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Convention: Dispute Resolution

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Jnyusa
Post subject: Convention: Dispute Resolution
Posted: Fri 22 Apr , 2005 11:06 pm
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AGENDA - The Outside Forum/Dispute Resolution

Last item to deal with: OFFENSES THAT MERIT A PENALTY

5. New Arbitration Procedure for non-personal-dispute issues
...a. When members break a by-law and a penalty is imposed:
Current List:
......i. suspension of posting rights in England
..... ii. suspension of posting rights due to disruption of jury
..... iiii. suspension of posting rights in RP; three times leads to ban
..... iv. removal of sig pic arbitrated
...b When an admin might be removed

...c. Impeaching the mayor: postponed until committee works on Article 4

8. What offenses justify a Hearing on a Ban
...a. length of ban associated with each offense
...b. length of probation period associated with an overturned ban
...d. a paragraph that contains all maximum sentences set by the charter? Current List:
....... i. RP forum (three disruptions goes to a ban instead of an arbitration;
.......ii. England Forum (no response from users so far)
.......iii. A poster who is here longer than seven days has a right to a hearing for these otherwise instant-bannable offenses:
.......... • Spamming the board with ads
.......... • Spamming the board with porn
.......... • Hacking the board
.......... • Refusing to abide by the Decision of Jury in an Arbitration
.......... • Threats of real life violence or other criminal acts against members

Last edited by Jnyusa on Sat 14 May , 2005 10:03 pm, edited 11 times in total.

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Jnyusa
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Posted: Fri 22 Apr , 2005 11:06 pm
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OUTLINE OF CHARTER.
Parts we have completed are red. Parts we are working on now are blue.

Part I. Our Mission
Part II. Our Principles
Part III. Ownership of B77
Part IV. Our Goals

Part V. Our Administrative and Governance Procedures: part we are working on now

Article 1: B77 is a member moderated board

Article 2: Member Rights and Responsibilities

Article 3: Administrators
¶1: Number of Administrators and Terms of Office
¶2: Eligibility of Members to Serve as Administrators
¶3: Selection of Administrators
¶4: Routine Powers of Administrators
¶5: Special and Emergency Powers
¶6: Code of Conduct for Administrators
¶7: How to Contest the Action of an Administrator
¶8: When is an Administrator Removed from Office


Article 4:Office of the Mayor

Article 5: Resolution of Disputes in the Outside Forum: discussed now
¶1: The Bike Racks Forum
¶2: Eligibility of Jurors
¶3: Hearings and Selection of Jurors for Hearings
¶4: Hearings on a Community Disruption
¶5: Hearings on a Ban
¶6: Hearings to Remove an Administrator

¶7: Hearings to Remove an Elected Official
¶8: Appealing the Decision of a Jury
¶9: Offenses that Merit a Penalty
¶10: The Archive Forum

Article 6: Thinking of England Forum: discussed now in Business Forum

Article (.): Our Charter
¶1: Ratification of the Charter
¶2: Amending the Charter

Last edited by Jnyusa on Mon 23 May , 2005 8:49 pm, edited 18 times in total.

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Jnyusa
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Posted: Fri 22 Apr , 2005 11:07 pm
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Ideas so Far:

Hearings: violation of by-laws
• suspension of posting rights in England
• suspension of posting rights due to disruption of jury
• suspension of posting rights in RP; three times leads to ban
• removal of sig pic arbitrated
Suggested: convened by admins

Hearing on a Ban:
• RP forum (three disruptions goes to a ban instead of an arbitration;
• England Forum (no response from users so far)
• A poster who is here longer than seven days has a right to a hearing for these otherwise instant-bannable offenses:
... • Spamming the board with ads
... • Spamming the board with porn
... • Hacking the board
... • Refusing to abide by the Decision of Jury in an Arbitration
... • Threats of real life violence or other criminal acts against members
Suggested: convened by admins

Hearing on Removal from Office:
• Removal of Admin
• Impeaching the mayor
Suggested: petitions by the membership

Suggested: maximum six jurors
Suggested: right of 'accused' to reject jurors versus right of 'accused' to select jurors
Suggested: a judge/admin/mayor/deputy mayor to oversee the procedure
Suggested: can decisions be appealled? what are the grounds for appeal?

Last edited by Jnyusa on Wed 04 May , 2005 2:40 pm, edited 14 times in total.

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Jnyusa
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Posted: Fri 22 Apr , 2005 11:53 pm
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Welcome to the new committee members. Sorry that this thread is going up so late, but I got sidetracked by a couple major RL things last night and today.

