What do ‘lay’ people know about justice? An empirical enquiry

Abstract

When mediation places decision-making power in the hands of lay disputants it raises troubling issues. Can justice be delivered without judicial assistance? What is the effect on the legal system? And how should outcomes thus achieved be regarded? Critics have tended to answer negatively, pointing to a range of harms including individual oppression and the vanishing trial. Such views, focusing too narrowly on conformity to legal norms, overlook ordinary people's capacity for justice reasoning. A recent Scottish pilot study of small-claims mediation parties illustrates the richness and complexity of their thinking around whether, and for how much, to settle. This suggests that mediation settlements, rather than representing second-class justice, may enhance the legitimacy of the legal system. Implications for theories of justice are considered.

Trends in the development of accessibility to civil rights protection

“…There should be mentioned a very important point regarding the professionalism of those who use alternative methods, since this is what determines the maximum positive effect of the procedure [12][13][14].…”

Full issue

“…Parties in dispute may hold a variety of extrajudicial needs beyond legal remedies that they may seek to prioritize (Relis 2009) which may be achieved within mediation. Equally, recent research suggests that Vol 4, No 1 (2022) lay participants in mediation may be able to determine their own sense of justice in outcomes rendered in the process (Irvine 2020).…”

Designing mediation for Scottish Civil Courts: Options and opportunity

“…Irvine has subsequently written about the potential that user views can bring to the design of dispute resolution options, noting the scope for co-constructing both process and outcomes (Irvine, 2020). In parallel we need to acknowledge that by educating and exposing people to methods of resolving their own disputes we should see further decline in numbers embarking on civil litigation or seeking outcomes required from civil litigation (McEntegart, 2019).…”

“…Some of the stakeholders who stand to be affected by the proposals have been identified, although not in a capacity to engage as a representative or spokesperson for their stakeholder group. However, without even wider attention to the needs of the disputants (as explored by Irvine, 2020), the risk still arises that the context is considered through a legal establishment lens with the court as the starting point rather than the endpoint.…”

“…These differing angles give a depth of field to understanding the environment in Scotland in which changes in practice and policy would require to be implemented. Viewed from these angles this article notes a convergence of interests and concludes that there could be productive coexistence (Irvine, 2020) between civil justice norms and mediation within Scotland. If it can be the subject of robust and open discussion, it can be promoted in a way that meets policy aims and theoretical challenges.…”