“Trial By Forum” – A Vacuous Soundbite
Roman Forum
One thing that makes my blood boil is when people latch onto vacuous sound-bites instead of thinking about what they are saying. The latest one to hit the tracks seems to be “Trial by Forum” which is bandied about as A Bad Thing.
Civil Courts – a Trial to be Avoided
Currently I am personally involved in 2 court cases. In the most current one my solicitor has warned me that I have to go to the preliminary hearing, but that it will bore me rigid as the morning will be filled with esoteric legal arguments that I probably won’t be able to follow, and the conclusion of which, whether for or against me, will be unfair and against all notions of natural justice. My solicitor is charging me £700/Hr, his secretary charges me £150/hr for discussing his charges – one time when he phoned me he started the conversation with “How was your holiday?” – my reply, “I can’t afford to tell you”! At the preliminary hearing I will have a Barrister at the same rate too ….. The other case has a much cheaper Solicitor (£200/Hr) and hasn’t really started because I am desperately trying to find a solution that doesn’t involve going to court. That of course is the secret. One of my earliest & best solicitors described the difference between Solicitors and Barristers as – “A Barrister’s job is to represent you in Court, a Solicitor’s job is to prevent you going to Court”.
The fact is that the Civil Court process is designed to draw a line under a dispute where every other option has failed. There are rarely any winners (among the litigants, the legal profession does OK), only losers. The result is rarely considered, fair, or common sense. It is a process of last resort.
Mediation and Arbitration
In my past I have tried both Mediation and Arbitration. The idea of both is to try to avoid Court for the reasons mentioned above, and particularly by trying to shortcut the procedures (to save the time/cost of lawyers and experts) and reduce the hourly price of the professionals involved. Both approaches highlight the one advantage of the Court system – although Court Fees seem pretty stiff, they by no means cover the full cost of the Court. You quickly discover this when paying for Mediation or Arbitration where there is no hidden subsidy from the Government!
My experience of Arbitration was that it was so similar to Court, that given a choice I would go to Court. I’m not particularly knocking it, it works as well as Courts do (and as badly).
My experience of Mediation was that it was useless – there is no incentive to resolve the dispute, and in my case the Mediation actually made things considerably worse in that the parties (yes that’s me too!) just used the sessions to make their own points, and slag each other off.
Ostraka) used as voting tokens
Trial By Forum
Once you look past the sound bite you will find that Trial By Forum has an honourable history stretching back …… well back to the original Forums (which were Roman)! In fact the Greeks initiated the concept of the City State in which the citizens could voice an opinion, and judge the rights and wrongs of a matter. Moderation was applied by the Greek Citizens too – in the form of Ostracism – a voting system using shards of pottery that were used as voting tokens (& are called in Greek ostraka, the Citizens could use Ostracism to expel a Forum Troll for 10 years – scratching the Trolls name onto some pottery waste.
In fact in the path of British disputes trial by Forum has been the preferred route to dispute resolution and it has been extremely successful. In 1215 the Barons held a Forum at Runnymede in which King John was accused of ignoring his subjects rights, the conclusion of the Forum was the codifying of those rights in the Magna Carta.
The Death of Wat Tyler
The next big trial by Forum was 1381 when Wat Tyler made pretty similar accusations against Richard II during the Peasant’s Revolt. The process didn’t go well because the Forum Moderator‘s were partisan and removed Wat Tyler & his supporter’s access to the Forum (well actually the Mayor of London broke his oath of parley & killed Wat during the truce) preventing the dispute resolution. This illustrates the important role fair moderation has in trial by Forum, sadly most moderator’s have a vested interest and remove arguments which defeat their own views.
More recent examples of trial by Forum in history are generally known for their tragedy, and the attempts by Moderators to prevent a fair hearing of facts and views. Examples of Moderators interfering with the path of justice might be Peterloo, Poll Tax, and Hillsborough.
Judgement on Trial by Forum
You can put me down as a strong supporter of trial by forum, it is far cheaper, fairer and more effective than civil courts, and only fails when there are dishonest moderators who try to interfere with the process. That conclusion has been born out by the experience of 3000 years of history, and it’s application in the age of the internet is a time to reinforce it’s strengths and fairness.
If you want to disagree with me here I promise not to moderate your view.
