The Passive Arbiter: Litigants in Person and the Challenge To Neutrality

Abstract

This article examines the challenges posed to judgecraft by litigants in person. It draws on significant empirical evidence from a study conducted by the author in England and Wales demonstrating the challenges posed by litigants in person to judges and the courts. It argues that a central concept behind traditional notions of judging, that of judge as passive arbiter, inhibits fair and effective adjudication. From an analysis of this evidence, it critiques the theoretical foundations of the passive arbiter and suggests an alternative approach to judging be formulated based on principle-based communication, a simpler, more empathetic and cognitively open approach to managing hearings prior to the actual judicial decision.