandemic has affected civil jury trials and to explore ways of enhancing their viability in a post-pandemic Ontario.
 
 This this article is concerned with advancing measures that can not only enhance the viability of civil jury trials going forward, but advance access to civil justice more generally. The purpose of this article is twofold. First, to examine how the pandemic has fundamentally challenged the viability of civil jury trials while exacerbating existing impediments to accessing civil justice. And second, to outline a multifaceted approach to reforming the jury trial to ensure it remains a viable vehicle for civil justice consistent with enhancing access to justice through the pandemic. The hope is that this article will inspire much needed exploration into Ontario’s civil justice system to address the consequences of the COVID-19 pandemic and future emergencies.

Legal Position Open and Closed Traditional Court Decisions Relating to Indigenous Land Disputes in Malamoi Sorong Region in Positive Law (Case Study Between the Clan Malibela Klawalu Against the Clan Malibela Klaifi)

The type of research used in this research is normative legal research. Whereas in civil justice system, there are norms and principles that provide space for practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution, and simplified court regardless of inconsistency and inconsistency of laws and regulations regarding the existence customary justice system in Indonesian judicial system that applies positively. The influence of the position of customary courts in the civil justice system is especially apparent in the functional relationship between customary court decisions and the settlement of civil cases in court. Therefore, to accommodate the existence of customary court decisions, in practice judges will optimize the mechanisms regulated in the civil justice system such as through mediation in court.

THIRD PARTY RESISTANCE (DERDEN VERZET) AS AN EFFORT TO SUSPEND THE EXECUTION (Case Study on Case Decision Number 118/Pdt.G/2020/PA.Kds)

<p><em>Third party resistance (derden verzet) as an extraordinary legal effort given to parties outside the litigation who feel deprived of their rights by the execution of the Court, in the civil justice system in Indonesia is still a recognized means to provide protection for third parties in office as a true opponent to suspend executions. The author conducted a study on Decision Number 118/Pdt.G/2020/PA.Kds of the Holy Religious Court regarding the derden verzet related to the execution confiscation. This study aims to find out the reasons for the resistance, to know the judge's judgment in rejecting the resistance and to know the legal protection provided for the auction winner in the presence of third party resistance. The authors examine this case using juridical-sociological research methods. Based on the research, the Author obtained the result that the Council of Judges accepted some of the lawsuits and suspended some with the consideration that the opponent was the right opponent, but in this case opponent I who confiscated the bail that had previously sold the land to the opponent by Opponent II and this is not known. by Pelawan.</em></p>

ADR and Civil Procedure: Friends or Foes?

The success gained worldwide by Alternative Dispute Resolution methods prompts a number of reflections on their pros and cons. Certainly, ADR schemes have the positive effect of reducing the caseload weighing down on courts, but, at the same time, they can undermine the role played by public justice, a role that is pivotal within the organization of legal systems abiding by the rule of law. This essay covers the consequences of the growing development of ADR for the effectiveness of our public system of civil and commercial justice and conveys the concerns of its author for the increasing privatization of dispute resolution and for the future of public justice. The main question of this work is the following: is the present enthusiasm for ADR schemes advancing the cause of civil justice or, to the contrary, it is a phenomenon that, in the long run, could undermine the role of jurisdiction?

LEGAL ASSISTANCE FOR THE POOR TO REACH JUSTICE

Legal aid to the poor has a fairly important position in every criminal, civil and administrative justice system, including Indonesia. The concept of legal aid to the poor is related to a person's rights to exercise these rights, therefore legal aid is carried out by legal experts and experienced people in order to carry out their profession. The purpose of this study is to explain legal aid for the poor to achieve justice. This research uses normative legal research which is described descriptively. The results of the study explain that legal protection is an action or effort to protect the community from arbitrary actions by authorities that are not in accordance with the rule of law, to create order and peace, thus enabling humans to enjoy their dignity as human beings. There are ten rules related to legal aid to the poor, both at the constitutional level to the law, Internal Regulations that apply to the Supreme Court and Internal Regulations that apply to the Ministry of Law and Human Rights, as a pattern and legal standing for the provision of legal aid for the poor. poor people in Indonesia. The provision of legal aid to the poor is a form of justice for the poor. The concept of legal aid to the poor is related to a person's rights to exercise their rights under the same law.

