Fact-finding
From MicroJustice
Contents |
[edit] The Problem
A variety of issues are involved when disputes occur. These issues ( ex: cultural contexts, laws, value assumptions…) are different from one conflict to another one. Nevertheless, most of disputes have one problem in common: relevant facts. Every kind of dispute involves factual components.
Thus the two main questions concern:
- How much fact-finding is needed?
This is a very important issue for cost-effectiveness of dispute resolution process. It depends on the information available. Obviously the more information we have the best it is to solve the dispute. Sometimes facts play a core role in the dispute. In this case they are what the conflict is all about and one speak of factual disputes. But, it could be that in other conflicts, they are not the central issue. Then they can play a secondary role, the dispute is in essence over non-factual issues.
- How to organize fact-finding efficiently? The goal here is to minimize sum of decision costs and costs of error (Posner, Law and Economics).
[edit] Issues
1. There are different ways in which facts relate to conflicts/disputes. Most of the time the information itself is disputed.
2. It is also possible that parties agree on the facts. When they do so, it is often the case that they disagree on the way to apply them or to interpret them.
3. Certainty/Uncertainty: possibility of unknown or unknowable information; unwell interpreted or understood information, incomplete information.
4. Facts can involve different kind of questions: technical questions, ex: the number of people living in a specific area, or questions involving law, ex: what are the legal rights that parties can invoke, what are the procedures?
[edit] Fact-finding processes
Which processes can we distinguish?
[edit] Discovery
1. Interrogatories
2. Requests for Production of Documents
3. Depositions
4. Requests for Admission
5. Physical and Mental Examinations
[edit] Mechanisms with Burden of Proof
[edit] How Extensive?
[edit] Possible criterion
Minimize sum of decision costs and costs of error (Posner, Law and Economics) But what are costs of a wrong decision?
- Value of interests in dispute?
As Schultz N. underlines “in many conflicts, factual issues are blended with value concerns. Sometimes this is not an accident; it might be in a party's favor to make its values look like facts, since facts carry a lot of argumentative weight. On rare occasions, it can be strategic for parties to dress up factual information such that it sounds like a moral appeal, in the hope of gaining sympathy. Yet facts and values are inherently different and, therefore, must be addressed by different means. Exposing values that are being passed off as facts, and vice-versa, allows parties to more accurately decide what they can and cannot accept.”
- Damage to trustworthiness of system?
- Costs of appeal?
Difficult to apply
[edit] Relevant rules
- Sequencing liability and damage
- Early broad, or late narrow discovery
- Burden of proof
[edit] Best practices for fact-finding
What are the best practices? There are several ways to address factual issues in disputes which depend on the situation. According to Schultz Norman “Determining the validity of one kind of fact requires a different body of experts and fact-finding method from another fact type. For example, technical facts differ from historical and legal facts in that they require experimental evidence and endorsement from scientists or technical experts, as opposed to lawyers, historians, or eyewitnesses.
It is also important to ask, what is the status of the information at hand? It should be noted whether or not a factual dispute actually exists. What initially looks like a factual dispute might be simply a misunderstanding or poor communication. Where uncertainty exists, each party involved would distrust the others.
Some possible principles for fact-finding and case-management:
- Let the party find the facts who will have lowes costs of accessing them
- Only find facts that are likely to influence decision
- Avoid double or triple fact-finding
- Make use of readily available expertise
- Think twice before hiring expert
- Each extra person is costly
In order to achieve the goal raised above there are several methods depending essentially on the kind of facts and the conflict:
1. joint fact-finding: “addressing a factual dispute by forming a single fact-finding team comprised of experts and decision-makers representing both sides of a conflict. The team works together in an effort to come to agreement regarding relevant facts, often in the form of scientific, technical, or historical claims. In this respect, joint fact-finding is really mediation within mediation.”
2. neutral fact-finder: “those conducting the investigation are neutral with respect to the conflict at hand”
3. truth commission or international tribunal: only in extreme cases and when violations of international law or human rights are suspected.
