Private Justice --- An Idea

[Dr Adequate]

Sometimes people sign contracts, and then there's some disagreement about the contract, and they go to law. Or sometimes one party has been wronged and would go to law but they can't afford it. I feel there's too much in it for the lawyers. I had an idea.

Let's imagine a profession called "adjudicator". When two people or two companies want to sign a contract, they go to an adjudicator. He charges his fee, as he wishes, either one-off, annually, or whatever. In return for this fee, which they fix at the drawing-up of the contract, the adjudicator draws up the contract to the satisfaction of both parties and his own understanding.

Part of the contract is that if there is any disagreement between the parties about what the contract says, they will agree with the decision of the adjudicator on the meaning of the contract rather than going to law, and conversely, the adjudicator has to listen to any squabble they might have. That, and the fact that the adjudicator's fee is already fixed, is the essence of my scheme.

First, it ensures swift decisions, since the adjudicator is paid for taking on the contract, rather than the time that he spends on each particular case.

Second, since an adjudicator depends, for his living, on two parties agreeing to sign a contract under his adjudication, it would also ensure justice. No-one would agree to sign a contract drawn up and administered by an incompetent adjudicator.

Third, justice will be seen to be done, since it is in the advantage of the adjudicator to draw up the contract as clearly as possible.

There should be very very stringent criminal laws against adjudicators taking bribes and favours. Jail and prohibition from acting as an adjudicator ever again should do it. But laws covering such cases may already be in place.

I don't see that any qualifications should be necessary --- anyone not specifically barred (for whatever reason) from being an adjudicator should be allowed to be one.

Besides a specific framework for prosecuting crooked adjudicators (and the existing laws would surely suffice to prosecute them for something or other) the legal framework for doing this is already in place.

--- Opinions, anyone?

 

[Marquis de Carabas]

Who adjudicates the agreement--almost certain to be a contract--between the adjudicator and his or her clients?

 

[AmateurScientist]

It's called arbitration. It already exists.

AS

 

[AmateurScientist]

"There's too much in it for the lawyers?"

Do you get paid for your work? Would you work if you didn't get paid?

Why shouldn't lawyers get paid for their work too?

AS

 

[Roadtoad]

Arbitration is not used that widely, to my knowledge, unless you're dealing with the medical profession. My guess is that most companies would rather take their chances with a jury. I do know that Kaiser Permanente requires you to go to an arbitrator before you go to court, but technically, you cannot be denied your right to sue. At least, I think that's the case.

 

[The idea]

[...] the adjudicator has to listen to any squabble they might have. That, and the fact that the adjudicator's fee is already fixed, is the essence of my scheme.

First, it ensures swift decisions, since the adjudicator is paid for taking on the contract, rather than the time that he spends on each particular case.

Does "each particular "case" refer to any one of many squabbles about a given contract? If some clients squabble excessively regarding a single contract, then won't they use up a lot of adjudicator time and force the adjudicator to transfer that cost to other clients? It would seem more fair to charge squabblers an hourly rate for using up the adjudicator's time. Of course, then there is the problem that the adjudicator might be excessively slow or use up time on unnecessary tasks.

Sorry about not being more positive about your suggestion. The thinking process that you used to arrive at your idea is definitely something that deserves encouragement. So get back to doing that kind of creative thinking. I don't think you're finished yet.

 

[Dr Adequate]

Who adjudicates the agreement--almost certain to be a contract--between the adjudicator and his or her clients?

As I said, the contract agrees that they will abide by the decision of the adjudicator. The adjudicator would become legally liable only if he had taken bribes or other favours, submitted to blackmail, etc.

 

[Marquis de Carabas]

As I said, the contract agrees that they will abide by the decision of the adjudicator.

...as relates to their contract, sure. I meant who adjudicates the arrangements between the adjudicator and the clients, for example, the payments. Say the adjudicator asks for an annual payment for the life of the contract. Surely he'll want a contract for that payment schedule. Who adjudicates this?

 

[Dr Adequate]

Why shouldn't lawyers get paid for their work too?

You miss my point. By miles.

The idea is that these conflicts might be worked out more cheaply than by each side hiring lawyers.

