Responses to the Study Guide Questions for

Session A-11, Slide #10

Question 1

Do you agree that every legislative scheme requires a dispute settlement system? What reasons do you have for your conclusion?

Christopher: Yes.  A legislative scheme requires a dispute settlement system.  The default dispute settlement scheme is the court system.   Courts tend to be slow, complex, and expensive.  Furthermore, courts lack expertise in specific technical issues.  Advantages to using the court system include the acceptance and legitimacy of the courts, their formality and clearly defined procedures, and their availability. In the case of my proposed bill, a dispute resolution process is already provided under the Medicare Act.  This process is described in the research report.

Marlyn: I agree that every legislative scheme requires a dispute – settlement system. This is so because invariably, the law is dealing with many competing interests and ideologies and many legal and non-legal constraints will influence the desired behaviours expected of role occupants and implementing agencies in the face of a rule of law. The law sets out the rights and duties of role occupants and these rights and duties must be upheld In implementing the law, the decisions an implementing agency makes may not always be in the best interest of addressees and could be arbitrary as there is no guarantee that implementing officials will act according to the principles of transparency, accountability and good governance, thereby infringing the rights of the role occupants.  Arbitrary decisions are considered ultra vires the rule of law, especially where proper procedures, processes and systems for non-arbitrary decision-making are provide to guide implementers. When this happens the individual so affected by the particular decision should have the right and opportunity to appeal against the decision and have the dispute settled by an institution that decides by rule or by mediation and compromise, depending on the nature of the dispute and the extent of the impact on the individual in  respect of damages suffered.

It is also important, in transformatory legislation that deals mainly with round-about –measures of changing problematic behaviours, non –legal causes relating to “opportunity”, “capacity”, “communication” and “process”.  Hence direct measures such as punishment, do not work well to change problematic behaviours, consequently decisions that are ultra  vires requires a proactive dispute settlement system and monitoring devices to ensure transparency and accountability on the part of implementers which will provide assurances to the affected, especially the poor and vulnerable, whose interests are often compromised.

Mavis: Well, generally I do agree for the reasons given in the lecture. These are that inevitably disputes will arise under laws as well as for the reasons that laws do give rights and obligations and at some stage, someone, somewhere will violate someone else’s rights. For these reasons a dispute settlement system is important in the law.

Rob: Every legislative scheme requires a dispute-settlement system because every legislative scheme holds the potential for generating disputes.

Question 2

"In a relatively settled society, the dispute settlement system -- usually courts -- serves well enough also as the appropriate implementing system for most laws. In a developing or transitional system, however, as an implementing system for transformational laws, courts have deep flaws." Discuss.

Christopher: In developing countries, court procedures may be costly and intimidating to stakeholders.  Many ordinary citizens affected by a law might not have access to counsel, or the funds to retain counsel.  Furthermore, the judicial process is often slow.  The courts may carry heavy loads, resulting in significant delays. 

Marlyn: This statement is debatable and I cannot agree with its presumptions.  As it stands this statement presumes:

I also take issue with the statement for claiming that the court as a dispute-settlement system serves well for most laws.  The issue is what are we referring to as “most laws”?  This appears an inappropriate generalization as it includes laws which themselves are transformational and which require conformity – inducing measures which largely address non-legal constraints and therefore requires dispute resolution systems, which are proactive, requires flexibility negotiations and conflict resolution mechanisms, rather than the decision by rigid rules as is the case of a court system.  As the input-output decision-making model demonstrates there is no one decision - making system that fulfills the requirement of every legislative regime.

This is not to discount the advantages that courts offer however, such as the careful consideration of significant issues; allow access to a plaintiff’s initiative, high degree of legitimacy, allows participation through the evidential system and the use of non-arbitrary procedures.

This may work well for straightforward transitive laws where all possible facets of the law are provided for in clear, unambiguous terms, with little or no discretionary powers given to implementers and where process, procedures and systems are clearly articulated.  However, laws are drafted in a continuum from the detailed transitive laws to the intransitive which leaves much to be done through delegated authority to the implementing agency.

Courts, I submit are reactive and cannot deal with intransitive laws effectively unless the required provisions are implemented through subsidiary legislations and to the extent that they may make the enabling legislation complete in furtherance of its purpose.  To say that the courts serve well for most laws is a generalization which is questionable, in my opinion.

In respect of the statement claiming that developing system as an implementing system for transformational laws, courts have deep flaws,  I have to admit that this is so by virtue of the argument raised previously regarding court in the “relatively settled society” in respect of them being reactive, lack expertise, show with complex and costly procedures etc.  In fact the courts of developing countries mirror these of developed countries whose judicial traditions they emulate as a consequence of their historical connections through economic, administrative and political relations.  The legal systems and branches of law are fashioned from the legal systems of the developed or “relatively settled” societies with whom they have had historical ties through colonialism.   Therefore to say that the courts of developing systems have “deep flaws” as implementing systems for transformational laws on a comparative basis with courts of the “relatively settled” society is really clouding the issue.-   

The critical question is “what is meant by “deep flaws” if we are to look beyond the obvious? Does it mean that the courts in developing system do not follow available procedures and criteria established by the rule of law ? or are not transparent and accountable, or they make arbitrary decisions?

In my experience, the courts in a developing context such as the Eastern Caribbean apply the law based on its procedures, criteria, and provisions,  despite the fact that they are slow and reactive.  The judges and lawyer of the courts can only work with the provisions of the legislation before them and where those provisions are weak or non-existent one can hardly expect the court system to be effective and efficient when faced with poorly drafted laws.  In the case of transformational laws that seem to require alternative dispute resolution systems rather than the rigid decision by rule of the courts, the courts as a dispute settlement system may not be the best solution.

