First or Second-Class Justice? Justice as a DR Value

The values and goals of DR systems are an important dimension of the DR panorama and an understanding of these values and goals is critical to ethical, effective and efficient practice in DR contexts. My contribution to the Blog this month explores the values and goals of DR methods by adapting content from Chapter 4 of my new work with Laurence Boulle: Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

There are high expectations of DR processes in the Australian community and its civil justice system, and these expectations are difficult to meet. Despite efforts over recent decades to inculcate community dispute resolution, and to renew and refresh the way the civil justice system operates, the DR system at large, and the way it is managed by governments, and used by lawyers and citizens, remains imperfect and in need of improvement.

Concerns continue to exist, for example, about the costs of DR, both in relation to State resources invested in determinative processes and costs to individuals who seek assistance with managing or resolving disputes through processes across the DR matrix. The concerns also pertain to problems more broadly associated with accessing just and fair outcomes to legal and other disputes. Worryingly, there seems also to be a continuing resistance within the system to fully embracing DR processes other than litigation that remain for some (particularly perhaps legal professionals of long-standing) unfamiliar, and continue to be perceived as not adequately protecting parties’ legal rights.

The concepts of justice, party autonomy and community are core DR values that should be used to inform the achievement of appropriate DR goals.

Justice as a dispute resolution value

The particular focus of this blog is on justice as a dispute resolution value.[1] ‘Justice’ is an important philosophical and intellectual element of any framework of DR values, and arguably a foundational driver and motivator for all DR processes in the matrix. The notion of justice should inform day-to-day practice, both in legal contexts and outside them. Amongst the core substantive values of democratic systems of law and governance the conception of justice connects with perceptions of participation, accountability, transparency, rationality, equality and due process.[2]

DR practitioners working with the value of justice at the centre of their professional identity can critically assess their practices and their impacts by asking reflective questions like: ‘Does my practice contribute to achieving justice for each of the parties?’ and ‘How can the DR processes I practice better provide the parties with just process and outcomes?’

To develop a framework of DR values with justice as a critical element a clear conception of justice itself, in the DR context, is necessary. Justice is, however, a complex notion and hard to conclusively define, not least in the context of law and dispute resolution.[3]  Welsh has stated concerns that justice in this context is ‘increasingly marginalized as a sweet, old-fashioned notion’,[4] perhaps because it is ‘so undefinable and unattainable that thinking about it generates more self-doubt than clarity’.[5] The Productivity Commission noted: ‘”Justice” is what people are seeking access to’ but it is a concept that ‘can be easier to recognise than to define’.[6] Stuart Hampshire, in his book Justice Is Conflict, concludes that there may never be agreement on a universal concept of justice.[7] Julie Macfarlane has reported that when a lawyer was asked in her research to differentiate between a ‘good’ outcome and a ‘just’ outcome, their response was: ‘There’s no justice; it’s just a game. What are you, new? That’s a really funny question’. Another lawyer responded: ‘Justice is way too deep for me.’[8]

Big theories of justice, such as Rawls’ theory of the fundamental principles necessary for a just and morally acceptable society, are too broad and abstract to assist in building a useful values framework for DR.[9] Rawls’ restatement of his theory in 2001 as justice as fairness[10] and Dworkin’s theory of ‘law as integrity’ are closer to the mark in terms of integrating understandings of fairness into explaining the concept of justice.[11] Dworkin’s theory is one of the most influential about the nature of law in contemporary times, but it was written for an adversarial justice system focussed on judicial interpretation of the law, and so is adaptable but not adoptable for our purposes.[12]

For a more concrete approach it is useful to consider how legal dictionaries define justice, namely as ‘rightfulness’, ‘fairness’, ‘that which is deserved’, ‘a moral value generally supposed to be the end to which laws are the means’.[13] With concepts such as rightfulness and fairness in mind, it is relatively uncontroversial to assert that drawn-out, expensive, difficult to access, alienating and hard to understand DR processes do not satisfy a general conception of justice. Litigation is sometimes said to be unjust in these ways and DR processes other than litigation are often presented as mechanisms for addressing ways in which litigation compromises justice for disputing parties. On the other hand, DR systems that are more efficient in terms of cost and time and that are easier to access than litigation but less certain to protect strict legal rights and entitlements of citizens, are often posited as providing potentially unjust procedures and outcomes, or of providing ‘second-class’ justice.[14]

