law

Repeals

There have been many famous repeals or court decisions in American history. In 1954 the Supreme Court ruled that separate but equal (the American slogan for segregation of white and black Americans) was no longer constitutional, an act that negated their earlier ruling in 1896.

The first case in the U.S. in which the court system determined that a law was unconstitutional and should be repealed occurred in 1803. It was the case of Marbury v Madison, when the Supreme Court decided that the Judiciary Act of 1789 was conflicted with the Constitution and was therefore null and void.

The case of Betts v Brady ruled that the 6th and 14th Amendments of the constitution guaranteeing a right to legal counsel does not mean that the government has to provide counsel for someone who cannot afford it. Later, the case Gideon v Wainwright overruled this decision, and anyone accused of a crime is entitled to free counsel if he/she can’t afford an attorney.

Speedy Trial

Again, the Sixth Amendment to the U.S. Constitution states clearly what Americans expect: „In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial“

Various U.S. state and federal laws guaranty a more specific right to a speedy trial. In New York, for example, the prosecution (accuser) must be ready for trial within six months or the charges are dismissed. The Speedy Trial Act of 1974 established time limits for completing the various stages of a federal criminal case.

Americans anticipate that there team leads not only hold a first hearing promptly. They want the conflict resolution process to come to a conclusion, to a judgement, promptly as well. A manager who is slow to decide – to make the „judgement call“ – is seen as someone who has weak resolve. To have resolve means to deal with something.

Americans believe that maintaining forward movement is critical to the success of every team.

Coffee Burns

In 1992, 79 year old Stella Liebeck bought a cup of coffee from a McDonald’s in New Mexico, spilled it on her lap, suffered multiple third-degree burns, and required skin grafts on her inner thighs and elsewhere. She subsequently sued McDonald’s.

Although the jury found Liebeck to be partly responsible for her injuries, based on evidence that McDonald’s coffee was unreasonably hot and had caused other injuries in the past, the jury decided to award Stella the equivalent of two days’ worth of coffee sales revenue for the entire restaurant chain. Some of the evidence presented at the trial includes:

1) An engineer from the University of Texas and the editor-in-chief of the Journal of Burn Care and Rehabilitation both testified that the risk of harm from the coffee was unacceptable.

2) An expert witness testified that the number of burns the coffee caused was insignificant compared to the number of cups of coffee sold every year.

3) A McDonald’s quality assurance manager testified that the coffee at the serving temperature was not fit for consumption because it would burn the throat.

4) After several other similar lawsuits, McDonald’s knew about the risk of serious burns from its coffee, but did not warn customers of the risk.

Eyewitness testimony

Eyewitness testimony is the account a bystander gives in the courtroom, describing what that person observed that occurred during the specific incident under investigation. This recollection is used as evidence to show what happened from a witness’ point of view. 

Memory recall has been considered a credible source in the past, but has recently come under attack as forensics can now support psychologists in their claim that memories and individual perceptions are unreliable; being easily manipulated, altered, and biased. 

Many U.S. states are now attempting to make changes in how eyewitness testimony is presented in court. Eyewitness testimony is a specialized focus within cognitive psychology.

In dubio pro reo

In German conflict situations, such as criminal law, the general rule “in dubio pro reo” (when in doubt, for the accused) applies. During the examination of a conflict and in reconstruction of the facts, it is requird that the judiciary be extremely accurate. 

This means among other things, that subjective evidence, such as taking testimonies on the basis of assumptions (even though they might be accurate), are not sufficient indications of the facts. This protects the German defendants from unlawful decisions. 

However, this also means that even if the subjective evidence is convincing, the prosecutor does not have the right to use it, unless and until objective evidence (e.g. reviewed testimonies, video- or tape recordings, images) verifies it. 

If the prosecutor is not able to find such evidence and tries to support his argument by using subjective testimony, he still carries the burden of proof. 

Let’s take the example of a prosecutor whose house was graffitied. The prosecutor does not know with certainty that the graffiti was actually done by the defendant, but he has a strong subjective presumption since the defendant is a well-known graffiti artist in the neighborhood. 

The prosecutor carries the burden of proof. Relying only on subjective reasoning will lead to the lawsuit being rejected due to lack of conclusiveness.

Conciliation

Conciliationis is an additional step proposed in the dispute resolution process.

The conciliator meets with the parties separately at a so-called pre-caucus. The purpose is to help each party release their pent up concerns enough to enable them to gain a broader perspective on the dispute. 

The parties then meet together at a joint session, where they discuss directly with each other instead of through a mediator. 

The conciliator is there to help the parties take responsibility for managing their own conflict, rather than to judge between the merits of the position of one party or the other.

“It was me, but ….”

There are numerous cases brought to court in America each year. Some of these involve suspects who wish to clarify their misdeeds amongst public discourse. This is particularly prevalent in the current case regarding the suspect of the Boston Marathon Bombings.

The suspect in the case pleaded not guilty although his defense lawyer admits “it was him.” This brings about the right to appear in court to argue your side of the story and expect a fair hearing followed by a fair trial.

Sworn Testimony

During a hearing, called by their boss, Americans are careful, factual, cooperative. Most importantly they are discreet. Anger, impatience, any lack of self control is considered to be unprofessional.

The boss listens carefully to what each party to the conflict claims. In a formal hearing, within the legal system, parties providing testimony first swear that they will provide „the truth, the whole truth, nothing but the truth.“

The consequences for lying – perjury – are serious: a felony which can lead to a prison sentence for up to five years.

Perjury: the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath; false swearing.

American managers take very seriously their obligation, duty, responsibility to resolve conflicts within their organizations. Any attempt by a conflict party to manipulate that process is punished quickly and severely.

Due Process

In the U.S. Constitution only one command is stated twice: in the 5th and 14th Amendments: „… or be deprived of life, liberty, or property, without due process of law ….“

This is known as the Due Process Clause, which guarantees that all levels of government in the U.S. must operate within the law and provide fair procedures.

The right of due process is deeply embedded in American thinking, and therefore in the thinking of Americans at the workplace. It is the promise, the guaranty that a conflict will not be resolved without a process which is fair, transparent and protects the rights of those involved in the conflict. It is a question of fairness, of how Americans define what is a fair process.

Magistrate

The German State of Thüringen (Thuringia) analyzed aspects of its judicial system. It recommended that magistrates (judges) hold separate hearings with the parties in conflict. Separate hearings are considered to be “besonders hilfreich” – especially helpful.

Many attorneys were quoted praising the advantages of separate hearings: “loose, relaxed atmosphere; room to discuss matters other than the conflict itself; each side feels they are taken seriiously; an opportunity to present one’s viewpoint without the other party attacking it; creates a constructive communication climate.”

One of the magistrates underscored the value of holding separate hearings: “For me the most important part of the mediation is the hearing with each party separately. Points are made which are very important to the respective conflict party, points which helped me to better understand the nature of the conflict and which led us to a breakthrough.”