The subject matter of transformational laws may require dispute settlement systems involving medication, compromise, small claim settlements, all of which might overwhelm the formal court system which is not designed to handle these alternative devices.

Mavis: I do not agree that there are any differences between the efficacy of courts in so called developed as opposed to so called developing and transitional countries. I also do not agree with the hidden implication that the so called developing and transitional countries should aim for a nirvana where they are relatively settled and when presumably, their courts will serve ‘well enough as the appropriate implementing system for most laws.

I think what is true for all countries be they developed, developing or transitional is that they may all need different courts to deal with some types of disputes which for whatever reason may not be suited to the traditional, formal court systems. These may be family courts, labour relations tribunals, land courts, small claims courts, customary law courts etc.

Rob: Implementation through a dispute settlement system such a court may be appropriate in both relatively settled societies as well as developing and transitional societies depending on the nature of the decisions that need to be made under the legislation. Courts are best suited to “judicial” decision making. Their formality ensures careful consideration of certain kinds of significant issues. For example, courts are well suited as implementing agencies for criminal legislation – to determine guilt, or ascertain an appropriate sentence within a range of sentences. But even in the case of a  criminal statue,  the court does not usually comprise the entire implementation system.  Implementation of a criminal prohibition also requires other kinds of processes including rules governing police conduct when arresting and charging an alleged offender; rules guiding prosecutors in the excersie of discretion; and rules governing prisons and other corrections programs.

Courts may lack the expertise to resolve certain kinds of disputes. Many countries have found that quasi-judical bodies such as labour boards, workers’ compensation boards, and human rights tribunals are better suited to the kinds of issues that arise in those areas.

In  a society with a public that is relatively well informed about legal rights, and  easy access to court systems including small claims courts where legal counsel are not required, courts  may well positioned to act as the primary implementing system. However, if the public is  generally uninformed about legal rights, or court services are geographically remote or beyond the financial means of potential litigants, the courts and similarly constituted bodies do not hold the best potential for implemting  legislation. Quite often reformatory legislation requires a proactive implementaion system rather than the slow, costly and reactive processes of the court.

Question 3

Your country has recently instituted a system of pensions for the disabled. This has led to a huge volume of disputes between the Ministry of Welfare and persons claiming to be disabled, over relatively small sums of money. The Ministry instructs you to develop legislation creating a dispute settlement system to handle these disputes without overwhelming the court system. In general terms, describe at least one possible system to meet the Minister's instructions.

Christopher: One possible solution would be the establishment of a local system of dispute resolution.  This would be similar to a small claims court.  A complainant would have the opportunity to present, without need for counsel, before a hearing officer who would attempt to resolve the dispute.  If an acceptable resolution could not be reached, the case would then be sent to the Ministry for adjudication.  This system would provide rapid access to a simple dispute resolution system.

Marlyn: Clearly this scenario speaks to the resolution of disputes arising from the implementation of what appears to be a social welfare system of pensions for the disabled, administered by the Ministry of Welfare.  The claims are numerous and of small sums of money.  The volume of these small amounts being claimed means that the task for the court system will be onerous and for a court system, which may be slow, such dispute settlements may prove costly administratively, as compared with the small amounts of these claims in dispute.

One possible system to fulfill the instruction of drafting a legislation creating a dispute settlement system to handle these disputes outside of the court system would be :-

Mavis: As described in the lecture, a system where there is a preliminary internal appeal procedure from the pension’s officer to a higher official in this case the Pensions Board with an ultimate appeal to the courts may work best. The latter would satisfy the requirement that for good governance, a party must have the opportunity to have a dispute settled by an institution that decides by rules. The Pensions Board as opposed to the Minister would work better to avoid overwhelming him with such issues.

Thus the process would look like this-

Court

↑

Pensions Board

↑

Pensions Officer

Rob: Enquiring into the reasons for the “huge volume of appeals” will assist the drafter identify problems with current decision-making processes used by Ministry officials, as well as determine an appropriate appeal system outside the regular court system.  Current notices of appeal as well as past court decisions may provide helpful insight.

The high volume of appeals may be associated with decision-making problems within the Ministry. For example, the research may suggest that an applicant is more inclined to appeal a Ministry decision if the applicant feels that the decision-making process is unfair – perhaps there is no opportunity to be heard or present evidence. Similarly, appeals may arise more frequently if the Ministry’s decision is not fully understood because the Ministry is not required to provide written reasons for its decisions.  These kinds of issues need to be addressed by legislation that seeks to improve decision making processes within the Ministry. 

Dealing with the next aspect of the problem, there are a number of possible systems apart from a court system that could hear appeals of Ministry decisions. These include internal ministry processes, binding arbitration and mediation. In most cases the review process should be limited  in scope to  allowing appeals on questions of law alone,  or where the Ministry has acted arbitrarily or with no evidence to support its decision.

Question 4

What kind of dispute settlement system do you plan to incorporate into your bill? State your reasons for your decisions.

Christopher: The dispute settlement system incorporated into my proposed legislation is the system provided under the Medicare Act.  The reason is simple:  my proposed bill is very narrowly focused on one specific social problem.  Attempting to create a second dispute resolution system with Medicare to address this issue would result in tremendous cost and complexity.   Employing the existing system would also result in greater consistency of administration, and less confusion on the part of a complainant.

Mavis: Because of the nature of the problem that I am dealing with, I think that resort to the courts as a default system would work best. Money laundering is a complex matter which would be well served by the formal manner in which the courts carefully consider matters before making a final decision.