They may work hard for that money, but, looked at from a social point of view, you've got to ask whether the money is well-spent, and whether we could do it cheaper.

 

[The idea]

The idea is that these conflicts might be worked out more cheaply than by each side hiring lawyers.

In other words, a fully trained adjudicator will have studied contract law, but will not have expended the time and money required to get credentials to practice in all areas of law. So there can be lots of adjudicators and the adjudicators will not need to earn enough to justify the high initial educational investment made by law students. Is that correct?

 

[Dr Adequate]

Does "each particular "case" refer to any one of many squabbles about a given contract? If some clients squabble excessively regarding a single contract, then won't they use up a lot of adjudicator time and force the adjudicator to transfer that cost to other clients?

I can think of two answers to this

(1) The adjudicator is responsible for drawing up the contract. If this leads to excessive squabbles, then that is his fault for incompetence. Yay for the free market! (We may suppose that clients will not choose to squabble in front of their adjudicator merely in order to waste his and their their valuable time).

(2) The adjudicator may also say "**** off", and then toss a coin. He is obliged to decide between his clients, but not to listen to everything they say. Again, the free market will decide between diligent and careless adjudicators.

Remember, he is free to set his own fees.

 

[The idea]

(1) The adjudicator is responsible for drawing up the contract. If this leads to excessive squabbles, then that is his fault for incompetence.

What if the squabbles are a result of the actual situation that the clients are involved in, a complex business relationship that would take a long time to describe fully to the adjudicator? The clients might assume that certain matters won't be problematic and fail to inform the adjudicator about those matters.

If the adjudicator's clients are in a particular line of business that the adjudicator is familiar with, then the adjudicator may bring some typical issues to the attention of the clients. However, if the clients have a number of special arrangements that are not standard procedure -- and if possible snags do not occur to them as likely possibilities -- then the clients may simply fail to inform the adjudicator until a problem arises.

Would it be reasonable to fault the adjudicator?

(2) The adjudicator may also say "**** off", and then toss a coin. He is obliged to decide between his clients, but not to listen to everything they say. Again, the free market will decide between diligent and careless adjudicators.

The "toss a coin and throw them out of the office" is the approach of what kind of adjudicator: a diligent one or a careless one? Wouldn't it be more reasonable to make the clients pay for the above-average demands placed on the adjudicator's time? There would have to be some way to appeal an adjudicator's decision and really incompetent decisions might be cause for the adjudicator to pay compensation to the clients.

 

[H3LL]

Doesn't ACAS perform exactly these functions?

ACAS

 

[Dr Adequate]

In other words, a fully trained adjudicator will have studied contract law, but will not have expended the time and money required to get credentials to practice in all areas of law. So there can be lots of adjudicators and the adjudicators will not need to earn enough to justify the high initial educational investment made by law students. Is that correct?

Well really I was hoping that there would be fewer people involved in legal stuff and more people involved in doing things which make money.

I hadn't paused to think of the effect that this might have on the career structure of lawyers.

 

[Dr Adequate]

What if the squabbles are a result of the actual situation that the clients are involved in, a complex business relationship that would take a long time to describe fully to the adjudicator? The clients might assume that certain matters won't be problematic and fail to inform the adjudicator about those matters.

Remember, the adjudicator is involved in drawing up the contract. If there are "issues" that one side or the other fails to mention during this process, then tough.

If the adjudicator's clients are in a particular line of business that the adjudicator is familiar with, then the adjudicator may bring some typical issues to the attention of the clients. However, if the clients have a number of special arrangements that are not standard procedure -- and if possible snags do not occur to them as likely possibilities -- then the clients may simply fail to inform the adjudicator until a problem arises.

Would it be reasonable to fault the adjudicator?

Again, "special arangements" either are, or are not, in the contract overseen by the adjudicator.

The "toss a coin and throw them out of the office" is the approach of what kind of adjudicator: a diligent one or a careless one?

Careless. And unlikely to get much business.

Wouldn't it be more reasonable to make the clients pay for the above-average demands placed on the adjudicator's time?

Remember, the adjudicator sets his fee in advance for overseeing the contract. He may get it wrong. So may an insurance company. So may a bank.

There would have to be some way to appeal an adjudicator's decision and really incompetent decisions might be cause for the adjudicator to pay compensation to the clients.

