Traditional Court Research Articles

Mediation as an alernative way to resolve economic dispute

Recently, Ukraine has increasingly used the practice of alternative dispute resolution without the use of traditional court procedures, as the established tradition of appealing to government agencies about each conflict has led to an overload of the judiciarysystem. There is an alternative way that can improve access to justice and reduce the burden on the courts –using a method of conflict resolution such as mediation. In the countries of the Anglo-Saxon legal system - the United States, Australia, Europe mediation has been the most common alternative way of resolving disputes for a long time. In the Ukrainian scientific and legal sphere the institute of mediation is not so developed and frequently used, and currently is only at the stage of formation and development. Scientists and legislators have been working for many years to create appropriate conditions for the introduction of mediation in Ukraine: educational work on the content and benefits of mediation, development, expert analysis of draft laws on mediation, providing detailed recommendations, adopting and implementing new regulation acts, special programs are being implemented through the creation of coordination groups, institutes and mediation centers. Therefore, there is a wide range of topical issues regarding the mediation mechanism, which are subject to detailed research and require practical studying.
 This article is devoted to the study of the general principles of the introduction of mediation as an alternative way of resolving economic disputes in the conditionsof updating legislation. The article identifies the main stages of the institution of mediation in Ukraine, the concept and features of mediation as one of the alternative ways to resolve commercial disputes, analyzes national and international regulations in the field of mediation.

Remote Court Proceedings in Nigeria: Justice Online or Justice on the Line

Remote court proceeding (RCP) is in its developing phase in Nigeria and whilst RCP is a laudable initiative, it must align with the tenets and principles of law that holds firm at traditional physical court hearings. The important goal being to achieve justice at all time. In that wise, RCP should not be a weapon that sacrifices justice for speed but that which achieves justice speedily. This paper focuses on the adoption of RCP in Nigeria, the areas in which the RCP rules may be at cross purposes with the existing traditional court room practices, conducts a risk benefit analysis of the innovation and identifies areas of improvement. A number of challenges were found to be associated with RCP particularly the admissibility of public documents and the existence of a digital divide. The paper observed the need for training and infrastructural support and recommended same amongst other recommendations.

Indigenous Conflict Management and Contemporary Water Resource Governance in Rural Zimbabwe

Indigenous conflict management has been a key feature of pre- and post-colonial African societies in managing varied community disputes related to natural resources. In Zimbabwe, the Dare, the traditional court works similarly. However, there have been few insights on the effectiveness of indigenous community-based mechanisms in managing primary water conflicts. The paper argues that although there are widespread and varied water conflicts within the rural setting, the grassroots nature, combined with simple and clear procedures of the traditional court systems makes it a viable option in managing emergent primary water conflicts at the community level. There is a need to synchronise this indigenous community-based conflict management mechanism with the state-run judicial system. However, the operation of the indigenous conflict management mechanism within the framework of competitive African politics has made it vulnerable to political intrusions. Water governance, using traditional court systems would likely benefit from equal gender representation in the decision-making structures.

THE RATIONALE BEHIND CHOOSING ARBITRATION OVER LITIGATION: A LAW & ECONOMICS PERSPECTIVE

In the contemporary globalised economy, popularity of arbitration as a dispute resolution method has amplified. It has many advantageous features such as expertise of arbitrator, speedy procedure, party autonomy, confidential proceedings, which lack in litigation, thereby making arbitration the preferred mode of dispute resolution. The growth of arbitration is also credited to its stakeholders, namely the arbitrator(s) and the parties. The stakeholders take part in arbitration to derive maximum utility for themselves. They make decisions in the process which are backed by economic considerations. Cost and incentives become the major determinants, guiding their rationale supporting ‘the choice of arbitration’. This paper studies the mechanism of arbitration through Law and Economics lens. It is divided into five parts. Part I introduces the theme and builds up conceptual framework for the ideas presented. Part II explores the incentives available to the parties to choose arbitration over litigation. Part III discusses the incentives available to arbitrator, which encourages them to constantly work on their skill to remain relevant in the highly competitive market of arbitration. This part also makes comparison between the incentives available to judges of traditional court with that of arbitrators. Part IV examines the social costs of arbitration and determines whether arbitral award is a public good or a private good. Part V concludes the paper by outlining the key findings of this study.