The identification of ‘classes’ of justice and the juxtaposition of first- and second-class justice has been a part of the DR literature since at least the 1980s.[15] The argument that DR processes other than litigation can offer only ‘second-class justice’ posits that it is those who cannot afford to go to court who are forced to use ‘ADR’ processes and are required as a result to compromise and collaborate, rather than harnessing the authority of the law and the system that formally administers it, ultimately being denied the opportunity to ‘win’ their case.[16] In the 1980s Abel led the argument that underprivileged parties are more likely than pecunious parties to be referred to ADR schemes, and that such schemes offered the rhetoric of party empowerment and autonomy but did not always deliver this in reality.[17] It has also been claimed that the term ‘justice’ has no relevance to DR processes other than litigation and should be used only in relation to the procedures and outcomes of  formal justice systems.[18]

A system or process that is ‘second-class’ is one that is ‘a cut below the best’, ‘second rate, inferior or mediocre’.[19] A conviction that DR processes other than litigation offer second-class justice centres on the view that litigation provides the model of first-class justice. This assumes, by definition, that litigation is a cut above the rest, first rate, superior, exceptional and excellent. Other formal law-informed determinative processes, such as arbitration and adjudication, have also had a long and strong correlation with first class conceptions of justice. As statues of justice as a blindfolded goddess imply, litigation offers a process in which the judge impartially judges ‘the case rather than the parties’.[20] Amongst other things this means that justice through litigation is transparent and accountable, that it provides a level of consistent if not always strictly equal treatment of parties and their matters, and that its justice credentials warrant the imposition of enforceable state-sanctioned outcomes.

The capacity of DR processes to deliver justice is often measured by way of comparison with the justice principles of the law and its implementation through litigation. NADRAC summarises the safeguards of fairness and justice in litigated processes as follows:

Power imbalances between the participants can be ameliorated by legal representation. Procedural and evidentiary rules ensure that each person has a chance to present their case and to challenge the arguments and evidence of the other person. There are enforceable procedures which ensure that each person has access to relevant evidence so that the dispute is decided on the basis of appropriate disclosure of information. There is a well-qualified and respected third party decision maker who evaluates the evidence and arguments of the parties and who makes a decision according to established principles. The process of litigation is open and observable and decisions are subject to appeal.[21]

Resnik has listed 12 qualities of due process found in determinative processes such as litigation that are considered to be ‘valued features’:[22]

  • Rules of procedure bestow individual autonomy and opportunities for the litigants to persuade the decision-maker of the rightness of their case.
  • For decision-makers, procedure provides a concentration of power in judicial decision-making; a diffusion and reallocation of power through the use of juries, appellate courts and hearings de novo; impartiality and visibility; rationality and norm enforcement; ritual and formality.
  • Adjudicative decision-making has the valued features of finality and revisionism, economy (in the sense of low direct costs) and consistency yet differentiation.

Resnik does not claim this list to be comprehensive, nor that the features should always be accorded equal weight. She accepts that there are tensions among them, with different priorities accorded at different times, and acknowledges that a number of these features are disputed or can be found in processes other than litigation.

