Procedural Justice and the Rule of Law

Even when people lose, they feel better about the loss when they experience procedural fairness. And, when they win, they do not feel as good about the outcome without procedural fairness. 

To update your information on Alternative dispute resolution; What are the Main Types of Alternative Dispute Resolution – ADR and it’s pros and cons Alternative dispute resolution (ADR) and it’s advantages and disadvantages

The following article is extracted from the JOURNAL OF DISPUTE RESOLUTION – Volume 2011 – Procedural justice and the rule of law@ Fostering legitimacy in Alternative dispute resolution, by Rebecca Hollander-Blumof and Tom R. Tyler.

Alternative dispute resolution vs Judicial

Alternative dispute resolution (ADR) when compared to their judicial counterparts, often shows to poor advantage, particularly on the grounds of procedural fairness. Owen Fiss famously argued against the negotiated settlement of certain important disputes related to fundamental rights. Deborah Hensler criticized the use of mediation because it might not appear fair to some disputants because it did not promote a resolution based on public norms.

Critics have suggested that a judicially-based dispute resolution system may be fundamentally at odds with a non-judicial-based dispute resolution system, such as arbitration, mediation, and negotiation. But others have responded by suggesting that the rule of law is less in tension with ADR than critics imagine. They both aim for the same goal – the pursuit of justice.

This difference of opinion is aided by the definition of the term “rule of law.” Its definition includes tenets as distinct as non-retroactivity, generality, certainty, protection of individual rights, and lack of discretion by government actors.

We find that the tenets of the rule of law are neither at odds with ADR nor completely reconcilable with it. We suggest that procedural justice provides a good look at how ADR systems can help maintain societal values that are consistent with the rule of law.

Just as the rule of law has historically and philosophically been considered a central component of a legitimate governmental system, so procedural justice is a central component of how people make judgments about the legitimacy of authorities.

Because procedural justice, just like rule of law, is perceived as legitimate, we suggest the assessments of procedural justice by disputants in ADR systems are a critical element. They ensure that ADR exists in harmony with rule of law values. At the same time, ADR, by its very terms, does not produce resolutions that arise directly from the rule of law per se.

This is because people’s everyday understanding of what procedural justice means conforms to many of the key elements that define the rule of law.

If people were simply economic actors whose evaluation of legal procedures was based on the outcomes derived from those procedures, they would evaluate their results in ADR processes based on how favorable their outcomes were. Judgments related to the rule of law would be irrelevant.

That is, if satisfaction with ADR, which is less rule-based and judicially regulated, was based largely on outcomes, then rule of law would appear not to matter. However, in reality, studies consistently suggest that people’s evaluations of legal procedures, both formal and informal, are strongly shaped by issues of procedural justice.

People tend to act as naive legal philosophers. They evaluate their experiences and views about the general operation of the legal system against a template of fair procedures involving neutrality, transparency, and respect for rights. These are issues that also form the basis for the rule of law.

The Psychology of Procedural Justice

Procedural justice refers to the fairness of a process by which a decision is reached. In contrast, procedural justice in psychology captures the subjective assessments of the fairness of a decision-making process.

Judgments about procedural justice differ from those about distributive justice (the fairness of the outcome) and from outcome favorability (how good the outcome is).

Research involving social psychology shows that perceptions of procedural justice have important effects on how people think about and behave with the outcomes received in legal disputes.

Procedural justice drives the satisfaction people have with their outcomes. It also predicts how they will adhere to future outcomes and agreements.

The earliest research on the psychology of procedural justice found that the positive effects of procedural justice happened in formal legal settings with third-party, neutral decision-makers. Other research found that in trials and proceedings before other legal tribunals, procedural justice makes a significant difference in how people evaluate their outcomes.

 Even when people lose, they feel better about the loss when they experience procedural fairness. And, when they win, they do not feel as good about the outcome without procedural fairness. 

This effect is not limited to the civil adjudicative. Research suggests even defendants in felony cases care deeply about the fairness of the process used to determine the outcome of their cases. This also goes for procedural justice effects in arbitration, where an arbitrator instead of a judge makes a decision.

More recently, researchers have turned their attention to other, less formal settings like mediation and negotiation. In these, there is no third-party decision maker, and there are far fewer rules. In both of these areas, researchers have found that procedural justice drives satisfaction with the outcome.

The justice perception and the outcomes of dispute

For example, Pruitt and his colleagues looked at mediation from the perspectives of both parties. They examined how favorable they felt the outcomes were and how fair they felt the process was.

When Pruitt followed up six months later, the biggest driver of whether the parties had held to the mediated outcome was the procedural fairness experienced during the mediation, rather than the favorability or fairness of the outcome.

Recently, we explored procedural justice in negotiation over legal disputes. In a study involving a simulated negotiation by law students over a contract dispute, we found fairness of process and fairness of treatment by the other party drove satisfaction with the outcome, even without a third-party neutral present. It also drove how enthusiastic the attorneys were about adhering to the agreement and recommending a negotiated outcome to their clients.