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.

Intelligent Legal Tech to Empower Self-Represented Litigants

Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions of billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is access to justice (“A2J”) through the use of online dispute resolution (“ODR”). This is because ODR uses technology to enable online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, landlord-tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self- represented litigants (“SRLs”) and those who cannot otherwise afford traditional litigation. Meanwhile, the COVID-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused mainly on case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module system for ODR programs and identifies gaps in development where new technologies are needed to advance A2J. Indeed, there is great room for the development of Artificial Intelligence (“AI”) and data analytics to assist SRLs and others in pursuit of remedies and justice.

Imperial Judicial Policy in the Central Asian Suburbs in the second half of the 19th – early 20th centuries: Main Forms, Directions, and Results

One of the important directions of modernization of the Central Asian outskirts of the Russian Empire was the formation of the region’s judicial system. During the second half of the 19th century, a complex configuration of regional justice was created, which was supposed to act not only as a way of coordinating social interaction but also as a means to express the political interests of the state. The purpose of the work is to identify and analyze the main forms and directions of the judicial policy of the Russian Empire in the Central Asian outskirts in the second half of the 19th – early 20th century. The judicial reform carried out in the Russian Empire in 1864 led to the implementation in the Steppe Region and Turkestan of a set of measures aimed at the re-organization of the judicial and legal system. This process reflected the orientation of the social policy towards modernization. During the reforms of the 1868, 1886, 1898, imperial judicial institutions and legal norms were imported into the region. However, the traditional court also retained significant positions. The justice system of the Central Asian outskirts did not meet the needs of society. The preservation of the People’s Court did not allow the local population of the region to be fully incorporated into the all-Russian legal space. Those processes demonstrated the incompleteness of the judicial and legal system reforms and the need for systemic modernization.
 The article is intended for specialists interested in the national policy of the Russian Empire, and the history of the Central Asian region.

Marriage, bridewealth and power: critical reflections on women's autonomy across settings in Africa.

This article examines ongoing discourses on the importance of the marriage payment and its role in constraining women's autonomy across societies in Africa. First, we review how bridewealth has been conceptualised across multiple disciplines, including the work of evolutionary human scientists. We then summarise our research grounded in residential ethnographic fieldwork data collected over a period of a year in a rural settlement in north-western Ghana. Feminist accounts on women's lived experiences throughout bridewealth practising societies point to their subordination. In some contexts, including northern Ghana, bridewealth is perceived as engendering women's oppression. To liberate women from patriarchal norms, some gender advocates call for undoing of the institution of the marriage payment. Nonetheless, the women who bear the brunt of gendered oppression and the men who derive patriarchal dividends from it are averse to this undoing discourse as the bridewealth normatively secures legitimacy for women. Undoing bridewealth may mean further rendering precarious women's status in the marital family. We conclude that rather than undoing the revered institution of bridewealth, there is need to build on culturally appropriate notions of communitarianism as encapsulated by the Ubuntu philosophy and indigenous systems such as the traditional courts for negotiating the rights of women.

Intelligent Legal Tech to Empower Self-Represented Litigants

Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice. This is a DRAFT of a working paper that will be edited and published in the Columbia Science and Technology Law Review.