Seven Years of Accessible Justice: A Critical Assessment Of Hryniak V. Mauldin’s Culture Shift

In 2014, the Supreme Court of Canada sought to address the inaccessibility of public adjudication for “ordinary Canadians” by introducing a culture shift to civil litigation. This culture shift required participants in the civil justice system to stop viewing trial as the default adjudication method and expand use of summary judgment. In this article, I critically evaluate the Supreme Court’s reasoning for the culture shift from a jurisprudential perspective and quantitatively evaluate the endeavour’s success. I find that Alberta courts have misapplied the culture shift contrary to the Supreme Court’s intentions, that the culture shift is being implemented only on a limited basis, that summary judgment is no more accessible for ordinary Canadians, and that fairness and justice are not being preserved. I provide recommendations for alternate methods to address the accessibility problem.

Settlement of Disputes Over Indigenous Land Ownership Based on Traditional Law

The research used in this dissertation process uses a type of legal research, the way it works is researching library or secondary materials that have been collected. The civil justice system contains norms and principles that provide space for the practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution and simplified court regardless of the inconsistency of laws and regulations regarding the existence of customary justice in the power system positive Indonesian judiciary. The state and positive judicial system ideally recognize and give position to customary courts in customary law. It is not directly proportional to the lack of state power over the administration of justice and the facilitation of narrow cultural identities. Second, a positive judicial system provides recognition and position of customary justice in the national justice system, with an effort to make law (both state law and customary law) a representation of universal values, not a representation of the values of narrow interest groups.

Child welfare, Indigenous parents, and judicial mediation

AbstractCan judicial mediation within a settler state's justice system improve the experience of dealing with child welfare services for Indigenous parents? Interviews with social workers, lawyers, and judges in the Canadian province of Quebec yield little basis for optimism. Adapting judicial mediation will not suffice to decolonize dispute resolution between Indigenous individuals and the state. Mediation fits uneasily with the severe power disparity in this setting. Moreover, the cautious nature of participants’ recommendations signals the limited adaptive capacity of the settler state's system of civil justice. The recommendations exemplify relatively superficial accommodation, rather than deep engagement with legal pluralism and Indigenous difference. Constraints on the state system's ability to adapt are both legal and cultural. This study contributes to literatures on Indigenous and colonial legal cultures in relation to child welfare, on access to justice for Indigenous peoples, and on mediation in Canada and elsewhere.

Consumers' Financial Constraints, Lawsuit Decisions, and the Civil Justice System

Consumers' Financial Constraints, Lawsuit Decisions, and the Civil Justice System

A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

Применение технологии искусственного интеллекта в системе гражданского судопроизводства США

Introduction: in the era of the active introduction of digital technologies, more and more processes are being automated and smart machines are taking over the work of people. Even at the end of the 20th century, automatic spell-checking and search engines were perceived by many as “highly intelligent” information technologies. Currently, such processes have become completely trivial for most people and have given way to more advanced technologies. The intelligent face recognition systems installed in public places and airports allow you to verify a person’s identity, as well as assist in the capture of criminals. The smart assistants in mobile devices, for example, Google Maps, provide additional information about the destination (working hours, the name of the organization). However, there is more and more debate about the introduction of artificial intelligence technologies in the judicial process. Many experts in the field of information and communication technologies, as well as practicing lawyers, argue that thanks to the accumulated experience and judicial practice, it is possible to predict and make court decisions based on certain algorithms for certain categories of cases. This practice already exists in the system of alternative settlement of civil disputes. The first such decision was made by a robot mediator back in 2019 in the High Court of England and Wales. To resolve the dispute, the Smartsettle ONE system developed by the Canadian company iCan Systems was used. The use of artificial intelligence technology allowed resolving the dispute between the parties and coming to an agreement in less than an hour. The legislator approaches the issues of the introduction of artificial intelligence technology in the system of state courts more carefully. However, court cases do not always require a comprehensive individual approach to decision-making and many cases can be processed automatically, at least, partially. In this regard, it seems appropriate to explore in the paper the main opportunities and risks of using artificial intelligence through the example of the civil justice system of the United States of America. The purpose of the study is achieved by answering several questions: how can artificial intelligence be useful for courts? What mechanisms of the justice system need to be improved for the effective operation of artificial intelligence systems? What forms of artificial intelligence exist in the US civil court system? How can courts and judges work with artificial intelligence under the standards of a fair procedure for considering civil disputes? The methodology is based on a theoretical approach to the study of the most commonly used artificial intelligence technologies in the US civil justice system, as well as a number of national laws and other regulations. Based on the analysis of the theoretical data obtained, in the paper, the author analyzes the current trends and mechanisms for resolving civil disputes using artificial intelligence systems and also highlights some related problems. The results of the research can be used in determining the key goals and objectives of a procedural nature, improving the functioning of judicial and non-judicial organizations, law enforcement, research activities, as well as in teaching activities, in particular, during lectures and seminars on courses of private international law and civil procedure. Conclusions: increasing the level of awareness of participants in civil law disputes about current trends and tools for the administration of justice contributes to the development of the institution of civil proceedings, as well as contributes to increasing transparency and increasing the degree of trust of citizens in the judicial system as a whole.

