final guide - INAD When two people fall into a dispute they...

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INAD When two people fall into a dispute, they should try to resolve it themselves, but if they cannot do so then they will have to go to the third person. This creates the prototypical courts : 1) An independent judge applying 2) Preexisting legal norms 3) After adversary proceeding in order to achieve 4) A dichotomous decision in which one of the parties is ruled winner or loser. This prototypical court is across culture line. This prototypical court has a problem, and that is the problem of two against one. When the triad is still in process, there is no problem at all since each party is still independent of each other. But one the decision is rendered, the problems of two against one appears. To the loser, there is no justice or logic of two against one. Example of Consent in Roman law: the two parties would choose a preexisting norm, and both choose the judge. Judges are part of the government; judges are involved in order to inject a form of public policy/form of social control. Judges do deny making the decision, saying that he is just applying the law in order to avoid the two against one image. So in turn, consent stills exist and the loser cannot claim injustice because he has consent to the law that governs the case and the judge who decides the case. Substitution: we substitutes law for consent, which we never consented in the first place. We also substitutes judges for the independent third parties, who work for the government. If a judge is deciding cases according to law, implemting to law, he is not inde[pedent, he is depedent of the law. Judges will be controlled by the government. He is an agent of the people who made the law, doing what they tell him to do. Retail v. Whole sale. In addition, the judges can also go further to say that I am not the one who hates you and I am not the one who is negative to your interest, I am simply do what has been the norms. The norm is against you. In addition to Consent, THE MEDIATING CONTINUUM is added as well. And it goes as follow:
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Go between-mediator-arbitrator-judge! The Go-between : This is known as the good officers, he goes between the two parties, provide communication, and operate in a pure consent, pure mediate-solution situation. He cannot do his job unless both parties consented for his involvement and if only the solution reached is the product of free negotiation between the parties and satisfied both of them. But in reality, the go- between might as well “rephrase” the messages that he delivers. He might add to that his own interest, and he might weaken or improve the bargaining position of one or the other. The mediator : operate only with the consent of both parties. He may not impose solutions, but is employed both as a buffer between the parties and as an inventor of mediate solutions. Mediator vs. Arbitrator
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This note was uploaded on 05/29/2008 for the course LEGALST 179 taught by Professor Shapiro during the Spring '08 term at Berkeley.

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final guide - INAD When two people fall into a dispute they...

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