Restorative justice conferencing in an environmental offending context: the role of legislation

Narrow conceptualizations of victimhood following environmental offending are slowly giving way to more inclusive understandings. Such victimhood being inclusive of individuals (living and future generations), communities (Indigenous and non-Indigenous), the environment, and commercial operators. Prosecution and traditional court processes fail to accommodate such victims, meaning the harm occasioned by environmental offending is not truly repaired. Restorative justice as an inclusive process offers hope in remedying such defect and can be embedded in court proceedings. Yet a strong legislative architecture is needed to encourage, facilitate and consider restorative justice in the context of environmental offending. Encouraged by the recent commencement of legislation in Victoria, Australia, which is facilitative of restorative justice following environmental offending, this article explores that legislation alongside that of New South Wales, Australia and New Zealand. Following appraisal, guidance is provided regarding what components effective legislation requires to encourage, facilitate and consider the use of restorative justice following environmental offending.

Legal and Ethical Issues in Designing Online Courts

This research explores and analyses whether online courts perform a judicial function in accordance with the right to a fair trial and the right to fair and secure user’s personal data protection to all groups in society. By adopting a descriptive and critical approach, the author analyses the main operating principles of online courts and legal and ethical issues that may occur in designing and implementing online courts in conjunction with these rights. The result of this research shows that online courts provide greater access to justice to society and they would satisfy the needs of modern society with technological knowledge. At the same time they do not provide access to the most vulnerable groups that may not have or have limited internet access, or have not enough technological and legal knowledge, as a result of not ensuring equal access to justice to all groups in society. Taking into account that online courts perform a judicial function in the traditional court sense, they are bound by Article 6 (1) of the European Convention on Human Rights and the principles of personal data of the General Data Protection Regulation, but at present they cannot ensure their observance in relation to an open, transparent and impartial trial, as a result of a partial violation of the rights enshrined in these norms.

The evolution of alternative dispute resolution and online dispute resolution in the European Un

The evolution of Online Dispute Resolution (ODR) as an augmentation from Alternative Dispute Resolution (ADR) may lead to an authentic paradigm shift in the way disputes are handled beyond the traditional court systems. To assess state of the art and convey awareness, this paper explores the regulatory landscape of the European Union (EU) using the United Kingdom and Estonia to illustrate the key advancements and shortcomings of the supranational strategy. It discusses the relationships between ADR capabilities and its productive use in ODR, the ODR deployment and adoption, and the consequences that may arise if dispute resolution technologies leapfrog. The paper also speaks of automation and suggests the need to build integrative models into Artificial Intelligence (AI) - powered ODR platforms. It is apparent that the early challenges in the development of the ADR culture in the EU are still unresolved, affecting the proper integration of ADR principles and ODR technologies. A more effective coupling could be expected to smooth digital trade interactions by increasing access to justice and consumer trust in the redress capacities of the Dispute Resolution System (DRS) as a whole.

Substance use treatment services utilization and outcomes among probationers in drug courts compared to a matched cohort of probationers in traditional courts.

Drug courts provide an array of substance use treatments and community-based services for probationers struggling with substance use disorders. We assessed substance use treatment services utilization and related expenditures and relapse and recidivism outcomes and identified predictors of cost of provision of substance use treatment services in a matched cohort of Massachusetts probationers in drug courts and traditional courts. This was an observational quasi-experimental study with 542 propensity-score-matched probationers initiating drug court between August 1, 2015 and February 28, 2018 and a minimum 6-month follow-up period. A significantly greater proportion of probationers in drug courts were female, self-reported opioids as their primary drug of choice, had a history of substance use treatment, and a high and very high risk of recidivism than their counterparts in traditional courts. We estimated that the provision of substance use treatment services was $1498 more expensive for probationers in drug courts than traditional courts (p = .054). There were no statistically significant differences in relapse or recidivism rates between court systems. Probationer's age, gender, risk of recidivism at court intake, and enrollment length were strong predictors of expenditures on substance use treatment services. This was the first study to assess substance use treatment services utilization and outcomes among probationers in drug courts and traditional courts. Drug courts served the needs of probationers disproportionally impacted by nonserious drug-related offenses struggling with substance use disorders who were at a high and very high risk of recidivism at court intake.