Since his appointment in 2006, Chief Justice Wayne Martin of the Supreme Court of Western Australia has been fond of analogising the court system, albeit through a critical lens, with a Rolls Royce, a first-class vehicle. He has said, for example, that the system is: ‘A Rolls Royce of justice systems in the sense that it is the best that money, a lot of money, can buy. But there isn’t much point in owning a Rolls Royce if you can’t afford the fuel to drive it where you want to go. You can polish it, admire it and take pride of ownership from it but it doesn’t perform its basic function sitting in the garage…. It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel-efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly’.[23]

The value characteristics of litigation, referred to above, are seen as providing justice through an impartial process based on principles of procedural fairness. It is because processes other than litigation may not as comprehensively satisfy these elements that they are judged as lacking the capacity to provide ‘first-class justice’, and are questioned in relation to their ‘internal procedures, their impact on individuals and their broader societal consequences’ (including their emphasis on compromise and settlement).[24] This perception is widely held because the ‘umpire’ model that litigation represents has deep roots in Western conceptions of justice.[25]

However, the actual use of litigation does not accurately correlate with its high regard as a DR system. Most citizens do not commonly have recourse to the courts, or to the law or lawyers, even where a dispute raises legal issues and claims.[26] It seems then that public perceptions of justice, and particularly of the nature of first-class justice offered by the courts, are typically not shaped by personal or real experience. Further, the last 30 years of advocacy for community DR and for reforms to civil justice systems evidence wide-spread recognition that litigation, while undoubtedly an important aspect of the DR matrix, has often failed to provide any sort of justice for the general citizenry, let alone first-class justice. While litigation represents notions of objectivity, rationality, consistency and formal equality before the law, inaccessible justice is justice denied. Justice through the courts is perhaps more an ideological ‘vibe’, as one of Australia’s most famous lawyers might say.[27]

As Rhode has commented, critics of the justice offered by DR systems other than litigation need to consider how often and on what terms ‘first-class’ justice is available.[28]  Menkel-Meadow reminds us that, ‘legal justice is not always actual justice’.[29] For Frey, first class justice is not limited to litigation, rather a ‘first class dispute resolution process, whether litigation or an alternative process, must offer the disputants impartiality, a just process and a just result’.[30]

It is apparent then that in order to construct a robust values framework for the DR processes represented in the matrix, a meaning of justice is required which is relevant across DR contexts and deals with the challenges of a perceived hierarchy in different classes of justice provided by various processes.[31]  Such a framework needs to deal realistically with issues of access to justice. It must balance the importance of maintaining a legal doctrine of precedent as part of justice under the rule of law,[32] with the need for less public and formal forms of dispute resolution which are more humane and provide individually tailored outcomes.[33] The framework also needs to address concerns about the relationship between private settlement and the public enforcement of rights.[34]

Constructing such a framework is far from a simple task.  As the former Chief Justice of the Federal Court of Australia, Michael Black, has said: ‘We should maintain the search for that elusive point of equilibrium at which the competing pulls of cost, speed, perfection and fairness are balanced in a way that produces substantial and accessible justice — not perfection, but nevertheless processes and outcomes readily recognisable as substantial justice according to law’.[35]

In the blogs that follow this month I continue to develop these ideas. So stay tuned!

[1] Some of the influential early works on this topic in the DR field include: Richard Abel (ed), The Politics of Informal Justice, Volume 1 (Academic Press, 1982), Jerold Auerbach, Justice Without Law (Oxford University Press, 1983); Roger Matthews (ed), Informal Justice? (Sage, 1988); Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66 Denver University Law Review 437; Sally Engle Merry and Neal Milner (eds), The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993);

[2] Richard C Reuben, ‘Democracy and Dispute Resolution: The Problem of Arbitration’ (2004) 67 Law and Contemporary Problems 279, 282. See also, Richard C Reuben, ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

[3] There is a vast literature on the concept of justice spanning from Plato’s Republic (trans Robin Waterfield) (Oxford University Press, 1984) through to one of Dworkin’s last and most expansive works – Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) and Eric Heinze, The Concept of Injustice (Routledge, 2013).

[4] Nancy A Welsh, ‘Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories’ (2004) 54 Journal of Legal Education 49, 49.

[5] Ibid 50.

[6] Productivity Commission, Access to Justice Arrangements: Report Volume 1 (Commonwealth of Australia, 2014), 75.

[7] Stuart Hampshire, Justice Is Conflict (Princeton, 2000) 4.

[8] Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008).