1. The first item on the agenda is the agenda itself. An updated agenda was sent to all of you by email yesterday, and now I've added in the bits that were left over from the last committee discussion and tried to list them in more logical order.

Please think if anything needs to be added, or if you want to handle this in different order.

2. I believe that the elegibility of jurors is the easiest thing to determine so that we might start there, even as we are discussing the agenda itself. To be eligible for Administrator, a member must be 18 years of age, on the boards six months, and demonstrating a "continuous, visible and contributory" presence.

My opinion is that these requirements can be relaxed somewhat for jury elibility, e.g. the member does not have to be 18 years of age (but could not then serve on a jury deciding something in the England Forum), and might need to be here only three months instead of six. If anyone has firm ideas about this, please speak.

3. Selection of jurors will be more complicated because I believe Voronwe would like to do this very differently from how it is done now.

The rest of the agenda is also likely to be more complicated because existing procedures are going to be reviewed for adequacy, and some new procedures need to be created.

Have at it!

Jn

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truehobbit
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Posted: Sat 23 Apr , 2005 12:38 am
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I'm not good with agendas, so I just trust you it's good. :)

Personally, I shouldn't mind if a juror also had to be 18 and here for six months, but it's not a strong opinion, so no problem with reduced requirements.

I was just thinking whether Voronwe's ideas on selection of jurors won't have an influence on eligibility, so I'm wondering if we can decide one without the other?

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Jnyusa
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Posted: Sat 23 Apr , 2005 2:57 am
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TH - Voronwe was talking about having a random or rota selection of jurors from the pool, so I don't think that would affect eligibility to be in the pool.

Unless V. had more that he wanted to say about this.

Jn

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IdylleSeethes
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Posted: Sat 23 Apr , 2005 5:46 am
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I have a question about a role that seems to be missing. Wherever there is procedure to follow, there is usually someone assigned to insure it is followed as the process moves along. In most judicial systems, this is the primary role of the judge, a commissioner, or someone considered an expert on procedure. Why is this role missing?

Voronwe is probably in a much better position to discuss this.

Are admins expected to be able to fill this role?

Is it expected the rules will be so simple as to not be a problem?

Is this considered elsewhere?

Is this intentionally left out? If so, because Voronwe is fed up with judges?

I know the Wilko experiment hit several points where procedure was an issue. It was the first run through, but it is likely that many jurors will be inexperienced.

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Jnyusa
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Posted: Sat 23 Apr , 2005 1:58 pm
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Idylle: In most judicial systems, this is the primary role of the judge, a commissioner, or someone considered an expert on procedure. ...Is this intentionally left out?

Excellent catch, Idylle. I never thought about the judge as being the one who makes sure that procedure is followed, and I'm sure the other members did not either.

Yes, this role was deliberately left out, and admins were definitely not expected to fill it.

The procedure that we have now was developed through discussion in which members said what they wanted, I put it into systematic form, members reviewed it -- if there were no objections, we kept it, and that's what you see summarized in the sticky thread in this forum and the Bike Racks. As you know, we've only used it once, and we used it to do something it was not really designed to do.

You may have noticed that this membership is allergic to authority. Originally, they wanted no admins allowed to decide anything about members. Certainly no judges ... in fact, no judgment. The whole system is supposed to be members working problems out with one another. Members breaking rules was not even taken into consideration except in a tangential sort of way -- the occcassional troll dropping in.

I haven't got the proper vocabulary for judicial things, and I know that Voronwe feels strongly that "arbitration" is an adversary process and should be constructed as such. He is right that an adversary process needs to be constructed differently, but I think the problem with the process we have now is the way it is titled rather than the way it is structured, and the fact that it is really only designed to cover disagreements among members, which is a rather narrow category of problem. It is not designed to cover rule-breaking. (Mainly because so many of us thought there simply would be no rules.)

The system of three jurors chosen by the parties in the dispute from a pool of eligibles is in fact a Jewish Beth Din. When lots of members said "no more than three" and "chosen by the members" I thought immediately of this construct. It works very well for its stated purpose, but remember that there was no charter nor talk of a charter when this was put together. It's sole purpose was to get disputing members or disruptive discussion off the board and into a contained forum.

If so, because Voronwe is fed up with judges?

I relieve Voronwe from all responsibility for this!! I plotted out the system and wrote the stickies; but I also did not add anything to this beyond what members felt we needed - a place for disagreeing members to duke it out with someone objective watching and imposing a decision only when the problem could be solved no other way.