Law Science (Forensics) and COVID-19

COVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. This has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a 'tsunami' of COVID-19-related disputes predicted. This study will examine how global court responses have transitioned from being primarily traditional, face-to-face proceedings to online court processes (as supported by internet technology). By adopting a comparative approach, we will analyse how some countries have adopted to this shift to online mode while also maintaining a focus on access to justice. We argue that online modes of dispute resolution, often referred to as Online Dispute Resolution (ODR), can promote resolution while facilitating social distancing in this new COVID-era. The rapid shift from traditional court processes to an online mode has further assisted the public, lawyers and experts to access the justice system in some jurisdictions, even during the crisis. In light of the scale of recent changes, there have been concerns about the capacity of courts to adopt newer technologies as well as issues relating to the impact of a new online model of justice, particularly in terms of the barriers for more vulnerable members of society. Further, the use of disruptive technologies in some courts have posed questions around whether outcomes generated by these innovations reflect the meaning of 'justice' in its traditional sense. This article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

Online Courts: Re-Assessing Inequality in the ‘Remote’ Courtroom

This paper explores the repercussions of the virtual hearings within the context of socioeconomic inequality in the justice system. Following the imposition of ‘lockdown’ conditions in the UK in March 2020, the Courts and Tribunal Service (HMCTS) rapidly introduced an online court system resulting in thousands of hearings being swiftly transferred onto audio or video-calling platforms. This study is based on interviews with six barristers and solicitors practising in the criminal and family courts, focusing on what the online court experience can reveal about the disparity in socioeconomic status between those judging and those being judged. Conducting a thematic analysis of the interview data, I argue that the disruption to the courtroom dynamics caused by online hearings highlights tacit functions of the lawyer’s role in supporting their clients to navigate the daunting court experience and comply with courtroom customs. I ultimately conclude that concerns regarding the loss of solemnity of proceedings reveal assumptions of both the traditional and virtual court environment and suggest that further research is needed before committing to permanent technology reforms.

Alternative Dispute Resolution (ADR) Hybrid in Cameroon as a Form of Legal Protection for Consumers of Defective Products

As part of the awareness creation exercise, this paper seeks to establish that consumers of defective products in Cameroon should be exposed to the various extra-judicial channels once they can be adopted by Government and through which the consumers can enforce their rights. This is known as Alternative Dispute Resolution (ADR). The acronym ADR is a group of flexible approaches which could be applied in resolving disputes related to defective products more quickly and at a lower cost than going through the tedious road of adversarial proceedings. ADR mechanisms generally are intended to mean alternatives to the traditional court process. Their adoption will involve the use of impartial interveners who are referred to as “third parties” or “neutrals”. On the whole, the choice of a consumer redress mechanism is a choice between judicial and non-judicial mechanisms. The paper argues that, considering the difficulties encountered by the consumer within the adversarial system, the non-judicial mechanisms are more impactful and satisfactory to consumers than the judicial. It is equally argued that the judicial mechanisms depict a certain level of risk taking, that is, the risk of winning or losing and hence going without a remedy. This risk factor is much lower in the non or extra – judicial system or mechanism which reveals that in appropriate circumstances, the producers using the good customer relation basis, are minded to compensate even where the consumer’s claim is baseless. In this wise, it is therefore necessary to encourage the utilization of the extra - judicial mechanisms in resolving consumer complaints. Expediency, speed and low cost no doubt support this call.

Art-related disputes and ADR methods

The shortcomings of the traditional court system have highlighted the need for alternative means to solve art-related disputes. The purpose of this article is to analyse the benefits of ADR methods when applied to the resolution of these kind of disputes, especially in light of the growing international consensus on the subject, as emphasized by the many ADR institutions which have developed a specific area of focus for art-related disputes. Among the various advantages, the flexibility of the procedure, the international and neutral forum especially suited for disputes involving parties from different countries and cultural backgrounds, the confidentiality guaranteed to the parties, the potentially lower costs and the possibility to tailor creative solutions that can incorporate legal, cultural and ethical interests. Mediation and negotiation are very popular resolution processes, whereby the parties remain in full control of the procedure. However due to their voluntary nature, a final result cannot be guaranteed. In this sense, arbitration can be regarded as a highly recommended alternative to litigation. While still grounded upon the parties’ consent, it always culminates with a final and binding decision which could be effectively enforced almost worldwide on the basis of the 1958 New York Convention.