You have to leave it up to market forces to select the adjudicators (remember, again, both clients have to agree on the adjudicator in advance) or there's no point in my idea. If it was the case that if you were dissatisfied with an adjudication, you could take it to a civil court, then all we'd achieve is adding another tier of lawyers to the system.

There should be draconian laws against bribery and corruption in adjudication, but surely the market can eliminate mere incompetence?

--- BTW, shouldn't some right-wing people be backing me up? This is not a subtle trap, guys. I'm quite serious.

 

[Ed]

The American Arbitration Association provides these services.

http://www.adr.org/

This is faster and far cheaper than the court system. When you write up a contract you have a clause that says something to the effect "any disputes will be referred to the AAA" or words to that effect. Their findings have some sort of magic wand passed over them and are then given the same force as a court finding.

I noted with interest that part of the Dell agreement when you purchase a computer specifies Arbitration rather than going to court if one has a problem.

I am not entirely sure about the point of this thread.

 

[Underemployed]

If the rule of "no going to the REAL courts if you don't like the adjudicator's decision" could be enforced (which would take a change in most countries laws) then this idea could have legs.

However, there is a serious flaw in that it stacks the odds in the favour of the richer party. If I was a company manager responsible for selecting and adjudicator to oversee, say, all employment contracts, I would look for the adjudicator with a good track-record of deciding in favour of employers where there are any areas of ambiguity. The system could equally be stacked when all the highly competent adjudicators become very expensive to hire. Or you could find yourself going to sign up for a job/loan/insurance/whatever agreement and find that you only get the gig if you agree to sign up to an adjudicator-bound contract - where the other party has pre-chosen the adjudicator.

This is in essence what exists now, where any significant contract is pre-drawn by banks/employers and so on, with the added detriment that under your suggestion there would be none of the statutory protections given by current contract law.

You have just replaced one set of lawyers with another and called them a different name, and removed the state-enforced safeguards to boot.

 

[Ed]

If the rule of "no going to the REAL courts if you don't like the adjudicator's decision" could be enforced (which would take a change in most countries laws) then this idea could have legs.

However, there is a serious flaw in that it stacks the odds in the favour of the richer party. If I was a company manager responsible for selecting and adjudicator to oversee, say, all employment contracts, I would look for the adjudicator with a good track-record of deciding in favour of employers where there are any areas of ambiguity. The system could equally be stacked when all the highly competent adjudicators become very expensive to hire. Or you could find yourself going to sign up for a job/loan/insurance/whatever agreement and find that you only get the gig if you agree to sign up to an adjudicator-bound contract - where the other party has pre-chosen the adjudicator.

This is in essence what exists now, where any significant contract is pre-drawn by banks/employers and so on, with the added detriment that under your suggestion there would be none of the statutory protections given by current contract law.

You have just replaced one set of lawyers with another and called them a different name, and removed the state-enforced safeguards to boot.

No independent person should be writing an employment agreement, it is just too idiosyncratic. You, as a prospective employee, retain an attorney to represent your interests and in consultation with you he writes, or edits, a prospective agreement. Then you neotiate with the employer. That is what happens now. Using an arbitrator in the event of a dispute later on is the work of a phrase.

Once you agree to arbitration that is that. It is really no different from getting a decision from a judge rather than a jury.

 

[Underemployed]

Ed, I have always read and respected your posts. In one of them a while back you gave a strong hint that you are a high net worth individual. I have nothing against this and intend to be one myself.

You will be familiar with the practice of hiring and retaining and attourney/lawyer to protect your interests. The vast majority of people signing up for a job or a loan (and so on) are not, nor are in any position to negotiate with employers/lenders etc even if they were to hire a lawyer.

This inequality would be exacerbated by private, legally enforceable contracts.

 

[drkitten]

No independent person should be writing an employment agreement, it is just too idiosyncratic. You, as a prospective employee, retain an attorney to represent your interests and in consultation with you he writes, or edits, a prospective agreement. Then you neotiate with the employer. That is what happens now.

Never applied for a job with a major corporation, have you?

I can only imagine what would happen if I tried to "negotiate" under these terms with Wal-Mart.