Cyprus: Affordability and Accessibility of the Civil Justice System

Cyprus: Affordability and Accessibility of the Civil Justice System

THE ACCESSIBILITY AND EFFECTIVENESS OF SOUTH AFRICAN CIVIL LOWER COURTS

Although the Constitution of the Republic of South Africa, 1996 guarantees everyone the right of access to courts and civil justice, many people still find themselves in a position where they cannot access the South African justice system, specifically concerning civil legal matters. While this problem has been recognised by various academics, authors, and even Constitutional Court judges, the understanding of what this right means empirically has only recently been understood in relation to South Africa’s civil justice system. This article, therefore, concentrates on the accessibility and effectiveness of South African civil courts. The focus is on civil lower courts given that most people who are exposed to the civil justice system do so by means of the Magistrates Courts only.

Are Litigants, Trials and Precedents Vanishing After All?

AbstractIn recent years scholars have become increasingly concerned with the ‘vanishing trial’, and its impact on common law civil justice systems that rely on precedent. This article updates previous accounts of the vanishing trial in England and Wales, showing that the rapid decline which prompted earlier debate has levelled off. Against this backdrop the article goes on to discuss the production of precedent and, drawing on an analysis of seventy years of government data on civil litigation cases, contests the assumption that vanishing trials lead to a decline in precedent. It shows that, despite contra‐predictions, the number of appellate court judgments has increased while cases coming into the system and proceeding to trial have decreased. Further, it considers what House of Lords and Supreme Court data reveal about demand for precedent and the sort of cases that are taking up a greater proportion of Supreme Court time in the twenty‐first century.

Challenges to Achieving Fairness in Civil Jury Selection

This paper identifies multiple challenges that courts face to achieving fairness in the selection of juries in civil cases. Achieving representative cross-sections of the community in jury venires, and ensuring that our civil juries reflect the community as well, are essential components contributing to the fairness and legitimacy of our civil justice system. Although legal rules and practices attempt to maximize fair and representative juries, the courts encounter substantial difficulty in achieving this important goal. Problems arise in summoning citizens for jury service, in questioning them during voir dire, and in exercising peremptory and for-cause challenges. Systematic empirical research on representativeness and new psychological studies on implicit and unconscious bias raise questions about the efficacy of current jury selection procedures. This paper identifies these problems and the challenges they present for producing representative and fair juries.

The Association of Federal and State-level Firearm Restriction Policies With Intimate Partner Homicide: A Re-analysis by Race of the Victim.

Firearms present a significant risk of intimate partner homicide (IPH) among women in the United States, and Black women continue to be overrepresented among IPH fatalities. State-level firearm restrictions for individuals under domestic violence restraining orders (DVRO) and firearm restrictions for those convicted of violent misdemeanor crimes are associated with reductions in IPH. To receive these protections, individuals must engage with the civil or criminal justice system. While access to, and engagement with, these systems may differ between Black and White populations, research has yet to examine the impact of these firearm restriction laws on IPH by racial group.We conducted pooled, cross-sectional, time-series analyses to examine the association of selected firearm restriction laws on IPH by the race of the victims, from 1981 to 2013 for 45 states in the United States.State-level DVRO firearm restrictions were associated with reductions in IPH in the White population only. The inclusion of relinquishment provisions in state DVRO firearm laws is associated with an 11% reduction in IPH and a 16% reduction in firearm IPH for White, but not Black, victims. Similarly, laws prohibiting individuals convicted of violent misdemeanors from possessing firearms are associated with a 23% reduction in IPH and a 28% reduction in firearm IPH for White victims only. The federal DVRO firearm restriction law is associated with a 27% reduction in state-level IPH and a 28% reduction in firearm IPH for Black, but not White, victims.Firearm restriction laws may have a limited impact on IPH in Black populations. Future research should examine the factors behind the differential estimated impact of these laws by the race of the victims.

Designing mediation for Scottish Civil Courts: Options and opportunity

In this article, the author examines whether the dispute resolution processes proposed in 2019 for civil courts in Scotland are suitable for the context of civil justice in Scotland in 2020 and the future. They are measured according to the policy context, what is known about the purposes of litigation, dispute system design and the needs and cultures of an adversarial civil justice system currently grappling with the impact of coronavirus restrictions.

The Gender of Gideon

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality. We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence. Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases—family law, eviction, and debt collection—disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.