Dr. Christopher W. Smithmyer
We are now in the third week of the United States partial government shutdown and this is the first week where people are actually going to start to suffer because paychecks will not be going out. If history has taught us anything, the Government is good at two things: defending the country and collecting taxes. Anything else that the government tries its hand intends to, in the best case, end in mixed results. While this government shutdown is only partial, meaning that only “non-essential” workers are being locked out, we need to have some concern about why the government is involved in some of these “non-essential” industries anyway.
One of the biggest concerns about the government shutdown is the classifications used by Congress who receives a paycheck and who does not. Not surprisingly, Congressional representatives, Senators and their aids all will continue to receive paychecks. So do judges, who of course would be hearing any cases on the government shutdown. People who deserve their paychecks (i.e. people who are doing their jobs, include the military, guards of federal property, the post offices, public safety workers, national security workers and of course, the partial staff at the IRS. There are also the prisons, medical personnel (partial), air traffic controllers, border control and banking regulators who continue to receive a paycheck. So with the exception of Congress, the essential work of the United States government continues.
The question then becomes, “who does not get paid?” The national park service will close most of the national park system and the museums which it oversees. The environmental protection agency will close most of its offices (though some will remain open for emergencies). NASA, the Labor Department (including OSHA) and E-verify will all cease to function at capacity. Non-medical veterans benefits (education and training) will be discontinued and payments to veterans could be halted if the shutdown continues more than a few weeks. State unemployment funding is in jeopardy with a long shut down and we will also see that the small business administration will not be issuing any new loans. However, perhaps the most disruptive (over the long term) shutdown within the government is the shut down of the civil portion of the justice department, which means major civil rights, international business cases, and interstate commerce cases will not be heard.
When most people look at the court system in the United States, they think of the criminal justice system. According to PrisonPolicy.org, nearly 2.3 million people are currently incarcerated in the United States prison system. This en-mass warehousing of human beings draws most of the headlines when it comes to United States court policy; however, the Justice Department reports that civil cases in the United States Federal Courts are on the rise. In 2017 alone, there was a 6% increase in the number of civil case filings. If these trends followed through into 2018m then the backlog of cases under the government shutdown will only complicate our bloated court system! It is clear that the United States cannot rely on the federal (or state) civil court system as a “method of the first review.” There are better, more modern, techniques to deal with our epidemic of court cases in the United States and the government shutdown is showing us how vital it is to shift to more reasonable methodologies.
One of the easiest transitions for the Federal (and state) Civil court system to make would be to require that all civil cases be heard by an arbitrator. Arbitration is a process of “private” court. The scope of arbitration is dictated by the scope of the matter before the arbitrator, guided by any contracts and the binding law in the area. As a general rule, the arbitrator looks first at the contract (if there is one) then, if a finding cannot be reached by the contract alone, he or she looks at the law in the area as presented by the parties to the case. This system of private law gives the parties the ability to define the scope of the case and keep the matter private. Arbitration also boasts to be faster than the court system (as the courts must wait till the docket clears but an arbitration simply requires the arbitrator have time to hear the case), it is less expensive (courts must maintain buildings, judges, custodial staff, stenographers, guards, clerical staff and of course clerks and attorneys, while arbitration simply costs the fee of the arbitrator. Most court cases require both parties, their attorneys and the judge to be present at a courthouse, while arbitration can be conducted online via secure platforms such as Brāv.org. Finally, for those who are afraid of the “private court” process, arbitration can always be appealed to a public court if the ruling of the arbitrator is in error or there were problems with the process. During this government shut down, we see the added benefit of those who chose arbitration are getting their cases heard, while those who are relying on the antiquated court system are doing without access to proper justice.
An even more progressive (and cost-effective) solution is requiring all cases to go to mediation before they have access to the court system. Mediation is a process that allows the parties to resolve their dispute with the assistance of a skilled third-party neutral. Unlike arbitration, the mediator does not make a decision in the case, rather, the mediator helps the parties reach their own solution to the problem. Since the litigants in the most civil case are adults, the mediation process allows the parties to retain control over their lives by not only choosing a resolution which suits all parties but also by scheduling the case on their own terms. By and large, mediation is less expensive than arbitration and the cost is split equally between the parties. Once again, more control is in the hands of the parties as the cost is based on how long the session is, the faster the “adults in the room” settle the less expensive the case is. Mediate.com reports that for a small claims case (which are the least expensive type of court cases) mediation cost approximately $800 (split between the parties, whereas a small claims case can cost upwards of $2000 per party (follow the link to see price breakdown).
The chief benefit of moving civil cases, both federal and state, to the Alternative Dispute Resolution (ADR)/ Online Conflict Management (OCM) area is that it takes individual’s cases out of a bloated, backlogged court system and places access to justice in the individual’s hands. Both arbitration and mediation give people control over their lives, rather than allowing a judge or jury to dictate how “they should be living.” If mediation and arbitration do not work (which happens in a very small percentage of cases) people still have access to the courts as a “second chance” to seek justice. The ADR/OCM process is a win-win scenario for everyone: for the parties it gives them control over their lives, for the attorneys it allows them to do more cases because they are not cutting through all the red tape of the courts, for the courts it lowers the backlog and allows them to deal with criminal cases, for the tax pay, we do not have to pay for other people’s disputes.
While the government remains shut down because of the incompetence of government officials who place the priorities of politics above the livelihoods of the American people, we have an opportunity to tell our elected representatives that we want a better system. Take the few minutes to write a letter to a representative or call your senator (state or federal) and tell them that you are tired of people’s lives being put on hold because of partisan bickering in Washington. Tell them the importance of the civil court system to the lives of millions of people who use it for access to justice each year. And finally tell them that people’s lives should not be held hostage by government shutdowns and that the civil code needs to be changed to allow ADR/OCM as a first choice, rather than an alternative when people bring an issue before the government.
The number for the capital switchboard is 202-224-3121.
For instructions to write letters to your congressional representative or senator click here.
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