Thirty years ago (more or less) my law school trial advocacy professor taught me this:
Trial is not about ascertaining the truth. Nor is it about justice. It is simply one way to finally resolve a dispute.
I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice.
But then, I was working small.
Did the word “sudden” mean “quick” or only “gradual” and “unexpected” within the meaning of the pollution exclusion contained in a policy of comprehensive general liability insurance?
Was it misleading to omit the exchange rate from advertising for the transmission of money to foreign countries?
Could you negligently conspire to drive a medical provider out of business? (answered affirmatively, believe it or not, by the trial court).
Now that my view of the adversarial system is one of mediator and sometimes arbitrator, what the “truth” is seems murky again, the way it did when I was clerking for a federal district court judge during law school.
So this post is the beginning of a series of posts about “justice” and fact-finding. A series that will follow the path of my interest and discovery. A series that raises questions that might never be answered.
To begin the exploration, I borrow freely from the excellent article by Professor Lisa Blomgren Bingham When We Hold No Truths to Be Self-Evident: Truth, Belief, Trust and the Decline in Trials. This article, from a 2006 Symposium Issue for the Journal of Dispute Resolution, can be found on Westlaw and Lexis-Nexis and likely elsewhere on the internet. I do not, unfortunately, have a free link to the article itself.
We start with JUSTICE.
Distributive justice has its roots in social equity theory. It posits that social behavior occurs in response to the distribution of outcomes. Distributive justice emphasizes fairness in the allocation of outcomes. Thus, in mediation research, distributive justice suggests that satisfaction is a function of outcome, specifically the fact and content of a settlement or resolution. In theory, participants are more satisfied when they believe that the settlement is fair and favorable. There is a substantial body of empirical research that supports the distributive justice model as an explanation of satisfaction. The research suggests that distributive justice is a better explanation for satisfaction related to conflicts over resource allocation, such as wage disputes than other cases in which fairness matters.
Procedural justice refers to participants’ perceptions about the fairness of the rules and procedures that regulate a process. In contrast to distributive justice, which suggests that satisfaction is a function of outcome (the content of the decision or resolution), procedural justice suggests that satisfaction is a function of the process (the steps taken to reach that decision). Among the traditional principles of procedural justice are impartiality, voice or opportunity to be heard, and grounds for decisions.
Procedural issues such as neutrality of the process and decision-maker, treatment of the participants with dignity and respect, and the trustworthiness of the decision-making authority are important to enhancing perceptions of procedural justice. Extensive literature supports procedural justice theories of satisfaction in a variety of contexts involving both courts and dispute resolution. In general, research suggests that if organizational processes and procedures are perceived to be fair, participants will be more satisfied, more willing to accept the resolution of that procedure, and more likely to form positive attitudes about the organization.
Beginning in the 1980s, organizational justice researchers developed the notion of interactional justice, defined as the quality of interpersonal treatment received during the enactment of organizational procedures. In general, interactional justice reflects concerns about the fairness of the non-procedurally dictated aspects of interaction. Research has identified two components of interactional justice: interpersonal justice and informational justice. These two components overlap considerably. However, empirical research suggests that they should be considered separately as each has differential and independent effects upon perceptions of justice.
Informational justice focuses on the enactment of decision-making procedures. Research suggests that explanations about the procedures used to determine outcomes enhance perceptions of informational justice. Explanations provide the information needed to evaluate the structural aspects of the process and how it is enacted. However, for explanations to be perceived as fair they must be recognized as sincere and communicated without ulterior motives, be based on sound reasoning with logically relevant information, and be determined by legitimate rather than arbitrary factors.
Interpersonal justice reflects the degree to which people are treated with politeness, dignity, and respect by authorities. The experience of interpersonal justice can alter reactions to decisions, because sensitivity can make people feel better about an unfavorable outcome. Interpersonal treatment includes interpersonal communication, truthfulness, respect, propriety of questions, and justification, and honesty, courtesy, timely feedback, and respect for rights.
Questions re: Which Standards of Ethical Practice Govern Mediators’ Conduct Q 1: National Ethical Standards: What are the applicable National Ethical Standards of Practice for a mediator, located in California,...By Max Factor III