[9] Namely, enjoyment of the most extensive basic liberty possible (without compromising the liberty of others), and social and economic positions to everyone’s advantage and open to all. See for example: John Rawls, A Theory of Justice (Harvard University Press, rev ed, 1999) (first published in 1971); Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 3 ed, 2012).

[10] See John Rawls, Justice as Fairness: A Restatement (Belknap Press, 2001).

[11] See Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) and Ronald Dworkin, Justice in Robes (Harvard University Press, 2006).

[12] Ibid.

[13] For example, see the CCH Concise Dictionary of Modern Law.

[14] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727.

[15] Abel, above n 1; Auerbach, above n 1.

[16] See for example, Stephen B Goldberg, Frank EA SanderNancy H Rogers and Sarah Rudolph ColeDispute Resolution: Negotiation Mediation & Other Processes (Wolters Kluwer, 6th ed, 2012). See also Lola and Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 The Modern Law Review 282.

[17] Ibid.

[18] NADRAC itself noted this assertion – see NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997) 20.

[19] Frey, above n 14, 728.

[20] Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003) 284-86.

[21] NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution: Discussion Paper (Commonwealth of Australia, 1997), 16.

[22]Judith Resnik, ‘Tiers’ (1983-4) 57 Southern California Law Review 837, 844-59.

[23] Wayne Martin, ‘Bridging the Gap’, Address to the National Access to Justice and Pro Bono Conference (12 August 2006); Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’, Address to the Australian Lawyers Alliance Western Australian State Conference, 21 August 2009 Novotel Langley Hotel Perth, WA; and Wayne Martin, ‘Access to Justice’, Notre Dame University Eminent Speakers’ Series Inaugural Lecture, Fremantle Campus Wednesday, 26 February 2014. See also, The New Lawyer, ‘Justice an Easily Admired, Yet Inaccessible Rolls Royce: Chief Justice’, The Lawyers’ Weekly, 27 August 2009, http://www.lawyersweekly.com.au/the-new-lawyer/bar-bench/11887-justice-an-easily-admired-yet-inaccessible-rolls-r. This analogy has been used by others also, for example, Donna Cooper, ‘When Rolls Royce and Holden Justice Collide: An Analysis of the Operations of the Federal Magistrates Service in Queensland in the Family Law Arena’ (2003) 3(2) QUT Law and Justice Journal 1.

[24] Laurence Boulle, Mediation Principles Process Practice (Lexis Nexis, 1996). See also Stephen B Goldberg, Frank EA Sander, Nancy H Rogers, Sarah Rudoph Cole (eds), Dispute Resolution (Wolters Kluwer, 6th ed, 2012); Francis Regan, ‘Dilemmas of Dispute Resolution Policy’ (1997) 8 Australian Dispute Resolution Journal 5, 14–15.

[25] Posner makes consistent reference to the judge as ‘umpire’:   Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003).

[26] This research has been around for a long time – see for example Russell Smith and Sally Lloyd-Bostock, Why People Go To Law: An Annotated Bibliography of Social Science Research (Centre for Socio-Legal Studies, Oxford, 1990); and Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Oxford University Press, 1999), 246, 247-8.

[27] Dennis Denuto: ‘In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … no that’s it … it’s the vibe. I rest my case’. The Castle (1997) directed by Rob Sitch.

[28] Deborah L Rhode, Access to Justice (Oxford University Press, 2004) 42.

[29] Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54(1) Journal of Legal Education 7, 8.

[30] Frey, above n 14, 727.

[31] Edgar Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).

[32] David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83 Georgetown Law Journal 2619.

[33] See discussion in Boulle, above n 24, regarding ‘mediation’s alternative justice model’, 210-212.

[34] Silbey and Sarat, above n 1.

[35] Michael Black in the Productivity Commission Report, above n 6, 92.

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

One thought on “First or Second-Class Justice? Justice as a DR Value

  1. Rachael, I congratulate you on an eloquent yet succinct discussion of the conundrum. Disputants who litigate often express dissatisfaction with the experience and the outcome. I ask myself the question whether it is because of or despite this, that parties threaten to resort to litigation in other DR contexts in an attempt to obtain submission from the other parties? Frances Richards

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