LEGAL CAPACITY OF PARTIES WITH INTELLECTUAL, PSYCHO-SOCIAL AND COMMUNICATION DISABILITIES IN TRADITIONAL COURTS IN KWAZULU-NATAL

According to the Committee on the Rights of Persons with Disabilities, article 12 of the Convention on the Rights of Persons with Disabilities specifies that all people everywhere have a right to equal recognition before the law and that there are no circumstances in which this right may be limited. However, General Comment 1 of the CRPD Committee indicates that globally persons with cognitive and psychosocial disabilities are frequently denied legal capacity. This article sets out to explore the current situation and legal imperatives regarding the legal capacity of persons with intellectual, psycho-social or communication disabilities in traditional courts in KwaZulu-Natal. Traditional courts operate in some rural areas of South Africa and are presided over by a chief and a traditional council. These traditional courts are the closest and cheapest dispute resolution forum in rural areas and utilise restorative justice principles. The legal test for mental and legal capacity in formal courts is not applied in traditional courts. This article reports on research conducted by an NGO in KwaZulu-Natal that found evidence of negative attitudes and a lack of knowledge regarding accessibility and reasonable accommodation among traditional leaders. In these courts, persons with disabilities are not accepted as equal before the law. In some proceedings in traditional courts, an adult with a disability (male or female) is treated as a minor and is required to be represented by a parent or a male member of the family without a disability. A short summary of pertinent aspects of the Traditional Courts Bill indicates the scope for improvement in relation to full participation and equality before the law. We submit that South Africa’s implementation of the relevant international and regional law obligations under the CRPD and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities is found wanting, including a lack of appropriate training of traditional court personnel and a lack of awareness of the equal recognition of legal capacity among families supporting persons with disabilities.

Between Court and Village: The Evolution of Aristocratic Spaces in Early Modern Spain

In May 1561, King Philip II informed the town hall of Madrid that he had chosen their town as the site for his royal residence and court. That year, the city was swiftly transformed into the Catholic king’s court and the heart of his vast monarchy. It also became the principal political and cultural space for the nobility. Yet the greatest noble houses, particularly those in Castile, were initially resistant to the establishment of a sedentary royal court and continued to exercise and represent their status at their own traditional courts. Increasingly, however, they were obliged to reside in Madrid in order to ensure direct access to the king’s grace and favour. Throughout the seventeenth century, the Spanish aristocracy became courtiers through necessity rather than conviction. In response to this situation, and without neglecting their noble estates and interests, they created their own spaces at court, and over time were able to colonize the royal capital and convert it into their own natural habitat.

Opinion: CASE Act will Harm Researchers and Freedom of Inquiry

The Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act) was swept into law during the final days of 2020 as a part of the 5,500 page federal spending bill. In theory, the CASE Act aims to provide a venue for individual creators (such as photographers, graphic artists, musicians) to address smaller copyright infringement claims without spending the time and money required to pursue a copyright infringement lawsuit in Federal court. In reality, however, this additional bureaucratic structure created outside of the traditional court system is fraught with problems that will mostly incentivize large, well-resourced rightsholders or overly litigious copyright owners to take advantage of the system. At the same time, it will confuse and harm innocuous users of content, who may not understand the complexities of copyright law, and who do not know whether or how to respond to a notice of infringement via this small claims process. From our perspective, it will chill users who rely on crucial statutory exceptions to copyright, such as fair use, in their research and teaching activities.