This does not mean that people do not care about distributive justice or the favorability of their outcome. The fairness of a process is a separate, independent construct, distinct from how fair or how good an outcome is. Procedural justice has a separate and independent effect on how people feel about their results, apart from how fair or how good the outcome is.

Fairness of the dispute process and trust

 So, while fairness and favorability of outcome do matter, the fairness of the process is an independent driver of satisfaction with agreements and adherence to them in both judicial and ADR mechanisms.

 It is especially important that people care about procedural justice even when they “lose” their case. Those who do not receive what they want or feel they deserve are still more likely to defer to those outcomes if they believe they were achieved through fair procedures. Psychologists have studied how people from assessments about whether they have been treated fairly, and there is a consensus around the importance of four critical factors.

First, individuals care whether or not they have had an opportunity to present their own stories. In the case of a third-party neutral procedure, parties or their attorneys typically present evidence to a decision-maker.

Second, people assess whether or not the decision-maker was neutral. This involves issues such as impartiality, the ability to gather and assess the information needed to make appropriate decisions, openness about the procedure, and consistency in the application of rules over people and across time.

Third is the question of whether or not the third-party authority was trustworthy. Trust is the least overt aspect of fairness. It involves inferences of the parties that the authority was sincerely trying to do what was right and was motivated to do what was good for the people involved.

Because trust is an inference, it is shaped by how the authorities act. When the authorities provide evidence that they have listened to and considered the views of the parties and tried to take them into account when thinking about how to respond to the issues, they are viewed as more trustworthy.

Finally, individuals consider whether or not they were treated with courtesy and respect. This involves both common respect and courtesy and respect for people’s rights.

Those rights are both human rights (treatment with dignity) and legal rights (standing to bring a case to the authorities and have it treated seriously).

These four factors clearly guide procedural justice assessments about fair treatment in settings with a third-party decision-maker.

In other settings where such a decision-maker is not present, research has suggested a strong role for both voice and courtesy, and respect. It has presented mixed results with respect to the potential effects of neutrality and trustworthiness.

Theories and case studies

Theorists have suggested three distinct rationales for the importance of procedural justice. Originally, Thibaut and Walker believed that people cared about the fairness of the process because it would necessarily lead to good and fair decisions.

This instrumental theory suggested that people valued fair process because of its actual effect on the bottom-line outcome.

Tyler and Lind provided support for the group engagement model, suggesting that the instrumental theory was inadequate in accounting for the role that procedural justice plays.

They argued that people care about the fairness of treatment because it provides them with important information about their status within their group.

Fair treatment by an authority can reveal whether one is a valued or unvalued member of a group. This has the potential to affect one’s self-esteem, sense of self-worth, and social identity.

Most recently, Van den Bos and colleagues suggested a theory for the reasons behind procedural justice’s importance: “Fairness heuristic theory” suggests that fairness judgments help reduce uncertainty because individuals rely on procedural justice cues to make assessments of satisfaction in the absence of distributive justice or outcome favorability information.

Procedural justice research suggests that people are more satisfied with the results of a fair decision-making process; and they are more likely to defer to the decisions and judgments of authority and comply with those judgments in the long term when they perceive that the authority has made those decisions according to a fair process.

Psychologists have explored the roots of this increased deference and compliance. They conclude that they occur because the procedural justice of the decision-making process leads them to believe the decision-making authority is legitimate.

Psychological researchers have repeatedly shown that people follow rules when they believe that the authority that made the rules is legitimate.

In turn, they have also shown that people think authorities act legitimately when they have experienced procedural justice. In situations where individuals feel that a decision-maker is neutral, trustworthy, has given them the opportunity for voice, and has treated them with courtesy and respect, they are more likely to feel that the process was procedurally just. That the decision-maker has legitimate authority, and they ought to defer to that decision-maker.

 For example, in one study, Tyler explored the question of whether individuals largely made assessments about legitimacy based on whether they received a favorable outcome or on whether they received procedural justice. In particular, he examined whether the relational treatment that had the potential to affect participants’ sense of status within their group played a role in the assessment of legitimacy.

His results suggested that the relational factors dominated the instrumental factors.

Regression analysis showed that the relational factors had almost twice the effect as the instrumental factors. Because a system of command and control, with reliance on complete surveillance, enforcement, and punishment, is not feasible in a society of our size and complexity, a system of voluntary deference to authority is critical to the functioning of society.

It is important to recognize that such deference can be affected by the degree of procedural justice – and so the legitimacy experienced by individuals.

When individuals feel that authorities are making decisions in procedural fairways, they view the authorities as more legitimate, and they are more willing to defer to the authorities’ decisions. Less command and control are needed, and individuals can rely more on self-regulation in settings where authorities act in procedural fairways.

The legitimacy of government authorities is central to the ability of the government to function. The legitimacy of dispute resolution systems is fundamental in gaining individuals’ voluntary deference to the resolution of their disputes and preventing them from engaging in self-help measures that undermine social stability.

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