ARC TO UNITIVE JUSTICE NO. 11: FROM ADVERSARIAL TO SYNERGISTIC
Adversarial: characterized by conflict, opposition, argument.
Synergistic: the combined power achieved by working together in collaboration rather than separately. The result is a whole that is greater than the simple sum of its parts.
Because it is so pervasive, the adversarial nature of both civil and criminal courts is generally taken for granted. The interest of each litigant is pitted against the interest of the other side in a system aimed at deciding whose interest wins and whose interest loses. Conflict, opposition and argument are the courts’ stock in trade. This is true of other punitive systems, as well, whether it is an educational system, a business system or a religious system. It is the nature of the beast, so to speak.
Nothing about the unitive justice system is adversarial. Instead, it is designed to unite the power of everyone engaged in an endeavor in a synergistic process; in a system where everyone naturally works together, rather than separately. In the belief that we increase the likelihood that we will experience safety when we ensure that everyone is safe, unitive justice depends on collaboration in a synergistic environment.
A Punitive System is Adversarial
The theory that justifies the adversarial nature of the punitive justice system is that the truth can be accessed if adversaries each present their version of the facts and a neutral judge or jury then determines which version is true—at least more true than the other. The adversaries are also permitted to argue how the law applies to their version of the facts—case law supporting both competing sides often exists—then the judge decides which law applies to which facts.
In both civil and criminal cases, this adversarial process involves each side presenting their evidence and each adversary having a right to challenge the truth and the relevance of that evidence. This includes the right to cross-examine the witnesses offered by the other side. Each side attempts to show that their version of the facts is true, while the evidence presented by the other side is not credible, or is irrelevant.
In criminal cases, it is the government seeking to prove that the accused is guilty of committing the crime as charged, while the accused seeks to raise enough doubt to preclude the prosecutor from proving guilt beyond a reasonable doubt. In civil cases, the adversaries are private parties seeking to have their interest affirmed by the court, and their adversary’s aspirations dashed.
Because the legal procedures are complex and inaccessible to most non-lawyers, it is advisable to be represented by a skilled attorney. This, of course, makes this adversarial endeavor a costly one.
Since the stakes in criminal cases are higher than those in civil cases, criminal defendants have a right to an attorney that is protected by the Constitution. In theory, if a criminal defendant faces incarceration and cannot afford an attorney, the government is obligated to provide legal representation at the public’s expense, guaranteeing the adversarial nature of the proceedings. The theory does not always match the practice.
Even when a client wins, victory in this adversarial arena has its limitations. Because the underlying relationships among the litigants are not repaired, and may be even worse after the litigation than before it began, winning a trial may still be accompanied by deep loss.
The Unitive System is Synergistic
We are capable of believing that we are separate thoughts and separate bodies living separate lives and going our separate ways. We are also capable of believing that we are united in one purpose and that each one of us is equally essential to the wellbeing of all. This latter belief gives rise to synergistic cooperation.
While the punitive system is a win/lose system that pits those in a conflict against one another, in the unitive system, no one wins unless everyone does. These two systems are mutually exclusive—where one exits in its complete form, the other does not.
A unitive system is synergistic--it supports those who are working together to achieve mutually beneficial action, whether there is a conflict to be addressed or an important undertaking to be achieved. When the task at hand is to resolve conflict, it provides members of the community a means of healing and transforming the conflict, using it to strengthen the community, often making the state’s involvement unnecessary. This system is not only used to resolve legal issues that would otherwise end up in court, it also aims to transform the conflict into a positive growth experience through mutual understanding and empowerment.
In a synergistic system, because their interests are not pitted against the interests of others, the participants are more likely to see the breakdown from a perspective other than judgment. This encourages the participants to focus on problem solving rather than jockeying for the winning position.
A synergistic system depends on the presence of structural elements such as values, equality, insight, mutual benefit, power, lovingkindness, connection, honesty and trust. These elements manifest our shared humanity and inspire us to work together, even among people who previously were immersed in conflict. By synergistically building on our shared power and connection, the conflict naturally flows toward mutually beneficial action—efficiently and inexpensively.
* * * * *
In Bryan Stevenson's talk below, called We Need to Talk About an Injustice, he describes some of the injustices that arise in our adversarial justice system.
 Justia, The Right to a Public Defender, at https://www.justia.com/criminal/procedure/miranda-rights/right-to-public-defender/, last visited Mar. 5, 2017.