I know the Wilko experiment hit several points where procedure was an issue.

Yes. I have thought about this problem primarily in terms of the clarity of the sticky theads, but of course it is more than that. The things that were skipped by the jury were things that were clearly spelled out, but they were concentrating on their decision rather than on procedure, and that is proper. Whoever is making the decision should be free to concentrate on that. Someone else should watch the procedure.

The only point of order given to admins was to remove poachers from the thread, and this is quite a minor eventuality because of the permissions required in the forum.

While saying this, I will add that it's unlikely the members will accept giving to the mayor the job of watching procedure. Dispersal of power has seemed to me to surface as the primary goal in every discussion the members have had about govenance and judicial stuff. And also, the record keeping is a big enough job in itself. The mayor should not have to watch "arbitrations" and hearings as well.

Jn

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Axordil
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Posted: Sat 23 Apr , 2005 2:40 pm
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I think it would be helpful to have someone act as a resource for juries, someone to whom they could go if they have a procedural question, and to look over the decision to ensure it actually addresses what it was supposed to (but not to change it...just to hand it back and say "but what about x?" if needed).

This wouldn't have to be an elected post...perhaps former jurors would be expected to do this. Perhaps conventioneers.

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Voronwë_the_Faithful
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Posted: Sat 23 Apr , 2005 4:23 pm
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Sorry I haven't addressed this yet. I've been a bit out of sorts. In fact, I'm not sure how long I'll be able to sit at the computer. But I wanted to give it a shot.

Idyll you raise an important issue that I have been waiting to discuss (have I said how happy I am that you have decided to join this committee?). I'm glad the time has come.

The thing is, from my perspective, the dispute resolution system that we are working with is a contradiction in terms. In my experience, an arbitration is something that you have instead of a jury trial. Indeed, in most cases that I deal with that involve arbitrations it is because my client has sacrificed her right to a jury as a condition of her employment. I take every opportunity to fight the enforcability of these arbitration agreements, because they generally put my clients at a disadvantage.

Such an arbitration is the functional equivalent of a court trial or a bench trial, not a jury trial. In other words, the arbitrator or arbitration panel plays not only the role of the jury but also the role of the judge. Thus there would be no need to have someone else available to oversee the procedural aspects of the arbitration.

The arbitration that we have discussed having are more like the functional equivalent of a jury trial. If we have a broad member based jury pool, then jurors would not be expected to be specially trained or knowledgable in the procedural rules, and it would be advantageous to have someone available who is specially trained or knowledgable about the rules to make sure that things proceed smoothly. Whether we would elect specific judges to play that role, or roll this function into the purview of the Mayor, is a question that would need to be answered. I don't anticipate that there will be a great need for many of these hearings, so it may not be too much more of a burden to ask of Jn, erm, I mean the mayor. (;))

The alternative is to have a smaller pool of trained arbitrators who would handle all disputes, but I believe that would be ceding more power to a small group of people then the membership would be willing to do. And I must say that despite the obvious attraction that such an idea has in terms of simplicity and workability, I would agree that it would inappropriately cede too much power to a small group of people.

So we are stuck with an unwieldy, difficult to implement and to manage, jury trial type system. My preference would be to avoid the "arbitration" label altogether because to me it is misleading, but that is only a question of semantics and is not of great concern to me.

Of greater concern is the question of the number of jurors, an issue that I have raised before. I believe that three jurors are too few to ensure adequate representation of the membership. I would prefer to see a minimum of six jurors, with a verdict requiring a minimum of four being in agreement. Or possibly 6 of 9, or even 9 of 12.

Of even greater concern to me, as I have repeatedly stated, is the question of the role that the parties to a dispute would have in choosing who would serve on the jury. I have repeatedly stated my objection to the idea of allowing the parties to the dispute to chose one or more members of the jury themselves. I would like to take this opportunity to explain exactly why I feel that way, and exactly what alternative I would propose.

In order to get at the heart of my objection to allow parties to choose jurors, it is important to first look at the reasons why we are setting up a dispute resolution process in the first place. Certainly it is true that the process needs to ensure that individual members are treated fairly when disputes arise. But that is only part of the reason why we need a dispute resolution process. It is just as important to the health of the community as a whole; without such a process in place, disputes will fester and the community will suffer.

Allowing the parties to a dispute to chose an equal number of jurors may well be fair to the individuals involve. But it has the affect of raising the individual's interests above those of the community. Only a randomly selected jury from a broad member-based jury pool, with sufficient jurors to reflect that member-base, can ensure that the interests of the community at large are balanced against the rights of the individual.

