Displeasure with Judicial Determinations Is Not Judicial Bias

Displeasure with Judicial Determinations Is Not Judicial Bias
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I’ve been writing about judicial bias and its impact since Jan. 14, 2012, when I published an article titled Judicial Bias – A Variable That Is Often Overlooked in Family Law Litigation.

Since then, I have been receiving a great many emails and phone calls from people all over the country, complaining about what they perceive to be judicial bias in their particular case.

The following are excerpts from only a few of the emails I’ve received over the past year regarding perceived judicial bias:

“I believe they are trying to steal my child…. Please tell me if I can get my case moved to another judge. He is very nasty towards me, the judge.”
“Suffering from a biased decision from a biased judge…. When the last witness was done the judge immediately made the decision against us…. This was based on a un-substantiated claim, from a therapist. Wondering what I can do to right a wrong…. Any insight you can give me will be appreciated. Thank you for your time.”
“The judge gave my ex full rights and eliminated my parenting time fully because he was biased against me.”
“I need advice on appealing a civil harassment restraining order. I believe the Judge was biased. The transcripts show that there was no evidence so she decided to make a credibility call against me in order to issue restraining orders against me which now I am appealing.”
“My daughter needs help with a biased judge.”
“I’ve been looking into things and now understand why the judge made the decision he did…. I've been reading on judge bias and it's clearly present. I know you're in California and we're in Illinois, but any advice would be great.”
“I'm sort of lost and wondering if you could help me. I live in Michigan and I have a daughter who is going through an extremely nasty divorce and custody case in CA. I just read your article about biased judges and it struck a nerve. My daughter has such a judge…. Any advice or comments would be so appreciated.”
“My daughter had a hearing concerning grandparent rights and they were granted visitation rights outlined for their benefits and my daughter disagreed with the decision...and the judge granted it without a trial.”
“In court the judge believed every word my son’s mom spoke. The judge even shamed me for being abusive with nothing more than her word. I told nothing but truths that could have been proven but I was not believed…. Your thoughts about how to approach this if you don't mind sir thank you.”
“I believe the judge was beyond biased in my case. If I could just have a few minutes of your time I know you will be shocked to hear what has happened. Thank you.”
“I have an extremely malicious judge. It started with simple bias in favor of the opposing side…. The judge on my case started making orders against me out of punishment, severe abuse of her power and authority.”
“I am seeking an attorney regarding my son's family law case in Arizona…. The judge was extremely biased.”
“Discriminatory judge ORDERED me to give up my daughter…. The judge continues to ignore very clearly defined points of abuse throughout the entire case…. Please tell me you can help.”

The first thing that bears mentioning is that if judicial bias were a factor in any of these cases, the bias works both ways, meaning that the bias works against one party and in favor of the other. Not surprisingly, however, I’ve never received correspondence from anyone complaining that the judge was biased in their favor.

Our legal system is adversarial, which means that if facts are in dispute, judges and juries make determinations as to what they believe to be the actual facts and they decide who wins and who loses, among other things. When factual finding are made against one party, does that necessarily mean it was the result of judicial bias? When the “winner” and “loser” are announced, was the decision necessarily the result of judicial bias against the losing party?

The next point involves perceived versus actual judicial bias. Notice that some of those emailing me acknowledged their belief that judicial bias was involved, while others are absolutely convinced it occurred. Yet, notice that they are all seeking advice as if judicial bias did, in fact, occur. In other words, while they may use the word “believe”, there is either no doubt in their minds, or they are unwilling to take that risk.

The following is an excerpt from an article titled Bias or an Appearance of Bias published by Judicial Disqualification Resource Center:

“The right to be tried by an impartial judge is deeply embedded in American jurisprudence; in fact, this right has often been considered to be the ‘cornerstone’ of the American legal system. Litigants and their counsel often come to believe that a judge has become biased or prejudiced against them, or in favor of an opposing party; however, bias is an attitude or ‘state of mind,’ not an easily provable ‘fact.’ Consequently, even in those jurisdictions which have laws on the books which authorize parties to seek to disqualify judges on the basis of bias, as opposed to interest in the cause, it is typically only in those rare instances when a judge verbalizes bias against a party or its counsel that a motion to recuse can successfully be made on this ground.
In part because of their recognition of the fact that judicial bias can seldom be proved, legislatures in many jurisdictions have authorized parties to seek disqualification on the basis of an ‘appearance’ of judicial bias or impropriety….
The existence of these provisions sometimes leads litigants and even attorneys to believe that disqualifying a judge on the basis of an untoward ‘appearance’ is not a difficult thing to do. In many jurisdictions, however, the person who is called upon to decide what a reasonable person would believe is the very judge who is being accused of being biased.”

