Welsh, N A --- "Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories" [2005] LegEdDig 13; (2005) 13(3) Legal Education Digest 17

Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories

N A Welsh

[2005] LegEdDig 13; (2005) 13(3) Legal Education Digest 17

54 J Legal Educ 1, 2004, pp 49–59

For a while now, justice has been increasingly marginalised as a sweet, old-fashioned notion that is not viewed as an essential component of the dispute resolution canon. Instead, our canon, our teaching and our scholarship focus increasingly on the different mechanisms that enable negotiators and mediators to get the deals they desire. Of course, effective persuasion is a key function of every lawyer and part of every dispute resolution process. The current balance in emphasis is troubling, however, when we consider that we as law teachers serve as mentors for students who will soon take their places in a system that has as its mission the provision of justice.

Why does it seem too difficult to talk about justice within our field of dispute resolution? Perhaps justice is a notion that has no real relevance to today’s system of dispute resolution or is so undefinable and unattainable that thinking about it generates more self-doubt than clarity. Perhaps the field of dispute resolution need not focus on justice because we are confident in our faith that the disputants are defining justice for themselves as part of their exercise of self-determination. Or perhaps we hesitate to wrestle with the place of justice in dispute resolution because we have not quite grasped the implications of our field’s successful and thorough institutionalisation in our nation’s courts and public agencies.

The teaching of dispute resolution is now an integral part of many law school curricula precisely because courts, agencies, and corporations have embraced mediation and arbitration to resolve a wide variety of family, personal injury, contract, employment, consumer, and regulatory disputes. Most of these disputes do not involve peers, or desired relationships, or communities. The empirical evidence that is developing in court-connected mediation reveals that many of these disputants have not voluntarily chosen mediation; they have been ordered or ‘encouraged’ to participate in the process. These disputants generally are accompanied by their attorneys and the attorneys are likely to dominate the discussions. It is not so clear that the disputants in these mediation sessions perceive that they have any more actual control or self-determination in mediation than they do in the adjudicated processes. It is also not so clear that the disputants’ definitions of justice play an important role in the process. Ultimately, it is not so clear that we can or should cling to our old assumptions and expectations about the place of the ‘alternative’ field of dispute resolution, particularly as that field has become embedded within the social institutions that are responsible for delivering justice.

It is argued that the evolution and institutionalisation of mediation — as well as the courts’ embrace and enforcement of mandatory arbitration outside the commercial context — reveal the danger of defining our field solely in terms of ‘resolution.’ Part of the difficulty in discerning a clear connection between the field of dispute resolution and the goal of social justice lies in a lack of consensus on the criteria that determine the existence of social justice. Social and procedural justice merge further when one examines the extent to which the two primary roles of the ‘basic structure’ are inevitably interdependent. The courts’ embrace of mediation and arbitration may thus be seen as an attempt to find other legitimate mechanisms that would allow citizens to exercise these liberties, at least to an acceptable degree. Both mediation and arbitration offer citizens the opportunity for free expression — perhaps even freer expression than is available in the courts — and the opportunity to reason together.

The primary social justice critiques of ‘alternative’ dispute resolution, however, are that mediation, arbitration, and the other processes do not actually deliver free, equal and public participation and thus cannot be expected to deliver a socially just result. First, critics argue that mediation and arbitration do not effectively protect disputants from pre-existing social, political, and economic inequalities. The resulting incorporation of such inequalities means that disadvantaged disputants cannot truly engage as equals in the deliberation and decision making that occur within a dispute resolution process. Second, because these dispute resolution processes and their outcomes are often private, the broader citizenry is unable to engage in public discussion and deliberation. Last, because the freedom and equality of the disputants are not guaranteed and their deliberations are not public, critics argue that there is no assurance that the resulting ‘distribution of goods’ will be just.

Law students certainly can be encouraged to learn and grapple with these theories of procedural and social justice. In the author’s Dispute Resolution and Civil Procedures courses the students are able to mention the four indicia of procedural justice outlined above and describe in their own words the underlying theories that have been developed to explain the importance of this dimension of justice. Their responses offer a rich segue into a discussion of the procedural justice literature. This exercise works, in part, because it draws upon students’ own experiences of vulnerability and thus places them in a situation in which they are likely to notice and care about the procedures used by authorities for decision making.

If we hope to do more than introduce procedural and social justice and actually infuse our dispute resolution courses with these concepts, we can return to justice concerns as we evaluate every simulation or process. There are other ways to adapt existing simulations such as these to highlight for students the choices that sometimes need to be made between resolution and justice. Ultimately, invoking the theories of procedural and social justice developed by social psychologists and political philosophers can help us and our students to explore the relevance of justice in a field devoted to resolution.