How, then, can individuals be protected from unfair juries biased against them. To my mind the system used by the American courts to do this is a good one. Parties have an unlimited ability to dismiss a juror for cause, if it can be adequately shown that the juror is biased against the party. Parties also have a limited number of "peremptory challenges" that they can use to elminate jurors without having to show cause (as long as it is not done in a discriminatory, e.g. race-based) manner. I think we could work out a system like that that could work. Thus the rights of the individuals would be protected, but the needs of the community would also be ensured.


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Jnyusa
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Posted: Sat 23 Apr , 2005 4:34 pm
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Voronwe, let me clarify one thing so that I will be thinking about this in the right way.

For minor disputes among members, we have now the bikeracks. And I believe we added in to that process the possibility of the disputants asking a jury member to act as "facilitator" if they wanted a third party opinion.

It is the process that we are now calling "arbitration" that you want to evolve into something more like a formal trial process. So basically what we're saying is that the Bike Racks should be adequate for member disputes, and the process we develop for more serious kinds of problems will replace the current "arbitration."

Is that right?

What I want to make sure I have straight in my mind is the idea that we don't need more than one outlet for member disputes (the Bike Racks).

Jn

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Cerin
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Posted: Sat 23 Apr , 2005 4:41 pm
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Axordil: I think it would be helpful to have someone act as a resource for juries, someone to whom they could go if they have a procedural question, and to look over the decision to ensure it actually addresses what it was supposed to (but not to change it...just to hand it back and say "but what about x?" if needed).

Yes, that sounds like a good idea to me. Could we add another participant to the arbitration process, who wouldn't have a vote in the determination, but would fill the role Idylle mentioned?

We could call it arbitration facilitator, or something (no need to use the charged term 'judge'). So then each proceeding would select four participants, rather than three.

As Axordil suggested, perhaps that position should be filled from the group of members who have more practical experience with board function, such as former administrators or jurors.

On the other hand, perhaps such a position would be better filled long-term, so that expertise could be developed?


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Voronwë_the_Faithful
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Posted: Sat 23 Apr , 2005 5:00 pm
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Jn, I think that it is possible that there would be disputes between individual members that could not be resolved in the bike racks, and that would require some kind of a hearing, with a jury. Those would be the equivalent of a civil trial.

Then there would be situations where an individual members violate "the rules" or otherwise upset the harmony of the community, requiring some kind of a hearing, with a jury. Those would be the equivalent of a criminal trial.


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Jnyusa
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Posted: Sat 23 Apr , 2005 6:00 pm
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Thanks, V.

OK - so we do need to invent something new and not just mutate what we've already got.

I'm going to leave the 'naming' of things to you and the other attorneys on board so as not to contribute misleading terms.

I do understand the distinction between 'civil' and 'criminal' and it feels appropriate to me here. But I won't venture a guess what to call it in this context. (Do any of Tolkien's terms strike a chord?)

Also, I like the idea of having one person appointed 'procedure watcher' - (whatever we call that) - and have that person be someone with more experience than a regular juror, per Cerin's and Ax's suggestions.

Jn

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Cerin
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Posted: Sat 23 Apr , 2005 6:04 pm
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A three-member jury (and perhaps a facilitator) seems sufficient to me (but I have no experience with juries). Having one juror chosen by each party to the dispute and one chosen at random to represent the interests of the board would also, it seems to me, provide for the balance between the rights of the community at large and the rights of the individuals, that was of concern to Voronwe.

As far as jury qualifications, I wouldn't object to a lesser period of membership, but I'm not sure about having a lower age limit. (Then again, it's been a long time since I was 16.)

Edit
Jnyusa: I do understand the distinction between 'civil' and 'criminal' and it feels appropriate to me here. But I won't venture a guess what to call it in this context. (Do any of Tolkien's terms strike a chord?)

Perhaps this is our opportunity to work in 'bounder.' Keeping the jury in bounds. :D

Last edited by Cerin on Sat 23 Apr , 2005 6:07 pm, edited 1 time in total.

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Primula_Baggins
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Posted: Sat 23 Apr , 2005 6:06 pm
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Can we even ask people how old they are?


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Jnyusa
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Posted: Sat 23 Apr , 2005 6:10 pm
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We can if they want to access England. And I think it is OK to ask people who volunteer for adminship to affirm they are 18, because of the need to enter England.

