By John L. Collins
The entire legal profession, lawyers, judges, law teacher, has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflict. For many claims, trial by adversarial contest must in time go the way of the ancient trial by battle of blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. [Emphasis added.]
—Chief Justice Warren Burger
Martin Luther King Jr. emphasized that 'True peace is not merely the absence of some negative force — tension, confusion or war; it is the presence of some positive force.' The great strength of his message can be found not only in its application to the enormously important issues of social injustice he sought to address through non-violent means, but also in the everyday issues facing us as individuals and as a society.
Dr. King emphasized the importance of working for the higher good for both sides. The question is whether his advice can also provide us guidance in our approach to conflict resolution within the court system. I believe it can.
The court system has long focused on the adversarial model. The theory is that with each side of a dispute vigorously presenting their view, truth and the right decision will emerge. While this system has its value in many types of disputes, the courts are finding more and more that the adversarial approach also has its destructive side effects. In no other area is this more dramatic than the area of domestic relations. Here, parents who engage in adversarial battles for custody of children can emerge with a continuing need to 'do war' with the other parent that will cripple their ability to cooperate in a plan for their individual roles as parents. Parents who put on the boxing gloves are often unable to put them down and cooperate in a plan to provide parenting to children who look to both parents for love, guidance and support.
Dr. King advocated five elements to non-violent resistance that can be applied here. First, he noted it takes strength and courage. Adversarial battles can be the easier route to a decision made by a judge. Parents present the best of themselves and the worst of the other and let the judge decide. In mediation the parents reach a resolution together. They must overcome obstacles, not create them. Those obstacles not only impede resolution of the immediate issues, but also will become obstacles to the cooperation of the parties in the future. It takes moral courage to truly put the interest of children first. It must be done, however, for the sake of the children as well as the parents.
Second, constructive dispute resolution should not involve an effort to humiliate the other side. Dr. King believed that the aftermath of conflict can be tragic bitterness, while peaceful resolution can bring about a mutual commitment to the higher good.
Third, the effort must be to overcome the underlying problem, not merely to defeat the other person. The adversarial system is classically aimed at 'winning.' The underlying problems don’t get addressed, and in the case of parents, the children suffer as a consequence.
Fourth, constructive dispute resolution should not build negative forces either in the form of external violence, or internal violence of spirit. Bitterness only empowers these forces and the urge to retaliate.
Fifth, meaningful dispute resolution will demonstrate the conviction that the universe is friendly and that it can operate to the higher good and on the side of what is the best in people.
Martin Luther King gave us a vision of social justice for our society. It requires individual as well as collective effort in our daily lives. The 'Justice 2020' vision and plan for how courts should operate in the year 2020 also gives the courts direction on how to reshape the system of dispute resolution that is at the heart of the court system. A broad range of alternative dispute resolution techniques is being made available across the state, with adversarial litigation as a last resort in many cases. The Justice 2020 vision applies not only to domestic relations, but also to many other types of civil and domestic disputes. It is not the critical overriding plan for social justice called for by Martin Luther King, but it is a piece of the pie and something we can apply individually in our work and in our individual lives to resolve disputes.
© 2004 John L. Collins
ABOUT THE AUTHOR
John L. Collins is the presiding judge of the Yamhill County Circuit Court. He is a past president of the Oregon Circuit Judges Association.