Allow me to share the standard email I send in response to such inquiries:

“I hear your anger, frustration, sense of injustice and other such things.
That being said, I understand that you have reached out to me because you've read at least one of my articles on the subject of judicial bias. Please understand that I spend an immense amount of time researching, writing and using the social media in an effort to provide the ounce of prevention that has long been said to be worth more than a pound of cure. I'm afraid that I'm only able to provide the ounce of prevention, yet many people, yourself included, seem to think that I can provide a cure, something I never claimed to possess.
Along those lines, you may be interested in reading my article titled Trying to Help People Help Themselves Can Be Challenging.
Irrespective, it's wishful thinking to believe that judges are unbiased because all human beings are biased. The best they can do is to be impartial, but that requires self-awareness of one's biases (to the extent possible) and making a concerted effort to keep those biases in check. Most judges lack the emotional intelligence required to do such a thing.
The following is an excerpt from one of my articles on judicial bias:
"In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]"
One of my most recently published articles on this topic is titled Injustice at the Hands of Judges and Justices.
I realize that none of this information will help you feel any better, but I'm afraid I have no answers for you at this point.
I feel for you and your family.”

In facilitative mediation, the mediator is engaging in what I refer to as “guided problem-solving.” The mediator doesn’t make any factual determinations, doesn’t decide who is right and who is wrong, and doesn’t decide the outcome of the case. Rather, the mediator works to de-escalate conflict, facilitate communication and negotiation, helps the parties to hear and understand each other’s perspectives, and promote voluntary and informed decision making by the parties themselves.

The following is an except from a mediation guide by the American Bar Association’s Section of Dispute Resolution titled Preparing for Mediation:

“In mediation, you may hear things that you will disagree with and you may be asked hard questions. You should keep an open mind and be willing to consider various options for settlement. Although you may think that the other party is wrong about some things, you will be more successful if you at least try to understand the other party’s views. So listen carefully to what he or she says and look for things that you agree about. This may cause the other party to try to understand your views and it may help you reach an agreement. When you disagree, it helps to be respectful toward the other party, which may cause him or her to treat you respectfully as well.”

For what it’s worth, that exact same information is set forth in the Section’s mediation guides titled Preparing for Family Mediation and Preparing for Complex Civil Mediation. In fact, most of the information contained in all three mediation guides is exactly the same because the process of mediation is generally the same regardless of the type of matter involved. However, different mediators have different levels of training, skill sets, and levels of competency.

All three mediation guides also advise the following:

“If you can participate in selecting the mediator, discuss with your lawyer what experience and qualities in a mediator would be most important in helping the parties resolve their dispute. If you know of particular mediators, discuss whether any of them have the experience and qualities you think would be most helpful in your case.”

Always remember if you’re playing a “win/lose” game, at least one of you will lose. Furthermore, any lawyer worth their salt will tell you that once you place your matter in the hands of a judge or jury, nothing is for certain and you’ve given up control over your destiny with regard to the issues involved. Moreover, If you will be tied together after the “conclusion” of the matter through children or in some other manner regardless of the outcome, you may want to consider how a “win/lose” result will play out over time, even if you end up on the “winning” side.

Unfortunately, the legal system is incapable of dispensing emotional justice, and one of the gravest mistakes people make is equating law with concepts of justice and fairness.

As angry as you may be, keep in mind that fighting and "winning" don't solve problems and that mediators, peacemakers and bridge builders are not needed in times of peace and absence of conflict.

You need not worry as much about actual or perceived judicial bias when you are able to resolve conflicts and disputes on your own, even with the help of third parties. As such, might I suggest considering mediation when you find yourself involved in some type of conflict or dispute?

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