Jn

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Voronwë_the_Faithful
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Cerin wrote:
A three-member jury (and perhaps a facilitator) seems sufficient to me (but I have no experience with juries). Having one juror chosen by each party to the dispute and one chosen at random to represent the interests of the board would also, it seems to me, provide for the balance between the rights of the community at large and the rights of the individuals, that was of concern to Voronwe.
Cerin, I am strongly against this idea, as I have repeatedly said. In that scenerio, 2/3 of the jury would be chosen by the parties themselves, and will be thinking of their friend's interests, not those of the community. I am against having the parties chose any of the jurors. That can only lead to a situation where people are acting as both an advocate and a decider. That is not appropriate to me. I will continue to argue against this plan as strenuously as I can, though of course I will accept the decision of the majority if the vote goes against me.

And Cerin, I'm very happy to see you here at the convention as well. :)


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IdylleSeethes
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Thanks for the welcome, Voronwe. Cerin, I promise not to quote canon law. :D

1. New role

I don't have much fondness for institutional authority either.

Jnyusa wrote:
Quote:
Whoever is making the decision should be free to concentrate on that. Someone else should watch the procedure.
Voronwe wrote:
Quote:
If we have a broad member based jury pool, then jurors would not be expected to be specially trained or knowledgable in the procedural rules, and it would be advantageous to have someone available who is specially trained or knowledgable about the rules to make sure that things proceed smoothly.
That is the heart of my concern. It was interesting that Voronwe was one of the jurors in the Wilko experiment. This kind of process is his career. However, when placed in the role of juror, he truly became a member of the jury which seemed to focus on the subject of the dispute and not the procedure. Changes in perspective can be destabilizing.

Having someone available, "as a resource for juries" per Axordil, satisfies my concern about resolving procedural uncertainty. I think Cerin is headed in the right direction on what the role could be and that it may be advantageous for there to be some persistence to the role.

Another aspect is that appeals in quasi-judicial procecesses are normaly reactions to perceived procedural error, not disputes of fact. I'm not sure what the intent of an appeal is within the context of our procedure.

The ability to defend the legitimacy of a proceeding is extremely important. The irrational reaction to the Wilko experiment should have put us on notice as to what to expect in the future. Jnyusa admirably defended the process in Eruname's thread, but I assume we want to avoid the expenditure of that much energy after every proceeding, that we want the process, and therefore the outcome, assumed to be fair.

Thanks for the explanation of the Beth Din, Jnyusa. A good demonstration of how we (I) tend to think along the lines of our cultural background.

It's kind of entertaining that Jnyusa, Voronwe, and I are at a loss for words concerning the names for the judicial "things". As Voronwe indicates, its because we aren't quite sure of the process to which we are attempting to map. :help:

2. Number of jurors

The fewer members, the less confusion, and the quicker the process. Having said that, Voronwe has a point about representation and the there is also the possibility of a verdict skewed by irrelevant issues with that small of a group. I think the number needs to be odd so that a tie isn't possible. I would either stick with the current three or move to five. Beyond five seems unwieldy. The coordination and the larger mass of the discussion seem like serious problems to me.

3. Jury selection

Juror selection, especially with three jurors, by the parties in dispute, seems to encourage polarization in the jury. This relates to my assumption of fairness statement above. Voronwe's suggestion of following the US court jury selection process seems reasonable.


I'll go ponder what we call that red flower. :scratch

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Cerin
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Voronwe_the_Faithful wrote:
In that scenerio, 2/3 of the jury would be chosen by the parties themselves, and will be thinking of their friend's interests, not those of the community.
Even if the two jurors selected by parties to the dispute were partial to the interests of the party who selected them, and put their partisanship above the good of the community at large (and that seems like a big IF to Pollyana-ish me), they would still be potentially opposing one another's interests and cancelling out each other's partisan vote, leaving the third impartial juror to decide the issue.

To be clear, I've been thinking in terms of the appeal of a disputer being able to choose someone they respect for maturity and circumspection (not necessarily someone who will take their side). Maybe that would help to allay dissatisfaction with the results (at least among the participants). I've been imagining how it would feel to be in an arbitration with jurors in whose judgment one did not have cause to feel confident, if only for lack of experience posting with them.

Perhaps we could include some 'jury instructions' in the charter, reminding jurors that they are not there as advocates, but are meant to impartially consider the case, and if they don't think they can, they should decline to sit on the arbitration.

Quote:
I will continue to argue against this plan as strenuously as I can, though of course I will accept the decision of the majority if the vote goes against me.
I appreciate your insights, Voronwe! I am by no means settled on the issue. :)

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And Cerin, I'm very happy to see you here at the convention as well. :)
Thank you. :)


Idylle :D


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